Sioux Falls School Dist. v. South Dakota Subsequent Injury Fund

• Decision Date: 20 April 1993
• Docket Number: No. 18105,18105
• Citation: 504 N.W.2d 107,85 Ed.LawRep. 244
• Parties: 85 Ed. Law Rep. 244 SIOUX FALLS SCHOOL DISTRICT, Appellant, v. SOUTH DAKOTA SUBSEQUENT INJURY FUND, Appellee. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 107

504 N.W.2d 107

85 Ed. Law Rep. 244

SIOUX FALLS SCHOOL DISTRICT, Appellant, v. SOUTH DAKOTA SUBSEQUENT INJURY FUND, Appellee.

No. 18105.

Supreme Court of South Dakota.

Considered on Briefs April 20, 1993.

Decided Aug. 4, 1993.

Susan Jansa Brunick, Davenport, Evans, Hurwitz & Smith, Sioux Falls, for appellant.

Mark Barnett, Atty. Gen., Gary Campbell, Asst. Atty. Gen., Pierre, for appellee.

WUEST, Justice.

The Sioux Falls School District appeals a circuit court decision affirming the South Dakota Department of Commerce and Regulation, Division of Insurance which denied a claim against the South Dakota Subsequent Injury Fund. We affirm.

FACTS

The South Dakota Subsequent Injury Fund (SIF) is a fund created under South Dakota worker's compensation law to encourage employers to hire or retain disabled or handicapped workers. See generally 2 Larson, Worker's Compensation Law, Sec. 59.30 (1992). When a previously injured employee sustains additional injury, an employer may receive reimbursement from the SIF for excess compensation paid to the employee which would not have been necessary had the employee not had a pre-existing injury. SDCL 62-4-34. The fund is financed by assessments of worker's compensation insurance carriers and self-insurers. SDCL 62-4-35.

The Sioux Falls School District (District) dropped worker's compensation insurance and joined the Associated School Boards of South Dakota, Worker's Compensation Fund (Fund) in July, 1989. ¹ The Fund is administered by Alexsis Risk Management Service (Alexsis).

On April 3, 1991, Alexsis informed the South Dakota Division of Insurance (Division) of a possible claim against the SIF due to the injury of Bruce Dyer, a District employee who had sustained a second work-related injury and was claiming total disability. The Division denied District's claim on October 30, 1991, based partially on the fact that District was ineligible to make a claim against the SIF as it had neither been assessed nor paid into the SIF. In November and December of 1991, District attempted to submit payments to SIF for past assessments; the payments were refused.

SIF was granted summary judgment by the South Dakota Department of Labor (Labor) on March 17, 1992. Labor determined that District had exercised its option under SDCL 62-5-6 to be neither insured nor self-insured with proof of financial security and its choice had removed it from the SIF assessment process; therefore, it was not eligible for reimbursement from the SIF.

District, alleging error as a matter of law, appealed Labor's decision to the circuit court. The circuit court affirmed and District appeals.

ANALYSIS

Upon appeal, questions of law such as statutory interpretation are reviewable by this court de novo. Dubbelde v. John Morrell & Co., 473 N.W.2d 500, 501 (S.D.1991); Permann v. Dep't of Labor, 411 N.W.2d 113, 117 (S.D.1987). Summary judgment is proper where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. SDCL 15-6-56(c); Breen v. Dakota Gear and Joint, Inc., 433 N.W.2d 221, 223 (S.D.1988).

I. WHERE A GOVERNMENTAL ENTITY ELECTS UNDER SDCL 62-5-6 NOT TO PROVIDE PROOF OF SECURITY AS A SELF-INSURER IT ELECTS NOT TO PARTICIPATE IN THE SUBSEQUENT INJURY FUND.

Under South Dakota law, employers may either purchase worker's compensation insurance or be self-insured. SDCL 62-5-2 to 62-5-4. Self-insured employers must provide annual proof of financial solvency and ability to pay worker's compensation benefits. SDCL 62-5-5. Although under SDCL 62-1-2 state and political subdivisions are employers for most purposes of worker's compensation, they need not purchase worker's compensation insurance or provide proof of security unless they chose to do so. SDCL 62-5-6 provides:

This state or any municipality or other political subdivision of the state need not furnish any insurance or security as provided by Secs. 62-5-1 to 62-5-5, inclusive, or Secs. 62-5-10 to 62-5-12, inclusive, but may do so if it desires.

SIF claims South Dakota's statutory scheme creates three classes of employers: 1) Employers insured by authorized worker's compensation carriers; 2) Self-insured employers who meet the requirements of SDCL 62-5-2 to 62-5-5; and 3) Governmental entities who elect under SDCL 62-5-6 not to meet the requirements of 62-5-2 to 62-5-5. ² The District claims there are only two types of employers--employers who are insured by authorized carriers and self-insured employers--all of whom are included under the SIF.

The SIF is funded through assessments of worker's compensation insurers and self- insured employers. In 1991, SDCL 62-4-35 provided, in part: ³

The insurance carrier of every employer, or every employer, if self-insured, shall also pay annually on or before March thirty-first to the department of labor an amount equal to one-half of one per centum of all worker's compensation paid to claimants during the calendar year next preceding the due date of such payments, which shall also be deposited in the subsequent injury fund.

In 1991, SDCL 62-4-36 provided:

When the total amount of the payments into the subsequent injury fund, together with the accumulated interest thereon, equals, or exceeds one hundred thousand dollars, in excess of existing liabilities, no further payments shall be made to the fund; but whenever thereafter, the amount of the fund is reduced below fifty thousand dollars by reason of payments from the fund, then payments to the fund shall be resumed forthwith, and shall continue until the fund, together with accumulated interest thereon, again equals or exceeds one hundred thousand dollars.

Since Division began administering the SIF in July of 1989, two assessments have been made to authorized worker's compensation carriers and self-insured employers who filed their annual proof of security. The record reflects only one payment made into the SIF by a governmental entity electing exemption from proof of ability to pay; ⁴ this payment was not from District. There was no statutory provision under which Division could assess or notify self-insured government employers who elected exemption from proof of security that payments were due the SIF. Therefore, SIF argues District's election not to provide proof of security was an election not to participate in the SIF.

District is assumed to know the law. Hanson v. Brookings Hosp., 469 N.W.2d 826 (S.D.1991); accord Chicago Bridge & Iron Co. v. Dep't of Labor, 46 Wash.App. 252, 731 P.2d 1, 3 (1986) review denied, 107 Wash.2d 1032, cert. denied, 484 U.S. 823, 108 S.Ct. 87, 98 L.Ed.2d 48 (1987) (because one is assumed to know the law, there was no requirement to notify employer its selection to self-insure removed it from coverage under second injury fund); Thompson v. North Dakota Worker's Compensation Bureau, 66 N.D. 756, 268 N.W. 710 (1936) (parties dealing with North Dakota worker's compensation law are presumed to know the law). Therefore District is assumed to have been aware of the existence of the SIF and the requirement of payment into the SIF by employers. Yet, the record presents no evidence of an inquiry by District as to lack of assessments by the Division nor any other attempt to make payments into the SIF before it asserted a claim.

District asserts statutes should be liberally construed to find coverage in worker's compensation cases. Wilcox v. City of Winner, 446 N.W.2d 772, 775 (S.D.1989). Its reliance on liberal construction of worker's compensation law is misplaced. Liberal construction of worker's compensation is intended to benefit the injured employee. Wilcox, 446 N.W.2d at 775. Here, Dyer's benefits are not at issue--Dyer will receive benefits regardless of the outcome of District's appeal--the only issue is whether District will receive reimbursement from the SIF. The liberal construction given to worker's compensation statutes is not applicable in these circumstances. Seattle Sch. Dist. v. Dep't of Labor, 116 Wash.2d 352, 804 P.2d 621, 625 (1991) (where employee's benefits were not at issue, non-contributing employer could not benefit from liberal construction of worker's compensation second injury statute).

District further asserts that "unless the context otherwise plainly requires, the term 'employer' shall include the state and any municipal corporation." SDCL 62-1-2. District argues that when read in conjunction with SDCL 62-3-5, ⁵ the statutes establish that District is deemed to have accepted all provisions of SDCL Title 62, including the right to...