The moment all of you have been waiting for….
The fifth prong of the five-part test provides: The employee must actually pursue the reasonable program of rehabilitation.
This part likely seems pretty self-explanatory, and, frankly, it is. If the Claimant can satisfy all of the other elements of the retraining benefits test, then he/she needs to actually pursue the reasonable program of rehabilitation in order to receive the benefits. How the retraining benefits work is that the Claimant is given their workers’ compensation indemnity benefit payment during the period of time that they are in the rehabilitation program. Accordingly, it seems quite clear that they need to actually pursue that program. SDCL 62–4–5.1 specifically allows rehabilitation benefits while a claimant is “engaged in a program of rehabilitation which is reasonably necessary to restore the employee to suitable, substantial and gainful employment.” This statute allows rehabilitation benefits while the claimant is engaged in a “program” of rehabilitation, not simply a “period” of rehabilitation. Chiolis v. Lage Development Co., 512 N.W.2d 158, 160 (SD 1994).
The rehabilitation program may be a two-year program or a four-year program, depending on what is determined to be a “reasonable means of rehabilitation” and a four-year program although more rare, can be reasonable in certain situations. See A. Larson, The Law of Worker’s Compensation § 61.22 (1992). The fifth part of the rehabilitation test is not complicated, but it is necessary in order for the Claimant to be entitled to the benefits. A Claimant cannot simply find a suitable rehabilitation program and receive the rehabilitation benefits without actually pursuing the program.
I imagine that all of you will undergo a brief grieving process now that this 5-part series is over, but rest assured that we will continue to provide everyone with up-to-date information on the changes you need to know about in South Dakota workers’ compensation and employment law. Until next time.
