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South Dakota Subsequent Injury Fund v. Heritage Mutual Insurance3/6/2002
rost Prof'l Ass'n, 506 NW2d 107, 124 (SD 1993) (including an entity as a beneficiary).
[ .] What version of SDCL 62-4-34, then, should apply to the claims here: the 1984 version in effect at the time of each subsequent injury or the 1995 version in effect when each claim was made to the SIF? As noted earlier, the law in effect when the injury occurred governs the rights and obligations of both the employer and worker. The amount of compensation a worker is entitled to receive for a subsequent injury is determined by the statutes in effect at the time of that injury. Similarly the amount of compensation an employer must pay, for both the normal and excess portion of a worker's subsequent injury, is determined by the statutes in effect at the time of that subsequent injury. On what basis, then, should reimbursement by SIF to an employer, for compensation the employer has paid to a worker for the excess portion of worker's subsequent injury, be determined other than by the statutes in effect when the subsequent injury occurred?
[ .] The purpose of the SIF is to encourage an employer to hire a previously injured worker by allowing the employer to receive reimbursement from the SIF for excess compensation paid for that worker's subsequent injury . We conclude that for the SIF to serve its intended statutory purpose, the right of the employer to be reimbursed by the SIF for excess compensation paid to the worker must necessarily (1) come into existence at the time of the worker's subsequent injury when the employer's potential liability for both the normal and excess portion of a worker's injury comes into existence; and (2) be determined by the statutes in effect at that time. We do not read the 1992 amendment to SDCL 62-4-34.1 to alter this conclusion. It does nothing more than specify the time frame within which the already existing claim must be filed by an employer.
[ .] Accordingly, we hold that the date of injury , not the date of notice of claim, determines which version of 62-4-34 is to be applied to determine the amount of reimbursement owed Heritage by SIF. Department properly applied the 1984 version of 62-4-34 to each claim. The judgment of the circuit court, upholding these rulings by Department is affirmed.
[ .] GILBERTSON, Chief Justice, and AMUNDSON, and KONENKAMP, Justices, and GORS, Acting Justice, concur.
[ .] LOVRIEN, Circuit Judge, for SABERS , Justice, disqualified.
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