3 Essential Things to Know About Workers Compensation

Injuries can occur at any time at your workplace. Luckily, most employers have an insurance policy that compensates employees for injuries that they get when working. The primary objective of this policy is to ensure that the employee does not have to foot the medical bills and is comprehensively compensated for the stress, pain, and other inconveniences that arise as a result of the injury.

It is recommended to hire a worker’s compensation attorney in Sioux Falls to assist in filing the settlement paperwork and submitting them to the relevant insurance company. If the insurance company or the employer fails to comply with the requirements, the case is escalated to a court of law.

Professional workers compensation attorney in Sioux Falls gives the client information on what to expect during and after the case is presented before the jury. However, to get the best outcome when you file a compensation claim, it is important to keep in mind the following three things.

Report the Injury as Soon as Possible to the Employer

Don’t wait for days to report the injury to the employer as that could derail the compensation process. Instead, employees are advised to report the case immediately or within 24 hours. This will ensure that the required evidence is collected and paperwork is done and submitted to the insurance company on time.

Seek Medical Attention in an Accredited Health Facility

Any medical care should be sort from an accredited health facility that is well known for offering quality health care services. An employee may not have control over where they get medical treatment in case of any emergency, but if the injury does not require emergency medical attention, one should liaise with the employer or the insurance company to see an approved specialist.

Indicate that the Injury is Work Related

One of the ways that the insurance company will validate that the injury is work-related is by checking the medical records. Based on this fact, it is imperative to make sure that the doctor indicates that the injuries were sustained at the workplace in medical report. The workers compensation attorney in Sioux Falls will also rely on these documents when preparing a defense strategy if the insurance company fails to compensate the client.

Finally, one of the main reasons why valid personal injury claims are rejected is due to missing paperwork or records. Make sure that the files are as detailed as possible to avoid the claim being nullified. Ideally, the injured employee should keep a record of everything related to the injury to get full compensation. The more records are filed in court, the higher the chances of the claim being validated.


Why You Need Legal Representation

Although personal injury attorneys have been trained to practice many kinds of law, they primarily are concerned with what is known as “tort” law. A tort is simply an action that wrongly causes harm to someone by another party, but is not necessarily a crime so is tried in a civil, not criminal, court.


The party claiming to have been wronged, the plaintiff, is said to have suffered an “injury.” It doesn’t have to be physical injury, though. It might be financial or psychological or some other type for which the plaintiff often seeks something to compensate them. The purpose of hiring a personal injury attorney, then, is to best represent the injured person and, through compensation, be made “whole” again.


Just as everyone arrested and charged with a crime (no matter their guilt or innocence) is entitled to legal representation — and their “day in court” as the saying goes — so are people who believe they have suffered wrongly by the action or inaction off others.


It has often been said that someone who chooses to represent his- or herself in court has a fool for a client. That may sound harsh, but the American legal system is a complex maze of rules and Latin phrases, and attorneys have trained and worked for years to learn how to navigate this system and speak its language.


As with medicine, there are different types of law. So just as one wouldn’t want a dermatologist to perform heart surgery, if someone feels they have been injured by another party, choosing a lawyer specializing in personal injury cases is probably a better bet than hiring real estate attorney.


It is true that we live in a litigious society in which everyone seems to be suing everyone else. This isn’t really true, of course. There may be more civil lawsuits today, but this is probably because modern citizens are more educated and aware of their rights under the law than people were decades earlier — not because there are more lawyers.


As any reputable personal injury attorney (in Sioux Falls or elsewhere) will tell a prospective client, they may have a case or they may not have a case. The job of this specialized lawyer is to use his or her training and experience to advise and, if they agree, to give the best representation possible.

personal injury

Personal Injury? You are not alone.

            We all know that life is hectic and unpredictable, and there are a lot of things that can go wrong. We read statistics online, in the newspaper, and elsewhere that talk about some of life’s most tragic events, but we never really think that these things can happen to us. Yet, when tragedy strikes, she is indiscriminant; in just the blink of an eye, life can dramatically change, and when it does, it is important to be prepared.

There are a number of personal injury lawyers in Sioux Falls to choose from, and if you are, in fact, in need of legal assistance, it is important to do your research. What you’ll want to find is a firm that is honest, open, and transparent with the way in which they handle your case. What you’ll also want to find is a firm that has had years of experience in the field. Personal injury cases typically have multiple moving pieces, all going at the same time, and these cases can be very complex; the more experience your firm of choice may have in this field, the more likely they will be able to anticipate the way in which your trial will play out.

What is comforting to know, as an individual and as a South Dakotan, is that no matter what happens, you can access some of the most hard-working, honest, and experienced legal teams available in the United States. In 2016, there were thousands of workers compensation cases mitigated in the US, and it is very likely that many of these victims never would have thought they would ever be in such a position—yet, with life’s dark sense of humor and rapid unpredictability, they were in sudden need of help. Without the efforts of their personal injury lawyers, they would have been immediately overwhelmed.

When an individual suffers from a personal injury—whether it is at work, at home, on the road, or elsewhere—the pain they experience is usually much more than simply physical. The psychological damages caused by traumatic events, the inconveniences they impose upon their families, and the extremely high costs of rapidly accumulating medical bills are all different sorts of pains that carry well beyond the accident itself. If you or a loved one has been injured at the expense of another, you don’t have to suffer in silence—you have options.

As our world continues to become more complicated in seemingly every way imaginable, there is at least one principle that will remain intact as long as we live: human beings have a fundamental need for choice. If you are looking for a personal injury lawyer in Sioux Falls, you do indeed have choices, you do indeed have access to people who care about winning your case, and you are never alone, no matter what your struggle may be.

car crash

Statute of Limitations

If you’ve been in a car accident, there is a time limit for a lawsuit to be commenced.

This time limit is called the statute of limitations.  The statute of limitations is the legal rule that limits the time for a party to commence a lawsuit. If you have a lawsuit, you must bring it within a certain amount of time; otherwise you lose the right to bring the lawsuit.

The statute of limitations (i.e. the time within which to commence the lawsuit) can start running from the time that the injury is discovered, or from the time of the incident that gave rise to the injury, depending on the nature of the lawsuit, and the substantive state law applicable to your legal matter.  The statute of limitations for a personal injury negligence car accident claim likely will differ from a claim for wrongful death, intentional tort, property damage, breach of contract, or claim against the government or other public entity.

The statute of limitations may also depend on where the accident occurred, or which state’s laws apply. Civil lawsuits and statutes of limitations differentiate largely from state to state.  Generally you have three years to commence a car accident personal injury negligence lawsuit in South Dakota against a private person or business.  In Minnesota, it may be six years.  In Iowa, it may be only two years.

The time limit to bring a personal injury, or damages, lawsuit depends on many factors. It is important that you do not sit on your rights.  A personal injury trial attorney, like the lawyers at Wilka & Welter, LLP, have the special knowledge, skill and experience to guide you on all aspects of bringing a personal injury claim or lawsuit.


Driving Under the Influence in South Dakota (free advice to those who read to the end)

A recent study done by www.carinsurancecomparison.com ranked South Dakota tied for 5th as one of the most dangerous states for drunk driving.  The study took into account 2015 data and considered the number of fatalities, cost per fatality, DUI arrests, DUI penalties, as well as types of laws and produced a total score.  It should be noted that the study regarding South Dakota is flawed in that the penalty for a 3rd offense is listed at $4000.00 as the minimum fine; however, the actual penalty carries a maximum $4000.00 fine.  Regardless, DUI is a significant problem in the state of South Dakota.

In 1984, Congress passed the National Minimum Drinking Age Act.  This act mandated that all states raise their minimum drinking age to 21 years.  The .10 BAC (Blood Alcohol Content) legal limit was initiated as a result of a NHTSB (National Highway and Traffic Safety Board) study that found that drivers with a .10 BAC were 6 to 12 more times likely to be involved in a fatal crash than those who had no alcohol in their system.  BAC is a measurable concentration of alcohol in the bloodstream.  A BAC of .10 means that there is 10 grams of alcohol in 10 liters of blood (the average human has about 5 liters of blood in their entire body).  In 2000, Congress adopted .08 BAC as the national illegal limit for impaired driving.  All states are free to adopt their own laws regarding the penalties for DUI offenses; but must conform at least to the minimum .08 BAC.  Many states have considered lowering the legal limit to .05 BAC.

The penalties for DUI vary state by state.  In South Dakota, the first offense is considered a Class 1 Misdemeanor and driving privileges will be revoked for not less than thirty days.  A Class 1 misdemeanor carries a potential sentence of up to one year imprisonment in a county jail, or two thousand dollars fine, or both.  Additionally, the court may order the revocation or restriction of driving privileges* for up to one year.

A DUI is considered a second offense if it occurs within ten years of the first conviction**. A second offense is also considered a Class 1 misdemeanor; however, a court must unconditionally revoke an offender’s driving privileges for a not less than one year.  All other penalties and fines remain the same as the first offense, at the judge’s discretion.  Despite the unconditional license revocation, a judge may permit and offender to drive for limited purposes if he or she completes a court-approved chemical dependency program and files an SR-22 proof of financial responsibility (proof of insurance) with the clerk of courts.  Driving during the period of revocation without a permit, or beyond the limits of the permit, results in a separate offense carrying a penalty of not less than three days jail time.

A third DUI offense within a ten year period is considered a Class 6 felony and carries the possibility of a prison sentence in the state penitentiary.  A Class 6 felony carries a maximum sentence of two years imprisonment in the state penitentiary or a fine of four thousand dollars or both.  A court must also order the revocation of driving privileges for a period of not less than one year from the date of sentence or release from imprisonment, whichever is later.  Again, despite the license revocation, a court may permit driving for limited purposes under the same conditions as a second offense.  Driving during revocation after a third offense carries in a jail term of not less than 10 days.

Fourth and subsequent violations result in higher classes of felonies carrying more severe penalties and longer periods of license revocation, up to a lifetime.

Should a judge so order, or should an offender be permitted to drive during a revocation period, he or she will most likely be required to participate in the 24/7 program.  The 24/7 program is a sobriety testing program adopted by the state legislature in order to dissuade offenders from drinking during their sentence.  The 24/7 program was started as a pilot program in January, 2005.  If an offender is sentenced or ordered to participate in the 24/7 program by a judge or probation officer, he or she must either submit to a breath test twice daily (approximately 12 hours apart), wear a SCRAM alcohol sensing bracelet, or use an ignition interlock device at the his or her cost.  Any indication of alcohol in the offender’s system will result in a violation.  A first violation typically carries a 12 hour hold in county jail, a second is 24 hour hold and a third will result in a no-bond hold until the offender is seen by a judge who will set an appropriate penalty.  If an offender simply chooses to participate in 24/7 to drive in accordance with the judge’s conditions during revocation, a violation results in automatic revocation of driving privileges until reinstated by the sentencing judge.

Regardless of where you live, drinking and driving is a dangerous gamble.  Now for the free advice as promised:  if you have been drinking, DON’T DRIVE.  It is nearly impossible to judge for yourself your level of intoxication at any moment.  Your safety and the safety of others depends on your responsible choices.  However, should you not heed this advice and find yourself in need of representation, the lawyers at Wilka and Welter, LLP have all the expertise you need to make sure that you are treated fairly and that you receive the best possible outcome in your case.


*In any state, driving is considered a privilege and not a right; meaning that a person is not guaranteed the “right” to drive and that the “privilege” can be taken from that person by an authoritative body for good cause.

**Conviction means a final judgment of the court following a sentence or plea of guilty.


Understanding the Law: Divorce in South Dakota Part Two: Property Settlement and Spousal Support

Should you find yourself in a marriage that is unlivable and you need to divorce, there are several factors that you should consider prior to filing.  Divorce law is different in each state.  In South Dakota, there exist specific statutes or laws that govern how divorce is handled.  This blog series is a list of all of the factors that one must consider.  The second is:


Division of Property and Spousal Support


Division of Property


An emerging trend in state law is “community property.”  You may have heard this term in the news.  Community property states have laws that presume any marital property, or property acquired during the course of the marriage is split 50/50.  Community property states are also often “no fault” states (see previous web log on Fault vs. No Fault).  These laws are enacted to ease the burden on courts in determining who gets what property and why.

South Dakota is not a community property state; it is an “all property” state.  The South Dakota Codified Law simply grants the courts the power to make an “equitable or fair division of property considering the circumstances of the parties, regardless of title.”  Because this law is so vague and general, the courts have had to define it through numerous decisions starting as far back as 1939, when the law was originally enacted.  In fact, the term “all property state” was used most recently in cases decided by the Supreme Court in 2015 and 2016 and is defined similarly to the statutory language.

All property in a divorce is divided into two categories, marital and non-marital property.  Marital property is typically defined as all property obtained during the course of a marriage.  This typically means any increase in value to co-owned real estate, businesses, salaries from employment, retirement plans, etc.  Oddly enough, it also indirectly means children!  Non-marital property is typically defined as any property brought into the marriage or earned outside the marriage.  For instance, any retirement earned prior to marriage, savings, homes, businesses, gifts and/or inheritances (although, in some cases, both gifts and inheritances received during marriage have been considered marital property based on circumstances).

Before a court will set aside property as non-marital it considers seven distinct factors:  the duration of the marriage, the value of the property owned, the ages of the parties, the health of the parties, the competency of the parties to earn a living, the contribution of each party to the accumulation of the property and the income producing capacity of the parties’ assets.  Quite obviously, this varies greatly from the idea of a 50/50 split.  The court uses these factors to ensure a fair or “equitable” settlement.


Spousal Support (Alimony)


Spousal support, or alimony, is provided in cases where the equitable division of property is not enough to place one of the parties in a fair position for a period post-divorce.  For instance, if one spouse works and the other stays at home to raise the children, simply dividing property will not be enough to ensure the homemaker’s continued income once the earning spouse has departed.  Spousal support is often paid monthly for a period of time, years or even a lifetime depending on certain factors or qualifications, such as the supported spouse obtaining employment or remarrying.  In South Dakota, the law states that:  “The amount and length of alimony payments is therefore left to the discretion of the trial court.”  With that general law, the courts have decided spousal support using similar factors as those for division of property including:  the length of the marriage, the respective earning capacity of the parties, the respective financial condition after the property division, the respective age, health and physical condition, station in life or social standing of the parties and the relative fault of the parties in the termination of marriage.  Yes, fault is considered in determining support, which is in contrast to determining division of property (unless the fault is the reason for the reduction in value of a piece of property).

The court, absent an agreement of the parties, must make all of the determinations regarding property and support.  All of this takes time.  For reasons such as this, and to provide a “cooling off” period, no divorce in South Dakota may be finalized in less than sixty days.

The statutory law regarding property division and support is very general; however, the case law is more specific and can be difficult to navigate.  If you are considering a divorce and have questions regarding your property or support needs, call the lawyers of Wilka and Welter, LLP for a free consultation regarding your specific case.

If you have children, divorce becomes even more impactful.  Be sure to check out “What You Need to Know About South Dakota Child Custody Law in a previous web log entry on this site.


Protection Order vs. Restraining Order: What is the Difference and Do I Need One?


There are two types of Orders that can be issued by a Court that contain provisions to protect you and/or your dependents in a time of abuse or stalking that makes you fear for your safety.  Chances are, you’ve heard of a restraining order in which a Court can issue as part of a pending case to order a person to restrain from doing some action.  While a restraining order can be used domestically to order a person to stay away from a particular place or from you, it can also be used to prevent someone from selling property, or engaging in some other activity that is contrary to the interests of one or more of the parties in the case in which it is ordered.  For instance, a judge may issue a restraining order in a divorce to keep the parties from selling assets or hiding money.  While violating a restraining order does have a consequence, it is usually not enforceable by law enforcement.  It requires that parties appear before a judge who will make a determination of contempt of court.  That judge then will decide the penalty, if any, for the violation or prescribe a method by which a party can “cure” or make right the violation or both.

If you are in a domestic relationship, meaning parents or parent to be, spouse or former spouse, siblings or significant other and you fear for your immediate safety, what you are probably looking for is a protection order.  A protection order is a petition made to the Circuit Court by the person seeking protection, or by a parent or guardian of a minor child.  The form is printable at http://ujs.sd.gov/uploads/forms/protection/UJS-091A-Domestic%20Petition.pdf.  After submitting the form detailing your experiences and concerns, a duty judge will make a determination regarding your statements.  At that time, he will either grant a Temporary Protection Order, or TPO, against the Defendant and set a hearing for within 30 days or just set a hearing without granting the TPO.  Either way, the Defendant will have the opportunity to come to Court after being served the Order, by the sheriff, to tell his or her side of the story.  At that hearing, the judge will either make permanent the Protection Order for up to five years, or dismiss it if you have not made your case.  Both a Temporary and Permanent Protection Order, once served, give you immediate protection.  You may notify law enforcement who have the power to enforce the specifics of your order, which may include barring the Defendant from a shared residence, temporary custody of minor children, no contact in any form with you, prohibiting the Defendant from a particular place, such as a work place or any other place you frequently inhabit.

If you are in need of a Protection Order, an attorney can advise you on how to properly fill out the form and of the information that will lead to the best result until a hearing can be had.  An attorney can also represent you at the hearing and provide the knowledge and support when you must face the Defendant.  If you have minor children that are affected by the order, whether as a result of a visitation or support order, an attorney can assist with those matters as well

If you have been served with a Protection Order, an attorney can represent you in court to protect your rights, especially if you have been falsely accused.  If an order is entered, it is a restriction on your rights to contact or be in certain places that the accuser has listed.  You may not be able to keep firearms as a result of an order against you.  Any violation of the order is a criminal charge and could be punishable by a year in jail or $1000.00 fine or both.

If you are in need of representation because you need or have been served with a Protection Order, the attorneys at Wilka and Welter are experienced and able to assist you.


Marsy’s Law: What does it mean to me?

In 2016, South Dakota voted in Constitutional Amendment S, dubbed Marsy’s Law.  It is currently found in Article IV, Section 29 of the South Dakota Constitution Bill of Rights.  The law was named after Marsy Nicholas who was the sister of Henry Nicholas, founder of the wireless corporation Broadcom.  In 1983, Marsy was a senior at UC Santa Barbara, and was murdered by her boyfriend at the time, Kerry Conley.  Conley was sentenced to life in prison with the possibility of parole.  Conley died in prison, but the Nicholas family attended numerous parole hearings prior to his death.  Nicholas then organized a campaign of legal advisors to draft a comprehensive bill of rights for victims.  The main goal of Marsy’s Law was to provide Constitutionally protected rights to victims of crimes similar to those of the rights of criminals accused of crime.  Several other states including Illinois, North Dakota and Montana have also adopted some form of Marsy’s Law into their constitutions.

Previously, in South Dakota, victim’s rights were only found in the codified statutes under the South Dakota Victims Rights Act.  Those in favor of the passage of Marsy’s Law contended that the rights, as stated in the codified law, were not enforceable and were not as comprehensive in the type of crimes that afforded victims special rights.  As a Constitutional Amendment, Marsy’s Law became the supreme law of the State of South Dakota and all other contradictory state laws became invalid or unconstitutional.

If you are a direct victim of crime, a person who suffers direct physical, mental, or financial harm of a crime or a spouse, lawful representative or immediate family of a victim, Marsy’s Law affords you inalienable rights during and after a criminal proceeding.  Article IV, Section 29 of the South Dakota Constitution enumerates nineteen separate provisions and qualifications for the application of those rights.  As a victim of crime in South Dakota you now must be given a card, called Marsy’s Card, that states your rights.  You have the right to privacy, meaning the right to prevent disclosure of of information that could be used to locate or harass you or your family.  You may also obtain a protection order against harassment by the offender. You have the right to refuse to answer any questions formally or otherwise, or other legal discovery request (limited only by the 8th Amendment to the US Constitution, whereby an offender has the right to confront their accuser in Court).  You have the right to participate in legal proceedings, to receive legal paperwork and to confer with the prosecutor.  You have the right to the return of property used as evidence after trial.  You have the right to be informed of every decision and action taken by the Courts against the offender.  You have the right to be notified of and to attend sentencing and parole hearings of the offender.  You have the right to be notified of and to have your safety concerns addressed upon the release of an offender.  All of these rights are enforceable by you, your attorney or via the prosecutor at any point.  The Court must act promptly to enforce your rights, in a manner no less vigorous than would be afforded the criminal offender.

If you have been charged with a crime, Marsy’s Law affects you as well.  More than ever before any person, family, or legal representative affected by your crime will have the right to participate themselves, via an attorney or the prosecutor in your case, from the initial plea or indictment through sentencing and even incarceration and after.  The effects of the participation of the victim can influence a prosecutor or judge during any point of your legal proceedings.  In fact they may affect the proceedings themselves, if a victim feels that their rights were not protected in a way no less vigorously than your rights as the accused.  It may be more difficult to obtain information regarding the victim in the discovery portion of your representation.  You may be ordered to pay restitution to the victim(s), and money will be first applied to the restitution before any fines or costs are paid to the State.  Regardless of Marsy’s Law, you are still entitled to and afforded every right given by the United State’s Constitution, because Marsy’s Law is South Dakota law and the US Constitution trumps that of any state.

If you are the victim of a crime, or certainly if you have been accused of a crime, you may need legal representation to protect your rights.  Call the office of Wilka and Welter to discuss how we can help you.


Understanding the Law: Divorce in South Dakota Part One: No Fault vs. Fault

Should you find yourself in a marriage that is unlivable and you need to divorce, there are several factors that you should consider prior to filing.  Divorce law is different in each state.  In South Dakota, there exist specific statutes or laws that govern how divorce is handled.  This blog series is a list of all of the factors that one must consider.  The first is:


There must be a reason for the divorce.


South Dakota recognizes both “fault” and “no fault” divorces.  A “no fault” divorce does not place the blame on either party and cites irreconcilable differences as the reason for the divorce.  Irreconcilable differences are defined as those determined by the court to be substantial enough reasons for not continuing the marriage and make it appear as though the marriage should be dissolved.  In order to file for a divorce citing irreconcilable differences, both parties must agree to the divorce.  If there is no agreement you must file for a “fault” divorce.

In South Dakota, you may file a “fault” divorce on the basis of adultery, extreme cruelty, willful desertion, willful neglect, habitual intemperance and conviction of a felony.

The reasons for “fault” are listed and defined below:


  • Adultery is defined as the voluntary sexual act by a married person with one of the opposite sex to whom he or she is not married.


  • Extreme cruelty is defined as infliction of grievous bodily injury or grievous mental suffering upon the other, by one party to the marriage.


  • Willful desertion* is defined as the voluntary separation of one of the married parties from the other with intent to desert. Refusal to have intercourse absent a reasonable physical condition preventing a person for doing so and/or a refusal to dwell in the same residence is considered desertion.  If a person threatens another with bodily harm or danger and that person leaves, it is the person who threatens who is at fault for desertion.  Separation by consent of both parties is not considered desertion by either party unless either party decides to desert during the separation.


  • Willful neglect* is defined as the neglect of a person to provide the common necessities of life for their spouse, when having the ability to do so, or the failure to do so due to idleness (laziness), profligacy (excessive extravagance, or spending), or dissipation (wasting).


  • Habitual intemperance* is defined basically as overuse of intoxicating drinks that makes attending to business impossible for the majority of the time, which causes great mental anguish on the other party.


*(Desertion, neglect, or intemperance must occur for a period of one year before either is considered as a grounds for divorce).


  • Conviction of a Felony is self explanatory; however, fault based on the conviction of a felony is at the discretion of the judge based on the type and nature of the felony.


  • Chronic mental illness as incurable chronic mania or dementia, is also grounds for a divorce, if that illness has been diagnosed and the party has been under confinement by order of the court or the Board of Mental Illness.


Most of the laws pertaining to “fault” in a divorce were first written in 1939 and seem quite outdated today.  In fact, South Dakota is one of only two states without some form of unilateral no fault divorce law, meaning that one party may file and obtain a divorce without citing some form of “fault” as a reason for the divorce.  Efforts are underway to change the law to allow for unilateral “no fault” divorce filings.  These efforts are primarily due to domestic violence situations whereby the abused party must prove “fault” in order to obtain a divorce and may be subject to various affirmative defenses on the part of the abuser who can “block” the divorce.  A USD law school professor, Roger Barron, has spearheaded such an effort entitled “Tania’s Law,” named for the victim of an abusive relationship, which led to her murder when her husband would not agree to a divorce citing irreconcilable differences.  Opposition to these efforts claim that divorce should not be so easily obtained, and that state law already protects abuse victims.

If you or someone you know is considering a divorce, please contact the lawyers of Wilka & Welter for a confidential consultation regarding your individual needs.

Check back next month for Part Two of Understanding the Law:  Divorce in South Dakota.