Workforce Safety & Insurance
The following bills and resolutions were introduced in the 2009 ND Legislative Assembly relating to Workforce Safety & Insurance. NDMA has a particular interest in HB 1561, which would give controlling weight to the injured employee's treating doctor's opinion in WSI processes, and SB 2386 which would redefine what constitutes a "preexisting condition" that would not qualify for compensation. There are many bills relating to WSI benefits and the resulting structure of the organization after passage last November of the initiated measure to authorize the Governor to appoint the agency's CEO.
WSI Governance, Structure and Performance
HB No. 1160 (Insurance Commissioner) Insurance Commissioner Inquiries to Workforce Safety & Insurance. This bill introduced at the request of the Insurance Commissioner would have allowed the Insurance Commissioner to address to WSI an inquiry in relation to the activities, condition, or any other matter connected with the transactions of WSI. The House defeated the bill.
HCR No. 3002 Legislative Council Study - Workforce Safety and Insurance Governance. This concurrent resolution would have provided for a Legislative Council study of the governance structure of Workforce Safety and Insurance and determine the feasibility and desirability of mutualization of Workforce Safety and Insurance. The resolution was not adopted.
HB No. 1037 Workforce Safety and Insurance Independent Performance Evaluation. This bill requires that the biennial independent performance evaluation of Workforce Safety and Insurance address performance measurements, including a review of trends in workplace injuries; whether claims are being handled fairly and efficiently; whether claims or premium decisions have been subject to inappropriate political influence; whether safety and loss prevention programs are effective in reducing claims and the severity of claims; whether injured employees, employers, and service providers are satisfied with the services of the organization; whether litigation rates and the number of contested claims are appropriate as compared with other workers' compensation programs or systems; and whether premiums are appropriate and reserve levels are adequate. The Governor signed the bill.
HB No. 1464 (N. Johnson) WSI Restructure. This bill was introduced to restructure WSI under the Governor, making the Board advisory in nature consistent with the Initiated Measure passed last fall.
The bill revises the powers and duties of the WSI Board of Directors by removing current provisions requiring the Board to appoint a director as well as supervise the director, ensuring response to audit recommendations, presenting annual legislative reports and preparing the WSI budget. Instead the Board is required to provide annual, formal recommendations to the Governor regarding setting premium levels and providing premium dividend distributions, provide formal recommendations to the Governor regarding legislation that affect WSI, and provide formal recommendations to the Governor regarding the fund's investment allocation.
Another major change is the provision of administrative hearings by the office of administrative hearings, rather than "in-house." As amended, the Governor signed the bill.
WSI Process and Presumptions
HB No. 1561 (Schneider) Controlling Weight to Treating Physician's Opinion. Under this bill, if WSI does not give an injured employee's treating doctor's opinion controlling weight, the WSI must establish that the treating doctor's opinion is not well-supported by medically acceptable clinical and laboratory diagnostic techniques or is inconsistent with the other substantial evidence in the injured employee's record based on one or more of the following factors:
a. The length of the treatment relationship and the frequency of examinations;
b. The nature and extent of the treatment relationship;
c. The amount of relevant evidence in support of the opinion;
d. How consistent the opinion is with the record as a whole;
e. Appearance of bias;
f. Whether the doctor specializes in the medical issues related to the opinion; and
g. Other relevant factors.
The bill does not apply to managed care programs. NDMA testified in support of the bill. As amended, the Governor signed the bill.
SB No. 2310 (Nething) Construction of Workers' Compensation Laws. This bill as introduced would have created a legal rule of construction that "to the extent possible" the workers' compensation laws would be required to be construed to avoid forfeiture and to afford relief. The bill passed in the Senate substantially amended, striking the proposed rule of construction that would have reinstated liberal construction to afford relief to employees. The House defeated the bill.
HB No. 1542 (Zaiser) Construction of Workers' Compensation Claims. This bill would have reframed the general construction of the workers compensation laws by providing that the laws are "remedial in nature" and must be construed to afford relief and avoid forfeiture with a view of extending benefits to all who fairly can be brought within the provisions of the laws. The House defeated the bill.
SB No. 2055 Workers' Compensation Firefighter and Law Enforcement Presumption. This bill clarifies the burden of proof under workers' compensation law that provides a presumption for firefighters and law enforcement officers. The bill provides the presumption that the impairment is work related can be overcome by clear and convincing evidence, rather than by competent evidence, the impairment is not work-related. The Governor signed the bill.
SB No. 2058 Workers' Compensation Independent Medical Examinations. This bill provides a distinction between a Workforce Safety and Insurance independent medical examination, which contemplates an actual examination of an injured employee, and an independent record review, which contemplates a file review of an injured employee's medical records. The Governor signed the bill.
SB No. 2059 Workforce Safety and Insurance Office of Independent Review. This bill provides for WSI to pay an injured employee's attorney's fees and costs for a case review. The bill allows an injured employee who uses the services of the Office of Independent Review to be eligible for payment of $500 for attorney's fees and $150 for costs associated with an attorney consultation before an administrative hearing is held. The bill also requires WSI to pay up to $500 to an attorney for review of a proposed settlement offer to an injured employee, if that employee was not represented by an attorney at the time the offer was made. The Governor signed the bill.
HB No. 1063 Injured Worker Liability for Noncompensable Injury. This bill limits the circumstances under which WSI could deny medical coverage or recoup medical payments from the employee. Under the bill, during the sixty days immediately following the date of injury, if WSI accrues a medical expense or makes a payment for a medical expense and the organization later determines the medical expense is for the care and treatment of a noncompensable injury, disease, or other condition, the injured employee is not liable for the medical expense accrued or paid by the organization before the earlier of:
(1) The third day following the date the organization makes a determination the medical expense is for a noncompensable injury, disease, or condition; or
(2) The third day following the date the injured employee or medical provider reasonably should have known the medical expense is for a noncompensable injury, disease, or condition.
Medical expenses incurred under this bill may not be charged against an employer's account for purposes of experience rating. The Governor signed the bill.
HB No. 1408 (Ruby) Workers Compensation Self-Insurance. This bill would have allowed employers to self-insure for workers compensation. The House defeated the bill.
SB No. 2431 (O'Connell) Independent Medical Examinations By In-State Physicians. This bill requires WSI to make reasonable efforts to designate a doctor licensed in North Dakota to conduct the independent medical examination before designating a doctor from another state. NDMA testified in favor of the bill. Under the bill as amended, WSI must make a reasonable effort to designate a duly qualified doctor licensed in the state in which the employee resides to conduct the examination before designating a duly qualified doctor licensed in another state or shall make a reasonable effort to designate a duly qualified doctor licensed in a state other than the employee's state of residence if the examination is conducted at a site within two hundred seventy-five miles [442.57 kilometers] from the employee's residence. As amended, the Governor signed the bill.
SB No. 2432 (O'Connell) Eliminate Preferred Provider Selection. This bill revises statutes relating to the use of preferred providers by an employer. The bill allows an employee to request a change of provider (within WSI discretion) within 30 days of injury, rather than 60 days. As amended, the Governor signed the bill.
SB No. 2435 (O'Connell) WSI Continuing Jurisdiction. This bill would have removed statutory language stating there is no appeal from a WSI decision not to reopen a claim after a final order, replacing it with a procedure allowing an applicant for benefits to reopen a case if relevant, material evidence is shown that was not previously available when WSI issued its order. The Senate defeated the bill.
Injured Worker Benefits and Coverage
HB No. 1101 (WSI) Workers’ Compensation Benefit Increases. This bill increases workers compensation dependency allowances (disability benefits), increases the weekly maximum amount for temporary total or permanent total and partial disability payments, increases weekly compensation allowances for death claims, and increases death benefits for funeral arrangements. The Governor signed the bill.
SB No. 2056 Workers' Compensation Mileage Reimbursement. This bill amends the workers' compensation calculation for medical travel mileage reimbursement to an injured employee so actual mileage is used to compute the reimbursement instead of using city limit to city limit mileage. The Governor signed the bill.
SB No. 2057 Workers' Compensation Permanent Partial Impairment Award for Vision Injury. This bill as amended provides a scheduled workers' compensation permanent partial impairment award for impairment of vision, for the loss of vision of the eye which equals or exceeds 20/200. The Governor signed the bill.
HB No. 1061 Workers' Compensation Coverage of Artificial Members. This bill expands the workers' compensation coverage of artificial members by expanding the definition of artificial members to include a prescriptive device that is an aid for a natural part, organ, limb, or other part of the body if the damage to the prescriptive device is accompanied by an injury to the body. The Governor signed the bill.
HB No. 1062 Workers' Compensation Rehabilitation Services. This bill expands workers' compensation rehabilitation awards by allowing Workforce Safety and Insurance to provide an additional 20 weeks of benefits for injured employees participating in retraining programs and provides an additional two months of benefits while the injured employee is participating in work-search activities. The bill also directs Workforce Safety and Insurance to implement a system of pilot programs to assess alternative methods of providing rehabilitation services. The Governor signed the bill.
SB No. 2419 (O'Connell) Vocational Rehabilitation Awards. This bill as amended expands rehabilitation awards. Under the bill, the rehabilitation allowance includes, as chosen by the employee, an additional thirty percent of the rehabilitation allowance for expenses associated with maintaining a second domicile or for travel associated with attendance at a school or training institution. The Governor signed the bill.
HB No. 1064 Cost-of-Living Adjustment for Workers' Compensation Benefits. This bill shortens to three years the period of time after which an injured employee receiving temporary total disability benefits or permanent total disability benefits qualifies for supplementary benefits and shortens to three months the period of time an injured employee is required to be off wage-loss benefits before Workforce Safety and Insurance recalculates benefits. The Governor signed the bill.
SB No. 2071 (J. Lee) Workers’ Compensation Definition of Employee. This bill as amended expands and clarifies the definition of employee for workers compensation purposes to individuals operating motor vehicles for a motor carrier as an independent contractor. As amended, the Governor signed the bill.
HB No. 1247 (Amerman) Disability Benefit Dependency Allowances. This bill would have increased the dependency allowance for each child of an employee receiving diaability benefits from $10 to $30 per week per child. The House defeated the bill.
HB No. 1525 (Amerman) Post Retirement Study. The bill as amended calls for a WSI study during the 2009-10 interim of the additional benefits payable benefit structure that comprises the post-retirement benefits available to an individual whose disability benefits end at the time of social security retirement eligibility. The study must identify the advantages and disadvantages of the current system to workers' compensation benefit recipients. The Governor signed the bill.
SB No. 2386 (Behm) Redefining Preexisting Injuries and Disabilities. This bill would have redefined what constitutes a preexisting injury, requiring that the preexisting injury must have been diagnosed before the otherwise compensable injury occurred and must have caused previous work restrictions or interference with physical function during the 6-month period preceding the occurrence of the otherwise compensable injury. The bill would have also redefined "permanent total disability" in a manner that is more subjective in determining that disability. NDMA testified in favor of the bill. The Senate defeated the bill.
SB No. 2430 (O'Connell) Temporary Partial Disability Benefits. This bill would have removed the 5-year limit on temporary partial disability benefits. The Senate defeated the bill.
SB No. 2434 (O'Connell) Reapplication for Disability Benefits. This bill would have applied new standards to the reapplication of an injured worker disability benefits, requiring at least a 10% loss of earning capacity for a period of at least 5 consecutive days. The Senate defeated the bill.
HCR No. 3008 (Keiser) Interim Study of Prior Injuries, Preexisting Conditions and Degenerative Conditions. This bill proposes a Legislative Council study of workers' compensation laws in North Dakota and other states with respect to prior injuries, preexisting conditions and degenerative conditions. The resolution was adopted in both the House and Senate.
Premiums and Reserves
HB No. 1035 Workforce Safety and Insurance Reserve Level. This bill provides levels of financial reserves plus available surplus of Workforce Safety and Insurance. The bill was sent to the Governor.
HB No. 1036 Workforce Safety and Insurance Premiums. This bill requires Workforce Safety and Insurance to establish premium rates annually on an actuarial basis. The bill provides the statewide average premium rate level may not deviate by more than five percentage points from the recommended actuarial indicated premium level for that year. The Governor signed the bill.