2016 North Dakota Century Code Title 65 Workforce Safety and Insurance Chapter 65-01 General Provisions
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TITLE 65
WORKFORCE SAFETY AND INSURANCE
CHAPTER 65-01
GENERAL PROVISIONS
65-01-01. Purposes of workforce safety and insurance law - Police power.
The state of North Dakota, exercising its police and sovereign powers, declares that the
prosperity of the state depends in a large measure upon the well-being of its wageworkers, and,
hence, for workers injured in hazardous employments, and for their families and dependents,
sure and certain relief is hereby provided regardless of questions of fault and to the exclusion of
every other remedy, proceeding, or compensation, except as otherwise provided in this title, and
to that end, all civil actions and civil claims for relief for those personal injuries and all jurisdiction
of the courts of the state over those causes are abolished except as is otherwise provided in this
title. A civil action or civil claim arising under this title, which is subject to judicial review, must be
reviewed solely on the merits of the action or claim. This title may not be construed liberally on
behalf of any party to the action or claim.
65-01-01.1. Civil liability for intentional injuries.
The sole exception to an employer's immunity from civil liability under this title, except as
provided in chapter 65-09, is an action for an injury to an employee caused by an employer's
intentional act done with the conscious purpose of inflicting the injury.
65-01-02. Definitions.
In this title:
1. "Acute care" means a short course of intensive diagnostic and therapeutic services
provided immediately following a work injury with a rapid onset of pronounced
symptoms.
2. "Adopted" or "adoption" refers only to a legal adoption effected prior to the time of the
injury.
3. "Artificial members" includes a device that is a substitute for a natural part, organ, limb,
or other part of the body. The term includes 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. A prescriptive device includes
prescription eyeglasses, contact lenses, dental braces, and orthopedic braces.
4. "Artificial replacements" means mechanical aids, including braces, belts, casts, or
crutches as may be reasonable and necessary due to compensable injury.
5. "Average weekly wage" means the weekly wages the employee was receiving from all
employments for which coverage is required or otherwise secured at the date of first
disability. The average weekly wage determined under this subsection must be
rounded to the nearest dollar. If the employee's wages are not fixed by the week, they
must be determined by using the first applicable formula from the schedule below:
a. For seasonal employment, during the first consecutive days of disability up to
twenty-eight days the average weekly wage is calculated pursuant to the first
applicable formula in subdivisions b through g, and after that are calculated as
one-fiftieth of the total wages from all occupations during the twelve months
preceding the date of first disability or during the tax year preceding the date of
first disability, or an average of the three tax years preceding the date of first
disability, whichever is highest and for which accurate, reliable, and complete
records are readily available.
b. The "average weekly wage" of a self-employed employer is determined by the
following formula: one fifty-second of the average annual net self-employed
earnings reported the three preceding tax years or preceding fifty-two weeks
whichever is higher if accurate, reliable, and complete records for those fifty-two
weeks are readily available.
Page No. 1
c.
6.
7.
8.
9.
10.
Hourly or daily rate multiplied by number of hours or days worked per seven-day
week.
d. Monthly rate multiplied by twelve months and divided by fifty-two weeks.
e. Biweekly rate divided by two.
f. The usual wage paid other employees engaged in similar occupations.
g. A wage reasonably and fairly approximating the weekly wage lost by the claimant
during the period of disability.
"Average weekly wage in the state" means the determination made of the average
weekly wage in the state by job service North Dakota on or before July first of each
year, computed to the next highest dollar.
"Board" means the workforce safety and insurance board of directors.
"Brother" and "sister" include a stepbrother and a stepsister, a half brother and a half
sister, and a brother and sister by adoption. The terms do not include a married brother
or sister unless that person actually is dependent.
"Child", for determining eligibility for benefits under chapter 65-05, means a legitimate
child, a stepchild, adopted child, posthumous child, foster child, and acknowledged
illegitimate child who is under eighteen years of age and resides with the employee; or
is under eighteen years of age and does not reside with the employee but a duty of
support is substantiated by an appropriate court order; or is between eighteen and
twenty-two years of age and enrolled as a full-time student in any accredited
educational institution and dependent upon the employee for support; or is eighteen
years of age or over and is physically or mentally incapable of self-support and is
actually dependent upon the employee for support. A child does not include a married
child unless actually dependent on the employee as shown on the preceding year's
income tax returns.
"Compensable injury" means an injury by accident arising out of and in the course of
hazardous employment which must be established by medical evidence supported by
objective medical findings.
a. The term includes:
(1) Disease caused by a hazard to which an employee is subjected in the
course of employment. The disease must be incidental to the character of
the business and not independent of the relation of employer and employee.
Disease includes effects from radiation.
(2) An injury to artificial members.
(3) Injuries due to heart attack or other heart-related disease, stroke, and
physical injury caused by mental stimulus, but only when caused by the
employee's employment with reasonable medical certainty, and only when it
is determined with reasonable medical certainty that unusual stress is at
least fifty percent of the cause of the injury or disease as compared with all
other contributing causes combined. Unusual stress means stress greater
than the highest level of stress normally experienced or anticipated in that
position or line of work.
(4) Injuries arising out of employer-required or supplied travel to and from a
remote jobsite or activities performed at the direction or under the control of
the employer.
(5) An injury caused by the willful act of a third person directed against an
employee because of the employee's employment.
(6) A mental or psychological condition caused by a physical injury, but only
when the physical injury is determined with reasonable medical certainty to
be at least fifty percent of the cause of the condition as compared with all
other contributing causes combined, and only when the condition did not
pre-exist the work injury.
b. The term does not include:
(1) Ordinary diseases of life to which the general public outside of employment
is exposed or preventive treatment for communicable diseases, except that
the organization may pay for preventive treatment for a health care provider
Page No. 2
11.
12.
13.
14.
15.
16.
as defined in section 23-07.5-01, firefighter, peace officer, correctional
officer, court officer, law enforcement officer, emergency medical technician,
or an individual trained and authorized by law or rule to render emergency
medical assistance or treatment who is exposed to a bloodborne pathogen
as defined in section 23-07.5-01 occurring in the course of employment and
for exposure to rabies occurring in the course of employment.
(2) A willfully self-inflicted injury, including suicide or attempted suicide, or an
injury caused by the employee's willful intention to injure or kill another.
(3) Any injury caused by the use of intoxicants or the illegal use of controlled
substances.
(4) An injury that arises out of an altercation in which the injured employee is an
aggressor. This paragraph does not apply to public safety employees,
including law enforcement officers or private security personnel who are
required to engage in altercations as part of their job duties if the altercation
arises out of the performance of those job duties.
(5) An injury that arises out of an illegal act committed by the injured employee.
(6) An injury that arises out of an employee's voluntary nonpaid participation in
any recreational activity, including athletic events, parties, and picnics, even
though the employer pays some or all of the cost of the activity.
(7) Injuries attributable to a pre-existing injury, disease, or other condition,
including when the employment acts as a trigger to produce symptoms in
the pre-existing injury, disease, or other condition unless the employment
substantially accelerates its progression or substantially worsens its severity.
Pain is a symptom and may be considered in determining whether there is a
substantial acceleration or substantial worsening of a pre-existing injury,
disease, or other condition, but pain alone is not a substantial acceleration
or a substantial worsening.
(8) A nonemployment injury that, although acting upon a prior compensable
injury, is an independent intervening cause of injury.
(9) A latent or asymptomatic degenerative condition, caused in substantial part
by employment duties, which is triggered or made active by a subsequent
injury.
(10) A mental injury arising from mental stimulus.
"Date of first disability" means the first date the employee was unable to work because
of a compensable injury.
"Date of maximum medical improvement" or "date of maximum medical recovery"
means the date after which further recovery from, or lasting improvement to, an injury
or disease can no longer reasonably be anticipated based upon reasonable medical
probability.
"Director" means the director of the organization.
"Disability" means loss of earnings capacity and may be permanent total, temporary
total, or partial.
"Doctor" means doctor of medicine or osteopathy, chiropractor, dentist, optometrist,
podiatrist, or psychologist acting within the scope of the doctor's license.
"Employee" means a person who performs hazardous employment for another for
remuneration unless the person is an independent contractor under the common-law
test.
a. The term includes:
(1) All elective and appointed officials of this state and its political subdivisions,
including municipal corporations and including the members of the
legislative assembly, all elective officials of the several counties of this state,
and all elective peace officers of any city.
(2) Aliens.
(3) County general assistance workers, except those who are engaged in
repaying to counties moneys that the counties have been compelled by
statute to expend for county general assistance.
Page No. 3
(4)
17.
Minors, whether lawfully or unlawfully employed; a minor is deemed sui juris
for the purposes of this title, and no other person has any claim for relief or
right to claim workforce safety and insurance benefits for any injury to a
minor worker, but in the event of the award of a lump sum of benefits to a
minor employee, the lump sum may be paid only to the legally appointed
guardian of the minor.
b. The term does not include:
(1) Any person whose employment is both casual and not in the course of the
trade, business, profession, or occupation of that person's employer.
(2) Any person who is engaged in an illegal enterprise or occupation.
(3) The spouse of an employer or a child under the age of twenty-two of an
employer. For purposes of this paragraph and section 65-07-01, "child"
means any legitimate child, stepchild, adopted child, foster child, or
acknowledged illegitimate child.
(4) Any real estate broker or real estate salesperson, provided the person
meets the following three requirements:
(a) The salesperson or broker must be a licensed real estate agent under
section 43-23-05.
(b) Substantially all of the salesperson's or broker's remuneration for the
services performed as a real estate agent must be directly related to
sales or other efforts rather than to the number of hours worked.
(c) A written agreement must exist between the salesperson or broker
and the person or firm for whom the salesperson or broker works,
which agreement must provide that the salesperson or broker will not
be treated as an employee but rather as an independent contractor.
(5) The members of the board of directors of a business corporation who are
not employed in any capacity by the corporation other than as members of
the board of directors.
(6) Any individual delivering newspapers or shopping news, if substantially all of
the individual's remuneration is directly related to sales or other efforts
rather than to the number of hours worked and a written agreement exists
between the individual and the publisher of the newspaper or shopping
news which states that the individual is an independent contractor.
(7) An employer.
c. Persons employed by a subcontractor, or by an independent contractor operating
under an agreement with the general contractor, for the purpose of this chapter
are deemed to be employees of the general contractor who is liable and
responsible for the payments of premium for the coverage of these employees
until the subcontractor or independent contractor has secured the necessary
coverage and paid the premium for the coverage. This subdivision does not
impose any liability upon a general contractor other than liability to the
organization for the payment of premiums which are not paid by a subcontractor
or independent contractor.
"Employer" means a person who engages or received the services of another for
remuneration unless the person performing the services is an independent contractor
under the common-law test. The term includes:
a. The state and all political subdivisions thereof.
b. All public and quasi-public corporations in this state.
c. Every person, partnership, limited liability company, association, and private
corporation, including a public service corporation.
d. The legal representative of any deceased employer.
e. The receiver or trustee of any person, partnership, limited liability company,
association, or corporation having one or more employees as herein defined.
f. The president, vice presidents, secretary, or treasurer of a business corporation,
but not members of the board of directors of a business corporation who are not
also officers of the corporation.
Page No. 4
g.
h.
18.
19.
20.
21.
22.
23.
24.
25.
The managers of a limited liability company.
The president, vice presidents, secretary, treasurer, or board of directors of an
association or cooperative organized under chapter 6-06, 10-12, 10-13, 10-15,
36-08, or 49-21.
i. The clerk, assessor, treasurer, or any member of the board of supervisors of an
organized township, if the person is not employed by the township in any other
capacity.
j. A multidistrict special education unit.
k. An area career and technology center.
l. A regional education association.
"Fee schedule" means the payment formulas established in the organization
publication entitled "Medical and Hospital Fees".
"Fund" means the workforce safety and insurance fund.
"Hazardous employment" means any employment in which one or more employees
are employed regularly in the same business or in or about the establishment except:
a. Agricultural or domestic service.
b. Any employment of a common carrier by railroad.
c. Any employment for the transportation of property or persons by nonresidents,
where, in such transportation, the highways are not traveled more than seven
miles [11.27 kilometers] and return over the same route within the state of North
Dakota.
d. All members of the clergy and employees of religious organizations engaged in
the operation, maintenance, and conduct of the place of worship.
"Health care provider" includes a doctor, qualified nurse, pharmacist, audiologist,
speech language pathologist, or naturopath or any recognized practitioner providing
skilled services pursuant to the prescription of, or under the supervision or direction of
any of these individuals.
"Organization" means workforce safety and insurance, or the director, or any
department head, assistant, or employee of workforce safety and insurance
designated by the director, to act within the course and scope of that person's
employment in administering the policies, powers, and duties of this title.
"Parent" includes a stepparent and a parent by adoption.
"Permanent impairment" means the loss of or loss of use of a member of the body
existing after the date of maximum medical improvement and includes disfigurement
resulting from an injury.
"Permanent total disability" means disability that is the direct result of a compensable
injury that prevents an employee from performing any work and results from any one
of the following conditions:
a. Total and permanent loss of sight of both eyes;
b. Loss of both legs or loss of both feet at or above the ankle;
c. Loss of both arms or loss of both hands at or above the wrist;
d. Loss of any two of the members or faculties in subdivision a, b, or c;
e. Permanent and complete paralysis of both legs or both arms or of one leg and
one arm;
f. Third-degree burns that cover at least forty percent of the body and require
grafting;
g. A medically documented brain injury affecting cognitive and mental functioning
which renders an employee unable to provide self-care and requires supervision
or assistance with a majority of the activities of daily living; or
h. A compensable injury that results in a permanent partial impairment rating of the
whole body of at least twenty-five percent pursuant to section 65-05-12.2.
If the employee has not reached maximum medical improvement within one hundred
four weeks, the employee may receive a permanent partial impairment rating if a rating
will assist the organization in assessing the employee's capabilities. Entitlement to a
rating is solely within the discretion of the organization.
Page No. 5
26.
27.
28.
29.
30.
31.
"Rehabilitation services" means nonmedical services reasonably necessary to restore
a disabled employee to substantial gainful employment as defined by section
65-05.1-01 as near as possible. The term may include vocational evaluation,
counseling, education, workplace modification, vocational retraining including training
for alternative employment with the same employer, and job placement assistance.
"Seasonal employment" includes occupations that are not permanent or that do not
customarily operate throughout the entire year. Seasonal employment is determined
by what is customary with respect to the employer at the time of injury.
"Spouse" includes only the decedent's husband or wife who was living with the
decedent or was dependent upon the decedent for support at the time of injury.
"Temporary total disability" means disability that results in the inability of an employee
to earn wages as a result of a compensable injury for which disability benefits may not
exceed a cumulative total of one hundred four weeks or the date the employee
reaches maximum medical improvement or maximum medical recovery, whichever
occurs first.
"Utilization review" means the initial and continuing evaluation of appropriateness in
terms of both the level and the quality of health care and health services provided a
patient, based on medically accepted standards. The evaluation must be
accomplished by means of a system that identifies the utilization of medical services,
based on medically accepted standards, and which refers instances of possible
inappropriate utilization to the organization to obtain opinions and recommendations of
expert medical consultants to review individual cases for which administrative action
may be deemed necessary.
a. "Wages" means:
(1) An employee's remuneration from all employment reportable to the internal
revenue service as earned income for federal income tax purposes.
(2) For members of the national guard who sustain a compensable injury while
on state active duty, "wages" includes income from federal employment and
may be included in determining the average weekly wage.
(3) For purposes of chapter 65-04 only, "wages" means all gross earnings of all
employees. The term includes all pretax deductions for amounts allocated
by the employee for deferred compensation, medical reimbursement,
retirement, or any similar program, but may not include dismissal or
severance pay.
b. The organization may consider postinjury wages for which coverage was not
required or otherwise secured in North Dakota for purposes of determining
appropriate vocational rehabilitation options or entitlement to disability benefits
under this title.
65-01-03. Individual performing service for remuneration presumed an employee.
1. Each individual who performs services for another for remuneration is presumed to be
an employee of the person for which the services are performed, unless it is proven
that the individual is an independent contractor under the common-law test. The
person that asserts that an individual is an independent contractor under the
common-law test, rather than an employee, has the burden of proving that fact.
2. In the case of commercial motor vehicles whose gross vehicle weight rating is more
than twenty-six thousand pounds [11793.40 kilograms], with an individual operating a
licensed truck or licensed tractor for a motor carrier of property, the presumption in
subsection 1 is successfully rebutted if all of the following factors are present:
a. The individual owns, leases, or enters a purchase agreement to purchase a truck
or tractor. The lease or purchase agreement must represent reasonably the value
of the lease or purchase of the truck or tractor. The lease or purchase agreement
may be with the carrier of property. An unreasonable lease or purchase
agreement with a third party, unaffiliated with the carrier, does not affect this
factor.
Page No. 6
b.
c.
d.
e.
f.
g.
The individual is responsible for the maintenance and repair of the truck or
tractor.
The individual bears the principal burden of operating costs, including fuel,
supplies, vehicle insurance, and personal expenses.
The individual is responsible for supplying the necessary personal services to
operate the truck or tractor.
Income taxes are not withheld from the individual's compensation.
The individual generally determines the details and means of performing the
services, in conformance with statutory or regulatory requirements, operating
procedures of the carrier, and specifications of the shipper.
The individual enters a written agreement with the motor carrier outlining the
nature of the relationship.
65-01-04. Computation of weekly wages in compensation matters.
Repealed by S.L. 1969, ch. 558, § 6.
65-01-05. Employment of those unprotected by insurance unlawful - Effect of failure
to secure compensation - Penalty - Injunction.
Repealed by S.L. 2001, ch. 578, § 17.
65-01-06. Exempting certain flying employees.
Pilots, copilots, stewardesses, and other regular flying employees of a regularly established
airline operating under a certificate of convenience and necessity granted by the competent
authorities of the United States of America and operating regularly scheduled flights in interstate
or foreign commerce shall be exempt from the compulsory provisions of this title while engaged
in work, the duties of which primarily involve interstate or foreign flying operations. Employees
not regularly engaged in interstate or foreign flying operations, and the flying employees of any
such airline as has its principal operating base in North Dakota, shall not be included in this
exemption.
65-01-07. Employer must keep record of injuries to employees - Reports required Contents - Penalty.
Repealed by S.L. 1975, ch. 106, § 673.
65-01-08. Contributing employer and staffing service relieved from liability for injury
to employee.
1. If a local or out-of-state employer secured the payment of compensation to that
employer's employees by contributing premiums to the fund, the employee, and the
parents in the case of a minor employee, or the representatives or beneficiaries of
either, do not have a claim for relief against the contributing employer or against any
agent, servant, or other employee of the employer for damages for personal injuries,
but shall look solely to the fund for compensation.
2. If a client company contracts with a staffing service for an employee's services, the
client company and the staffing service are immune from any claim for relief by that
employee or by another employee of the client company or staffing service, to the
same extent granted under this title to contributing employers if the client company or
staffing service secured the payment of compensation in accordance with this title.
Although an account must include the name of the staffing service, the employee is
considered an employee of the client company and staffing service for purposes of
application of immunity for injuries incurred by or caused by that employee.
3. For purposes of this section:
a. "Client company" means a person that contracts to receive services within the
course of that person's usual business from a staffing service or that contracts to
lease any or all of that person's employees from a staffing service.
Page No. 7
b.
4.
5.
6.
"Staffing service" means an employer in the business of providing the employer's
employees to persons to perform services within the course of that person's usual
businesses. The term includes professional employer organizations' staff leasing
companies, employee leasing organizations, and temporary staffing companies.
The term "staffing service" must be broadly construed to encompass entities that
offer services provided by a professional employer organization, staff leasing
company, employee leasing organization, or temporary staffing company
regardless of the term used.
(1) Within the meaning of staffing service as used in this section, "temporary
staffing" or "temporary staffing service" means an arrangement by which an
employer hires its own employees and assigns the employees to a client
company to support or supplement the client company's workforce in a
special work situation, including:
(a) An employee absence;
(b) A temporary skill shortage;
(c) A seasonal workload; or
(d) A special assignment or project with a targeted end date.
(2) The term does not include arrangements in which the majority of the client
company's workforce has been assigned by a temporary staffing service for
a period of more than twelve consecutive months.
A staffing service that provides only temporary staffing services is the employee's
employer. The temporary staffing service shall maintain a workforce safety and
insurance account in the temporary staffing service's name and report the wages for
those workers annually to the organization. All other staffing services shall:
a. Report annually the payroll detail for each North Dakota client company.
b. Maintain complete and separate records of the payroll of the staffing service's
client companies. Claims must be separately identified by the staffing service for
each client company.
c. Share employer responsibilities with the client company, including retention of the
authority to hire, terminate, discipline, and reassign employees. If the contractual
agreement between a staffing service and a client company is terminated, the
employees become the sole employees of the client company.
d. Notify the organization of the client company's name, workforce safety and
insurance account number, and the date the staffing service began providing
services to the client company. The staffing service shall provide this information
upon entering an agreement with a client company, but no later than fifteen days
from the effective date of the written agreement.
e. Supply the organization with a copy of the agreement between the staffing
service and client company.
f. Notify the organization upon termination of any agreement with a client company,
but no later than fifteen days from the effective date of termination.
g. Notify the staffing service's client companies of an uninsured status for failure to
pay workforce safety and insurance premiums within fifteen days of notice by the
organization.
A staffing service that provides both temporary and long-term employees is subject to
the reporting requirements associated with the type of employee provided to the client
company.
a. The organization shall maintain all employer data for each client company
requiring coverage under this title. If a client company enters an agreement with a
staffing service, the organization shall generate a master billing for the staffing
service detailing the staffing service's client companies.
b. Rate classifications for employees provided by a staffing service must be those
which would apply as if the work were performed by the employees of the client
company. A client company is eligible for organization safety discount and
dividend programs. If a client company enters an agreement with a staffing
Page No. 8
7.
8.
service, the client company shall retain the client company's experience rate, if
applicable.
c. Both a staffing service and client company under this section are considered
employers for purposes of section 65-04-26.1. A staffing service that provides
employees to a client company that has been determined to be uninsured or
ineligible for coverage under sections 65-04-27.1 and 65-04-33 may not secure
workforce safety and insurance coverage for those employees.
a. The organization shall determine whether an entity is a staffing service. If the
organization determines an entity is a staffing service, the organization may
further determine if the entity is a temporary staffing service. In rendering either
determination, the organization may issue a decision under section 65-04-32. If
the organization determines an entity is not a staffing service, the client company
shall maintain a workforce safety and insurance account and pay the premium for
coverage of the employees.
b. The factors the organization may consider in determining whether an entity is a
staffing service include the number of client companies handled by the staffing
service, the length of time the staffing service has been in existence, the extent to
which the staffing service extends services to the general public, the degree to
which the client company and staffing service are separate and unrelated
business entities, the repetition of officers or managers between the client
company and staffing service, and the extent to which a client company has an
ownership or other interest in the staffing service. The organization also may
consider the scope of the services provided by the staffing service, the
relationship between the staffing service and the client company's workers, the
written agreement between the staffing service and the client company, and any
other factor deemed relevant by the organization.
c. The organization may require information from any staffing service, including a
list of current client company accounts, staffing assignments, payroll information,
and rate classification information. A client company shall provide any information
requested by the organization regarding any staffing service.
The organization may adopt rules consistent with this section which further define
client company and staffing service and which provide a procedure by which the
organization may determine whether an entity meets these definitions.
65-01-09. Injury through negligence of third person - Option of employee Organization subrogated when claim filed - Lien created.
When an injury or death for which compensation is payable under provisions of this title
shall have been sustained under circumstances creating in some person other than the
organization a legal liability to pay damages in respect thereto, the injured employee, or the
employee's dependents may claim compensation under this title and proceed at law to recover
damages against such other person. The organization is subrogated to the rights of the injured
employee or the employee's dependents to the extent of fifty percent of the damages recovered
up to a maximum of the total amount it has paid or would otherwise pay in the future in
compensation and benefits for the injured employee. The organization also has a lien to the
extent of fifty percent of the damages recovered up to a maximum of the total amount it has paid
in compensation and benefits. The organization's subrogation interest or lien may not be
reduced by settlement, compromise, or judgment. The action against such other person may be
brought by the injured employee, or the employee's dependents in the event of the employee's
death. Such action shall be brought in the injured employee's or in the employee's dependents'
own right and name and as trustee for the organization for the subrogation interest of the
organization. However, if the director chooses not to participate in an action, the organization
has no subrogation interest and no obligation to pay fees or costs under this section and no lien.
If the injured employee or the employee's dependents do not institute suit within sixty days after
date of injury, the organization may bring the action in its own name and as trustee for the
injured employee or the employee's dependents and retain as its subrogation interest the full
amount it has paid or would otherwise pay in the future in compensation and benefits to the
Page No. 9
injured employee or the employee's dependents and retain as its lien the full amount it has paid
in compensation and benefits. Within sixty days after both the injured employee and the
organization have declined to commence an action against a third person as provided above,
the employer may bring the action in the employer's own name or in the name of the employee,
or both, and in trust for the organization and for the employee. The party bringing the action may
determine if the trial jury should be informed of the trust relationship. If the action is brought by
the injured employee or the employee's dependents, or the employer as provided above, the
organization shall pay fifty percent of the costs of the action, exclusive of attorney's fees, when
such costs are incurred as the action progresses before recovery of damages. If there is no
recovery of damages in the action, this shall be a cost of the organization to be paid from the
organization's general fund. After recovery of damages in the action, the costs of the action,
exclusive of attorney's fees, must be prorated and adjusted on the percentage of the total
subrogation interest of the organization recovered to the total recovery in the action. The
organization shall pay attorney's fees to the injured employee's attorney from the organization's
general fund as follows:
1. Twenty-five percent of the subrogation interest recovered for the organization before
judgment.
2. Thirty-three and one-third percent of the subrogation interest recovered for the
organization when recovered through judgment entered as a result of a trial on the
merits or recovered through binding alternative dispute resolution.
The above provisions as to costs of the action and attorney's fees are effective only when the
injured employee advises the organization in writing the name and address of the employee's
attorney, and that the employee has employed such attorney for the purpose of collecting
damages or of bringing legal action for recovery of damages. If a claimant fails to pay the
organization's subrogation interest and lien within thirty days of receipt of a recovery in a
third-party action, the organization's subrogation interest is the full amount of the damages
recovered, up to a maximum of the total amount it has paid or would otherwise pay in the future
in compensation and benefits to the injured employee or the employee's dependents, no costs
or attorney's fees will be paid from the organization's subrogation interest and the organization's
lien is the full amount of the damages recovered up to a maximum of the total amount it has
paid. The organization's lien is created upon first payment of benefits. The lien attaches to all
claims, demands, settlement proceeds, judgment awards, or insurance payable by reason of a
legal liability of a third person. If the organization does not receive payment of its lien amount
within thirty days of the payment of any recovery and if the organization has served, by regular
mail, written notice of its lien upon the employee or the employee's dependents and upon the
third person, the third person, the insurer of the third person, the employee or employee's
dependents, and the attorney of the employee or employee's dependents are liable to the
organization for the lien amount. A release or satisfaction of any judgment, claim, or demand
given by the employee or the employee's dependents is not valid or effective against the lien. An
action to collect the organization's lien amount must be commenced within one year of the
organization first possessing actual knowledge of a recovery.
65-01-10. Waiver of rights to compensation void - Deduction of premium from
employee prohibited - Penalty.
No agreement by an employee to waive rights to compensation under this title is valid
except as provided in section 65-05-25. No agreement by any employee to pay any portion of
the premium paid or payable by the employer into the fund is valid, and any employer who
deducts any portion of such premium from the wages or salary of any employee entitled to the
benefits of this title is guilty of a class A misdemeanor.
65-01-11. Burden of proof in compensation matters - Death certificate.
If the organization or an employer claims that an employee is not entitled to the benefits of
the North Dakota workforce safety and insurance law because the employee's injury was
caused by the employee's willful intention to cause self-injury, or to injure another, or by reason
of the voluntary impairment caused by use of alcohol or illegal use of a controlled substance by
the employee, the burden of proving the exemption or forfeiture is upon the organization or upon
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the person alleging the same; however, an alcohol concentration level at or above the limit set
by the United States secretary of transportation in the Code of Federal Regulations in effect on
August 1, 2011, or a level of an illegally used controlled substance sufficient to cause
impairment found by a test conducted by a physician, qualified technician, chemist, or registered
nurse at or above the cutoff level in the Code of Federal Regulations in effect on August 1, 2011,
creates a rebuttable presumption that the injury was due to impairment caused by the use of
alcohol or the illegal use of a controlled substance. An employer who has a mandatory drug
alcohol testing policy for work accidents, or an employer or a doctor who has reasonable
grounds to suspect an employee's alleged work injury was caused by the employee's voluntary
impairment caused by use of alcohol or illegal use of a controlled substance may request that
the employee undergo testing to determine if the employee had alcohol or the controlled
substance in the employee's system at levels greater than the limit set by the United States
department of transportation at the time of the injury. If an employee refuses to submit to a
reasonable request to undergo a test to determine if the employee was impaired or if an
employee refuses to submit to a test for drugs or alcohol after a work accident as mandated by
company policy, the employee forfeits all entitlement to workforce safety and insurance benefits
arising out of that injury. Any claimant against the fund, however, has the burden of proving by a
preponderance of the evidence that the claimant is entitled to benefits. If a claim for death
benefits is filed, the official death certificate must be considered as evidence of death and may
not be used to establish the cause of death.
65-01-12. Attorney general to represent organization.
Upon the request of the organization, the attorney general shall institute and prosecute the
necessary actions or proceedings for the enforcement of this title or for the recovery of any
money due the fund or of any penalty provided for in this title, and shall defend all suits, actions,
or proceedings brought against the organization or any of its employees in the attorney
general's official capacity.
65-01-13. Information fund - Continuing appropriation.
There is created a fund to be known as the information fund within the workforce safety and
insurance fund, to which the organization shall deposit all moneys received from private
citizens, businesses, associations, corporations, and limited liability companies for providing
these entities with publications and statistical information concerning workforce safety and
insurance matters. The information must be provided at cost. The moneys in the fund are
appropriated, as a standing and continuing appropriation, to workforce safety and insurance to
pay publication and statistical processing expenses incurred by the organization.
65-01-14. Informal decision by organization.
Repealed by S.L. 1997, ch. 532, § 6.
65-01-15. Yearly documentation required for firefighter and law enforcement officer.
Except for benefits for an exposure to a bloodborne pathogen as defined by section
23-07.5-01 occurring in the course of employment, a full-time paid firefighter or law enforcement
officer who uses tobacco is not eligible for the benefits provided under section 65-01-15.1,
unless the full-time paid firefighter or law enforcement officer provides yearly documentation
from a physician which indicates that the full-time paid firefighter or law enforcement officer has
not used tobacco for the preceding two years.
65-01-15.1. Presumption of compensability for certain conditions of full-time paid
firefighters and law enforcement officers.
1. Any condition or impairment of health of a full-time paid firefighter or law enforcement
officer caused by lung or respiratory disease, hypertension, heart disease, or an
exposure to a bloodborne pathogen as defined by section 23-07.5-01 occurring in the
course of employment, or occupational cancer in a full-time paid firefighter, is
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2.
3.
4.
5.
presumed to have been suffered in the line of duty. The presumption may be rebutted
by clear and convincing evidence the condition or impairment is not work-related.
As used in this section, an occupational cancer is one which arises out of employment
as a full-time paid firefighter and is due to injury due to exposure to smoke, fumes, or
carcinogenic, poisonous, toxic, or chemical substances while in the performance of
active duty as a full-time paid firefighter.
A full-time paid firefighter or law enforcement officer is not eligible for the benefit
provided under this section unless that full-time paid firefighter or law enforcement
officer has completed five years of continuous service and has successfully passed a
medical examination which fails to reveal any evidence of such a condition. An
employer shall require a medical examination upon employment, for any employee
subject to this section. After the initial medical examination, an employer shall require
at least a periodic medical examination as follows: for one to ten years of service,
every five years; for eleven to twenty years of service, every three years; and for
twenty-one or more years of service, every year. The periodic medical examination, at
a minimum, must consist of a general medical history of the individual and the
individual's family; an occupational history including contact with and an exposure to
hazardous materials, toxic products, contagious and infectious diseases, and to
physical hazards; a physical examination including measurement of height, weight,
and blood pressure; and laboratory and diagnostic procedures including a nonfasting
total blood cholesterol test and papanicolaou smear for women. If the medical
examination reveals that an employee falls into a recognized risk group, the employee
must be referred to a qualified health professional for future medical examination. If a
medical examination produces a false positive result for a condition covered under this
section, the organization shall consider the condition to be a compensable injury. In the
case of a false positive result, neither the coverage of the condition nor the period of
disability may exceed fifty-six days. This section does not affect an employee's
responsibility to document that the employee has not used tobacco as required under
section 65-01-15. Results of the examination must be used in rebuttal to a
presumption afforded under this section.
For purposes of this section, "law enforcement officer" means a person who is licensed
to perform peace officer law enforcement duties under chapter 12-63 and is employed
full time by the bureau of criminal investigation, the game and fish department, the
state highway patrol, the parole and probation division, the North Dakota state
university police department, the North Dakota state college of science police
department, the university of North Dakota police department, a county sheriff's
department, a city police department, or the parks and recreation department pursuant
to section 55-08-04.
The presumption does not include a condition or impairment of health of a full-time
paid firefighter or law enforcement officer, who has been employed for ten years or
less, if the condition or impairment is diagnosed more than two years after the
employment as a full-time paid firefighter or law enforcement officer ends. The
presumption also does not include a condition or impairment of health of a full-time
paid firefighter or law enforcement officer, who has been employed more than ten
years, if the condition or impairment is diagnosed more than five years after the
employment as a full-time paid firefighter or law enforcement officer ends.
65-01-16. Decisions by organization - Disputed decisions.
The following procedures must be followed in claims for benefits, notwithstanding any
provisions to the contrary in chapter 28-32:
1. The organization shall send a copy of each initial claim form filed with the organization
to the claimant's employer, by regular mail, along with a form for the employer's
response, if the employer's response has not been filed at the time the claim is filed.
Failure of the employer to file a response within fourteen days from the day the
response form was mailed to the employer constitutes the employer's admission that
the information in the claim form is correct.
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2.
3.
4.
5.
6.
7.
8.
9.
10.
The organization may conduct a hearing on any matter within its jurisdiction by
informal internal review of the information of record.
The organization may issue a notice of decision for any decision made by informal
internal review and shall serve the notice of decision on the parties by regular mail. A
notice of decision must include a statement of the decision, a short summary of the
reason for the decision, and notice of the right to reconsideration.
A party has thirty days from the day the notice of decision was mailed by the
organization in which to file a written request for reconsideration. The employer is not
required to file the request through an attorney. The request must state the reason for
disagreement with the organization's decision and the desired outcome. The request
may be accompanied by additional evidence not previously submitted to the
organization. The organization shall reconsider the matter by informal internal review
of the information of record. Absent a timely and sufficient request for reconsideration,
the notice of decision is final and may not be reheard or appealed.
Within sixty days after receiving a request for reconsideration, the organization shall
serve on the parties by regular mail a notice of decision reversing the previous
decision or, in accordance with the North Dakota Rules of Civil Procedure, an
administrative order that includes its findings, conclusions, and order. The organization
may serve an administrative order on any decision made by informal internal review
without first issuing a notice of decision and receiving a request for reconsideration.
An employee has thirty days from the day the administrative order was mailed in which
to file a request for assistance from the decision review office under section 65-02-27.
A party has thirty days, from the date of service of an administrative order or from the
day the decision review office mails its notice that the office's assistance is complete,
in which to file a written request for rehearing. The request must specifically state each
alleged error of fact and law to be reheard and the relief sought. Absent a timely and
sufficient request for rehearing, the administrative order is final and may not be
reheard or appealed.
Rehearings must be conducted as hearings under chapter 28-32 to the extent the
provisions of that chapter do not conflict with this section.
A party may appeal a posthearing administrative order to district court in accordance
with chapter 65-10. Chapter 65-10 does not preclude the organization from appealing
to district court a final order issued by a hearing officer under this title.
Any notice of decision, administrative order, or posthearing administrative order is
subject to review and reopening under section 65-05-04.
65-01-17. Agricultural employment exemption - Custom agricultural operations.
For purposes of the agricultural service exception to hazardous employment under section
65-01-02, an agricultural employer that engages in a custom agricultural operation, which is the
planting, care, or harvesting of grain or field crops on a contract-for-hire basis, exclusive of
hauling by special contractor, retains the exemption unless the employer's custom agricultural
operations are based outside this state or require more than thirty actual working days of
operation during the calendar year.
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