Workers' Compensation Law Summaries
North Dakota, Workers' Compensation Law Summaries
North Dakota's workers' compensation law is located in the North Dakota Century Code at Title 65, Chapters 65-01–65-10.
COVERAGE
Coverage in North Dakota is compulsory for all hazardous employment. Corporate officers, partners, sole proprietors and resident family members may elect coverage. Coverage is also compulsory for all public employment (Sec. 65-01-02). Special provisions apply to volunteer firefighters, emergency or disaster volunteers, or community emergency response team members (Sec. 65-06-03), civil patrol members (Sec. 65-06.1-02) and inmates of penal institutions (Sec. 65-06.2-02).
Coverage is voluntary for nonhazardous and excluded employment (Secs. 65-04-29 and 65-07-01). General contractors are responsible for securing coverage and paying premiums for subcontractors until the subcontractor has secured and paid its own coverage (Sec. 65-01-02).
EXCEPTIONS
Excluded from coverage under the law are farm laborers, domestics, casual workers, clergy, real estate brokers or salespersons with written agreements defining them as independent contractors and certain flying employees. Effective August 1, 2001, custom agricultural operations (contract-for-hire) retain the agricultural employment exemption unless they are based outside the state or require more than 30 working days in a calendar year (Secs. 65-01-02, 65-01-06 and 65-01-17 ).
WHAT THE EMPLOYER MUST DO
Insurance choices.- Employers must insure with the state fund (Sec. 65-04-04).
Waiting period.- No compensation may be paid for any disability that has a duration of less than five consecutive calendar days. If the period of disability is five consecutive calendar days or more, compensation is paid for the entire period of disability. An employer may not require an employee to use sick leave or annual leave, or other employer-paid time off work, before applying for benefits, instead of receiving benefits, or in conjunction with benefits. However, employees may be allowed to use sick leave or annual leave to make up the difference between their wage-loss benefits and their regular pay (Sec. 65-05-08).
Choice of physician.- Every employee who sustains an injury may select a doctor of his or her choice to render initial treatment. Once it is determined that the employee's injury is compensable, Workforce Safety and Insurance may require the employee to select from among three physicians of its choice. No employee may change doctors while under treatment or after being released from treatment without the prior written authorization of Workforce Safety and Insurance (Sec. 65-05-28).
Any employer may select a preferred provider to render medical treatment to employees who sustain compensable injuries (Sec. 65-05-28.1, as amended by L. 2007, ND SB 2123).
During the first 30 days after a compensable injury, the employee may seek medical treatment (other than emergency care or care the employee reasonably did not know was related to a compensable injury) only from the preferred provider for the injury. Treatment by a provider other than the preferred provider is not compensable, unless the employee was referred by the preferred provider to the other health care provider (Sec. 65-05-28.2(1), as amended by S. 2432, L. 2009).
An employee may elect to be treated by a different provider if the employee makes the election and notifies the employer in writing prior to the occurrence of an injury.
After 30 days have passed following the injury, the employee may make a written request to Workforce Safety and Insurance to change health care providers, stating the reason for the request and the choice of provider. The employer may file an objection to the change and treatment by the employee's chosen health care provider is not compensable until Workforce Safety and Insurance approves the change-of-providers request (Sec. 65-05-28.2, as amended by S. 2432, L. 2009).
An employer must give written notice to its employees when it makes an initial selection of a preferred provider or changes the selection of the preferred provider. In addition, the employer must display notice of the preferred provider in a conspicuous manner at fixed worksites and, wherever feasible, at mobile worksites. Failure to give written or posted notice invalidates the selection, allowing employees to make the initial selection of a medical provider.
Reports and records.- The employer must file a first report of notice of injury with Workforce Safety and Insurance (Sec. 65-05-01.4)
Offset provisions.- North Dakota offsets partial or total disability benefits of any worker who fails to report wages received from any part-time or full-time employment.
The aggregate benefit amount payable for temporary total or permanent total disability is reduced, but not below zero, by an amount equal to one-half (as nearly as possible) of the benefits payable under Title II of the Social Security Act and is not affected by any increase or decrease in federal benefits. Any escalation of temporary or permanent total disability benefits that would adversely affect Workforce Safety and Insurance's right to offset benefits against Social Security benefits, is not applicable to persons whose benefits are offset, as provided for in the workers' compensation law.
If a claimant is entitled to permanent total disability benefits and Social Security retirement benefits, the aggregate wage-loss benefits payable under the state workers' compensation law must be determined in accordance with the state workers' compensation law. The Social Security retirement offset must equal 40 percent of the calculated ratio of the employee's average weekly wages, as calculated at the commencement of the first or recurrent disability to the current state average weekly wage. Any offset may not exceed 40 percent of the employee's weekly Social Security retirement benefit. If a claim has been accepted on an aggravation basis and the worker is eligible for Social Security benefits, the state offset must be proportionally calculated (Secs. 65-05-09.1 and 65-05-09.2).
Drug and alcohol use.- A work-related injury is not compensable under the workers' compensation law when the injury is caused by the employee's use of intoxicants or the illegal use of controlled substances (Sec. 65-01-02).
Premium discounts.- Employers who apply for and are approved as a preferred worker employer may not be assessed premiums on a preferred worker's salary for three years from the date of hiring. Preferred workers are those who have incurred a compensable injury resulting in a disability that poses a substantial obstacle to employment. Workforce Safety and Insurance may provide assistance to employers in the program, and it may not charge claims costs incurred as a result of an injury sustained by a preferred worker against the preferred worker's employer's account during the first three years after the worker is hired (Sec. 65-05-36).
Any employer that implements a risk management program approved by the workforce safety and insurance department is entitled to a premium discount if the employer achieves program benchmarks (Sec. 65-04-19.1, as amended by L. 2007, ND S 2123).
NOTICE
The employee must immediately notify the employer of an on-the-job accident and the general nature of the injury. Notice may be oral or written but must be given to the employee's immediate supervisor or another supervisor authorized to receive notices of injuries. Absent good cause, notice may not be given later than seven days after the accident or after the general nature of the injury becomes apparent (Sec. 65-05-01.2).
An employer must give written notice to its employees when it makes an initial selection of a preferred provider or changes the selection of the preferred provider.
See also WHAT THE EMPLOYER MUST DO, above.
PENALTIES
POSTING
An employer must display in a conspicuous manner at the workplace a certificate of premium payment (Sec. 65-04-04).
The employer must display notice of the preferred provider in a conspicuous manner at fixed worksites and, wherever feasible, at mobile worksites.
See ¶35-9900 .
PENALTIES
An employer who willfully discharges or willfully threatens to discharge an employee for seeking or making known the intention to seek workers' compensation benefits is liable in a civil action for damages incurred by the employee (Sec. 65-05-37).
Failure to give written or posted notice concerning the preferred provider invalidates the selection, allowing employees to make the initial selection of a medical provider.
Workforce Safety and Insurance may bring suit for premiums in default (Sec. 65-04-24). Procedures, including reconsideration, rehearing and appeal, to resolve disputed decisions are established (added by S. 2157, L. 2001, effective August 1, 2001). To protect wage workers and to ensure contributions to the workers' compensation fund, Workforce Safety and Insurance may seek injunctive relief against employers unlawfully employing uninsured workers, those in default of premiums, penalties or interest or when employers do not comply with safety rules (Sec. 65-04-27.1).
It is unlawful for an employer to employ anyone, or to receive the fruits of the labor of a person, in hazardous employment without first applying for workers' compensation insurance coverage. Willful failure to secure coverage for employees by application for workers' compensation insurance constitutes a class A misdemeanor. If the premium due exceeds $500, the penalty for willful failure to secure coverage is a class C felony. If the employer is a corporation or a limited liability company, the president, secretary, treasurer, or person with primary responsibility is liable for the failure to secure workers' compensation coverage. In addition to these penalties, Workforce Safety and Insurance may institute injunction proceedings to enjoin an employer from unlawfully employing uninsured workers (Sec. 65-01-05).
An employer that willfully misrepresents to Workforce Safety and Insurance or its representative the amount of payroll upon which a premium is based, or that willfully fails to secure coverage for employees, is liable in the amount of $2,000 plus three times the difference between the premium paid and the amount of premium the employer should have paid. This penalty will be collected in a civil action.
Such a misrepresentation or failure to secure coverage is a class A misdemeanor. However, if the premium due exceeds $500, the penalty is a class C felony. If the employer is a corporation or a limited liability company, the officers or person with primary responsibility is liable for the failure to secure coverage. Injunction proceedings, described above in Enforcement, are in addition to these penalties. Additionally, the cost of an investigation that results in a criminal conviction may be charged to the employer's account and collected by civil action.
Filing a false claim or false statement can be punished by requiring the wrongdoer to reimburse Workforce Safety and Insurance (Sec. 65-05-33).
An employer that is uninsured is liable for any premiums plus penalties and interest due on those premiums, plus a penalty of 25 percent of all premiums due during the most recent year of noncompliance. An additional 5 percent penalty is due for each year of noncompliance before the most recent year, not to exceed six years or 50 percent, beginning on the date Workforce Safety and Insurance became aware of the employer's uninsured status. Additional penalties may be assessed, from that date until the effective date of coverage, equal to 25 percent of the premium due for that period. These penalties, which are in addition to any others provided by law, may be reduced by Workforce Safety and Insurance. However, the amount due may not be less than the actual cost and reserves of any claim attributable to the employer during the uninsured time period. An employer may not appeal a decision not to reduce a penalty.
An employer that fails or refuses to furnish to Workforce Safety and Insurance the annual payroll report and estimate or who fails or refuses to furnish other required information is subject to a penalty of $2,000. Upon the request, the employer must furnish any payroll records, annual payroll reports, and other information required and an estimate of payroll for the advance premium year. If the employer does not provide the records within 30 days of a written request, it may be penalized up to $100 for each day until Workforce Safety and Insurance receives the records, in addition to the $2,000. Workforce Safety and Insurance may not assess a penalty that exceeds $150 under this subsection against an organized township. These penalties may be reduced, but an employer may not appeal a decision not to reduce a penalty. If the employer fails to pay the amount specified by Workforce Safety and Insurance in writing within 30 days, the premium, penalties and interest due may be collected by civil action (Sec. 65-04-33).
An employer required to be insured that is uninsured is not protected by immunity from civil liability for damages by reason of an employee's injury in the course of employment (Sec. 65-09-01).
When an employer defaults in the payment of any premium, installment, penalty or interest, or in the filing of a required bond, the employer at the time of default is subject to a penalty not to exceed $250 plus 2 percent of the amount due; and, beginning one month after default, a penalty of 2 percent of the amount in default for each month or fraction of a month the amount remains unpaid.
If an employer or its authorized representative willfully communicate information contained in an employee's claim file to any person who does not need the information in the performance of that person's duties is guilty of a class B misdemeanor (Sec. 65-05-32).
Upon twenty days' notice, any employer which fails to comply with any reasonable safety rule may have its premium rating penalized by ten percent (Sec. 65-03-02).
An employer is liable for a civil penalty of $250 for failing to display the notice of premium payment and toll free number used to report unsafe working conditions and actual or suspected fraud (Sec. 65-04-04).
Failure to file a first report of injury is an admission the alleged injury may be compensable (Sec. 65-05-01.4).
If an employee eligible for or receiving disability benefits fails to report any wages earned he or she can be penalized (Sec. 65-05-08).
If an employee refuses to submit to, or intentionally obstructs any examination or treatment, the employee's right to claim compensation is suspended (Sec. 65-05-28).
A false statement in an employment application as to the employee's physical condition bars all benefits under certain circumstances (Sec. 65-05-34).
CONTACTS
Workforce Safety and Insurance Department, 1600 East Century Avenue, Suite One, Bismarck, ND 58506, (800) 777-5033, (701) 328-3800.
<p>Workforce Safety and Insurance Department, 1600 East Century Avenue, Suite One, Bismarck, ND 58506, (800) 777-5033, (701) 328-3800.</p>
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