N.D. Cent. Code § 65-01-02(10) & N.D. Cent Code § 65-01-11 (WC)

N.D. Cent. Code § 65-01-02(10) & N.D. Cent Code § 65-01-11 – Workers’ Compensation

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.

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c. 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.

6. "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.

7. "Board" means the workforce safety and insurance board of directors.

8. "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.

9. "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.

10. "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

preexist 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

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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 preexisting injury, disease, or other condition,

including when the employment acts as a trigger to produce symptoms in

the preexisting injury, disease, or other condition unless the employment

substantially accelerates its progression or substantially worsens its severity.

(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.

11. "Date of first disability" means the first date the employee was unable to work because

of a compensable injury.

12. "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.

13. "Director" means the director of the organization.

14. "Disability" means loss of earnings capacity and may be permanent total, temporary

total, or partial.

15. "Doctor" means doctor of medicine or osteopathy, chiropractor, dentist, optometrist,

podiatrist, or psychologist acting within the scope of the doctor's license.

16. "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.

(4) 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

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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.

17. "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.

g. The managers of a limited liability company.

h. 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.

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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.

18. "Fee schedule" means the payment formulas established in the organization

publication entitled "Medical and Hospital Fees".

19. "Fund" means the workforce safety and insurance fund.

20. "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.

21. "Health care provider" means a doctor or any recognized practitioner providing skilled

services pursuant to the prescription of, or under the supervision or direction of, a

doctor.

22. "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.

23. "Parent" includes a stepparent and a parent by adoption.

24. "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.

25. "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 traumatic 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.

26. "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.

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27. "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.

28. "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.

29. "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.

30. "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.

31. "Wages" means an employee's remuneration from all employment reportable to the

internal revenue service as earned income for federal income tax purposes. For

purposes of chapter 65-04, "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.

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

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

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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.