# Title 65 — Workforce Safety and Insurance

## Chapter 65-05 — Claims and Compensation

### § 65-05-01. Claims for benefits - When and where filed.

All original claims for benefits must be filed by the injured employee, or someone on the
injured employee's behalf, within one year after the injury or within two years after the death.
The date of injury for purposes of this section is the first date that a reasonable person knew or
should have known that the employee suffered a work-related injury and has either lost wages
because of a resulting disability or received medical treatment. Notwithstanding a statute of
limitations assertion, the claimant bears the burden of proving any entitlement to benefits. If the
organization is estopped from applying the statute of limitations in this section because an
employer's willful conduct prevented an injured employee from filing a claim in a timely manner,
that employer shall reimburse the organization for the full amount of all benefits paid during the
first five years of that claim. Benefits may not be allowed under this title to any person, except
as provided in section 65-05-04, unless that person, or someone on that person's behalf, files a
written claim for benefits within the time specified in this section. A claim must be filed by:
1. Delivering it at the office of the organization or to any person the organization
designates by rule; or
2. Depositing it in the mail properly stamped and addressed to the organization or to any
person the organization designates by rule.
### § 65-05-01.1. Pneumoconiosis claims - Rules - Agreements.

The organization shall provide such additional coverage, allow such additional time for
claims to be filed, and pay such additional compensation and other benefits in excess of the
coverage, filing time, and benefits otherwise provided in this title, as may be required by the
Federal Coal Mine Health and Safety Act of 1969 and amendments thereto, for any coal miner,
coal miner's surviving spouse, or dependents who, due to the disability or death of such coal
miner as the result of pneumoconiosis, would be entitled to claim benefits under such federal
Act; provided, however, that such claim is first filed with the federal agency designated in the
federal Act and adjudicated and found compensable by them; and provided that such
pneumoconiosis was contracted or aggravated as the result of employment as a coal miner in
the state of North Dakota. The organization shall adopt such reasonable rules and enter into
such agreements necessary to comply with section 421 of said federal Act.
### § 65-05-01.2. Notice to employer.

When an employee is involved in an accident while on the job, the employee shall take
steps immediately to notify the employer that the accident occurred and what is the general
nature of the injury to the employee, if apparent. Notice may be either oral or written. The notice
must be given to the employee's immediate supervisor or another supervisor authorized to
receive notice. Absent good cause, notice may not be given later than seven days after the
accident occurred or the general nature of the employee's injury became apparent.
### § 65-05-01.3. Failure to comply with notice and filing provisions.

If an employee fails to notify the employer of an accident and the general nature of the
employee's injury, the organization may consider that failure to notify in determining whether the
employee's injury is compensable.
### § 65-05-01.4. Employer to file first report of notice of injury.

The employer shall file a first report of notice of injury with the organization within seven
days from the date the employer receives the notice of injury from the employee. Failure of the
employer to file a first report of notice of injury is an admission by the employer that the alleged
injury may be compensable. The organization may make or reopen a determination made
without an employer's first report of notice of injury on its own motion pursuant to section

### § 65-05-01.5. Organization to notify employee of receipt of employer's first report of

notice of injury.
If a claim for compensation has not been received by the organization but the organization
has received an employer's first report of notice of injury, the organization shall notify the
employee that the employer's first report has been received and shall advise the employee of
the claim filing requirements of section 65-05-01.
### § 65-05-02. Form in which claim must be filed.

Every claim must be made on forms to be furnished by the organization and must contain
all the information required by it. Each claim must be signed by the person entitled to
compensation or by the person acting on that person's behalf and, except in case of death,
must be accompanied by a certificate of the employee's doctor stating that the employee was
physically examined, stating the nature of the injury and the nature and probable extent of the
disability. For any reasonable cause shown, the organization may waive the provisions of this
section.
### § 65-05-03. Jurisdiction of organization to hear questions within its jurisdiction -

Finality of determination.
The organization shall have full power and authority to hear and determine all questions
within its jurisdiction, and its decisions, except as provided in chapter 65-10, are final and are
entitled to the same faith and credit as a judgment of a court of record.
### § 65-05-04. Organization has continuing jurisdiction over claims properly filed.

If the original claim for compensation has been made within the time specified in section
65-05-01, the organization at any time, on its own motion or on application, may review the
award, and in accordance with the facts found on such review, may end, diminish, or increase
the compensation previously awarded, or, if compensation has been refused or discontinued,
may award compensation. There is no appeal from an organization decision not to reopen a
claim after the organization's order on the claim has become final.
### § 65-05-05. Payments made to insured employees injured in course of employment and

to their dependents.
1. The organization shall disburse the fund for the payment of compensation and other
benefits as provided in this chapter to employees, or to their dependents in case death
has ensued, who:
a. Are subject to the provisions of this title;
b. Are employed by employers who are subject to this title; and
c. Have been injured in the course of their employment.
2. If an employee, or any person seeking benefits because of the death of an employee,
applies for benefits from another state for the same injury, the organization will
suspend all future benefits pending resolution of the application. If an employee, or
any person seeking benefits because of the death of an employee, is determined to be
eligible for benefits through some other state act or enters an agreement to resolve a
claim through some other state act, no further compensation may be allowed under
this title and the employee, or any person seeking benefits because of the death of an
employee, must reimburse the organization for the entire amount of benefits paid.
### § 65-05-06. Payment of compensation in lieu of claim for relief against employer.

The payment of compensation or other benefits by the organization to an injured employee,
or to the injured employee's dependents in case death has ensued, are in lieu of any and all
claims for relief whatsoever against the employer of the injured or deceased employee.

### § 65-05-07. Injured employee given medical and hospital service required - Furnished

artificial limbs and appliances for rehabilitation - Fee approval.
The fund shall furnish to an injured employee reasonable and appropriate medical, surgical,
and hospital service and supplies necessary to treat a compensable injury. The fund may furnish
artificial members and replacements the organization determines necessary to rehabilitate an
injured employee.
1. The allied health care professional must be acting within the scope of the allied health
care professional's license or fees will be denied.
2. Fees may not be approved for more than one allied health care professional in a case
in which treatment is provided over the same period of time except for the services of
a consulting doctor, assistant surgeon, or anesthetist or in an emergency.
3. The organization, in cooperation with professional organizations of allied health care
professionals, shall establish a system of peer review to determine reasonableness of
fees and payment denials for unjustified treatments, hospitalization, or visits. The allied
health care professional may appeal adverse decisions of the organization in
accordance with the medical aid rules adopted by the organization.
4. An allied health care professional may not bill an injured employee for a service
rendered as a result of the compensable work injury.
5. Under this section, the organization may modify real estate and may provide for
adaptations and modifications to motor vehicles as follows:
a. Except as provided in subdivision c, in the case of an injured employee who
sustained a catastrophic injury, as defined in chapter 65-05.1, the organization
may pay an amount not to exceed one hundred fifty thousand dollars to provide
permanent additions, remodeling, or adaptations to real estate it determines
necessary. The dollar limit is for the life of the injured employee, regardless of any
subsequent claim. This subdivision does not allow the organization to purchase
any real estate.
b. Except as provided in subdivision c, in the case of an injured employee who
sustained a catastrophic injury, as defined in chapter 65-05.1, the organization
may pay an amount not to exceed two hundred thousand dollars to provide the
most cost-effective, specially equipped motor vehicle or vehicle adaptations the
organization determines medically necessary. The organization may establish
factors to be used in determining whether a specially equipped motor vehicle or
adaptation is necessary. Under this subdivision, the organization may not pay for
insurance of or maintenance of the motor vehicle. Within the dollar limit and
under this subdivision, the organization may pay for vehicle or adaptation
replacement purchases. The dollar limit is for the life of the injured employee,
regardless of any subsequent claim.
c. In the case of an injured employee who has not sustained a catastrophic injury,
as defined in chapter 65-05.1, the organization may provide the benefits under
subdivisions a and b if the organization determines the benefits would be cost-
effective and appropriate because of exceptional circumstances as determined by
the organization.
6. If an allied health care professional who has treated or provided services to an injured
employee fails or refuses without just cause to file with the organization a report
required by section 65-05-02, 65-05-08, or 65-05-08.1, within thirty days of
examination, treatment, or provision of other services rendered in connection with a
compensable work injury, or within thirty days of a request for the report made by the
claimant, the claimant's representative, or the organization, the organization shall
assess as a penalty a sum of one hundred dollars. Health care providers and allied
health care professionals may not bill an injured worker for a penalty assessed by the
organization under this subsection.
7. The filing of an accident report or the rendering of treatment to an injured worker who
comes under the organization's jurisdiction constitutes acceptance of the
organization's medical aid rules and compliance with the organization's rules and fees.
8. The organization may not pay for:

a. Personal items for the injured employee's personal use or hygiene, including
toothbrushes, slippers, shampoo, and soap.
b. A product or item including clothing or footwear unless the items are considered
orthopedic devices and are prescribed by the treating allied health care
professional.
c. Furniture except hospital beds, shower stools, wheelchairs, or whirlpools if
prescribed by the treating allied health care professional.
d. Vitamins and food supplements except in those cases in which the injury causes
severe dietary problems, the injury results in the employee's paraplegia or
quadriplegia, or the employee becomes wheelchair-bound due to the injury.
e. Eye examinations unless there is a reasonable potential for injury to the
employee's eyes as a result of the injury.
f. Private hospital or nursing home rooms except in cases of extreme medical
necessity and only when directed by the attending doctor. If the employee desires
better accommodations than those ordered by the attending doctor, the employee
will pay the difference in cost.
g. Serological tests, including VDRL and RPR, or other tests for venereal disease or
pregnancy, or any other routine tests unless clearly necessitated by the injury.
h. Aids or programs primarily intended to help the employee lose weight or stop
smoking unless ordered by the organization.
i. Home gymnasium or exercise equipment unless ordered by the organization.
j. Memberships or monthly dues to health clubs, unless ordered by the
organization.
k. Massage, unless ordered by the organization.
l. Medical marijuana.
### § 65-05-07.1. Organization to adopt fee schedule.

Repealed by S.L. 1999, ch. 554, § 4.
### § 65-05-07.2. Payment to organization for certain claims.

Repealed by S.L. 2017, ch. 437, § 6.
### § 65-05-07.3. Medical bills - Electronic acceptance.

The organization shall establish guidelines, systems, and procedures for the acceptance of
medical bills and supporting documentation by electronic methods. Health care providers shall
submit medical bills and supporting documentation to the organization by this electronic method
no later than July 1, 2021.
### § 65-05-08. Disability benefits - Not paid unless period of disability is of five days'

duration or more - Application required - Suspended during confinement - Duty to report
wages.
Benefits may not be paid for disability, the duration of which is less than five consecutive
calendar days. 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 under this section, in lieu of
receiving benefits under this section, or in conjunction with benefits provided under this section,
but may allow an employee to use sick leave or annual leave to make up the difference between
the employee's wage-loss benefits and the employee's regular pay. If the period of disability is
five consecutive calendar days' duration or longer, benefits must be paid for the period of
disability provided that:
1. When disability benefits are discontinued, the organization may not begin payment
again unless the injured employee files a reapplication for disability benefits on a form
supplied by the organization. In case of reapplication, the award may commence no
more than thirty days before the date of reapplication. Disability benefits must be
reinstated upon proof by the injured employee that:

a. The employee has sustained a significant change in the compensable medical
condition;
b. The employee has sustained an actual wage loss caused by the significant
change in the compensable medical condition; and
c. The employee has not retired or voluntarily withdrawn from the job market as
defined in section 65-05-09.3.
2. Payments of disability and rehabilitation benefits of an employee who is eligible for, or
receiving, benefits under this title must be suspended when the employee is confined
in a penitentiary, jail, youth correctional facility, or any other penal institution for a
period of between seventy-two consecutive hours and one hundred eighty consecutive
days. Payments of disability and rehabilitation benefits of an employee who is eligible
for, or receiving, benefits under this title must be discontinued when the employee is
confined in a penitentiary, jail, youth correctional facility, or any other penal institution
for a period in excess of one hundred eighty consecutive days.
3. An employee who is eligible for, or receiving disability or rehabilitation benefits under
this title shall report any wages earned, from part-time or full-time work from any
source. If an employee fails to report wages earned, the employee shall refund to the
organization all disability or vocational rehabilitation benefits overpaid by the
organization for that time period. To facilitate recovery of those benefits, the
organization may offset future benefits payable, under section 65-05-29. If the
employee willfully fails to report wages earned, the employee is subject to the
penalties in section 65-05-33. An employee shall report whether the employee has
performed work or received wages. The organization periodically shall provide a form
to all injured employees receiving disability or rehabilitation benefits which the injured
employee must complete to retain eligibility for further disability or rehabilitation
benefits, regardless of the date of injury or claim filing. The form will advise the injured
employee of the possible penalties for failure to report any work or activities as
required by this section. An injured employee who is receiving disability or vocational
rehabilitation benefits must report any work activities to the organization whether or not
the injured employee receives any wages. An injured employee who is receiving
disability or vocational rehabilitation benefits must also report any other activity if the
injured employee receives any money, including prize winnings, from undertaking that
activity, regardless of expenses or whether there is a net profit. For purposes of this
subsection, "work" does not include routine daily activities of self-care or family care,
or routine maintenance of the home and yard, and "activities" does not include
recreational gaming or passive investment endeavors.
4. An employee shall request disability benefits on a claim form furnished by the
organization. Disability benefits may not commence more than one year prior to the
date of filing of the initial claim for disability benefits.
5. The provisions of this section apply to any disability claim asserted against the fund on
or after July 1, 1991, irrespective of injury date.
6. It is the burden of the employee to show that the inability to obtain employment or to
earn as much as the employee earned at the time of injury is due to physical limitation
related to the injury, and that any wage loss claimed is the result of the compensable
injury.
7. If the employee voluntarily limits income or refuses to accept employment suitable to
the employee's capacity, offered to or procured for the employee, the employee is not
entitled to disability or vocational rehabilitation benefits during the limitation of income
or refusal to accept employment unless the organization determines the limitation or
refusal is justified. To receive additional disability or vocational rehabilitation benefits
following an unjustified limitation or refusal, the employee shall meet the requirements
of a reapplication for benefits as outlined in this section.
8. The organization may not pay disability benefits unless the loss of earning capacity
exceeds ten percent. The injured employee may earn up to ten percent of the
employee's preinjury average gross weekly earnings with no reduction in total disability

benefits. The employee must report any earnings to the organization for a
determination of whether the employee is within the limit set in this subsection.
9. Upon securing suitable employment, the injured employee shall notify the organization
of the name and address of the employer, the date the employment began, and the
amount of wages being received. If the injured employee is receiving disability
benefits, the injured employee shall notify the organization whenever there is a change
in work status or wages received.
10. The organization shall pay to an employee receiving disability benefits a dependency
allowance for each child of the employee at the rate of fifteen dollars per week per
child.
11. Dependency allowance for the children may be made directly to either parent or
guardian at the discretion of the organization.
12. The organization may not pay wage loss benefits if the wage loss is related to the use
or presence of medical marijuana.
### § 65-05-08.1. Verification of disability.

1. An injured employee's health care provider shall certify the period of disability and the
extent of the injured worker's abilities and restrictions.
2. A health care provider certifying disability shall include in the report filed with the
organization:
a. The medical basis established by medical evidence supported by objective
medical findings for the certification of disability;
b. Whether the employee is totally disabled, or, if the employee is not totally
disabled, whether the employee is able to return to any employment, and a
statement of the employee's restrictions and physical limitations; and
c. A professional opinion as to the expected length of, and reason for, the disability.
3. A health care provider may not certify or verify past disability commencing more than
sixty days before the health care provider's examination of the employee.
4. The report must be filed on a form furnished by the organization, or on any other form
acceptable to the organization.
5. The injured employee shall ensure the required reports for any period of disability are
filed.
6. Prior to the expiration of a period of disability certified by a health care provider, if a
report certifying an additional period of disability has not been filed, or upon receipt of
a report or other evidence indicating an injured employee who is receiving disability
benefits has been or will be released to return to work, the organization shall send a
notice to that employee of the organization's intention to discontinue benefits, including
an explanation of the reason for discontinuing benefits, an explanation of the injured
employee's right to respond, and the procedure for filing the required report or
challenging the proposed action. Thereafter, if the required certification is not filed, the
organization shall discontinue disability benefits, effective twenty-one days after the
date the notice of intention to discontinue benefits is mailed or the date on which the
injured employee actually returned to work, whichever occurs first.
### § 65-05-08.2. Preacceptance disability benefits.

If, after receiving a claim for benefits, the organization determines that more information is
needed to process the claim, but that the information in the file indicates the injured employee is
more likely than not entitled to disability benefits, the organization may pay preacceptance
disability benefits equal to the weekly disability benefit allowed under section 65-05-09. The
organization may continue to pay preacceptance disability benefits to the employee during the
period the claim is pending, unless the injured employee is not cooperating with requests from
the organization for additional information needed to process the claim. The organization may
not pay more than sixty days of preacceptance benefits. The organization may only recover a
payment made to an injured employee under this section if that recovery is allowed under
section 65-05-33. There is no appeal from an organization decision not to pay preacceptance
disability benefits.

### § 65-05-08.3. Treating health care provider's opinion.

1. A presumption may not be established in favor of any health care provider's opinion.
The organization shall resolve conflicting medical opinions and in doing so the
organization shall consider 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 health care provider specializes in the medical issues related to the
opinion; and
g. Other relevant factors.
2. This section does not apply to managed care programs under section 65-02-20. For
purposes of this section, the organization shall determine whether a health care
provider is an injured employee's treating health care provider.
### § 65-05-09. Temporary total or permanent total disability - Weekly and aggregate

benefit.
1. If an injury causes temporary total or permanent total disability, the fund shall pay to
the injured employee during that disability a weekly benefit equal to sixty-six and
two-thirds percent of the gross average weekly wage of the injured employee, subject
to a minimum of sixty percent and a maximum of one hundred twenty-five percent of
the average weekly wage in the state. If an injured employee is disabled due to an
injury, that injured employee's benefits will be based upon the injured employee's wage
and the organization benefit rates in effect on the date of first disability.
2. Unless otherwise provided in this subsection, if an injured employee suffers disability
but is able to return to employment for a period of three consecutive calendar months
or more, that injured employee's benefits will be based upon the wage received at the
time of the recurrence of the disability. If the wage received at the time of the
recurrence of the disability is lower than the injured employee's average weekly wage
and the lower wage is due to the physical limitations of the compensable injury, the
injured employee's benefits must be based upon the injured employee's average
weekly wage. It is the burden of the injured employee to show the inability to earn as
much as the injured employee's average weekly wage is due to the physical limitation
related to the injury. The organization benefit rates are those in effect at the time of
that recurrence.
3. The disability benefit or the combined disability benefit and dependency award may
not exceed the weekly wage of the injured employee after deductions for social
security and federal income tax.
4. When an injured employee is permanently and totally disabled, must be maintained in
a nursing home or similar facility, and has no dependent parent, spouse, or children,
as much of that injured employee's weekly benefit as is necessary may be used by the
organization to help defray the cost of the nursing home care.
### § 65-05-09.1. Social security offset.

When an injured employee, or spouse or dependent of an injured employee, is eligible for
and is receiving permanent total or temporary total disability benefits under section 65-05-09,
and is also eligible for, is receiving, or will receive, benefits under title II of the Social Security
Act [42 U.S.C. 423], the aggregate benefits payable under section 65-05-09 must be reduced,
but not below zero, by an amount equal as nearly as practicable to one-half of such federal
benefit. The federal benefit, or primary insurance amount, must be determined by the social
security administration. The amount to be offset must equal the primary insurance amount
rounded to the next lowest dollar less credit for either the entire amount of attorney's fees and
costs, or the fees and costs paid to an authorized representative of the employee as allowed by
the social security administration, withheld from past-due social security benefits or paid directly
by the claimant for representation before the social security administration. The amount of the

offset computed by the organization initially must remain the same throughout the period of
eligibility and may not be affected by any increase or decrease in federal benefits.
Any injured employee, or dependent of an injured employee, receiving permanent total or
temporary total disability benefits under section 65-05-09 and whose benefits are offset as
provided herein, is not eligible for any escalation of benefits which would adversely affect the
organization's right to offset workforce safety and insurance benefits against social security
benefits, as provided for in this chapter. This offset will become effective on January 1, 1980,
provided that it meets the criteria necessary to allow states to offset federal benefits under title II
of the Social Security Act [42 U.S.C. 424a]. Providing further that:
1. If the receipt of social security benefits results in an overpayment of temporary or
permanent total disability benefits by the organization, a refund of any overpayment
must be made by the injured employee or that overpayment must be taken from future
disability benefits, permanent partial impairment awards, or personal reimbursements
on the current claim or any future claim filed, at a recovery rate to be determined by
the organization.
2. If a claim has been accepted on an aggravation basis and the injured worker is eligible
for social security benefits, the organization's offset must be proportionally calculated.
3. If any person described in this section refuses to authorize the release of information
concerning the amount of benefits payable under the Social Security Act, the
organization's estimate of the amount is deemed to be correct until the actual amount
is established and no adjustment may be made for any period of time covered by the
refusal.
### § 65-05-09.2. Retirement offset.

If an employee is entitled to permanent total disability benefits and social security retirement
benefits under 42 U.S.C. sections 402 and 405, the aggregate wage-loss benefits payable
under this title must be determined in accordance with this section. The employee's social
security retirement offset must equal forty percent of the calculated ratio of the employee's
average weekly wages, as calculated on the commencement of the first, or recurrent, disability
under section 65-05-09, to the current state's average weekly wage. Any offset calculated
cannot exceed forty percent of the employee's weekly social security retirement benefit. If a
claim has been accepted on an aggravation basis and the employee is eligible for social
security benefits, the organization's offset must be proportionally calculated. An overpayment
must be recouped in the same manner as set forth in section 65-05-09.1. This section applies to
an employee who becomes entitled to and receives social security retirement benefits after
June 30, 1989, or who receives social security retirement benefits that have been converted
from social security disability benefits by the social security administration after June 30, 1989. A
conversion by the organization from offsetting an employee's social security disability benefits to
offsetting an employee's social security retirement benefits under this section may not result in a
decrease in the aggregate amount of benefits the employee receives from both sources.
### § 65-05-09.3. Retirement presumption - Termination of benefits upon retirement.

1. An employee who has retired or voluntarily withdrawn from the labor force and who, at
that time, was not eligible to receive temporary total disability, temporary partial
disability, or permanent total disability benefits or to receive a rehabilitation allowance
from the organization is presumed retired from the labor market. The presumption may
be rebutted by a preponderance of the evidence; however, the subjective statement of
an employee that the employee is not retired is not sufficient in itself to rebut objective
evidence of retirement.
2. An injured employee who begins receiving social security retirement benefits or other
retirement benefits in lieu of social security retirement benefits or who attains
retirement age for social security retirement benefits, unless the employee proves the
employee is not eligible to receive social security retirement benefits or other benefits
in lieu of social security retirement benefits, is considered retired. The organization
may not pay any disability benefits, rehabilitation benefits, or supplementary benefits
to an employee who is considered retired; however, the employee remains eligible for

medical benefits, permanent partial impairment benefits, and the additional benefit
payable under section 65-05-09.4.
3. The organization retains liability for disability benefits, rehabilitation benefits,
permanent partial impairment benefits, and medical benefits for an injured employee
who is receiving social security retirement benefits or other retirement benefits in lieu
of social security retirement benefits or who attains retirement age for social security
retirement benefits, unless the employee is not eligible to receive social security
retirement benefits or other benefits in lieu of social security retirement benefits, and
who is gainfully employed and who suffers an injury arising out of and in the course of
that employment. The organization may not pay disability or rehabilitation benefits
under this subsection for more than three years, subject to section 65-05-09.2, for
injuries occurring after August 1, 1997.
4. If an employee is injured within the two years preceding the employee's presumed
retirement date, the organization shall pay disability benefits, rehabilitation benefits, or
a combination of both benefits for no more than two years. If the duration of disability
benefits, rehabilitation benefits, or a combination of both benefits extends beyond the
presumed retirement date, the organization shall convert the benefit to an additional
benefit payable at the date the disability ends or when two years of benefits have been
paid, whichever occurs first.
5. This section applies to an individual who begins receiving social security retirement
benefits or other retirement benefits in lieu of social security retirement benefits or who
attains retirement age for social security retirement benefits unless the employee
proves the employee is not eligible to receive social security retirement benefits or
other benefits in lieu of social security retirement benefits, after July 31, 1995.
6. An injured employee who has received disability benefits that have been discontinued
before retirement in accordance with this section is eligible to receive disability benefits
after retirement if the injured employee meets the reapplication criteria under
subsection 1 of section 65-05-08. Disability and rehabilitation benefits received under
this subsection may not exceed three years.
### § 65-05-09.4. Additional benefit payable.

If an injured employee's benefits cease under subsection 2 of section 65-05-09.3, the
organization shall pay to that employee every twenty-eight days a benefit based on the length of
time the injured employee received disability benefits during the term of that claim. The
organization shall pay the injured employee's additional benefits until the employee's death or
for a period of time not to exceed the total length of time the employee received disability
benefits under sections 65-05-08, 65-05-08.1, 65-05-09, and 65-05-10, and a vocational
rehabilitation allowance under chapter 65-05.1, for that claim, whichever occurs first. The benefit
is based on the injured employee's compensation rate before any applicable social security
offset. The percentage of that final payment payable as the additional benefit is:
At least 1 year and less than 3 years of disability 5 percent of weekly benefit.
At least 3 years and less than 5 years of disability 10 percent of weekly benefit.
At least 5 years and less than 7 years of disability 15 percent of weekly benefit.
At least 7 years and less than 9 years of disability 20 percent of weekly benefit.
At least 9 years and less than 11 years of disability 25 percent of weekly benefit.
At least 11 years and less than 13 years of disability 30 percent of weekly benefit.
At least 13 years and less than 15 years of disability 35 percent of weekly benefit.
At least 15 years and less than 17 years of disability 40 percent of weekly benefit.
At least 17 years and less than 20 years of disability 45 percent of weekly benefit.
Twenty or more years of disability 50 percent of weekly benefit.
However, the organization shall pay to an injured employee who has been determined to be
catastrophically injured as defined by subdivision c of subsection 2 of section 65-05.1-06.1 an
additional benefit, until the death of the employee, equal to one hundred percent of the final
payment of the disability benefit that was discontinued under subsection 2 or 3 of section
65-05-09.3.

### § 65-05-09.5. Additional benefit payable - Alternative calculation.

1. This section applies to an injured employee who has a claim for which:
a. A compensable injury was incurred before August 1, 1995;
b. The date of first disability or the date of successful reapplication under subsection
1 of section 65-05-08 was after July 31, 1995; and
c. The injured employee received a determination of permanent and total disability
before August 1, 2007.
2. An injured employee who meets the requirements of subsection 1 is entitled to an
alternative calculation of additional benefits payable instead of the calculation provided
for under section 65-05-09.4. For the limited purpose of this alternative calculation, the
organization shall use the calculation established under section 65-05-09.4 and shall
consider that the injured employee's pre-August 1, 1995, date of injury is also the
injured employee's date of first disability.
### § 65-05-10. Partial disability - Weekly benefit.

1. If the injury causes temporary partial disability resulting in decrease of earning
capacity, the disability benefit is sixty-six and two-thirds percent of the difference
between the injured employee's average weekly wage and the injured employee's
wage-earning capacity after the injury in the same or another employment. Partial
disability benefits are subject to a maximum of one hundred twenty-five percent of the
average weekly wage in the state. The combined partial disability benefits,
dependency allowance, and postinjury wage-earning capacity may not exceed ninety
percent of the average weekly wage of the injured employee.
2. The benefits provided by this section are available to any otherwise eligible worker,
providing the loss of earning capacity occurs after July 1, 1989. Partial loss of earning
capacity occurring prior to July 1, 1989, must be paid at a rate to be fixed by the
organization.
3. Benefits must be paid during the continuance of partial disability, not to exceed a
period of five years. The organization may waive the five-year limit on the duration of
partial disability benefits in cases of catastrophic injury as defined in section
verified by clear and convincing objective medical and vocational evidence that limits
the injured worker to working less than twenty-eight hours per week because of the
compensable work injury. This subsection is effective for partial loss of earnings
capacity occurring after June 30, 1991.
4. The employee's earnings capacity may be established by expert vocational evidence
of a capacity to earn in the statewide job pool where the worker lives. Actual postinjury
earnings are presumptive evidence of earnings capacity if the job employs the
employee to full work capacity in terms of hours worked per week, and if the job is in a
field related to the employee's transferable skills. The presumption may be rebutted by
competent evidence from a vocational expert that the employee's actual earnings do
not fairly reflect the employee's earnings capacity in the statewide job pool,
considering the employee's capabilities, education, experience, and skills.
### § 65-05-10.1. Long-term temporary partial disability inflation adjustment.

This benefit only applies to claims with a date of first disability or date of successful
reapplication occurring after June 30, 1991. For these claims, beginning on the first day of July
immediately following the fifth full year of partial disability and every year thereafter, an injured
employee who has received a waiver of the five-year cap on partial disability benefits under
section 65-05-10 is eligible for a lump sum inflation adjustment. The organization shall calculate
the lump sum inflation adjustment under this section on July first of each year by multiplying the
previous year's percent increase in the state's average weekly wage, if any, by the total amount
of partial disability payments paid to the injured employee in the preceding twelve months,
including the preceding year's inflationary adjustment award.

### § 65-05-11. Maximum and minimum compensation allowances - Total and partial

disability.
Repealed by S.L. 1969, ch. 558, § 6.
### § 65-05-12. Permanent impairment - Compensation - Time paid.

Repealed by S.L. 1995, ch. 624, § 2.
### § 65-05-12.1. Permanent impairment.

Repealed by S.L. 1995, ch. 624, § 2.
### § 65-05-12.2. Permanent impairment - Compensation - Time paid.

A permanent impairment is not intended to be a periodic payment and is not intended to
reimburse the employee for specific expenses related to the injury or wage loss. If a
compensable injury causes permanent impairment, the organization shall determine a
permanent impairment award on the following terms:
1. The organization shall calculate the amount of the award by multiplying thirty-five
percent of the average weekly wage in this state on the date of the impairment
evaluation, rounded to the next highest dollar, by the permanent impairment multiplier
specified in subsection 10.
2. The organization shall notify the employee by certified mail, to the last-known address
of the employee, when that employee becomes potentially eligible for a permanent
impairment award. After the organization has notified the employee, the employee
shall file, within one hundred eighty days from the date the employee was notified, a
written request for an evaluation for permanent impairment. Failure to file the written
request within the one hundred eighty-day period precludes an award under this
section.
3. An injured employee is entitled to compensation for permanent impairment under this
section only for those findings of impairment that are permanent and which were
caused by the compensable injury. The organization may not issue an impairment
award for impairment findings due to unrelated, noncompensable, or pre-existing
conditions, even if these conditions were made symptomatic by the compensable work
injury, and regardless of whether section 65-05-15 applies to the claim.
4. An injured employee is eligible for an evaluation of permanent impairment only when
all conditions caused by the compensable injury have reached maximum medical
improvement. The injured employee's doctor shall report to the organization the date
an employee has reached maximum medical improvement and any evidence of
impairment of function the injured employee has after that date. If the report states that
the employee is potentially eligible for a permanent impairment award, the
organization shall conduct a review and provide notice to the employee as provided by
subsection 2. If the injured employee files a timely written request under subsection 2,
the organization shall schedule an impairment evaluation by a doctor qualified to
evaluate the impairment.
5. A health care provider evaluating permanent impairment shall include a clinical report
in sufficient detail to support the percentage ratings assigned. The organization shall
adopt administrative rules governing the evaluation of permanent impairment. These
rules must incorporate principles and practices of the sixth edition of the American
medical association's "Guides to the Evaluation of Permanent Impairment" modified to
be consistent with North Dakota law, to resolve issues of practice and interpretation,
and to address areas not sufficiently covered by the guides. Subject to rules adopted
under this subsection, impairments must be evaluated under the sixth edition of the
guides.
6. The organization shall deduct, on a permanent impairment multiplier basis, from an
award for impairment under this section, any previous impairment award under the
workers' compensation laws of any jurisdiction.

7. An injured employee is not entitled to a permanent impairment award due solely to
pain.
8. Other than an award identified in subsection 11, an award may not be issued unless
specifically identified and quantified within the sixth edition of the American medical
association's "Guides to the Evaluation of Permanent Impairment".
9. If an employee dies, the right to any compensation payable pursuant to an impairment
evaluation previously requested by the employee under subsection 2, which remains
unpaid on the date of the employee's death, survives and passes to the employee's
dependent spouse, minor children, parents, or estate, in that order. If the employee
dies, only those findings of impairment which are objectively verifiable such as values
for surgical procedures and amputations may be considered in a rating for impairment.
Impairment findings not supported by objectively verifiable evidence may not be
included in a rating for impairment. The deceased employee's dependents or
representatives shall request an impairment award under this subsection within one
year from the date of death of the employee.
10. If the injury causes permanent impairment, the award must be determined based on
the percentage of whole body impairment in accordance with the following schedule:
Permanent impairment
Impairment: multiplier of:
1 to 13 percent 0
14 percent 10
15 percent 10
16 percent 15
17 percent 15
18 percent 20
19 percent 20
20 percent 25
21 percent 25
22 percent 30
23 percent 30
24 percent 30
25 percent 35
26 percent 35
27 percent 35
28 percent 40
29 percent 45
30 percent 50
31 percent 60
32 percent 70
33 percent 80
34 percent 90
35 percent 100
36 percent 110
37 percent 120
38 percent 130
39 percent 140
40 percent 150
41 percent 160
42 percent 170
43 percent 180
44 percent 190
45 percent 200
46 percent 210
47 percent 220
48 percent 230
49 percent 240

50 percent 260
51 percent 280
52 percent 300
53 percent 320
54 percent 340
55 percent 360
56 percent 380
57 percent 400
58 percent 420
59 percent 440
60 percent 465
61 percent 490
62 percent 515
63 percent 540
64 percent 565
65 percent 590
66 percent 615
67 percent 640
68 percent 665
69 percent 690
70 percent 715
71 percent 740
72 percent 765
73 percent 790
74 percent 815
75 percent 840
76 percent 865
77 percent 890
78 percent 915
79 percent 940
80 percent 965
81 percent 990
82 percent 1015
83 percent 1040
84 percent 1065
85 percent 1090
86 percent 1115
87 percent 1140
88 percent 1165
89 percent 1190
90 percent 1215
91 percent 1240
92 percent 1265
93 percent 1290
94 percent 1320
95 percent 1350
96 percent 1380
97 percent 1410
98 percent 1440
99 percent 1470
100 percent 1500
11. An amputation of a finger or toe at the level of the distal interphalangeal joint or
proximal to that joint, or the thumb or the great toe at the interphalangeal joint or
proximal to that joint, which is determined to result in a whole body impairment of less
than fourteen percent and which is not identified in the following schedule, is payable
as a fourteen percent impairment. If an evaluation for the loss of an eye or for an

amputation results in an award that is less than the permanent impairment multiplier
identified in the following schedule, the organization shall pay an award equal to the
permanent impairment multiplier set out in the following schedule:
Permanent impairment
For amputation of: multiplier of:
A thumb 65
The second or distal phalanx of the thumb 28
The first finger 40
The middle or second phalanx of the first finger 28
The third or distal phalanx of the first finger 22
The second finger 30
The middle or second phalanx of the second finger 22
The third or distal phalanx of the second finger 14
The third finger 20
The middle or second phalanx of the third finger 16
The fourth finger 16
The middle or second phalanx of the fourth finger 12
The leg at the hip 234
The leg at or above the knee 195
The leg at or above the ankle 150
A great toe 30
The second or distal phalanx of the great toe 18
Any other toe 12
Permanent impairment
For loss of: multiplier of:
An eye 150
Vision of an eye which equals or exceeds 20/200 corrected 100
The award for the amputation of more than one finger of one hand may not exceed an
award for the amputation of a hand. The award for the amputation of more than one
toe of one foot may not exceed an award for the amputation of a foot. If any of the
amputations or losses set out in this subsection combine with other impairments for
the same work-related injury or condition, the organization shall issue an impairment
award based on the greater of the permanent impairment multiplier allowed for the
combined rating established under the sixth edition of the American medical
association's "Guides to the Evaluation of Permanent Impairment" or the permanent
impairment multiplier set forth in this subsection.
12. If there is a medical dispute regarding the percentage of an injured employee's
permanent impairment, all relevant medical evidence must be submitted to an
independent health care provider who has not treated the employee and who has not
been consulted by the organization in relation to the injury upon which the impairment
is based. The organization shall establish a list of health care providers who have the
training and experience necessary to conduct an evaluation of permanent impairment
and to apply the sixth edition of the American medical association's "Guides to the
Evaluation of Permanent Impairment". The organization shall define, by rule, the
process by which the organization shall choose an independent health care provider or
health care providers to review a disputed permanent impairment evaluation or rating.
The decision of the independent health care provider or health care providers chosen
under this process is presumptive evidence of the degree of permanent impairment of
the employee which can only be rebutted by clear and convincing evidence. This
subsection does not impose liability on the organization for an impairment award for a
rating of impairment for a body part or condition the organization has not determined to
be compensable as a result of the injury. The employee bears the expense of witness
fees of the independent health care provider or health care providers if the employee
disputes the findings of the independent health care provider or health care providers.
13. An attorney's fees are not payable unless there is a bona fide dispute as to the
percentage of the employee's permanent impairment or unless there is a dispute as to

the employee's eligibility for an award for permanent partial impairment. An attorney's
fees payable in connection with a permanent impairment dispute may not exceed
twenty percent of the additional amount awarded upon final resolution of the dispute,
subject to the maximum fees established pursuant to section 65-02-08.
14. An attorney may not seek or obtain from an employee through a contingent fee
arrangement, or on a percentage basis, costs or fees payable in connection with the
award or denial of compensation for permanent impairment. A permanent impairment
award is exempt from the claims of creditors, including an employee's attorney, except
as provided by section 65-05-29.
15. If an injured employee qualifies for an additional award and the prior award was based
upon the number of weeks, the impairment multiplier must be used to compare against
the prior award of weeks in determining any additional award.
### § 65-05-13. Scheduled injuries - Permanent loss of member - Compensation - Time

compensation payable.
Repealed by S.L. 1995, ch. 624, § 2.
### § 65-05-14. Scheduled injuries - Partial loss of use of member - Weekly compensation

time - Compensation payable.
Repealed by S.L. 1995, ch. 624, § 2.
### § 65-05-15. Aggravation awards.

When a compensable injury combines with a noncompensable injury, disease, or other
condition, the organization shall award benefits on an aggravation basis, on the following terms:
1. In cases of a prior injury, disease, or other condition, known in advance of the work
injury, which has caused previous work restriction or interference with physical function
the progression of which is substantially accelerated by, or the severity of which is
substantially worsened by, a compensable injury, the organization shall pay benefits
during the period of acute care in full. The period of acute care is presumed to be sixty
days immediately following the compensable injury, absent clear and convincing
evidence to the contrary. Following the period of acute care, the organization shall pay
benefits on an aggravation basis.
2. If the progression of a prior compensable injury is substantially accelerated by, or the
severity of the compensable injury is substantially worsened by a noncompensable
injury, disease, or other condition, the organization shall pay benefits on an
aggravation basis.
3. The organization shall pay benefits on an aggravation basis as a percentage of the
benefits to which the injured worker would otherwise be entitled, equal to the
percentage of cause of the resulting condition that is attributable to the compensable
injury. Benefits payable on an aggravation basis are presumed to be payable on a fifty
percent basis. The party asserting a percentage other than the presumed fifty percent
may rebut the presumption with clear and convincing evidence to the contrary.
4. When an injured worker is entitled to benefits on an aggravation basis, the
organization shall still pay costs of vocational rehabilitation, burial expenses under
section 65-05-26, travel, other personal reimbursement for seeking and obtaining
medical care under section 65-05-28, and dependency allowance on a one hundred
percent basis.
### § 65-05-16. Death benefits payable.

1. The organization may pay benefits under this chapter in the case of the death of an
injured employee as the direct result of an injury sustained in the course of the injured
employee's employment when:
a. If there has been no disability preceding death, the death occurs within one year
after the date of the injury;

b. If there has been disability preceding death, the death occurs within one year
after the cessation of disability resulting from the injury;
c. If there has been disability that has continued to the time of death, the death
occurs within six years after the date of injury; or
d. If there has been disability that has continued to the time of death, the death
occurs more than six years after the date of injury, and the injured employee has
been designated catastrophically injured as defined under section 65-05.1-06.1.
2. The organization may not pay death benefits unless a claim is submitted within two
years of the death and:
a. The death is a direct result of an accepted compensable injury; or
b. If a claim was not submitted by the deceased, the claim for death benefits is
submitted within two years of the injury.
### § 65-05-17. Weekly compensation allowances for death claims.

If death results from an injury under the conditions specified in section 65-05-16, the fund
shall pay to the following persons, for the periods specified:
1. To the decedent's spouse or to the guardian of the children of the decedent, an
amount equal to the benefit rate for total disability under section 65-05-09. All
recipients of benefits under this subsection are eligible for benefits at the rate provided
in this section, regardless of the date of death of the deceased employee. These
benefits continue until the death of the decedent's spouse; or, if the surviving children
of the decedent are under the care of a guardian, until those children no longer meet
the definition of child in this title. If there is more than one guardian for the children
who survive the decedent, the organization shall divide the death benefits equally
among the children and shall pay benefits to the children's guardians. Total death
benefits, including supplementary benefits, paid on any one claim may not exceed four
hundred thousand dollars.
2. To each child of the deceased employee, the amount of fifteen dollars per week. This
rate must be paid to each eligible child regardless of the date of death. The
organization may pay the benefit directly to the child of the deceased employee or to
the surviving parent or guardian of the child. Dependency allowance may not be
reduced by the percentage of aggravation.
3. In addition to the payments provided under subsections 1 and 2, a payment in the sum
of two thousand five hundred dollars to the decedent's spouse or the guardian of the
children of the decedent and eight hundred dollars for each dependent child. If there is
more than one guardian of the decedent's surviving children, the two thousand five
hundred dollars must be divided equally among the children and paid to the children's
guardians.
### § 65-05-18. Provisions of section 65-05-17 retroactive.

Repealed by omission from this code.
### § 65-05-19. Providing nondependency payments in certain cases.

If the death of an employee with no surviving spouse or dependent children results from an
injury within the time specified in section 65-05-16, the organization shall pay a lump sum equal
to five percent of the maximum total death benefits specified in subsection 1 of section 65-05-17
to the surviving nondependent child, or in equal shares to the surviving nondependent children.
In the event that no nondependent child is living, the sum provided under this section must be
paid in equal shares to the surviving parents of the deceased, and if there are none, then to the
deceased employee's living brothers and sisters. If there are no living brothers or sisters, the
sum under this section must be paid in equal shares to the surviving grandparents, if any, of the
deceased employee.

### § 65-05-20. Dependents have option of accepting amount of nondependency payments

in lieu of dependency compensation.
Repealed by S.L. 1969, ch. 565, § 2.
### § 65-05-20.1. Scholarship fund - Rules.

1. The organization may establish a scholarship fund. Scholarships may be awarded to:
a. The spouse and child of a worker who dies as a result of a compensable
work-related injury, if the spouse and child have received benefits under section
65-05-17;
b. The spouse and child of a worker who is deemed to be catastrophically injured as
defined in subdivision c of subsection 2 of section 65-05.1-06.1; and
c. Injured workers for whom the organization determines a scholarship would be
beneficial and appropriate because of exceptional circumstances, or upon
successful completion of a rehabilitation program contemplated under
subdivision g of subsection 4 of section 65-05.1-01, as determined by the
organization.
2. For purposes of this section, child includes a legitimate child, a step child, adopted
child, posthumous child, foster child, and acknowledged illegitimate child between
twenty-three and twenty-six years of age who is enrolled as a full-time student in any
accredited educational institution and is dependent upon the employee for support.
3. Scholarships are payable to an accredited institution of higher education or an
institution of technical education on behalf of a student attending that institution.
4. The total amount awarded annually in scholarships may not exceed five hundred
thousand dollars. The maximum amount payable on behalf of an applicant is twelve
thousand five hundred dollars per year for no more than five years, except that the
combined retraining and scholarship periods for applicants successfully completing a
rehabilitation program under subdivision g of subsection 4 of section 65-05.1-01 may
not exceed five years.
5. Scholarships must be awarded by a panel chosen by the organization. The
organization shall adopt rules establishing selection criteria and obligations associated
with the program and identifying information an applicant is required to submit to
determine an appropriate scholarship award. Scholarships may be awarded at the sole
discretion of the organization. There is no right to reconsideration, rehearing, or appeal
from any decision regarding the award, denial, or amount of a scholarship.
### § 65-05-21. Marriage settlement to spouse.

If a spouse who receives compensation under the provisions of subsection 1 of section
weeks' compensation. If, prior to such marriage, such spouse has received a partial lump sum
settlement which covers all or any portion of the said one hundred four weeks following such
spouse's marriage, the amount of such partial lump sum settlement which covers all or any part
of the said one hundred four weeks following such spouse's marriage shall be deducted from
such marriage settlement, and the spouse shall receive only the remainder, if any, over and
above such deduction. Any judgment annulling such marriage shall not reinstate the right of
such spouse to compensation if the action for annulment is instituted more than six months after
the marriage. The provisions of this section apply only to remarriages that occur before
August 1, 2003, regardless of the date of injury or date of death of the decedent.
### § 65-05-22. Adjustment on cessation of compensation for death to one beneficiary.

Upon the cessation of compensation payable to a beneficiary under the provisions of this
chapter, the compensation of the remaining persons entitled to compensation for the unexpired
part of the period during which their compensation is payable, shall be that which such persons
would have received if they had been the only persons entitled to compensation at the time of
the decedent's death.

### § 65-05-23. Organization may modify apportionment of benefits in certain cases.

Repealed by S.L. 1997, ch. 545, § 6.
### § 65-05-24. Accepting compensation after marriage - Penalty.

Repealed by S.L. 2003, ch. 562, § 13.
### § 65-05-25. Lump sum settlements - Granted in discretion of organization - How

computed.
1. If an employee is determined to be permanently and totally disabled, the organization
may pay the employee a lump sum equal to the present value of all future payments of
compensation. The probability of the employee's death before the expiration of the
period during which the employee is entitled to compensation must be determined by
generally accepted mortality studies. The organization may not pay the employee a
lump sum unless it has first determined that there is clear and convincing evidence
that the lump sum payment is in the best interest of the employee. Best interest of the
employee may not be deemed to exist because the employee can invest the lump sum
in another manner to realize a better yield. The employee must show a specific plan of
rehabilitation which will enable the employee to return as a productive member of
society.
2. The organization and an employee may compromise to resolve a disputed claim. The
contract of settlement made is enforceable by the parties. The contract may provide
that the employee shall utilize the funds to engage in certain rehabilitation programs. If
the employee breaches the contract, the organization may require the employee to
repay the benefits received under the agreement. In cases in which the extent of
disability is disputed and resolved by agreement, the concept of reopening a disability
claim due to significant change in medical condition is inapplicable.
3. If death results from an injury under the conditions specified in section 65-05-16, the
organization may pay the decedent's spouse or the guardian of the decedent's
children a lump sum equal to the present value of all future payments of
compensation.
4. Notwithstanding any other provision of law, structured settlements may be used to
resolve a dispute or to provide for payment of ongoing future benefits. The
organization may contract with a third-party vendor to provide structured settlement
payments.
### § 65-05-26. Burial expenses.

If death benefits are payable under section 65-05-16, the fund shall pay to the facility
handling the funeral arrangements of the deceased employee burial expenses not to exceed ten
thousand dollars.
### § 65-05-27. Organization without probate proceedings may pay spouse of deceased

claimant sum due deceased - Maximum payment.
If a compensation claimant dies, the organization, without probate proceedings, may pay to
the spouse of such claimant, if living, or in the event of the claimant's spouse's death or
incompetency, to any adult person who has assumed or paid the expenses of the last illness or
funeral expense of the said claimant, the amount actually due claimant's estate, not to exceed
the sum of one thousand dollars.
### § 65-05-28. Examination of injured employee - Paid expenses - No compensation paid if

injured employee refuses to reasonably participate.
An injured employee may select a health care provider of that injured employee's choice to
render initial treatment. Upon a determination that the injured employee's injury is compensable,
the organization may require the injured employee to begin treating with another health care
provider to better direct the medical aspects of the injured employee's claim. The organization
shall provide a list of three health care providers who specialize in the treatment of the type of

injury the employee sustained. At the organization's request, the injured employee shall select a
health care provider from the list. An injured employee shall follow the directives of the health
care provider treating the injured employee as chosen by the injured employee at the request of
the organization and comply with all reasonable requests during the time the injured employee
is under medical care. Providing further that:
1. An injured employee may not change from one health care provider to another while
under treatment or after being released, without the prior written authorization of the
organization. Failure to obtain approval of the organization renders the injured
employee liable for the cost of treatment and the new health care provider will not be
considered the attending health care provider for purposes of certifying temporary
disability.
a. Any injured employee requesting a change of health care provider shall file a
written request with the organization stating all reasons for the change. Upon
receipt of the request, the organization shall review the injured employee's claim
and approve or deny the change of health care provider, notifying the injured
employee and the requested health care provider.
b. Emergency care or treatment or referral by the attending health care provider
does not constitute a change of health care provider and does not require prior
approval of the organization.
2. Travel and other personal reimbursement for seeking and obtaining medical care is
paid only upon request of the injured employee. All claims for reimbursement must be
supported by the original vendor receipt, when appropriate, and must be submitted
within one year of the date the expense was incurred or reimbursement must be
denied. Reimbursement must be made at the organization reimbursement rates in
effect on the date of incurred travel or expense. The calculation for reimbursement for
travel by motor vehicle must be calculated using miles actually and necessarily
traveled. A personal reimbursement requested under this subsection is a managed
care decision under section 65-02-20, subject to the appeal process as provided for in
section 65-02-20. Providing further that:
a. Payment for mileage or other travel expenses may not be made when the
distance traveled is less than fifty miles [80.47 kilometers] one way, unless the
total mileage equals or exceeds two hundred miles [321.87 kilometers] in a
calendar month;
b. All travel reimbursements are payable at the rates at which state employees are
paid per diem and mileage, except that the organization may pay no more than
actual cost of lodging, if actual cost is less;
c. Reimbursement may not be paid for travel other than that necessary to obtain the
closest available medical or hospital care needed for the injury. If the injured
employee chooses to seek medical treatment outside a local area where care is
available, travel reimbursement may be denied;
d. Reimbursement may not be paid for the travel and associated expenses incurred
by the injured employee's spouse, children, or other persons unless the injured
employee's injury prevents travel alone and the inability is medically
substantiated; and
e. Other expenses, including telephone calls and car rentals are not reimbursable
expenses.
3. The organization may at any time require an injured employee to submit to an
independent medical examination or independent medical review by one or more duly
qualified allied health care professionals designated or approved by the organization.
The organization shall make a reasonable effort to designate a duly qualified allied
health care professional licensed in the state in which the injured employee resides to
conduct the examination before designating a duly qualified allied health care
professional licensed in another state or shall make a reasonable effort to designate a
duly qualified allied health care professional licensed in a state other than the injured
employee's state of residence if the examination is conducted at a site within two
hundred seventy-five miles [442.57 kilometers] from the injured employee's residence.

An independent medical examination and independent medical review must be for the
purpose of review of the diagnosis, prognosis, treatment, or fees. An independent
medical examination contemplates an actual examination of an injured employee,
either in person or remotely if appropriate. An independent medical review
contemplates a file review of an injured employee's records, including treatments and
testing. The injured employee may have a duly qualified health care provider
designated by that employee present at the examination or later review the written
report of the allied health care professional performing the independent medical
examination, if procured and paid for by that injured employee. Providing further that:
a. In case of any disagreement between allied health care professionals making an
examination on the part of the organization and the injured employee's allied
health care professional, the organization shall appoint an impartial allied health
care professional duly qualified who shall make an examination and shall report
to the organization.
b. The injured employee, in the discretion of the organization, may be paid
reasonable travel and other per diem expenses under the guidelines of
subsection 2. If the injured employee is working and loses gross wages from the
injured employee's employer for attending the examination, the gross wages
must be reimbursed as a miscellaneous expense upon receipt of a signed
statement from the employer verifying the gross wage loss.
4. If an injured employee, or the injured employee's representative, refuses to submit to,
or in any way intentionally obstructs, any examination or treatment, or refuses to
reasonably participate in medical or other treatments or examinations, the injured
employee is medically noncompliant. If the organization determines an injured
employee is medically noncompliant without good cause, the organization shall
discontinue disability and vocational rehabilitation benefits. At any time the injured
employee is medically noncompliant, efforts by the injured employee to come into
compliance are not considered successful compliance until the injured employee has
been compliant for a period of at least sixty days. If the period of medical
noncompliance continues for sixty days following the date disability and vocational
rehabilitation benefits are discontinued, or a second instance of medical
noncompliance occurs without good cause, the organization may not pay any further
disability and vocational rehabilitation benefits, regardless of whether the injured
employee sustained a significant change in medical condition due to the work injury.
The period of noncompliance must be deducted from the period for which
compensation is payable to the injured employee.
5. If an injured employee undertakes activities, whether or not in the course of
employment, which exceed the treatment recommendations of the injured employee's
health care provider regarding the work injury, and the health care provider determines
the employee's injury or condition has been aggravated or has worsened as a result of
the injured employee's activities, the organization may not pay benefits relative to the
aggravation or worsening, unless the activities were undertaken at the demand of an
employer. An employer's account may not be charged with the expenses of an
aggravation or worsening of a work-related injury or condition unless the employer
knowingly required the injured employee to perform activities that exceed the
treatment recommendations of the injured employee's health care provider.
### § 65-05-28.1. Employer to select preferred provider.

Notwithstanding section 65-05-28, any employer subject to this title may select a preferred
provider to render medical treatment to employees who sustain compensable injuries.
"Preferred provider" means a designated provider or group of providers of medical services,
including consultations or referral by the provider or providers.
### § 65-05-28.2. Preferred provider - Use required - Exceptions - Notice.

1. During the first thirty days after a work injury, an employee of an employer that has
selected a preferred provider under this section may seek medical treatment only from

the preferred provider for the injury. Treatment by a provider other than the preferred
provider is not compensable and the organization may not pay for treatment by a
provider who is not a preferred provider, unless a referral was made by the preferred
provider. A provider who is not a preferred provider may not certify disability or render
an opinion about any matter pertaining to the injury, including causation,
compensability, impairment, or disability. This section does not apply to emergency
care nor to any care the employee reasonably did not know was related to a work
injury.
2. An employee of an employer that has selected a preferred provider may elect to be
treated by a different provider provided the employee makes the election and notifies
the employer in writing before the occurrence of an injury.
3. After thirty days have passed following the injury, the employee may make a written
request to the organization to change providers. The employee shall make the request
and serve it on the employer and the organization at least thirty days before treatment
by the provider. The employee shall state the reasons for the request and the
employee's choice of provider.
4. If the employer objects to the provider selected by the employee under subsection 2 or
3, the employer may file an objection to the change of provider. The employer shall
detail in the objection the grounds for the objection and shall serve the objection on the
employee and the organization within five days of service of the request. The
employee may serve, within five days of service of the employer's objection, a written
response on the employer and the organization in support of the request for change of
provider. Within fifteen days after receipt of the response or of the expiration of the
time for filing the response, the organization shall rule on the request. Failure of the
organization to rule constitutes approval of the request. Treatment by the employee's
chosen provider is not compensable until the organization approves the request. The
preferred provider remains the treating provider until the organization approves the
employee's request to change providers.
5. An employer that selects a preferred provider shall give notice and post notice as
required under this subsection.
a. An employer shall give written notice of the identity and the terms of the preferred
provider program:
(1) To the employer's employees when the employer makes an initial selection
of a preferred provider.
(2) To the employer's employees when the employer changes the selection of
the preferred provider.
(3) To an employee at the time of hire.
(4) To the employer's employees at least annually after the initial notice.
b. An employer that has selected a preferred provider shall display notice of the
identity of the preferred provider and the terms of the preferred provider program
in a conspicuous manner at fixed worksites, and wherever feasible at mobile
worksites, and in a sufficient number of places to reasonably inform employees of
the identity of the preferred provider and of the terms of the preferred provider
program.
c. Failure to give written notice, to properly post notice, or to reasonably inform
employees of the terms of the preferred provider program as required under this
subsection invalidates the selection for the employee's claim.
### § 65-05-29. Assignment of claims void - Claims exempt.

1. Any assignment of a claim for compensation under this title is void. All compensation
and claims therefor are exempt from claims of creditors except any of the following:
a. A child support obligation ordered by a court of competent jurisdiction.
b. A claim by job service North Dakota for reimbursement of unemployment
benefits, for the amount that was paid by job service North Dakota during the
period for which the claimant is found eligible for temporary total or permanent

total disability benefits, not to exceed the disability award actually made by the
organization.
c. A claim by the organization for any payments made due to:
(1) Clerical error, mistake of identity, innocent misrepresentation by or on behalf
of the recipient, or any other circumstance of a similar nature, all not
induced by fraud, in which cases the recipient shall repay it or recoupment
of any unpaid amount may be made from any future payments due to the
recipient on any claim with the organization;
(2) An adjudication by the organization or by order of any court, if the final
decision is that the payment was made under an erroneous adjudication, in
which cases the recipient shall repay it or recoupment of any unpaid amount
may be made from any future payments due to the recipient on any claim
with the organization;
(3) Fraud, in which case the recipient shall repay the payment or the unpaid
amount of the sum may be recouped from any future payments due to the
recipient on any claim with the organization;
(4) Overpayment due to application of section 65-05-09.1; or
(5) A claim by the organization for premiums, penalties, and interest under
chapter 65-04.
2. a. Notwithstanding paragraph 2 of subdivision c of subsection 1, during the sixty
days immediately following the date of injury, if the organization accrues a health
care provider 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.
b. Medical expenses incurred under this subsection may not be charged against an
employer's account for purposes of experience rating.
### § 65-05-30. Filing of claim constitutes consent to use of information received by health

care provider.
1. The filing of a claim with the organization constitutes a consent to the use by the
organization, in any proceeding by the organization or to which the organization is a
party in any court, of any information, including prior and subsequent prognosis
reports, medical records, medical bills, and other information concerning any health
care or health care services which was received by any health care provider, hospital,
or clinic in the course of any examination or treatment of the claimant.
2. The filing of a claim with the organization authorizes a health care provider, hospital, or
clinic to disclose to the organization, or authorized representative of the organization,
information or render an opinion regarding the injured employee's claim with the
organization. As used in this subsection, an opinion may include a statement regarding
liability, causation, or a pre-existing condition or other information the organization
deems necessary for the administration of this title. The filing of a claim with the
organization authorizes a health care provider, hospital, or clinic to disclose any
information to the organization deemed necessary for the administration of this title to
the organization's representative, or the employer, except any information directly
disclosed to the employer must be relevant to the employee's work injury or to
return-to-work issues.
3. If a health care provider furnishes information or an opinion under this section:
a. That health care provider does not incur any liability as a result of furnishing that
information or opinion.

b. The act of furnishing that information or opinion may not be the sole basis for a
disciplinary or other proceeding affecting professional licensure. However, the act
of furnishing that information or opinion may be considered in conjunction with
another action that may subject the health care provider to a disciplinary or other
proceeding affecting professional licensure.
### § 65-05-31. False statement - Penalty.

Repealed by S.L. 1975, ch. 106, § 673.
### § 65-05-32. Privacy of records and hearings - Penalty.

Information contained in the claim files and records of injured employees is confidential and
is not open to public inspection, other than to organization employees or agents in the
performance of their official duties. Providing further that:
1. Representatives of a claimant, whether an individual or an organization, may review a
claim file or receive specific information from the file upon the presentation of the
signed authorization of the claimant. However, reserve information may not be made
available to the claimant or the claimant's representatives. Availability of this
information to employers is subject to the sole discretion of the organization.
2. Employers or their duly authorized representatives who are required to have access to
an injured employee's claim file for the performance of their duties may review and
have access to any files of their own injured employees. An employer or an employer's
duly authorized representative who willfully communicates 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.
3. Allied health care professionals treating or examining employees claiming benefits
under this title, or allied health care professionals giving medical advice to the
organization regarding any claim may, at the discretion of the organization, inspect the
claim files and records of injured employees.
4. If an injured employee is deceased or is unable to communicate with the organization,
the organization may provide the claim file to and communicate with relevant
interested parties to properly adjudicate benefits.
5. Other persons may have access to and make inspections of the files, if such persons
are rendering assistance to the organization at any stage of the proceedings on any
matter pertaining to the administration of this title.
6. The claimant's name; date of birth; injury date; employer name; type of injury; whether
the claim is accepted, denied, or pending; and whether the claim is in active or inactive
pay status will be available to the public. This information may not be released in
aggregate form, except to those persons contracting with the organization for
exchange of information pertaining to the administration of this title or except upon
written authorization by the claimant for a specified purpose.
7. At the request of a claimant, the organization may close the medical portion of a
hearing to the public.
8. The organization may release the social security number of an individual claiming
entitlement to benefits under this title to health care providers or health care facilities
for the purpose of adjudicating a claim for benefits.
9. The organization may provide an injured employee's insurer information regarding the
injured employee's claim.
10. The organization may provide any state or federal agency, or any law enforcement
agency, any information obtained pursuant to the administration of this title. Any
information so provided must be used for the purpose of administering the duties of
that state or federal agency or law enforcement agency.

### § 65-05-33. Filing false claim or false statement - Penalty.

1. A person who claims benefits or payment for services under this title or the employer
of a person who claims benefits or payments for services is guilty of a class A
misdemeanor if the person or employer does any one or more of the following:
a. Willfully files a false claim or makes a false statement or an omission in an
attempt to secure payment of benefits or payment for services.
b. Willfully misrepresents that person's physical condition, including deceptive
conduct which misrepresents that person's physical ability.
c. Has a claim for disability benefits that has been accepted by the organization and
willfully fails to notify the organization of:
(1) Work or other activities as required under subsection 3 of section 65-05-08;
(2) The receipt of income from work; or
(3) An increase in income from work.
2. If any of the acts or omissions in subsection 1 are committed to obtain, or pursuant to
a scheme to obtain, more than one thousand dollars in benefits or payment for
services, the offense is a class C felony.
3. In addition to any other penalties provided by law, the person claiming benefits or
payment for services in violation of this section shall reimburse the organization for
any benefits paid based upon the false claim, false statement, or omission, and, if
applicable, under section 65-05-29 and shall forfeit any additional benefits relative to
that injury.
4. For purposes of this section, "statement" includes any testimony, claim form, notice,
proof of injury, proof of return-to-work status, bill for services, diagnosis, prescription,
hospital or doctor records, x-ray, test results, or other evidence of loss, injury, or
expense.
### § 65-05-34. False statement on employment application.

A false statement in an employment application made by an employee bars all benefits
under this title if:
1. The employee knowingly and willfully made a false representation as to the
employee's physical condition;
2. The employer relied upon the false representation and this reliance was a substantial
factor in the hiring; and
3. There was a causal connection between the false representation and the injury.
### § 65-05-35. Closed claim - Presumption.

1. A claim for benefits under this title is presumed closed if the organization has not paid
any benefit for a period of four years.
2. A claim that is presumed closed may not be reopened for payment of any further
benefits unless the presumption is rebutted by clear and convincing evidence that the
work injury is the primary cause of the current symptoms.
3. With respect to a claim that has been presumed closed, the employee shall provide
the organization written notice of reapplication for benefits under that claim. In case of
award of lost-time benefits, the award may commence no more than thirty days before
the date of reapplication. In case of award of medical benefits, the award may be for
medical services incurred no more than thirty days before the date of reapplication.
4. This section applies to all claims for injury, irrespective of injury date.
### § 65-05-36. Preferred worker program - Continuing appropriation.

For purposes of this section, "preferred worker" means a worker who has incurred a
compensable injury that resulted in a disability that poses a substantial obstacle to employment.
The organization may provide assistance as determined appropriate to preferred workers or
employers who employ a preferred worker. In addition, 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. The organization 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. The
organization shall charge those claims costs to the general fund. The organization may adopt
rules to regulate and manage the preferred worker program authorized by this section. An
employer or preferred worker may not appeal an organization decision not to provide assistance
to that employer or preferred worker under this section. Money in the workforce safety and
insurance fund is appropriated on a continuing basis to provide the assistance authorized under
this section.
### § 65-05-37. Retaliation by employer prohibited - Action for damages - Penalty.

An employer who willfully discharges or willfully threatens to discharge an employee for
seeking or making known the intention to seek workforce safety and insurance benefits is liable
in a civil action for damages incurred by the employee, including reasonable attorney's fees.
Damages awarded under this section may not be offset by any workforce safety and insurance
benefits to which the employee is entitled. A willful violation of this section is a class A
misdemeanor.
### § 65-05-38. Death of permanently and totally disabled employee - Surviving spouse.

In the case of the death of an injured employee who is receiving permanent total disability
benefits, or additional benefits payable, if the injured employee was permanently and totally
disabled for at least ten years and was married to the surviving spouse for at least ten years, the
decedent's surviving spouse is eligible to receive no more than six months of the decedent's
permanent total disability benefits, supplementary benefits, and additional benefits payable in
the same manner as the deceased spouse would have been entitled to receive the benefits. A
surviving spouse is eligible for benefits under this section if the organization approved the
decedent for home health care services and reimbursed the surviving spouse for providing the
home health care services. The surviving spouse is not eligible for benefits under this section if
the surviving spouse is eligible for benefits under section 65-05-16. The eligibility of the
surviving spouse to receive benefits under this section terminates upon the remarriage of the
surviving spouse.
### § 65-05-39. Chronic opioid therapy coverage and monitoring.

1. As used in this section, "chronic opioid therapy" is opioid treatment extending beyond
ninety days from initiation which is for the treatment of pain resulting from a
nonmalignant, compensable condition or therapies for another nonterminal
compensable condition.
2. In order to qualify for payment for chronic opioid therapy:
a. Chronic opioid therapy must result in an increase in function, enable an injured
employee to resume working, or improve pain control without debilitating side
effects;
b. Chronic opioid therapy must treat an injured employee:
(1) Who has been nonresponsive to non-opioid treatment;
(2) Who is not using illegal substances or abusing alcohol; and
(3) Who is compliant with the treatment protocol; and
c. The prescriber of chronic opioid therapy shall provide to the organization:
(1) At least every ninety days, documentation of the effectiveness of the chronic
opioid therapy, including documentation of improvements in function or
improvements in pain control without debilitating side effects; and
(2) A treatment agreement between the injured employee and the prescriber
which restricts treatment access and limits prescriptions to one identified
single prescriber. This paragraph does not preclude temporary coverage
within a single clinic by an identified prescriber when the prescriber of record
is unavailable and does not preclude a referral to a pain specialist.
3. At the prescriber's or organization's request, an injured employee on chronic opioid
therapy is subject to random drug testing for the presence of prescribed and illicit

substances. Failure of the test or of timely compliance with the request may result in
termination of chronic opioid therapy coverage.
4. Failure to comply with any of the conditions under this section may result in the
termination of coverage for chronic opioid therapy.
### § 65-05-40. Opioid therapy and benzodiazepine duration limits - Termination of

coverage.
1. The organization may not pay for opioid therapy that exceeds ninety morphine
milligram equivalents of opioid medication per day, or more than a seven-day supply of
an opioid medication within any single outpatient transaction during the initial thirty-day
period of opioid therapy.
a. The limitations do not apply to:
(1) Opioid therapy prescribed for active and aftercare cancer treatment;
(2) End-of-life and hospice care;
(3) Treatment for substance use disorder;
(4) An emergency room setting;
(5) An inpatient hospital setting;
(6) A long-term care facility setting; or
(7) An assisted living facility setting.
b. Opioid therapy includes controlled substances listed in subsections 3 and 4 of
section 19-03.1-07, subsection 6 of section 19-03.1-09, subsection 3 of section
19-03.1-11, subsections 3 and 4 of section 19-03.1-13, or any substance with
similar properties or affects.
2. The organization may not pay for benzodiazepine therapy beyond a cumulative
duration of four weeks, except when approved by the organization for the treatment of
an anxiety disorder. Benzodiazepine therapy includes controlled substances contained
in subdivisions a, i, j, k, l, p, r, v, x, ee, mm, qq, xx, yy, aaa, and ccc of subsection 4 of
section 19-03.1-11, or any substance with similar properties or affects.
3. The organization may not pay for any combination therapies that include controlled
substances from subsections 1 and 2 concurrently.
4. A review of requests to depart from the established limits in subsections 1, 2, and 3,
upon a showing of medical necessity, are dispute resolution decisions under section
65-02-20.
