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(c) 2016 Jon L Gelman, All Rights Reserved.

Tuesday, November 25, 2014

BROKEN PROMISE: THE DEMISE OF “SURE AND CERTAIN RELIEF” UNDER THE NORTH DAKOTA WORKERS’ COMPENSATION ACT

Todya's post is shared from http://law.und.edu/
and is authored by By Dean J. Haas*

The workers’ compensation bargain in which employees gave up the
ability to sue their employers in exchange for “sure and certain relief” is
premised on the economic theory that such voluntary agreement between
competing interests promotes efficiency in an unfettered market. The cost
of workers’ compensation, ostensibly borne by employers, is supposedly
priced into the cost of the product or service. This is said to “internalize”
the cost to industry, a bedrock economic principle necessary to ensure
efficient allocation of resources and employee safety. Yet, in North Dakota,
the bargain is broken. Employee safety has taken a backseat to saving
employers money. This is evident in nearly every aspect of workers’
compensation in North Dakota. Medical necessity determinations are
subject to resolution under a binding dispute resolution mechanism without
a right to a hearing. And once disability benefits have been terminated, a
mistaken decision by the North Dakota Supreme Court precludes
opportunity for reinstatement in a great number of cases. In addition, the
byzantine and restrictive Century Code, conservative rulings of the Court,
and the adversarial litigation posture of Workforce Safety and Insurance
have resulted in the near death of the claimants’ bar. Employees who have
lost their job and are denied workers compensation benefits are often unable
to afford to hire an attorney. Further, Workforce Safety’s vigorous defense
strategy includes excessive reliance on out-of-state Independent Medical
Examinations. And the Agency’s consistent lobbying against any
legislation that improves benefits or merely levels the playing field
highlights the degree to which North Dakota has broken its promise of
relief to injured employees. Unfortunately, a remedy does not appear
anywhere on the horizon. Employees attracted to North Dakota find that if
they are unfortunate enough to suffer a work injury here, their financial
health is as devastated as their physical being. Admittedly, not all physical
injuries can be prevented. But human virtue requires North Dakota live up
to its promise of “sure and certain” relief.

Click here to read the entire article

* Dean J. Haas received his J.D. (with distinction) from the University of North Dakota in 1983
and an LL.M. in Health Law (honors) from the University of Houston in 2001. Haas was counsel
to the North Dakota Workers’ Compensation Fund from 1983-1995 and has represented hundreds
of injured workers since. Haas is currently practicing law at Larson Latham Huettl in Bismarck.