In General.

It was purpose of legislature to ensure relief to an employee injured in course of his employment in all cases where he would have had right of action at common law, and in addition thereto to extend his rights to recover in other cases, regardless of questions of negligence, contributory negligence, or assumption of risk. Pace v. North Dakota Workmen's Compensation Bureau, 51 N.D. 815, 201 N.W. 348, 1924 N.D. LEXIS 90 (N.D. 1924).

Workers’ compensation fund is not health or life insurance fund, nor accident insurance fund, except to limited degree. Sandlie v. Workmen's Compensation Bureau, 70 N.D. 449, 295 N.W. 497, 1940 N.D. LEXIS 192 (N.D. 1940).

The Workers’ Compensation Act is to be construed liberally with the view of extending its benefit provisions to all who can fairly be brought within them. Syverson v. North Dakota Workmen's Compensation Bureau, 406 N.W.2d 688, 1987 N.D. LEXIS 321 (N.D. 1987).

Constitutionality.

Workers’ compensation act is valid exercise of police power. Federal Farm Mortgage Corp. v. Berzel, 69 N.D. 760, 291 N.W. 550, 1940 N.D. LEXIS 205 (N.D. 1940).

Actions Abolished.

Title 65 does not provide for an action against an employer or fellow employee by an injured worker where the employer has contributed premiums to the workers’ compensation fund. Olson v. American Oil Co., 474 F. Supp. 560, 1978 U.S. Dist. LEXIS 13912 (D.N.D. 1978), aff'd, 604 F.2d 26, 1979 U.S. App. LEXIS 13462 (8th Cir. N.D. 1979).

Attack on Constitutionality.

Once claimant has asserted rights based solely on workers’ compensation act, he may not challenge constitutionality of provisions authorizing the relief obtained. Ethen v. North Dakota Workmen's Compensation Bureau, 62 N.D. 394, 244 N.W. 32, 1932 N.D. LEXIS 193 (N.D. 1932).

Comprehensive Nature of Act.

It is significant that section 32-03-10 is not part of this title. The courts have previously said that “the North Dakota work[ers’] compensation program is mandatory, comprehensive, and exclusive. All rights and obligations under the program are determined by Title 65, N.D.C.C.” Because the Workers’ Compensation Act is comprehensive, the courts do not look to other portions of the Century Code when defining rights and obligations pursuant to it or when construing its provisions. Effertz v. North Dakota Workers' Compensation Bureau, 481 N.W.2d 218, 1992 N.D. LEXIS 28 (N.D. 1992).

Conflict of Laws.

Rights conferred on employers and employees under workers’ compensation statutes are controlled by statutes of state of primary employment. Breitwieser v. State, 62 N.W.2d 900, 1954 N.D. LEXIS 65 (N.D. 1954).

Coverage of Act.

Where there is a question as to whether an employer should be exempt from workers’ compensation coverage, the doubt should be resolved in favor of the laborer, since it was for him that the workers’ compensation act was passed. Morel v. Thompson, 225 N.W.2d 584, 1975 N.D. LEXIS 207 (N.D. 1975).

Disability Benefits.

The continuing right to disability benefits under the Workers’ Compensation Act is a “property” right protected by the due process clause. Beckler v. North Dakota Workers Compensation Bureau, 418 N.W.2d 770, 1988 N.D. LEXIS 35 (N.D. 1988).

The decision in Beckler v. North Dakota Workers Compensation Bureau, 418 N.W.2d 770 (N.D. 1988), should be applied retrospectively only to those claims that were pending in the appeal process as of the date of that decision, and in which the issue was raised before the bureau and on appeal either by the specifications of error or trial by agreement of the parties. Forster v. North Dakota Workers Compensation Bureau, 447 N.W.2d 501, 1989 N.D. LEXIS 193 (N.D. 1989).

Election of Remedies.

Where workman injured in the course of his employment elects to proceed under workers’ compensation act, he is thereby precluded from maintaining an action at law against his employer. Nyland v. Northern Packing Co., 56 N.D. 624, 218 N.W. 869, 1928 N.D. LEXIS 180 (N.D. 1928).

Generally, when an employer complies with the workers’ compensation statutes, the employee’s exclusive remedy against the employer is limited to recovery under the workers’ compensation statutes. Barsness v. General Diesel & Equip. Co., 422 N.W.2d 819, 1988 N.D. LEXIS 108 (N.D. 1988).

Exclusive Remedy Doctrine.

—In General.

The exclusivity provisions of the Workers’ Compensation Act are embodied in this section and N.D.C.C. § 65-01-08. Westman v. Dessellier, 459 N.W.2d 545, 1990 N.D. LEXIS 155 (N.D. 1990).

—Not Applicable.

An employer foregoes the protections of the exclusive remedy doctrine when he enters into an indemnity contract with someone other than the employee who is later injured. Sorensen v. Tenneco Oil Co., 609 F. Supp. 838, 1985 U.S. Dist. LEXIS 19479 (D.N.D. 1985).

The exclusive remedy rule prohibiting a third-party tortfeasor from getting contribution from the employer does not prohibit enforcement of an employer’s contractual agreement to indemnify a third-party tortfeasor. Barsness v. General Diesel & Equip. Co., 422 N.W.2d 819, 1988 N.D. LEXIS 108 (N.D. 1988).

Trial court erred in concluding that plaintiff’s claims against a school district for negligent supervision and retention were barred by the exclusive remedy provisions of the Workforce Safety and Insurance Act. Even if plaintiff’s allegations of sexual harassment constituted an injury by accident, the district failed to show plaintiff had suffered an injury that was compensable under the Act. Richard v. Washburn Pub. Sch., 2011 ND 240, 809 N.W.2d 288, 2011 N.D. LEXIS 239 (N.D. 2011).

—Particular Cases.

Employee who along with his son was employed by same employer, and who was injured in the course of employment in a one-vehicle accident while riding as a passenger in his own vehicle, which was being driven by his son, could not recover under the general liability and under insurance provisions of his own automobile insurance policies where the policy language clearly and unambiguously provided that he was entitled to benefits only if he was “legally entitled to recover” or his son was “legally liable to pay,” since his son was statutorily immune under the exclusive remedy provisions of the Workers' Stuhlmiller v. Nodak Mut. Ins. Co., 475 N.W.2d 136, 1991 N.D. LEXIS 169 (N.D. 1991).

Supreme Court exercised its discretionary, supervisory power to accept jurisdiction by supervisory writ under N.D. Const. Art. VI, § 2 because an important public interest in the workers’ compensation immunity provisions of N.D.C.C. tit. 65 was present and the employer’s related company had no adequate alternative remedy in that the company could not appeal the denial of its summary judgment motion. Trinity Hosps. v. Mattson, 2006 ND 231, 723 N.W.2d 684, 2006 N.D. LEXIS 237 (N.D. 2006).

District court did not err in dismissing an employee’s negligence action because an employee and coworker were immune from suit under the Workforce Safety and Insurance Act’s exclusive remedy provisions; the determinations in California administrative proceedings were irrelevant for deciding statutory immunity because the employer paid Workforce Safety and Insurance premiums to secure coverage on the employee’s behalf, and the employee received benefits throughout the California proceedings. Brock v. Price, 2019 ND 240, 934 N.W.2d 5, 2019 N.D. LEXIS 251 (N.D. 2019).

Independent Contractor.

A person who is an independent contractor rather than an employee does not fall within the scope of this act. Schaefer v. North Dakota Workers Compensation Bureau, 462 N.W.2d 179, 1990 N.D. LEXIS 223 (N.D. 1990).

Insurance.

The workers’ compensation fund is like an accident insurance fund in that it is a fund made available when an injury occurs. However, the workers’ compensation fund is unlike an accident insurance fund in that (1) it is governmentally created and administered, (2) the injury must be work-related, and (3) because it is work-related questions of fault are irrelevant. Thus the workers’ compensation fund is not a health or accident insurance fund. Beyer's Cement v. North Dakota Ins. Guar. Ass'n, 417 N.W.2d 370, 1987 N.D. LEXIS 454 (N.D. 1987).

The statutory references to insurance in the workers’ compensation laws do not make the protections provided by a workers’ compensation board into insurance as contemplated in N.D.C.C. ch. 26.1-42, governing the guaranty association. The funds provided by the workers compensation board are not insurance; they are workers compensation, and are derived from a statutorily created scheme designed to protect workers injured in the course of their employment. Beyer's Cement v. North Dakota Ins. Guar. Ass'n, 417 N.W.2d 370, 1987 N.D. LEXIS 454 (N.D. 1987).

Liability of Employer.

To hold an employer liable for contribution in an action by the injured employee against a negligent third party, based on common-law liability, would be contrary to the expressed purpose to remove the common-law liability of the employer. White v. McKenzie Electric Cooperative, Inc., 225 F. Supp. 940, 1964 U.S. Dist. LEXIS 6497 (D.N.D. 1964).

While leaving open issue of whether or not an employee may institute civil action against his employer for an intentionally caused injury, an employee covered by workmen’s compensation may not institute civil action against his employer for an accidental injury resulting from an intentional tort. Schreder v. Cities Serv. Co., 336 N.W.2d 641, 1983 N.D. LEXIS 388 (N.D. 1983).

Liability of Third Persons.

Final clause of this section abolishes liability of third persons for injuries in course of employment, except as set forth in act. Tandsetter v. Oscarson, 56 N.D. 392, 217 N.W. 660, 1928 N.D. LEXIS 225 (N.D. 1928).

In situations where an employer and a third-party tortfeasor both negligently cause an employee’s injuries, liability is imposed on the third-party tortfeasor for the negligence of the third party and the employer without permitting the third-party tortfeasor to get contribution from the employer. Barsness v. General Diesel & Equip. Co., 422 N.W.2d 819, 1988 N.D. LEXIS 108 (N.D. 1988).

Injured worker received workers' compensation benefits as a trailer lessee's employee and sued the trailer owner for negligence after the trailer exploded, causing injuries. Reviewing the principles of North Dakota's workers' compensation law and noting that exclusions in an insurance policy at issue limited the policy coverage to liabilities that were not excluded by the remedy of workers' compensation, the court determined that if the trailer owner was acting as a common law independent contractor, North Dakota law will apparently permit the employee to recover in the negligence action. Great West Cas. Co. v. Nat'l Cas. Co., 807 F.3d 952, 2015 U.S. App. LEXIS 21129 (8th Cir. N.D. 2015).

Liberal Construction.

Provisions of workers’ compensation act will be construed, if possible, so as to avoid forfeiture and afford relief. Bordson v. North Dakota Workmen's Compensation Bureau, 49 N.D. 534, 191 N.W. 839, 1922 N.D. LEXIS 84 (N.D. 1922).

The workers’ compensation act must be liberally construed to promote the ends intended to be secured by its enactment. Erickson v. North Dakota Workmen's Compensation Bureau, 123 N.W.2d 292, 1963 N.D. LEXIS 110 (N.D. 1963).

In accordance with policy set forth in this section, act must be liberally construed to promote ends intended to be secured by its enactment. Brown v. North Dakota Workmen's Compensation Bureau, 152 N.W.2d 799, 1967 N.D. LEXIS 92 (N.D. 1967).

The purpose and intent of this title is to protect the injured worker and ensure the prosperity of the state by protecting its wage workers; as such, the provisions of this title should be liberally construed in favor of the worker. 409 N.W.2d 344.

The purpose of workers’ compensation is to protect workers from the hazards of employment by providing sure and certain relief for workers injured in their employment. To that end, the provisions of this title are construed liberally, with the view of extending its benefit provisions to all who can fairly be brought within them. Holmgren v. North Dakota Workers Compensation Bureau, 455 N.W.2d 200, 1990 N.D. LEXIS 101 (N.D. 1990).

The Workers’ Compensation Act is to be liberally construed with the view of extending its benefit provisions to all who can fairly be brought within them. However, liberal construction does not mean the court can ignore the terms of the intent of the provisions with the Act. Effertz v. North Dakota Workers' Compensation Bureau, 481 N.W.2d 218, 1992 N.D. LEXIS 28 (N.D. 1992).

Because appellant was unable to show a causal connection between her unexplained fall at work and her employment, the administrative law judge properly denied her request for workers’ compensation. The Supreme Court of North Dakota refused to apply the positional risk doctrine, because the doctrine was inconsistent with the North Dakota Workforce Safety and Insurance Act, N.D.C.C. § 65-01-01, which provided that the Act not be construed liberally. Fetzer v. N.D. Workforce Safety & Ins., 2012 ND 73, 815 N.W.2d 539, 2012 N.D. LEXIS 70 (N.D. 2012).

Loss of Consortium.

This section and N.D.C.C. § 65-05-06 bar the recovery of damages for loss of consortium by the spouse of an injured worker in an action against the injured worker’s employer. Wald v. Grafton, 442 N.W.2d 910, 1989 N.D. LEXIS 144 (N.D. 1989).

Medical Evidence.

Because the adversary concept has only limited application to claims for workers’ compensation benefits, the workers compensation bureau may not rely only upon that part of inconsistent medical evidence which is favorable to the bureau’s position without attempting to clarify the inconsistency. Syverson v. North Dakota Workmen's Compensation Bureau, 406 N.W.2d 688, 1987 N.D. LEXIS 321 (N.D. 1987).

Power of Legislature.

All rights and obligations under the North Dakota Workers’ Compensation Act are wholly statutory. The legislature may change those rights and obligations and the legislature may afford remedies for violations of workers’ compensation statutes or may not. At any rate, common-law contract principles cannot be used to expand either the statutory rights of the claimant or statutory obligations of the Bureau. Effertz v. North Dakota Workers' Compensation Bureau, 481 N.W.2d 223, 1992 N.D. LEXIS 27 (N.D. 1992).

Standing to Sue.

Workers’ compensation statutes contain no provisions authorizing the bureau to pay contribution or indemnification to an insurance company that provides coverage for an out-of-state workmen’s compensation program; insurance company which provided benefits to claimant under the Minnesota compensation program did not have standing to sue the North Dakota bureau for contribution or indemnification on grounds that North Dakota was the primary situs of employment and primarily liable. United States Fidelity & Guar. Co. v. North Dakota Workmen's Compensation Bureau, 275 N.W.2d 618, 1979 N.D. LEXIS 216 (N.D. 1979).

Suit for Wrongful Discharge.

Under former N.D.C.C. § 32-03-07, a suit for wrongful discharge in retaliation for seeking workers’ compensation is the kind of tort claim which allows exemplary damages. Krein v. Marian Manor Nursing Home, 415 N.W.2d 793, 1987 N.D. LEXIS 435 (N.D. 1987).

An employee can sue an employer for a wrongful discharge in retaliation for seeking workers’ compensation. Krein v. Marian Manor Nursing Home, 415 N.W.2d 793, 1987 N.D. LEXIS 435 (N.D. 1987).

True Intentional Injury.

The North Dakota Workers Compensation Act does not preclude recovery for true intentional injuries, and an employee can pursue a civil cause of action against his employer for a true intentional injury. Zimmerman v. Valdak Corp., 1997 ND 203, 570 N.W.2d 204, 1997 N.D. LEXIS 261 (N.D. 1997).

An employer is deemed to have intended to injure if the employer had knowledge an injury was certain to occur and willfully disregarded that knowledge. Zimmerman v. Valdak Corp., 1997 ND 203, 570 N.W.2d 204, 1997 N.D. LEXIS 261 (N.D. 1997).

Collateral References.

Workmen’s compensation act as furnishing exclusive remedy for master’s failure to inform servant of disease or physical condition disclosed by medical examination, 69 A.L.R.2d 1213.

Right to maintain malpractice suit against injured employee’s attending physician notwithstanding receipt of workmen’s compensation award, 28 A.L.R.3d 1066.

Homeowners’ or personal liability insurance as providing coverage for liability under workmen’s compensation laws, 41 A.L.R.3d 1306.

Workmen’s compensation provision as precluding employee’s action against employer for fraud, false imprisonment, defamation, or the like, 46 A.L.R.3d 1279.

Farmowners’ liability insurance risks and coverage, 93 A.L.R.3d 472.

What conduct is willful, intentional, or deliberate within workmen’s compensation act provision authorizing tort action for such conduct, 96 A.L.R.3d 1064.

Modern status of effect of state workmen’s compensation act on right of third-person tortfeasor to contribution or indemnity from employer of injured or killed workman, 100 A.L.R.3d 350.

Construction and application of provisions of liability insurance policy expressly excluding injuries intended or expected by insured, 31 A.L.R.4th 957.

Liability insurance: intoxication and other mental incapacity avoiding application of clause in liability policy specifically exempting coverage of injury or damage caysed intentionally by or at direction of insured, 33 A.L.R.4th 983.

Criminal conviction as rendering conduct for which insured convicted within provision of liability insurance policy expressly excluded coverage for damage or injury intended or expected by insured, 35 A.L.R.4th 1063.

Workmen’s compensation law as precluding employee’s suit against employer for third person’s criminal attack, 49 A.L.R.4th 926.

Workers’ compensation: sexual assaults as compensable, 52 A.L.R.4th 731.

Workers’ compensation: incarceration as terminating benefits, 54 A.L.R.4th 241.

Prejudicial effect of bringing to jury’s attention fact that plaintiff in personal injury or death action is entitled to workers’ compensation benefits, 69 A.L.R.4th 131.

Automobile uninsured motorist coverage: “legally entitled to recover” clause as barring claim compensable under workers’ compensation statute, 82 A.L.R.4th 1096.

Pre-emption by workers’ compensation statute of employee’s remedy under state “whistleblower” statute, 20 A.L.R.5th 677.

Workers’ compensation: law enforcement officer’s recovery for injury sustained during exercise or physical recreation activities, 44 A.L.R.5th 569.

Workers’ compensation as precluding employee’s suit against employer for sexual harassment in the workplace, 51 A.L.R.5th 163.

Violation of employment rule barring claim for worker’s compensation, 61 A.L.R.5th 375.

Right to workers’ compensation for emotional distress or like injury suffered by claimant as result of nonsudden stimuli — Right to compensation under particular statutory provisions, 97 A.L.R.5th 1.

Contractual waiver of exclusivity of workers’ compensation remedy, 117 A.L.R.5th 441.

Postaccident conduct by employer, employer’s insurer, or employer’s employees in relation to workers’ compensation claim as waiving, or estopping employer from asserting, exclusivity otherwise afforded by workers’ compensation statute, 120 A.L.R.5th 513.

Validity, Construction, and Application of Provisions of Workers’ Compensation Act for Additional Compensation Because of Failure To Comply with Specific Requirement of Statute or Regulation by Public for Protection of Workers, 31 A.L.R.6th 199.

Construction and Application of Exclusive Remedy Rule Under State Workers’ Compensation Statutes with Respect to Liability for Injury or Death of Employee as Passenger in Employer-Provided Vehicle — Requisites for, and Factors Affecting, Applicability and Who May Invoke Rule. 42 A.L.R.6th 545.

Construction and Application of Exclusive Remedy Rule under State Workers’ Compensation Statute With Respect to Liability for Injury or Death of Employee as Passenger in Employer-Provided Vehicle — Against Whom May Rule Be Invoked and Application of Rule to Particular Situations and Employees. 43 A.L.R.6th 375.

Exclusive Remedy Provision of State Workers’ Compensation Statute as Applied to Injuries Sustained During or as the Result of Horseplay, Joking, Fooling, or the Like. 44 A.L.R.6th 545.

Law Reviews.

A Time for Recognition: Extending Workmen’s Compensation Coverage to Inmates, 61 N.D. L. Rev. 403 (1985).

An introduction to North Dakota workers’ compensation, 64 N.D. L. Rev. 173 (1988).

Summary of significant decisions rendered by the North Dakota Supreme Court in 1989 relating to workers’ compensation, 65 N.D. L. Rev. 597 (1989).

Summary of significant decisions rendered by the North Dakota Supreme Court in 1990 relating to workers’ compensation, 66 N.D. L. Rev. 881 (1990).

Summary of the 1991 North Dakota Supreme Court decisions on Workers Compensation, 68 N.D. L. Rev. 815 (1992).

Workers’ Compensation: The Assault on the Shield of Immunity — Coming to Blows with the Exclusive-Remedy Provisions of the North Dakota Workers’ Compensation Act, 70 N.D. L. Rev. 905 (1994).

Constitutional Law — Haney v. North Dakota Workers Compensation Bureau, 518 N.W.2d 195 (N.D. 1994), 71 N.D. L. Rev. 781 (1995).

Federal Pre-Emption and State Exclusive Remedy Issues in Employment Litigation, 72 N.D. L. Rev. 325 (1996).

Are Employees Obtaining “Sure and Certain Relief” Under the 1995 Legislative Enactments of the North Dakota Workers’ Compensation Act?, 72 N.D. L. Rev. 349 (1996).

In General.

Although the Workers’ Compensation Act must be liberally construed in favor of workers so that its benefit provisions can be extended to all who can fairly be brought within them, the court is not free to ignore the plain and ordinary language of the statute. Pleinis v. North Dakota Workers Compensation Bureau, 472 N.W.2d 459, 1991 N.D. LEXIS 128 (N.D. 1991).

Compensable injury.

—Unusual stress.

In a workers’ compensation action, the ALJ erred in ordering payment of death benefits to the employee’s family member after the employee died following a injury sustained when the truck he was driving tipped because the ALJ improperly applied this section, and made no finding as to unusual stress as required by this section. State v. Felan, 2021 ND 97, 960 N.W.2d 805, 2021 N.D. LEXIS 102 (N.D. 2021).

Actual Wage Loss.

Using the definition of “wage” found in N.D.C.C. § 65-01-02 in the context of “actual wage loss” under N.D.C.C. § 65-05-08(1)(b), the claimant must prove that he has sustained an actual loss of remuneration from employment which would be reportable to the IRS as earned income for federal income tax purposes. To demonstrate an actual loss of wages or remuneration as a result of a change in the claimant’s compensable medical condition, the claimant must necessarily first demonstrate that he was earning wages from employment when the change in his medical condition occurred and must then show that the change caused at least a partial loss of those wages. Beckler v. Workforce Safety & Ins. (In re Beckler), 2005 ND 33, 692 N.W.2d 483, 2005 N.D. LEXIS 39 (N.D. 2005).

Artificial Replacement.

Adaptive equipment on an injured party’s van was an “artificial replacement” under the statute. Meyer v. North Dakota Workers Compensation Bureau, 512 N.W.2d 680, 1994 N.D. LEXIS 46 (N.D. 1994).

Average Weekly Wage.

Workforce Safety and Insurance correctly interpreted the plain language of N.D.C.C. § 65-01-02 and did not err in calculating the claimant’s average weekly wage, because the reviewing court could not agree with the suggestion that some deductions were to be added to net profit from Schedule C of a self-employed worker’s federal tax return to calculate average weekly wage, when the 2003 statutory amendment expressly removed the provision requiring that certain business deductions and depreciation be added back in. Olson v. Workforce Safety & Ins., 2008 ND 59, 747 N.W.2d 71, 2008 N.D. LEXIS 59 (N.D. 2008).

District court did not err in applying N.D.C.C. § 65-01-02 and a reasoning mind could have determined that the ALJ’s findings were proven by the weight of the evidence from the entire record; the ALJ’s decision in determining the worker’s average weekly wage of $722 was affirmed. Carlson v. Workforce Safety & Ins., 2012 ND 203, 821 N.W.2d 760, 2012 N.D. LEXIS 211 (N.D. 2012).

Compensable Injury.

—Aggravation of Disease.

Acceleration of preexisting disease to fatal conclusion by excessive artificial heat under which employee labored, was an injury within workers’ compensation act. Pace v. North Dakota Workmen's Compensation Bureau, 51 N.D. 815, 201 N.W. 348, 1924 N.D. LEXIS 90 (N.D. 1924); Pfeiffer v. North Dakota Workmen's Compensation Bureau, 57 N.D. 326, 221 N.W. 894, 1928 N.D. LEXIS 132 (N.D. 1928).

Employee did not suffer a compensable injury to the back under this section because the injury was attributable to a preexisting injury suffered in a car accident; moreover, the employee was unable to establish that the condition was substantially accelerated or worsened by the conditions of employment, which included standing, lifting, and walking. Myhre v. N.D. Workers Comp. Bureau, 2002 ND 186, 653 N.W.2d 705, 2002 N.D. LEXIS 239 (N.D. 2002).

Worker's compensation claimant's medical benefits claim was properly denied as he failed to show his work activities substantially accelerated the progression or substantially worsened the severity of a preexisting condition because the evidence showed that the claimant had substantial back pain prior to beginning work at his former employer, and that when the claimant had back pain in August 2010, it was substantially similar to prior times, including the time before he started working for his former employer. Frith v. N.D. Workforce Safety & Ins., 2014 ND 93, 845 N.W.2d 892, 2014 N.D. LEXIS 95 (N.D.), cert. denied, 574 U.S. 1027, 135 S. Ct. 719, 190 L. Ed. 2d 442, 2014 U.S. LEXIS 7974 (U.S. 2014).

—Burden of Proof.

A claimant must show, by a simple preponderance of the evidence, a compensable injury in order to participate in the workers compensation fund. Moses v. North Dakota Workers Compensation Bureau, 429 N.W.2d 436, 1988 N.D. LEXIS 255 (N.D. 1988).

The presumed fact is that the condition was suffered in the line of duty and is not a preexisting disease, and the statute shifts the burden to the bureau to prove “that the nonexistence of the presumed fact is more probable than its existence.” Flermoen v. North Dakota Workers Compensation Bureau, 470 N.W.2d 220, 1991 N.D. LEXIS 100 (N.D. 1991).

Because an administrative law judge (ALJ) did not apply the correct standard when evaluating conflicting medical opinions on causation where the ALJ’s rationale for discounting the opinion favorable to the claimant relied upon the importance of supporting a medical opinion with another scientific authority, such as a treatise or a published report of a study and neither the statutes nor case law imposed such a requirement, and because the court was unpersuaded by the ALJ’s speculation as to factual errors in the opinions, the court reversed an order affirming a decision of the Workforce Safety & Insurance Fund denying benefits for treatment of a worker’s back injury. The court also noted that it did not understand the ALJ’s reference to a “particularly heavy burden” and stated that the claimant need only prove it was more likely than not that his injuries were caused by his employment. Swenson v. Workforce Safety & Ins. Fund, 2007 ND 149, 738 N.W.2d 892, 2007 N.D. LEXIS 151 (N.D. 2007).

—Causal Relationship.

Preexisting high blood pressure was cause of stroke suffered by an employee, even though stroke occurred shortly after an argument in course of employment, so there was no compensable injury. Sandlie v. Workmen's Compensation Bureau, 70 N.D. 449, 295 N.W. 497, 1940 N.D. LEXIS 192 (N.D. 1940).

Though an injury is compensable if received in course of employment, disease from which a worker dies must be one proximately caused by the employment to be compensable. McKinnon v. North Dakota Workmen's Compensation Bureau, 71 N.D. 228, 299 N.W. 856, 1941 N.D. LEXIS 158 (N.D. 1941).

Hemorrhage of an ulcer was not compensable where evidence tending to show relationship to employment was purely speculative. Wobbe v. Workmen's Compensation Bureau, 73 N.D. 256, 13 N.W.2d 712, 1944 N.D. LEXIS 57 (N.D. 1944).

Death due to cerebral hemorrhage was not compensable where evidence failed to establish that hemorrhage was fairly traceable to pneumonia caused by exposure during employment. Feist v. North Dakota Workmen's Compensation Bureau, 80 N.W.2d 100, 1956 N.D. LEXIS 163 (N.D. 1956).

Lack of evidence linking worker’s lung condition to fumes and particles in the workplace supported Workers Compensation Bureau’s finding that the lung condition was neither caused nor aggravated by his employment. Engebretson v. North Dakota Workers Compensation Bur., 1999 ND 112, 595 N.W.2d 312, 1999 N.D. LEXIS 96 (N.D. 1999).

The supreme court declined to make findings regarding whether multiple chemical sensitivity is a disease; the claimant failed to prove that any condition resulting in injury was fairly traceable to her employment. Elshaug v. Workforce Safety & Ins., 2003 ND 177, 671 N.W.2d 784, 2003 N.D. LEXIS 190 (N.D. 2003).

But-for reasoning of the positional risk doctrine is inconsistent with N.D.C.C. § 65-01-02(10) [now subsec. (11)], which requires claimants to prove a causal connection between their employment and injury. Because the positional risk doctrine requires a claimant only to show that an injury was sustained while at work, the doctrine directly contravenes both the language of N.D.C.C. § 65-01-02(10) [now subsec. (11)] and the legislature’s stated intent in adding the “arising out of” element. Fetzer v. N.D. Workforce Safety & Ins., 2012 ND 73, 815 N.W.2d 539, 2012 N.D. LEXIS 70 (N.D. 2012).

Because appellant was unable to show a causal connection between her unexplained fall at work and her employment, the administrative law judge properly denied her request for workers’ compensation. Appellant did not meet her burden of showing an injury “arising out of” her employment for purposes of N.D.C.C. § 65-01-02(10). Fetzer v. N.D. Workforce Safety & Ins., 2012 ND 73, 815 N.W.2d 539, 2012 N.D. LEXIS 70 (N.D. 2012).

—Conflicting Evidence.

Where expert testimony was conflicting as to whether disease causing death could have been caused by back strain incurred in course of employment, bureau’s finding that there was no relationship was justified. Mickelson v. North Dakota Workmen's Compensation Bureau, 89 N.W.2d 89, 1958 N.D. LEXIS 71 (N.D. 1958).

Where conflicting medical testimony was given by two physicians on issue of whether work-related injuries aggravated or accelerated the progression of claimant’s congenital spondylolisthesis and Worker’s Compensation Bureau adequately explained its reasons for accepting one physician’s opinion, Supreme Court would not make independent findings or substitute its judgment for that of the Bureau. Hibl v. North Dakota Workers Compensation Bureau, 1998 ND 198, 586 N.W.2d 167, 1998 N.D. LEXIS 215 (N.D. 1998).

Workers Compensation Bureau sufficiently clarified conflicting reports among the four doctors who examined the claimant and thus the Bureau’s determination that injuries to the claimant’s neck, back and shoulder were caused by her degenerative disc disease rather than her fall at work was supported by a preponderance of the evidence. Hein v. North Dakota Workers Compensation Bureau, 1999 ND 200, 601 N.W.2d 576, 1999 N.D. LEXIS 208 (N.D. 1999).

Administrative law judge (ALJ) correctly denied a worker's claim for workforce safety and insurance benefits because (1) the ALJ found no specific incident occurred resulting in the worker's injury, (2) the worker did not relate the worker's symptoms to work activities, (3) the worker presented no objective medical findings supporting a medical opinion that the worker's repetitive work activities caused or accelerated the progression of, or substantially worsened the severity of, the worker's hernia, and (4) a contrary opinion contained details showing the worker's job was neither the cause of the hernia, nor a substantial contributing factor. Kershaw v. Workforce Safety & Ins., 2013 ND 186, 838 N.W.2d 429, 2013 N.D. LEXIS 185 (Oct. 22, 2013).

—Control of Employer.

An activity which is a substantial part of the service for which the worker is employed is an activity performed under the control of the employer. Diegel v. North Dakota Workers Compensation Bureau, 469 N.W.2d 151, 1991 N.D. LEXIS 87 (N.D. 1991).

—Controlled Substances.

Bureau’s dismissal of claimant’s claim as noncompensable was upheld where evidence was presented from which a reasonable mind could conclude that claimant had illegal drugs in his system on the date of injury and those drugs were the cause of claimant’s injuries. Smith v. North Dakota Workers Compensation Bureau, 2000 ND 51, 608 N.W.2d 250, 2000 N.D. LEXIS 40 (N.D. 2000).

—Course of Employment.

Intentional shooting of an employee by third person while employee was actively engaged in her work resulted in a compensable injury even though motive for shooting had no relation to employment. Lippmann v. North Dakota Workmen's Compensation Bureau, 79 N.D. 248, 55 N.W.2d 453, 1952 N.D. LEXIS 117 (N.D. 1952).

An injury arises in the course of employment if it occurs within the period of employment at a place where the employee may reasonably be and while he was engaged in performing the duties of his contract or is engaged in something incident thereto and contemplated thereby. Westman v. North Dakota Workers Compensation Bureau, 459 N.W.2d 540, 1990 N.D. LEXIS 167 (N.D. 1990).

The decision in Beckler v. North Dakota Workers Compensation Bureau, 418 N.W.2d 770 (N.D. 1988), should be applied retrospectively only to those claims that were pending in the appeal process as of the date of that decision, and in which the issue was raised before the bureau and on appeal either by the specifications of error or trial by agreement of the parties. Forster v. North Dakota Workers Compensation Bureau, 447 N.W.2d 501, 1989 N.D. LEXIS 193 (N.D. 1989).

—Exposure to Weather.

Death due to pneumonia caused by exposure to cold and wet weather during course of employment was compensable. TWETEN v. NORTH DAKOTA WORKMEN'S COMPENSATION BUR., 69 N.D. 369, 287 N.W. 304, 1939 N.D. LEXIS 163 (N.D. 1939).

—Fairly Traceable to Employment.

Reports favorable to plaintiff’s claim that gas and exhaust fumes in school bus that she drove made her ill did not adequately take into account her sensitivity to certain fragrances prior to her employment with the school district, nor her years of smoking cigarettes; the record contained sufficient evidence to conclude that a reasonable mind could reasonably find that her illness was not “fairly traceable” to employment with the school district, or that her employment, at most, “triggered” a preexisting condition, but did not substantially aggravate or accelerate her illness. Halseth v. North Dakota Workers Compensation Bureau, 514 N.W.2d 371, 1994 N.D. LEXIS 79 (N.D. 1994).

—Heart Attack.

A heart attack caused by exertion is in itself an accident, not a disease, and therefore it is immaterial that a preexisting disease contributed to the death; subdivision 7a (now subdivision 10(a)) of this section was not applicable where myocardial infarction was an accident, and thus claimant was entitled to recover despite preexisting disease contention made by bureau. Stout v. North Dakota Workmen’s Comp. Bureau, 236 N.W.2d 889 (N.D. 1975), overruled on other grounds, Balliet v. North Dakota Workmen’s Comp. Bureau, 297 N.W.2d 791 (N.D. 1980), decided prior to the amendment to this section by Session Laws 1977, ch. 579.

Fact that an employee may have physical conditions or personal habits which make him more prone to a heart disease is not a reason for denying a claim if the preponderance of the evidence indicates that the heart attack was causally related to the workers’ employment, with reasonable medical certainty, and was precipitated by unusual stress. Nelson v. North Dakota Workmen's Compensation Bureau, 316 N.W.2d 790, 1982 N.D. LEXIS 211 (N.D. 1982).

Testimony by widow and fellow worker of deceased that deceased had been under unusual emotional stress related to his employment was insufficient to establish that fatal heart attack suffered by deceased while at work was precipitated by unusual stress. Nelson v. North Dakota Workmen's Compensation Bureau, 316 N.W.2d 790, 1982 N.D. LEXIS 211 (N.D. 1982).

This subsection was amended by chapter 579, section 2, 1977 N.D. Session Laws, to allow benefit awards for heart attacks only where there is evidence of “unusual” stress. Nelson v. North Dakota Workmen's Compensation Bureau, 316 N.W.2d 790, 1982 N.D. LEXIS 211 (N.D. 1982).

Employee was not entitled to benefits for an injury due to a heart attack where she failed to prove by weight of evidence that neither work-related stress over four-year course of her employment as a kitchen helper nor on day of her heart attack constituted an unusual or out-of-the-ordinary stress; and thus she failed to prove her heart attack was precipitated by unusual stress in course of her employment. Ganske v. North Dakota Workmen's Compensation Bureau, 355 N.W.2d 800, 1984 N.D. LEXIS 385 (N.D. 1984).

In order to prove that a heart attack is a compensable injury, the claimant must also prove that the attack was causally related to the worker’s employment, with reasonable and medical certainty. Christianson v. North Dakota Workers Compensation Bureau, 470 N.W.2d 613, 1991 N.D. LEXIS 114 (N.D. 1991).

In order to satisfy the “unusual stress” requirement, the work causing the heart attack need not be different in nature from the claimant’s usual work. Rather, so long as the conditions of performing the work are such that an exceptional strain is imposed on the worker so great that his heart is affected and damaged thereby, the requirement of unusual or excessive strain is satisfied. Christianson v. North Dakota Workers Compensation Bureau, 470 N.W.2d 613, 1991 N.D. LEXIS 114 (N.D. 1991).

In a worker’s compensation matter involving a claim by a surviving spouse for death benefits, the administrative law judge (ALJ) did not err in concluding decedent died as a result of a heart attack caused by work-related stress, which was compensable under N.D.C.C. § 65-01-02(10)(a)(3), as the ALJ relied on the testimony of the decedent’s primary care physician, who testified that long-term pain that the decedent suffered caused extraordinary stress, that long-term stress was a risk factor for heart attacks, and that stress was at least fifty percent of the cause of the decedent’s fatal heart attack as compared to all other factors. The ALJ clarified inconsistencies in the evidence and adequately explained his reasons for disregarding the testimony of the employer’s experts. Workforce Safety & Ins. v. Auck, 2010 ND 126, 785 N.W.2d 186, 2010 N.D. LEXIS 127 (N.D. 2010).

—Injury by Accident.

A back injury may satisfy the “injury by accident” requirement of this section not only if the cause of the injury was of accidental character, but also if the cause is routine and the result is not foreseen, intended, or anticipated; thus, an injury such as acute disc syndrome, which can be medically related to repeated stress or strain in a claimant’s usual work exertions, is a compensable injury under the workers’ compensation act. Satrom v. North Dakota Workmen's Compensation Bureau, 328 N.W.2d 824, 1982 N.D. LEXIS 393 (N.D. 1982).

Issues decided by the administrative law judge (ALJ) on remand were included in the issues the supreme court sent back and, therefore, the ALJ did not go beyond the terms of the mandate; the supreme court’s decision only required the ALJ to determine and make consistent sufficient findings as to whether an employee sustained a “compensable injury,” and the ALJ’s revised order included additional specific findings on the medical evidence and determined the employee sustained a compensable injury. State v. Sandberg, 2021 ND 39, 956 N.W.2d 342, 2021 N.D. LEXIS 39 (N.D. 2021).

Administrative law judge (ALJ) properly found that an employee had sustained a compensable injury and was entitled to benefits because the ALJ made specific findings regarding the ALJ’s consideration of the evidence presented at the hearing, weighed the doctors’ competing opinions; because the ALJ had the opportunity to observe witnesses and the responsibility to assess the credibility of witnesses and resolve the conflicts in the evidence, the supreme court would not reweigh the evidence. State v. Sandberg, 2021 ND 39, 956 N.W.2d 342, 2021 N.D. LEXIS 39 (N.D. 2021).

—Jurisdiction.

A worker’s compensation claimant, when appealing to a district court, has the burden to show that the court has jurisdiction. Boyko v. North Dakota Workmen's Compensation Bureau, 409 N.W.2d 638, 1987 N.D. LEXIS 379 (N.D. 1987).

—Legislative Intent.

The language in former paragraph 9 a (4) of N.D.C.C. § 65-01-02 (see present paragraph 10.a.(4) for similar provisions) was added in 1989. The intent in adding the language was to clarify and be more specific as to what is, and is not, considered a compensable injury. Diegel v. North Dakota Workers Compensation Bureau, 469 N.W.2d 151, 1991 N.D. LEXIS 87 (N.D. 1991).

—Medical Evidence.

Where the only medical evidence in the record showed that the claimant had a permanent partial impairment, both physicians discerned pain and its effect, and they identified objective evidence indicative of impairment, the workers compensation bureau erred in denying compensation solely because the claimant’s impairment was not substantiated by objective medical evidence under the American medical association’s guides to the evaluation of permanent impairment. Accordingly, the action was remanded for further proceedings by the bureau to determine the extent of impairment. Kroeplin v. North Dakota Workmen's Compensation Bureau, 415 N.W.2d 807, 1987 N.D. LEXIS 440 (N.D. 1987).

Administrative law judge’s findings were not sufficient to understand the basis for the decision that the claimant sustained a compensable injury because the administrative law judge did not cite any medical evidence supported by objective medical findings in the record to support a determination that the claimant’s repetitive work activities did not merely trigger symptoms, but rather substantially worsened the severity of his preexisting degenerative disc disease. State v. Sandberg, 2019 ND 198, 931 N.W.2d 488, 2019 N.D. LEXIS 210 (N.D. 2019).

—Mental Injury.

Because workers’ compensation benefits are not available for mental injury resulting from termination of employment, an employee whose employment is terminated can pursue other remedies. Choukalos v. North Dakota Workers' Compensation Bureau, 427 N.W.2d 344, 1988 N.D. LEXIS 186 (N.D. 1988).

Employee was properly denied workers' compensation benefits for treatment of anxiety and depression because he failed to establish that his physical injury caused at least 50 percent of his anxiety and depression as compared with all other contributing causes, as required by N.D.C.C. § 65-01-02(10)(a)(6) [now N.D.C.C. § 65-01-02(11)(a)(6)]; the evidence established that his relationship with the employer was a contributing cause of his anxiety and depression. Davenport v. Workforce Safety & Ins. Fund, 2013 ND 118, 833 N.W.2d 500, 2013 N.D. LEXIS 123 (July 18, 2013).

—Part-of-Service Exception.

Whether a journey itself is part of service to the employer is not dependent upon compensation. Diegel v. North Dakota Workers Compensation Bureau, 469 N.W.2d 151, 1991 N.D. LEXIS 87 (N.D. 1991).

A reasoning mind could not reasonably conclude that an employee’s daily journey to West Fargo to pick up co-workers was not part of the service for which he was employed, given the special degree of inconveniences under which the journey was made, the evidence of the employer’s expectations of the employee, and the benefits derived by the employer. The evidence showed that the employer became upset with the claimant and “chewed him out” on one occasion when the claimant failed to drive the company vehicle to the job-site and told him, on that occasion, that if he couldn’t get the company vehicle to the job-site each morning he “might as well not even come.” Diegel v. North Dakota Workers Compensation Bureau, 469 N.W.2d 151, 1991 N.D. LEXIS 87 (N.D. 1991).

The crux of the part-of-service exception is that the travel of the employee is itself a part of the work within the employer/employee relationship. The employer/employee relationship is defined largely by the element of control. Diegel v. North Dakota Workers Compensation Bureau, 469 N.W.2d 151, 1991 N.D. LEXIS 87 (N.D. 1991).

—Personal Habits.

Just because personal habits make a worker more prone to certain injuries does not mean the bureau can deny a claim when the evidence indicates with reasonable medical certainty that work conditions are causally connected to the particular injury. McDaniel v. North Dakota Workers Compensation Bureau, 1997 ND 154, 567 N.W.2d 833, 1997 N.D. LEXIS 173 (N.D. 1997).

—Preexisting Condition.

The statutory language unambiguously describes when compensation is allowed for injuries attributable to both a latent underlying condition and an underlying condition which clearly manifested itself prior to the compensable injury. In both situations injuries attributable to the preexisting condition are compensable if employment substantially aggravates or accelerates the condition. Pleinis v. North Dakota Workers Compensation Bureau, 472 N.W.2d 459, 1991 N.D. LEXIS 128 (N.D. 1991).

Remand was necessary to determine whether worker’s employment trigger substantially aggravated previously asymptomatic arthritic condition where plaintiff’s medical evidence indicated the injury was triggered by her employment and the Workers’ Compensation Bureau failed to explain its disregard of plaintiff’s favorable medical evidence. Geck v. North Dakota Workers Compensation Bureau, 1998 ND 158, 583 N.W.2d 621, 1998 N.D. LEXIS 156 (N.D. 1998).

Workforce safety and insurance benefits were denied because a claimant did not establish that his increased pain, increased need for medical care, and increased need for medication constituted a substantial worsening or acceleration of his preexisting back condition under N.D.C.C. § 65-01-02(10)(b)(7) [now N.D.C.C. § 65-01-02(11)(b)(7)]; the inconsistencies in the medical opinions were adequately addressed, and adequate reasons were given for disregarding evidence favorable to the claimant. Bergum v. N.D. Workforce Safety & Ins., 2009 ND 52, 764 N.W.2d 178, 2009 N.D. LEXIS 33 (N.D. 2009).

Employee did not prove that he suffered a compensable work related injury because the employee had symptoms consistent with a disc herniation before the claimed date of injury, and he was engaged in non-work activities that could have caused or contributed to the disc herniation. An expert testified the events and activities noted in the employee’s medical records, such as playing football or laying carpet, could have caused a disc condition to become more symptomatic. Schoch v. N.D. Workforce Safety & Ins., 2010 ND 25, 778 N.W.2d 542, 2010 N.D. LEXIS 26 (N.D. 2010).

Where claimant suffered off-the-job injuries to her lower back and had degenerative disc disease, picking up a band-aid at work triggered a preexisting condition within the meaning of N.D.C.C. § 65-01-02(10)(b) [now N.D.C.C. § 65-01-02(11)(b)(7)] but did not substantially accelerate or worsen her condition. Claimant was not entitled to benefits. Curran v. N.D. Workforce Safety & Ins., 2010 ND 227, 791 N.W.2d 622, 2010 N.D. LEXIS 230 (N.D. 2010).

Reasoning mind could have found that the claimant failed to establish, by a preponderance of the evidence, that the claimant’s right shoulder pain was substantially accelerated or substantially worsened by the claimant’s work injury and vocational training, which meant that the claimant did not have a N.D.C.C. § 65-01-11 compensable injury. The injury was not compensable because N.D.C.C. § 65-01-02(10)(b)(7) [now N.D.C.C. § 65-01-02(11)(b)(7)] excluded preexisting injuries unless they substantially accelerated or substantially worsened a claimant’s prior injury, which the claimant was not able to show. Johnson v. N.D. Workforce Safety & Ins. Fund, 2012 ND 87, 816 N.W.2d 74, 2012 N.D. LEXIS 88 (N.D. 2012).

Administrative law judge (ALJ) misapplied the definition of a compensable injury set forth in N.D.C.C. § 65-01-02(10) [now N.D.C.C. § 65-01-02(11)(b)(7)]. The ALJ’s decision focused on whether the claimant’s degenerative disc disease itself worsened without considering whether the underlying injury, disease, or other condition would likely have progressed similarly in the absence of the claimant’s employment. Mickelson v. N.D. Workforce Safety & Ins., 2012 ND 164, 820 N.W.2d 333, 2012 N.D. LEXIS 172 (N.D. 2012).

Employment substantially accelerates the progression or substantially worsens the severity of a preexisting injury, disease, or other condition when the underlying condition likely would not have progressed similarly in the absence of employment. Mickelson v. N.D. Workforce Safety & Ins., 2012 ND 164, 820 N.W.2d 333, 2012 N.D. LEXIS 172 (N.D. 2012).

Medical evidence did not establish a causal relationship under N.D.C.C. ??65-01-02(10)(b)(7) [now N.D.C.C. ??65-01-02(11)(b)(7)] between an employee's work injuries and the pain from his degenerative lower back condition; an independent medical examination provided evidence that his condition, including his pain symptoms, would have progressed similarly in the absence of the work injuries. Davenport v. Workforce Safety & Ins. Fund, 2013 ND 118, 833 N.W.2d 500, 2013 N.D. LEXIS 123 (July 18, 2013).

Administrative law judge misapplied the law in finding the injury was attributable to the worker's preexisting condition because it made him more susceptible to injury; the worker's susceptibility to the injury because of his preexisting condition did not make the injury attributable to the preexisting condition, and instead, there had to be some evidence that the injury triggered symptoms in the worker's preexisting condition or some other evidence that his current condition was attributable to the preexisting condition. Parsons v. Workforce Safety & Ins. Fund, 2013 ND 235, 841 N.W.2d 404, 2013 N.D. LEXIS 254 (Dec. 19, 2013).

Preponderance of the evidence established the pain was not a symptom of the preexisting condition and the injury did not trigger symptoms of his preexisting condition, and the evidence established a causal relationship between the work injury and the worker's condition for which he sought treatment, and thus the administrative law judge erred in finding that the worker failed to prove he sustained a compensable injury. Parsons v. Workforce Safety & Ins. Fund, 2013 ND 235, 841 N.W.2d 404, 2013 N.D. LEXIS 254 (Dec. 19, 2013).

Administrative law judge’s findings were not sufficient to understand the basis for the decision that the claimant sustained a compensable injury because the administrative law judge’s decision stated that the claimant’s work activities increased the severity of the symptom of pain from his preexisting degenerative disc disease, but the language of this statute stated that pain alone was not a substantial acceleration or a substantial worsening of a preexisting injury, disease, or other condition. State v. Sandberg, 2019 ND 198, 931 N.W.2d 488, 2019 N.D. LEXIS 210 (N.D. 2019).

—Physical Impact.

Physical impact is not necessary prerequisite to compensable injury. Pace v. North Dakota Workmen's Compensation Bureau, 51 N.D. 815, 201 N.W. 348, 1924 N.D. LEXIS 90 (N.D. 1924).

—Traveling to and from Work.

An injury sustained while an employee was on his way home after work was not compensable even though caused by action of horses he was required to furnish for employment. Kary v. North Dakota Workmen's Compensation Bureau, 67 N.D. 334, 272 N.W. 340, 1937 N.D. LEXIS 86 (N.D. 1937); Fink v. Workmen's Compensation Bureau, 68 N.D. 531, 282 N.W. 505, 1938 N.D. LEXIS 143 (N.D. 1938).

An injury sustained while an employee was on his way home after work was not compensable even though it was within hours that he normally worked. Fink v. Workmen's Compensation Bureau, 68 N.D. 531, 282 N.W. 505, 1938 N.D. LEXIS 143 (N.D. 1938).

An injury sustained on employee’s own premises during her lunch hour was compensable if contract of employment required her to go to her own home for lunch. Desautel v. North Dakota Workmen's Compensation Bureau, 72 N.D. 35, 4 N.W.2d 581, 1942 N.D. LEXIS 108 (N.D. 1942).

A reasoning mind reasonably could have determined that the worker’s injury was not in any way employment related, where the undisputed evidence disclosed that he was riding on his own motorcycle; that he was not on the employer’s premises; that he was, in fact, on a public highway; that he was driving home after work hours, and was not being compensated for traveling to and from work at the time of his injury. Cody v. North Dakota Workmen's Compensation Bureau, 413 N.W.2d 316, 1987 N.D. LEXIS 409 (N.D. 1987).

By reporting for duty, claimant (a helper to a driver of a moving van) commenced employment. By riding in the moving van en route to his destination, claimant was engaged in employment, even though no delivery was made and no loading or unloading was performed. Westman v. North Dakota Workers Compensation Bureau, 459 N.W.2d 540, 1990 N.D. LEXIS 167 (N.D. 1990).

As a general rule, injuries occurring while traveling to and from work are noncompensable. There are several exceptions to this general rule, one of which is when the travel is an integral part of the service for which the worker is employed. Diegel v. North Dakota Workers Compensation Bureau, 469 N.W.2d 151, 1991 N.D. LEXIS 87 (N.D. 1991).

Claimant’s travel to work was neither employer supplied nor employer required where he was merely commuting to work with his roommate who was also employed by the same construction firm; furthermore, despite being paid a higher wage for working out-of-town, none of claimant’s wages was intended as travel expenses and the fact that claimant was paid upon arrival at work did not indicate that travel to the job site was an integral part of service. Hoffner v. North Dakota Workers Compensation Bureau, 2000 ND 123, 612 N.W.2d 263, 2000 N.D. LEXIS 132 (N.D. 2000).

—Triggering Injury in Another State.

Although the claimant’s North Dakota employment acted as a substantial contributing factor in the development of the underlying dormant degenerative disc disease, where but for a June, 1988, triggering injury in Wisconsin, the claimant could have continued to work without medical treatment as before the injury, the Wisconsin injury caused the disability the claimant sustained. Sloan v. North Dakota Workers Compensation Bureau, 462 N.W.2d 638, 1990 N.D. LEXIS 230 (N.D. 1990).

—Unusual Stress.

Appellant’s testimony of high temperatures, unusual work duties as masonry foreman, emotional anxiety related to being behind schedule, and fear attributable to the movement of a crane overhead was not convincing enough for the North Dakota supreme court to conclude that the bureau’s finding of no “unusual stress” was not supported by a preponderance of the evidence. Grace v. North Dakota Workmen's Compensation Bureau, 395 N.W.2d 576, 1986 N.D. LEXIS 425 (N.D. 1986).

Self-employed appliance, service, and refrigerator technician who worked in a garage which did not provide for any fresh air ventilation, failed to prove by the weight of the evidence from the entire record that the heart attack which he suffered while working was causally related to his employment and was precipitated by unusual stress, so as to entitle him to compensation. Schmalz v. North Dakota Workers Compensation Bureau, 449 N.W.2d 817, 1989 N.D. LEXIS 241 (N.D. 1989) (decided prior to 1989 amendments to this section).

—Usual Exertion Rule.

Where preponderance of the evidence suggests a holding that work-connected “usual” exertion precipitated injury or death, there may be recovery even though the injury or death was contributed to by preexisting defect or disability; no distinction between “usual” exertion and “unusual” exertion is to be observed in this state. Stout v. North Dakota Workmen’s Comp. Bureau, 236 N.W.2d 889 (N.D. 1975), overruled on other grounds, Balliet v. North Dakota Workmen’s Comp. Bureau, 297 N.W.2d 791 (N.D. 1980), decided prior to the amendment to this section by Session Laws 1977, ch. 579.

This subsection was amended by chapter 579, section 2, 1977 N.D. Session Laws, to allow benefit awards for heart attacks only where there is evidence of “unusual” stress; the distinction between “unusual” and “usual” exertion is now required by statute. Nelson v. North Dakota Workmen's Compensation Bureau, 316 N.W.2d 790, 1982 N.D. LEXIS 211 (N.D. 1982).

—Voluntary Intoxication.

A claim for benefits cannot be barred on the basis of voluntary intoxication where the only evidence of intoxication is the test of a blood sample taken from the employee’s body three hours after death and there were inadequate safeguards to the sample’s integrity between the time it was taken and the time it was tested. Erickson v. North Dakota Workmen's Compensation Bureau, 123 N.W.2d 292, 1963 N.D. LEXIS 110 (N.D. 1963).

Providing an excuse for voluntarily drinking cannot be a substantial contributing factor to alcoholism. Thus, employee’s voluntary activities in drinking to excess following a bad performance review broke the causal link necessary to establish an injury arising out of and in the course of employment, and the bureau could have reasonably determined that employee’s employment was not a substantial contributing factor to his recurrent alcoholism. Darnell v. North Dakota Workers Compensation Bureau, 450 N.W.2d 721, 1990 N.D. LEXIS 6 (N.D. 1990).

The bureau’s findings that the claimant was substantially impaired by his voluntary consumption of alcohol when he was injured and his alcohol-induced impairment was a cause of the injury were supported by a preponderance of the evidence. Hust v. North Dakota Workers Compensation Bureau (Moos Trucking), 1998 ND 20, 574 N.W.2d 808, 1998 N.D. LEXIS 9 (N.D. 1998).

—Willful Injury.

An injury is not willfully self-inflicted merely because it resulted from negligence of injured employee. Moen v. Melin, 59 N.D. 582, 231 N.W. 283, 1930 N.D. LEXIS 176 (N.D. 1930).

Words “including an injury caused by the willful act of a third person directed against an employee because of his employment” do not preclude compensation for an injury caused by willful act of third person that has no relation to the employment. Lippmann v. North Dakota Workmen's Compensation Bureau, 79 N.D. 248, 55 N.W.2d 453, 1952 N.D. LEXIS 117 (N.D. 1952).

Under the provisions of the workers’ compensation act in effect in 1974, willful or intentional injuries inflicted on an employee by his employer or fellow employees was within the coverage of the act. Schlenk v. Aerial Contractors, 268 N.W.2d 466, 1978 N.D. LEXIS 258 (N.D. 1978).

Correct Legal Standard.

Where the administrative law judge may have improperly added a condition to compensability not present in the statute at the time of the claimant’s injury, it cannot be determined whether the correct legal standard was applied, and the matter would be remanded for further proceedings. Loberg v. North Dakota Workers Compensation Bureau, 1998 ND 64, 575 N.W.2d 221, 1998 N.D. LEXIS 66 (N.D. 1998).

Disability.

—Ability to Return to Work.

A worker who is medically able to return to work does not have an inability to work and thus is not totally disabled. Risch v. North Dakota Workers Compensation Bureau, 447 N.W.2d 308, 1989 N.D. LEXIS 198 (N.D. 1989) (decided prior to 1989 amendments to this section).

It was not error for the bureau to deny disability benefits to employee who injured her back while working as a dishwasher and cook’s helper but whom medical experts had determined was capable of performing employment-related activities and had the ability to return to gainful employment, even though the employee continued to complain of pain. Hintz v. North Dakota Workers Compensation Bureau, 450 N.W.2d 727, 1990 N.D. LEXIS 1 (N.D. 1990).

An employee’s continued entitlement to disability benefits is linked to the employee’s maximum medical recovery and to physical and vocational ability to return to work. Frohlich v. North Dakota Workers Compensation Bureau, 556 N.W.2d 297, 1996 N.D. LEXIS 258 (N.D. 1996).

A worker who is medically able to return to work is not totally disabled. Saakian v. North Dakota Workers Compensation Bureau, 1998 ND 227, 587 N.W.2d 166, 1998 N.D. LEXIS 223 (N.D. 1998).

Former employee’s claim for benefits was properly denied because the evidence showed that the employee was still able to work after tripping over objects during the course of employment; therefore, it was determined that the employee did not suffer a total or partial disability. Lesmeister v. N.D. Workers Comp. Bureau, 2003 ND 60, 659 N.W.2d 350, 2003 N.D. LEXIS 74 (N.D. 2003).

—Inability to Perform Work.

Physical impairment alone does not justify an award of disability benefits, and the claimant must demonstrate that as a result of a physical inability to perform certain work the employee has suffered a loss of earning capacity that is causally related to the disability. Ollom v. North Dakota Workers Compensation Bureau, 529 N.W.2d 876, 1995 N.D. LEXIS 74 (N.D. 1995).

—Qualification for Light Work.

Bureau’s finding that the evidence did not show that claimant’s work injury led employers to refuse her employment or precluded her from obtaining employment held supported by the evidence where she was qualified for secretarial to light clerical work. Perman v. North Dakota Workers Compensation Bureau, 458 N.W.2d 484, 1990 N.D. LEXIS 146 (N.D. 1990).

—Refusal to Return to Work.

By refusing to return to work when she was determined to be able to do so, claimant failed to establish the extent of her disability, if any, and prevented the bureau from determining her actual loss of earning capacity that was causally related to the disability. Thus she failed to prove that she was partially disabled. Risch v. North Dakota Workers Compensation Bureau, 447 N.W.2d 308, 1989 N.D. LEXIS 198 (N.D. 1989) (decided prior to 1989 amendments to this section).

Employee.

—Casual Employment.

Employment of a carpenter in dismantling a barn, salvaging the material, and constructing a garage on farm by the farmer, who had no other trade, business, profession, or occupation, is casual employment within the meaning of the workers’ compensation act. Kipp v. Jalbert, 110 N.W.2d 825, 1961 N.D. LEXIS 93 (N.D. 1961).

—Coal Mining.

Coal miner who was subject to discharge at any time and whose work was subject to control by mining company was an employee of company even though he provided his own tools and was paid by the ton. Lilly v. Haynes Coop. Coal Mining Co., 50 N.D. 465, 196 N.W. 556, 1923 N.D. LEXIS 126 (N.D. 1923).

—Contract for Hire.

The contract for hire must ripen into actual work; the employee must be engaged in work in order for the employment relationship to exist. Westman v. North Dakota Workers Compensation Bureau, 459 N.W.2d 540, 1990 N.D. LEXIS 167 (N.D. 1990).

—Contractor's Employees.

A general contractor is viewed as the employer of a subcontractor’s employees and responsible for workers’ compensation premiums until the subcontractor or independent contract has secured the necessary coverage and paid the premium. Boettner v. Twin City Constr. Co., 214 N.W.2d 635, 1974 N.D. LEXIS 249 (N.D. 1974).

This section imposes no liability upon a general contractor other than for payment of premiums, but it does not specifically negative any liability of the general contractor for the negligence of its employees. Boettner v. Twin City Constr. Co., 214 N.W.2d 635, 1974 N.D. LEXIS 249 (N.D. 1974).

Relation of employer and employee does not exist between county which contracted with an individual for work on courthouse and person employed by the latter. Kronick v. McLean County, 52 N.D. 852, 204 N.W. 839, 1925 N.D. LEXIS 152 (N.D. 1925).

Person employed by general contractor to work on building was not an employee of owner of building. State ex rel. North Dakota Workmen's Compensation Bureau v. Broadway Inv. Co., 85 N.W.2d 251, 1957 N.D. LEXIS 148 (N.D. 1957).

A general contractor is deemed the employer of employees of subcontractors and independent contractors operating under agreements with the general contractor only until the subcontractor or independent contractor obtains workmen’s compensation coverage. Boettner v. Twin City Constr. Co., 214 N.W.2d 635, 1974 N.D. LEXIS 249 (N.D. 1974).

Where plaintiff was an employee of an engineering firm which had been engaged by the county to design bridge, and plaintiff was “inspector and engineer” on the construction site, plaintiff was not the statutory employee of the prime contractor or subcontractor, both complying employers, because the engineering firm by which plaintiff was employed was not “operating under an agreement” with the prime contractor, but rather with the county. Schultz & Lindsay Constr. Co. v. Erickson, 352 F.2d 425, 1965 U.S. App. LEXIS 4107 (8th Cir. N.D. 1965).

—Course of Employment.

A carpenter employed by a farmer specially to assist in dismantling a barn, salvage material, and construct a garage on the farm of the farmer who had no other trade, business, profession or occupation, was not an employee within the workers’ compensation act, and he could not recover damages for injuries sustained in the course of such employment from his uninsured employer under the provisions of N.D.C.C. § 65-09-01. Kipp v. Jalbert, 110 N.W.2d 825, 1961 N.D. LEXIS 93 (N.D. 1961).

Widow of carpenter who suffered fatal myocardial arrest following normal activity on first day of job, including loading heavy tool box into his car at home, did not present a sufficient showing that the death was compensable as one which occurred following exertion or strain excessive or unusual for the individual. Foss v. North Dakota Workmen’s Comp. Bureau, 214 N.W.2d 519 (N.D. 1974), decided prior to the amendment to N.D.C.C. § 28-39-19, by Session Laws 1977, ch. 287.

—Engaged in Employment.

One who was injured on employer’s premises while on way to work for first time, but without an enforceable contract of employment, was not “engaged in employment” within meaning of the workmen’s compensation act. State ex rel. Kusie v. Weber, 72 N.D. 705, 10 N.W.2d 741, 1943 N.D. LEXIS 108 (N.D. 1943).

—Gratuitous Services.

Where a wife, without contract of employment or agreement for compensation, voluntarily drove for her husband in car furnished by his employer, she was not an employee. Groff v. State, 72 N.D. 554, 9 N.W.2d 406, 1943 N.D. LEXIS 90 (N.D. 1943).

—Insurance Agents.

Insurance agents were not employees of insurance company where company had no right of control over details of their work other than right to accept or reject insurance policies and such controls as were necessary to protect company against violations of law by agents. Mutual Life Ins. Co. v. State, 71 N.D. 78, 298 N.W. 773, 1941 N.D. LEXIS 138 (N.D. 1941).

—Intermittent Employment.

Carpenter was employee of elevator company, even though employment was intermittent, where he was paid by hour, his work was subject to control by company, and he was sometimes assisted by other employees of company. Gotchy v. North Dakota Workmen's Compensation Bureau, 49 N.D. 915, 194 N.W. 663, 1923 N.D. LEXIS 42 (N.D. 1923).

—Liability of General Contractor and Subcontractor.

Under this section and N.D.C.C. § 65-01-08, the employee of one contractor injured by the negligence of an employee of another contractor on the same project is not foreclosed from suing the employee of the other contractor and the other contractor for negligence. Boettner v. Twin City Constr. Co., 214 N.W.2d 635, 1974 N.D. LEXIS 249 (N.D. 1974).

—Maintenance.

Building maintenance and remodeling work are within the course of the trade, business, profession, or occupation of the business which occupies the building; thus manual labor in remodeling a warehouse was employment in the course of the trade, business, profession, or occupation of a beer distributor. Courchene v. Delaney Distribs., 421 N.W.2d 811, 1988 N.D. LEXIS 80 (N.D. 1988).

—Minors.

Fact that one engaged in hazardous employment was a minor does not preclude him from being an “employee” within terms of compensation law. Denius v. North Dakota Workmen's Compensation Bureau, 68 N.D. 506, 281 N.W. 361, 1938 N.D. LEXIS 140 (N.D. 1938).

—Officials of This State.

Officials of this state hold their positions by election or appointment, are paid from public funds, and perform duties of a continuous nature which are defined by statute and are related to the administration of state government. Holmgren v. North Dakota Workers Compensation Bureau, 455 N.W.2d 200, 1990 N.D. LEXIS 101 (N.D. 1990).

A juror is a public official for purposes of workers’ compensation. Holmgren v. North Dakota Workers Compensation Bureau, 455 N.W.2d 200, 1990 N.D. LEXIS 101 (N.D. 1990).

—Partner Not Employee.

A partner in a business is an owner and is not covered by workers’ compensation unless he proceeds under N.D.C.C. § 65-07-01, a provision under which the employer may secure coverage for himself. Dunn v. North Dakota Workmen's Compensation Bureau, 191 N.W.2d 181, 1971 N.D. LEXIS 122 (N.D. 1971).

—Partnership Employee.

Workman hired by member of partnership to work as mechanic in garage owned and operated by partnership was an employee of partnership even though his wages were paid by member who hired him out of his share of net profits of the partnership earnings. Klemmens v. North Dakota Workmen's Compensation Bureau, 54 N.D. 496, 209 N.W. 972, 1926 N.D. LEXIS 48 (N.D. 1926).

—Peace Officers.

Policeman is employee within meaning of compensation act. Fahler v. Minot, 49 N.D. 960, 194 N.W. 695, 1923 N.D. LEXIS 46 (N.D. 1923).

Night watchman employed by village was “employee” within meaning of compensation act. Bergstrand v. North Dakota Workmen's Compensation Bureau, 69 N.D. 447, 287 N.W. 631, 1939 N.D. LEXIS 171 (N.D. 1939).

—Presumption of Status.

One who performs services for another is presumed to be an employee, but when evidence is introduced as to agreement under which employment is performed, evidence is controlling. Starkenberg v. North Dakota Workmen's Compensation Bureau, 73 N.D. 234, 13 N.W.2d 395, 1944 N.D. LEXIS 56 (N.D. 1944).

—Repayment of Poor Relief.

One who receives poor relief from county, and in payment works on repair of county highways at fixed wage, pursuant to an authorization of board of county commissioners, is an “employee” within meaning of workmen’s compensation act. Clark v. North Dakota Workmen's Compensation Bureau, 66 N.D. 17, 262 N.W. 249, 1935 N.D. LEXIS 165 (N.D. 1935).

—Tests of Status.

Whether person for whom work is performed has right to exercise control over performance thereof and has right to discharge workman without liability are important factors in determining whether workman is an independent contractor or a servant. State ex rel. Woods v. Hughes Oil Co., 58 N.D. 581, 226 N.W. 586, 1929 N.D. LEXIS 252 (N.D. 1929).

One of the most important tests to be applied in determining whether a person who is doing work for another is an employee or an independent contractor is whether person for whom work is done has right to control not merely result, but also manner in which work is done and method used. Janneck v. Workmen's Compensation Bureau, 67 N.D. 303, 272 N.W. 188, 1937 N.D. LEXIS 83 (N.D. 1937); Mutual Life Ins. Co. v. State, 71 N.D. 78, 298 N.W. 773, 1941 N.D. LEXIS 138 (N.D. 1941); Burkhardt v. State, 78 N.D. 818, 53 N.W.2d 394, 1952 N.D. LEXIS 80 (N.D. 1952).

Test to determine whether one is an independent contractor or an employee under workers’ compensation act is employer’s retained power of control or superintendence over contractor or employee. Starkenberg v. North Dakota Workmen's Compensation Bureau, 73 N.D. 234, 13 N.W.2d 395, 1944 N.D. LEXIS 56 (N.D. 1944).

Factors to be considered in determining whether an employed person is an independent contractor or an employee are: right to hire and discharge workmen, mode, method, or basis of payment, attitude and intention of parties, furnishing of tools, supplies and materials, and whether work is a part of regular business of employer. Burkhardt v. State, 78 N.D. 818, 53 N.W.2d 394, 1952 N.D. LEXIS 80 (N.D. 1952).

Where an employee was to cease working for one employer on June thirtieth but evidence showed he was still working on July first under the direction and control of that management, he was still an employee. Lacy v. Grinsteinner, 190 N.W.2d 11, 1971 N.D. LEXIS 140 (N.D. 1971).

Subdivision 5(b)(3) (see now 16(b)(5)) of this section is not an unconstitutional grant of special privileges or immunities even though it does not apply to partners but only to executive officers of corporations. Dunn v. North Dakota Workmen's Compensation Bureau, 191 N.W.2d 181, 1971 N.D. LEXIS 122 (N.D. 1971).

While the examining physician could not pinpoint the precise origin of the worker’s shoulder condition, he considered the worker’s employment to be a substantial contributing factor in the development of his arthritis, and the condition was thus a compensable injury under subsection 8 (formerly 7) of this section. Syverson v. North Dakota Workmen's Compensation Bureau, 406 N.W.2d 688, 1987 N.D. LEXIS 321 (N.D. 1987).

An employee was not eligible for workers’ compensation benefits where injuries occurred while going to or from work simply because at one point in the employer/employee relationship, the employer paid subsistence and travel pay. Cody v. North Dakota Workmen's Compensation Bureau, 413 N.W.2d 316, 1987 N.D. LEXIS 409 (N.D. 1987).

An evidentiary hearing before termination of workers’ compensation benefits would unduly burden the governmental interest because medical records will usually resolve whether the claimant can work. Rather, opportunity to respond should be limited to a written submission as an initial check against an erroneous decision. Beckler v. North Dakota Workers Compensation Bureau, 418 N.W.2d 770, 1988 N.D. LEXIS 35 (N.D. 1988).

Where a claimant performed a variety of tasks in her job in addition to floral design, and in the past she had done other work, her dermatitis did not prevent those activities, as only floral arranging required contact with irritating chemicals, and it was not error to deny her disability status. In re Claim of Olson, 419 N.W.2d 894, 1988 N.D. LEXIS 57 (N.D. 1988).

Mental injury resulting from the termination of one’s employment is not compensable. Choukalos v. North Dakota Workers' Compensation Bureau, 427 N.W.2d 344, 1988 N.D. LEXIS 186 (N.D. 1988).

—Traveling Salesman.

Where traveling salesman returned the previous evening from his sales territory to his home, stayed overnight, and was in a public street on his way to business to report and bill out sales made during the previous week and to attend a compulsory sales meeting when an auto accident occurred, he was “engaged in employment”. Lacy v. Grinsteinner, 190 N.W.2d 11, 1971 N.D. LEXIS 140 (N.D. 1971).

—Truck Driver.

Decedent’s transporting of company’s products to its customers was integral part of company’s business so that decedent was employee rather than independent contractor when tractor he was driving collided with freight train as decedent returned from delivering trailer load of company’s products in one of company’s trailers; fact that company’s signs covered decedent’s name on cab of tractor and that decedent was paid monthly rather than at end of each trip were significant in determining status; modern tendency is to find employment when work being done is integral part of regular business of employer and when worker, relative to employer, does not furnish independent business or professional service. Brown v. North Dakota Workmen's Compensation Bureau, 152 N.W.2d 799, 1967 N.D. LEXIS 92 (N.D. 1967).

Commercial honey producer which constructed hives and gathered, processed, packaged, stored and sold honey was not in the business of agriculture, and was subject to the workmen’s compensation statute. Morel v. Thompson, 225 N.W.2d 584, 1975 N.D. LEXIS 207 (N.D. 1975).

Employer

—In General.

Employer’s related company was immune from liability in wrongful death action because decedent’s surviving spouse had received Workforce Safety and Insurance (WSI) benefits and for WSI exclusive remedy purposes, the employer and related company were the same entity as determined by the WSI in its authority and thus, the company was a contributing employer under N.D.C.C. § 65-01-08. Therefore, the decedent’s estate representative was not permitted to proceed against the company under N.D.C.C. § 65-01-09 for third party liability. Trinity Hosps. v. Mattson, 2006 ND 231, 723 N.W.2d 684, 2006 N.D. LEXIS 237 (N.D. 2006).

In a case in which an individual appealed a district court’s affirmation of an administrative law judge’s (ALJ) finding the ALJ correctly determined that the individual was an employer under N.D.C.C. § 65-01-02(17) and that the individual was aware workers’ compensation coverage was required for all employees and that he intentionally tried to avoid the responsibility to provide coverage. The Individual was personally liable for past premiums and penalties owed to Workforce Safety and Insurance. Muldoon v. N.D. Workforce Safety & Ins. Fund, 2012 ND 244, 823 N.W.2d 761, 2012 N.D. LEXIS 251 (N.D. 2012).

—Corporate Officers.

The Workers’ Compensation Bureau’s purpose and the legislature’s intent in this section was to exclude business owners who incorporated and named themselves as corporate officers from mandatory workers’ compensation insurance coverage and to provide them the opportunity to elect optional coverage if they chose to do so; the legislature did not intend to exclude from mandatory workers’ compensation insurance coverage a person who, although invested with a corporate officer’s title, was a wage earner engaged in covered employment with no ownership interest in the corporation. Schumacher v. North Dakota Workers Compensation Bureau, 536 N.W.2d 355, 1995 N.D. LEXIS 143 (N.D. 1995).

Hazardous Employment.

—Constitutionality.

The agricultural exemption in the workers’ compensation law does not violate the equal protection guarantee of the North Dakota Constitution. Haney v. North Dakota Workers Compensation Bureau, 518 N.W.2d 195, 1994 N.D. LEXIS 129 (N.D. 1994).

—Agriculture.

An employee of owner of combine used in commercial threshing under contract to harvest and thresh another’s grain, who was injured while working with combine, was engaged in agriculture and was not entitled to compensation. Lowe v. North Dakota Workmen's Compensation Bureau, 66 N.D. 246, 264 N.W. 837, 1936 N.D. LEXIS 168 (N.D. 1936).

Farm employment can be covered only upon farmer’s compliance with requirements of act as to electing to be covered, payment of premiums into compensation fund, and posting notice of such election in conspicuous place at farm. Rosebear v. Anderson, 143 F. Supp. 721, 1956 U.S. Dist. LEXIS 3021 (D.N.D. 1956), aff'd, 245 F.2d 673, 1957 U.S. App. LEXIS 3269 (8th Cir. N.D. 1957).

A carpenter employed by a farmer specially to dismantle barn, salvage material, and construct a garage on farm is not engaged in an agricultural service so as to exempt employer from being required to carry workers’ compensation coverage. Kipp v. Jalbert, 110 N.W.2d 825, 1961 N.D. LEXIS 93 (N.D. 1961).

Permanent Impairment.

Employee was not entitled to permanent total disability benefits for having a permanent impairment rating of at least 25% because it was error to find the employee had a 50% permanent impairment rating. State v. Beaulieu, 2018 ND 213, 917 N.W.2d 211, 2018 N.D. LEXIS 217 (N.D. 2018).

—In General.

This section and former N.D.C.C. § 65-05-12 are construed to adopt the “most recent” and “most current” edition of the AMA Guides in existence at the time of their enactment. McCabe v. North Dakota Workers Compensation Bureau, 1997 ND 145, 567 N.W.2d 201, 1997 N.D. LEXIS 146 (N.D. 1997); McCollum v. North Dakota Workers Compensation Bureau, 1997 ND 163, 567 N.W.2d 811, 1997 N.D. LEXIS 182 (N.D. 1997); Coleman v. North Dakota Workers Compensation Bureau, 1997 ND 168, 567 N.W.2d 853, 1997 N.D. LEXIS 187 (N.D. 1997).

When this section was amended in 1989, the “most recent” and the “most current” edition of the AMA Guides was the Third Edition, which was first printed in November, 1988. McCollum v. North Dakota Workers Compensation Bureau, 1997 ND 163, 567 N.W.2d 811, 1997 N.D. LEXIS 182 (N.D. 1997); Coleman v. North Dakota Workers Compensation Bureau, 1997 ND 168, 567 N.W.2d 853, 1997 N.D. LEXIS 187 (N.D. 1997).

—Chronic Pain.

Bureau’s finding under this section and former N.D.C.C. § 65-05-12 that worker was not entitled to chronic pain evaluation was supported by evidence; while the claimant presented evidence of pain, the claimant did not establish that he suffered from chronic pain. Hoyem v. North Dakota Workers Compensation Bureau, 1998 ND 86, 578 N.W.2d 117, 1998 N.D. LEXIS 99 (N.D. 1998).

Seasonal Employment.

It was proper for the North Dakota Workers Compensation Bureau to infer that the claimant was engaged in seasonal employment; from the claimant’s testimony, the bureau could have inferred that the claimant worked in occupations with periods of 45 consecutive days where the claimant did not receive wages. Meljie v. N.D. Workers Comp. Bureau, 2002 ND 174, 653 N.W.2d 62, 2002 N.D. LEXIS 223 (N.D. 2002).

District court erred in affirming the decision of the administrative law judge (ALJ) that an electrician's employment with a contractor was not seasonal employment because the ALJ failed to correctly apply the language of subsection (27) [now subsec. (30)] to the contractor's employment of electricians; the contractor hired 719 electricians in a five-year period, and the transfer of nine electricians did not establish what was customary for it. Indus. Contrs., Inc. v. Taylor, 2017 ND 183, 899 N.W.2d 680, 2017 N.D. LEXIS 186 (N.D. 2017).

Use of the phrase “includes occupations” in subsection (27) [now subsec. (30)] enlarges the plain and ordinary meaning of “seasonal employment” to include occupations (1) that are not permanent or (2) that do not customarily operate throughout the year; the two alternatives are separated by “or” indicating the alternatives are disjunctive, and the first alternative indicates seasonal employment can be non-permanent employment, which is not customarily limited to certain times of the year. Indus. Contrs., Inc. v. Taylor, 2017 ND 183, 899 N.W.2d 680, 2017 N.D. LEXIS 186 (N.D. 2017).

Under the language in the second sentence of subsection (27) [now subsec. (30)], “seasonal employment” is not a generic term, but can vary depending upon what is customary with the employer; nothing in the statute imposes a time limitation on seasonal employment. Indus. Contrs., Inc. v. Taylor, 2017 ND 183, 899 N.W.2d 680, 2017 N.D. LEXIS 186 (N.D. 2017).

Wages.

Although not specifically mentioned in this definition, “wages” include monetary remuneration for services rendered on an hourly basis as well as monetary remuneration for services rendered on other than an hourly basis such as on mileage rate. Brown v. North Dakota Workmen's Compensation Bureau, 152 N.W.2d 799, 1967 N.D. LEXIS 92 (N.D. 1967).

—Constitutionality.

Even if former subdivision 12(d) of this section was unconstitutional, the remedy lied in invalidating this section rather than extending its benefits to all employees. Kroh v. North Dakota Workers Compensation Bureau, 425 N.W.2d 899, 1988 N.D. LEXIS 146 (N.D. 1988).

—Firefighter or Law Enforcement Officer.

There was a presumption in favor of firemen and law enforcement officers. Procedurally, the presumption operated to shift the burden of proof from the claimant to the bureau. Sunderland v. North Dakota Workmen's Compensation Bureau, 370 N.W.2d 549, 1985 N.D. LEXIS 345 (N.D. 1985).

A claimant seeking workers’ compensation benefits from the bureau had the burden of proving by a preponderance of the evidence that he was entitled to participate in the fund. However, former subsection (17)(d), created a limited exception to this general rule which shifted the burden of proof from the claimant to the bureau in cases involving specified conditions or impairments of health suffered by a fireman or law enforcement officer. Flermoen v. North Dakota Workers Compensation Bureau, 470 N.W.2d 220, 1991 N.D. LEXIS 100 (N.D. 1991).

To demonstrate that an occupational cancer was involved, the fireman claimant need only have shown that the type of cancer he had was linked to exposure to smoke, fumes, or other hazardous substances incurred by firemen in the line of duty or that such exposure had been linked to an increased risk of incurring the type of cancer suffered by the claimant. If the claimant demonstrated this linkage by a preponderance of the evidence, the presumption arose under former subsection (17)(d), that the claimant incurred his cancer in the line of duty and was entitled to benefits. The burden then shifted to the bureau to prove otherwise. Flermoen v. North Dakota Workers Compensation Bureau, 470 N.W.2d 220, 1991 N.D. LEXIS 100 (N.D. 1991).

In order to prevail, the workers’ compensation bureau had to establish that an illness was not work related, overcoming the presumption it was work related. Burrows v. North Dakota Workers' Compensation Bureau, 510 N.W.2d 617, 1994 N.D. LEXIS 13 (N.D. 1994).

—Full-Time Paid Firefighter.

Former subsection 17(d) of this section, created a limited exception to the general rule by shifting the burden of proof from the claimant to the bureau in cases involving specified conditions or impairments of health suffered by a full-time paid fireman. Christianson v. North Dakota Workers Compensation Bureau, 470 N.W.2d 613, 1991 N.D. LEXIS 114 (N.D. 1991).

The specific presumptions set forth in former subsection (17)(d) did not apply to all municipal employees, they only applied to full-time municipal firemen. This section of law was not ambiguous and thus was not susceptible to any other interpretation. Therefore, according to the plain language of the statute, the presumption did not apply to volunteer firefighters or those who were not full-time paid firemen. Christianson v. North Dakota Workers Compensation Bureau, 470 N.W.2d 613, 1991 N.D. LEXIS 114 (N.D. 1991).

—Lung Disease.

Carcinoma of the lung qualified as a lung disease. Sunderland v. North Dakota Workmen's Compensation Bureau, 370 N.W.2d 549, 1985 N.D. LEXIS 345 (N.D. 1985).

Where the workers’ compensation bureau proved lack of relationship between claimant’s occupation and his lung cancer, the question of whether the cancer preexisted his employment was irrelevant. Burrows v. North Dakota Workers' Compensation Bureau, 510 N.W.2d 617, 1994 N.D. LEXIS 13 (N.D. 1994).

—Rebuttable Presumption.

Former subdivision 12(d) contained two rebuttable components. In order for the bureau to rebut the presumption in its entirety, it had to show that the disease was preexisting and that it was not work-related. Sunderland v. North Dakota Workmen's Compensation Bureau, 370 N.W.2d 549, 1985 N.D. LEXIS 345 (N.D. 1985).

Bureau had to introduce evidence of nonwork-related causation in order to rebut the presumption created thereby. Sunderland v. North Dakota Workmen's Compensation Bureau, 370 N.W.2d 549, 1985 N.D. LEXIS 345 (N.D. 1985).

Medical opinion which was inconclusive as to the relationship between police officer’s occupation and his lung cancer constituted insufficient evidence to sustain the bureau’s burden of proving that his cancer was not work-related. Sunderland v. North Dakota Workmen's Compensation Bureau, 370 N.W.2d 549, 1985 N.D. LEXIS 345 (N.D. 1985).

Medical evidence that police officer’s death from lung cancer was due to cigarette smoking, together with evidence that the officer’s employment and alleged exposure to radon, radar, and asbestos were not a significant contributing factor to his lung cancer, rebutted the presumption of job-related causation. Elter v. North Dakota Workers Compensation Bureau, 1999 ND 179, 599 N.W.2d 315, 1999 N.D. LEXIS 199 (N.D. 1999) (applying 1993 version of statute).

Collateral References.

Constitutional or statutory provisions referring to “employees” as including public officers, 5 A.L.R.2d 415, 418.

Voluntary payment of compensation under statute of one state as bar to claim or ground for reduction of claim of compensation under statute of another state, 8 A.L.R.2d 628.

Injury while crossing or walking along railroad or street railway tracks, going to or from work, as arising out of and in course of employment, 50 A.L.R.2d 363.

Suicide as compensable under workmen’s compensation act, 15 A.L.R.3d 616.

Use of medical books or treatises as independent evidence, 17 A.L.R.3d 993.

“Dependency” within workmen’s compensation act, 18 A.L.R.3d 900.

Wife’s right of action for loss of consortium, 36 A.L.R.3d 900.

Injury sustained while attending employer-sponsored social affair as arising out of and in the course of employment, 47 A.L.R.3d 566.

Employer’s liability for injury caused by food or drink purchased by employee in plant facilities, 50 A.L.R.3d 505.

What conduct is willful, intentional, or deliberate within workmen’s compensation act provision authorizing tort action for such conduct, 96 A.L.R.3d 1064.

Employer’s tort liability to worker for concealing workplace hazard or nature or extent of injury, 9 A.L.R.4th 778.

Cancer as compensable under workers’ compensation acts, 19 A.L.R.4th 639.

“Dual capacity doctrine” as basis for employee’s recovery from employer in tort, 23 A.L.R.4th 1151.

Workers’ compensation immunity as extending to one owning controlling interest in employer corporation, 30 A.L.R.4th 948.

Recovery for discharge in retaliation for filing claim, 32 A.L.R.4th 1221.

Liability of successive employers for disease or condition allegedly attributable to successive employments, 34 A.L.R.4th 958.

Workers’ compensation: sexual assaults as compensable, 52 A.L.R.4th 731.

Workers’ compensation: student athlete as “employee” of college or university providing scholarship or similar financial assistance, 58 A.L.R.4th 1259.

Workers’ compensation: injuries incurred during labor activity, 61 A.L.R.4th 196.

Workers’ compensation: injuries incurred while traveling to or from work with employer’s receipts, 63 A.L.R.4th 253.

Prejudicial effect of bringing to jury’s attention fact that plaintiff in personal injury or death action is entitled to workers’ compensation benefits, 69 A.L.R.4th 131.

Tort liability for window washer’s injury or death, 69 A.L.R.4th 207.

Workers’ compensation: effect of allegation that injury was caused by, or occurred during course of, worker’s illegal conduct, 73 A.L.R.4th 270.

Workers’ compensation: third-party tort liability of corporate officer to injured workers, 76 A.L.R.4th 365.

Workers’ compensation statute as barring illegally employed minor’s tort action, 77 A.L.R.4th 844.

Ownership interest in employer business as affecting status as employee for workers’ compensation purposes, 78 A.L.R.4th 973.

Workers’ compensation: compensability of injuries incurred traveling to or from medical treatment of earlier compensable injury, 83 A.L.R.4th 110.

Workers’ compensation: bonus as factor in determining amount of compensation, 84 A.L.R.4th 1055.

Right to workers’ compensation for injuries suffered after termination of employment, 10 A.L.R.5th 245.

Workers’ compensation: Coverage of employee’s injury or death from exposure to the elements — modern cases, 20 A.L.R.5th 346.

Jurors as within coverage of workers’ compensation acts, 13 A.L.R.5th 444.

Workers’ compensation: recovery for carpal tunnel syndrome, 14 A.L.R.5th 1.

Workers’ compensation: lyme disease, 22 A.L.R.5th 246.

Presumption or inference that accidental death of employee engaged in occupation of manufacturing or processing arose out of and in course of employment, 47 A.L.R.5th 801.

Validity, construction, and effect of statutory exemptions of proceeds of workers’ compensation awards, 48 A.L.R.5th 473.

Workers’ compensation as precluding employee’s suit against employer for sexual harassment in the workplace, 51 A.L.R.5th 163.

Handling, preparing, presenting, or trying workers’-compensation claims or cases as practice of law, 58 A.L.R.5th 449.

What constitutes “agricultural” or “farm” labor within social-security or unemployment-compensation acts, 60 A.L.R.5th 459.

Employee’s injuries sustained in use of employer’s restroom as covered by workers’ compensation, 80 A.L.R.5th 417.

Right to workers’ compensation for emotional distress or like injury suffered by claimant as a result of sudden emotional stimuli involving personnel action, 82 A.L.R.5th 149.

Right to worker’s compensation for emotional distress or like injury suffered as a result of sudden stimuli involving nonpersonnel action, 83 A.L.R.5th 103.

Right to workers’ compensation for emotional distress or like injury suffered by claimant as result of nonsudden stimuli — Requisites of, and factors affecting, compensability, 106 A.L.R.5th 111.

Right to workers’ compensation for physical injury or illness suffered by claimant as result of sudden mental stimuli — Compensability under particular circumstances, 107 A.L.R.5th 441.

Right to workers’ compensation for emotional distress or like injury suffered by claimant as result of nonsudden stimuli — Compensability under particular circumstances, 108 A.L.R.5th 1.

Right to workers’ compensation for physical injury or illness suffered by claimant as result of sudden mental stimuli — Right to compensation under particular statutory provisions and requisites of, and factors affecting, compensability, 109 A.L.R.5th 161.

Award of workers’ compensation benefits to professional athletes, 112 A.L.R.5th 365.

Right to workers’ compensation for physical injury or illness suffered by claimant as result of nonsudden mental stimuli — Compensability of particular physical injuries or illnesses, 112 A.L.R.5th 509.

Compensability under occupational disease statutes of emotional distress or like injury suffered by claimant as result of nonsudden stimuli, Occupational Disease — Nonsudden. 113 A.L.R.5th 115.

Application of workers’ compensation laws to illegal aliens, 121 A.L.R.5th 523.

Right to workers’ compensation for physical injury or illness suffered by claimant as result of nonsudden mental stimuli - Right to compensation under particular statutory provisions, 122 A.L.R. 5th 653.

Right to workers’ compensation for physical injury or illness suffered by claimant as result of nonsudden mental stimuli-Requisites of, and factors affecting, compensability, 13 A.L.R.6th 209.

Right to workers’ compensation for injury suffered by worker en route to or from worker’s home where home is claimed as “work situs.”,15 A.L.R.6th 633.

Right to Workers’ Compensation for Physical Injury or Illness Suffered by Claimant as Result of Sudden Mental Stimuli - Compensability of Particular Injuries and Illnesses. 20 A.L.R.6th 641.

Recovery of Workers’ Compensation for Acts of Terrorism. 20 A.L.R.6th 729.

Workers’ Compensation: Validity, Construction, and Application of Statutes Providing that Worker Who Suffers Workplace Injury and Subsequently Tests Positive for Alcohol Impairment or Illegal Drug Use Is Not Eligible for Workers’ Compensation Benefits. 22 A.L.R.6th 329.

Right to Workers’ Compensation for Injury Suffered by Employee While Driving Employer’s Vehicle, 28 A.L.R.6th 1.

Right to Workers’ Compensation for Physical Injury or Illness Suffered by Claimant as Result of Nonsudden Mental Stimuli — Compensability under Particular Circumstances. 39 A.L.R.6th 445.

Validity, Construction, and Application of Statutory Provisions Exempting or Otherwise Restricting Farm and Agricultural Workers from Worker’s Compensation Coverage. 40 A.L.R.6th 99.

Law Reviews.

Compensation for Disease Caused by Conditions of Employment, 2 Dak. L. Rev. 337 (1929).

Evidence in Workmen’s Compensation Cases, Daniel E. Buchanan, 54 N.D. L. Rev. 173 (1977).

A Time for Recognition: Extending Workmen’s Compensation Coverage to Inmates, 61 N.D. L. Rev. 403 (1985).

Workers’ Compensation: The Assault on the Shield of Immunity — Coming to Blows with the Exclusive-Remedy Provisions of the North Dakota Workers’ Compensation Act, 70 N.D. L. Rev. 905 (1994).

Constitutional Law — Workers Compensation: Equal Protection Challenge to the Agriculture Exemption and Use of Rational Basis Scrutiny in Haney v. North Dakota Workers Compensation Bureau, 518 N.W.2d 195 (N.D. 1994), 71 N.D. L. Rev. 781 (1995).

Summary of North Dakota Supreme Court Decisions on Constitutional Law — Workers’ Compensation, 71 N.D. L. Rev. 856 (1995).

Claimant Found to be an Employee.

Summary judgment quieting title to oil field company’s pipeline in a suit against its former manager was proper because the manager did not carry his statutory burden to show that he was an independent contractor and the factors indicated he was an employee, including, inter alia, that he earned a weekly salary and employment benefits, he had filled out a Form W-4 and the company had withheld and paid employment taxes, and the company had retained the right to direct his work. Oil & Gas Transfer L.L.C. v. Karr, 928 F.3d 1120, 2019 U.S. App. LEXIS 20337 (8th Cir. N.D. 2019).

Employer was entitled to supervisory writs directing a district court to grant the employer summary judgment barring civil liability for deceased and injured workers’ injuries because Workforce and Safety Insurance’s unappealed decision that the workers were employees was res judicata. Plains Trucking, LLC v. Hagar, 2019 ND 226, 932 N.W.2d 541, 2019 N.D. LEXIS 227 (N.D. 2019).

Claimant Not Found to be an Employee.

Claimant was not an employee of the bar but rather an owner or partner based on his tax returns and business records showing his partnership interest and income from the bar as well as evidence that claimant attempted to document himself as an employee for the express purpose of receiving benefits. Berger v. North Dakota Workers Compensation Bureau, 2000 ND 224, 620 N.W.2d 576, 2000 N.D. LEXIS 273 (N.D. 2000).

In a worker’s compensation case, a benefits claimant and other similarly situated welders were properly found to be independent contractors under the common law test. Inter alia, the claimant and other welders used their own equipment, tools, trucks, and paid their expenses; moreover, a rig foreman instructed the welders, there was no continuing relationship between the employer and the claimant, there was no set work schedule, and the claimant worked for other companies. State v. Larry's On Site Welding, 2014 ND 81, 845 N.W.2d 310, 2014 N.D. LEXIS 86 (N.D. 2014).

Cleaning Machine Dealer.

Finding that dealer of multipurpose home cleaning machines was employee of area distributor for workers’ compensation purposes was sufficiently supported by evidence, where distributor had the right to discipline dealer, including termination at any time without liability, and to control sales of product to customers, and distributor trained dealers and facilitated financing and closing of sales; contractual designation of dealer as an independent contractor was not binding on the parties. Schaefer v. North Dakota Workers Compensation Bureau, 462 N.W.2d 179, 1990 N.D. LEXIS 223 (N.D. 1990).

Evidence Controlling.

One who performs services for another is presumed to be an employee but presumption is not evidence of fact and when evidence is introduced as to agreement under which employment is performed, evidence is controlling. Starkenberg v. North Dakota Workmen's Compensation Bureau, 73 N.D. 234, 13 N.W.2d 395, 1944 N.D. LEXIS 56 (N.D. 1944).

Test of Status.

Although the right-to-control test is the primary test to be used under this section, the bureau is not precluded from using the relative-nature-of-the-work test as an additional aid in judging worker status, particularly when application of the right-to-control test is not clearly determinative. Schaefer v. North Dakota Workers Compensation Bureau, 462 N.W.2d 179, 1990 N.D. LEXIS 223 (N.D. 1990).

Truck Driver.

Decedent’s transporting of company’s products to its customers was integral part of company’s business so that decedent was employee rather than an independent contractor when tractor he was driving collided with freight train as decedent returned from delivering trailer load of company’s products in one of company’s trailers; fact that company’s signs covered decedent’s name on cab of tractor and that decedent was paid monthly rather than at end of each trip were significant in determining his status; modern tendency is to find employment when work being done is integral part of regular business of employer and when worker, relative to employer, does not furnish an independent business or professional service. Brown v. North Dakota Workmen's Compensation Bureau, 152 N.W.2d 799, 1967 N.D. LEXIS 92 (N.D. 1967).

Collateral References.

Workers’ compensation: student athlete as “employee” of college or university providing scholarship or similar financial assistance, 58 A.L.R.4th 1259.

Tort liability for window washer’s injury or death, 69 A.L.R.4th 207.

Award of workers’ compensation benefits to professional athletes, 112 A.L.R.5th 365.

Right to Workers’ Compensation for Injury Suffered by Employee While Driving Employer’s Vehicle, 28 A.L.R.6th 1.

Workers’ Compensation: Nonathlete Students as Covered Employees, 33 A.L.R.6th 251.

Co-Employees.

Co-employees retain their status as co-employees and their immunity from tort liability so long as they are acting in the course of their employment; the most satisfactory test to determine course of employment for purposes of co-employee immunity is the same course-of-employment test used to determine basic compensation coverage. Under that standard, in determining co-employee immunity, the test is whether the negligent co-employee would have been entitled to receive workers’ compensation benefits if that co-employee had been injured in the same incident. Mitchell v. Sanborn, 536 N.W.2d 678, 1995 N.D. LEXIS 150 (N.D. 1995).

Compensation in Lieu of Right of Action.

Truck driver who had received workers’ compensation for injuries was precluded from raising question of employment status in subsequent tort action against employer and fellow employee and thus had no right of action against either of them for same injuries and his wife had no right of action for loss of consortium. Lovelette v. Braun, 293 F. Supp. 41, 1968 U.S. Dist. LEXIS 11855 (D.N.D. 1968).

This section grants immunity from a suit for negligence only to the employer and fellow employees of an injured employee; therefore, an employee of one subcontractor was not precluded by this section from suing both an employee of a second subcontractor and the second subcontractor for damages arising from the alleged negligence of the employee of the second subcontractor. Boettner v. Twin City Constr. Co., 214 N.W.2d 635, 1974 N.D. LEXIS 249 (N.D. 1974).

Dual Capacity Doctrine.

Employee who applied for and received workers’ compensation for an injury caused by the shattering of a steel pin manufactured by his employer for use in the employer’s business was barred from bringing an action against the contributing employer for the injury, and by failing to prove that the steel pin was manufactured for sale to the public rather than for the employer’s own use, the employee failed to establish any exception that would entitle him to maintain an action against his employer under the dual capacity doctrine that the employer was also liable as a manufacturer of a defective product. Latendresse v. Preskey, 290 N.W.2d 267, 1980 N.D. LEXIS 203 (N.D. 1980).

Worker’s products liability and negligence claims against the manufacturer and the employer were barred by the workers’ compensation exclusive remedy rule because, after a merger between the employer and manufacturer, the employer was the sole surviving entity and the employer complied with its obligations under the North Dakota Workers’ Compensation Act so as to avail itself of the exclusive remedy rule; the district court declined to apply the dual capacity exception, because the employer did not have second capacity obligations in addition to and independent of its primary capacity as employer. Scott v. Key Energy Servs., 990 F.3d 1101, 2021 U.S. App. LEXIS 6938 (8th Cir. N.D. 2021).

Election Not to File Compensation Claim.

Nonresident employee injured in this state, whose employment was such that his employer provided workers’ compensation coverage in this state as well as another state so that employee had the right to elect under which coverage to file his claim, could not, by refraining to file a claim in this state, defeat the limited immunity granted to his employer and fellow employees by this section, and could not maintain a tort action in this state against his fellow employee for the injury. Olson v. American Oil Co., 474 F. Supp. 560, 1978 U.S. Dist. LEXIS 13912 (D.N.D. 1978), aff'd, 604 F.2d 26, 1979 U.S. App. LEXIS 13462 (8th Cir. N.D. 1979).

Elective Coverage.

An injured farm laborer having no notice of his employer’s election to be bound by the workers’ compensation act can maintain, apart from the act, common-law action against employer for damages. Rosebear v. Anderson, 143 F. Supp. 721, 1956 U.S. Dist. LEXIS 3021 (D.N.D. 1956), aff'd, 245 F.2d 673, 1957 U.S. App. LEXIS 3269 (8th Cir. N.D. 1957).

Contributing Employer.

—Employment of Temporary Workers.

A company securing the services of a temporary worker from a service providing temporary workers is not an employer under this section and is not immune from suit by an injured temporary worker. Cervantes v. Drayton Foods, L.L.C., 1998 ND 138, 582 N.W.2d 2, 1998 N.D. LEXIS 148 (N.D. 1998).

Equitable Estoppel.

There is no good reason to refuse to apply the doctrine of estoppel against the workers’ compensation fund created by the payment of premiums by employers, which payments earn the employers immunity from claims for relief by injured employees. Linnertz v. North Dakota Workers' Compensation Bureau, 502 N.W.2d 528, 1993 N.D. LEXIS 134 (N.D. 1993).

Exclusive Remedy.

The remedy provided for in this section is exclusive, and any common-law action otherwise maintainable is barred; determination by New York workers’ compensation board that injury occurred in course of employment was given full faith and credit with result that suit against executrix of co-employee’s estate was properly dismissed. Stine v. Weiner, 238 N.W.2d 918, 1976 N.D. LEXIS 194 (N.D. 1976).

Under the exclusive remedy provisions, a plaintiff employee has no ability to elect whether or not to bring suit against his or her employer. Hoerr v. Northfield Foundry & Mach. Co., 376 N.W.2d 323, 1985 N.D. LEXIS 459 (N.D. 1985).

Generally, when an employer complies with the workers’ compensation statutes, the employee’s exclusive remedy against the employer is limited to recovery under the workers’ compensation statutes. Barsness v. General Diesel & Equip. Co., 422 N.W.2d 819, 1988 N.D. LEXIS 108 (N.D. 1988).

Once a claimant is allowed to participate in the fund, he or she may no longer elect to bring a lawsuit against the employer. Westman v. Dessellier, 459 N.W.2d 545, 1990 N.D. LEXIS 155 (N.D. 1990).

Third-party indemnity and contribution action for fraud and deceit against employer was barred by the exclusive remedy provisions of the Workers' Smith v. Vestal, 494 N.W.2d 370, 1992 N.D. LEXIS 270 (N.D. 1992).

Exclusive Remedy Doctrine Applicable.

Employee who along with his son was employed by same employer, and who was injured in the course of employment in a one-vehicle accident while riding as a passenger in his own vehicle, which was being driven by his son, could not recover under the general liability and under insurance provisions of his own automobile insurance policies where the policy language clearly and unambiguously provided that he was entitled to benefits only if he was “legally entitled to recover” or his son was “legally liable to pay,” since his son was statutorily immune under the exclusive remedy provisions of the Workers' Compensation Act. Stuhlmiller v. Nodak Mut. Ins. Co., 475 N.W.2d 136, 1991 N.D. LEXIS 169 (N.D. 1991).

Employer’s related company was immune from liability in wrongful death action because decedent’s surviving spouse had received Workforce Safety and Insurance (WSI) benefits and for WSI exclusive remedy purposes, the employer and related company were the same entity as determined by the WSI under its authority of N.D.C.C. § 65-01-02(22) and thus, the company was a contributing employer under N.D.C.C. § 65-01-08. Therefore, the decedent’s estate representative was not permitted to proceed against the company under N.D.C.C. § 65-01-09 for third party liability. Trinity Hosps. v. Mattson, 2006 ND 231, 723 N.W.2d 684, 2006 N.D. LEXIS 237 (N.D. 2006).

District court did not err in dismissing an employee’s negligence action because an employee and coworker were immune from suit under the Workforce Safety and Insurance Act’s exclusive remedy provisions; the determinations in California administrative proceedings were irrelevant for deciding statutory immunity because the employer paid Workforce Safety and Insurance premiums to secure coverage on the employee’s behalf, and the employee received benefits throughout the California proceedings. Brock v. Price, 2019 ND 240, 934 N.W.2d 5, 2019 N.D. LEXIS 251 (N.D. 2019).

Exclusive Remedy Doctrine Not Applicable.

An employer foregoes the protections of the exclusive remedy doctrine when he enters into an indemnity contract with someone other than the employee who is later injured. Sorensen v. Tenneco Oil Co., 609 F. Supp. 838, 1985 U.S. Dist. LEXIS 19479 (D.N.D. 1985).

Exclusivity Generally.

The exclusivity provisions of the Workers’ Compensation Act are embodied in N.D.C.C. § 65-01-01 and this section. Westman v. Dessellier, 459 N.W.2d 545, 1990 N.D. LEXIS 155 (N.D. 1990).

Failure to Comply.

Father of deceased employee was entitled to sue at law for employee’s death where employer had not complied with workers’ compensation act. Olson v. Hemsley, 48 N.D. 779, 187 N.W. 147, 1922 N.D. LEXIS 101 (N.D. 1922).

In case the employer has failed to comply with the workers’ compensation act, he is liable to such injured employee for the damages so sustained, without regard to fault. Fahler v. Minot, 49 N.D. 960, 194 N.W. 695, 1923 N.D. LEXIS 46 (N.D. 1923); State ex rel. Dushek v. Watland, 51 N.D. 710, 201 N.W. 680, 1924 N.D. LEXIS 94 (N.D. 1924).

Horseplay.

As a matter of law, employee’s act of horseplay in intentionally pushing the knees out from under co-employee was not a sufficiently substantial deviation from his course of employment so as to transform him from a co-employee to a third-person tortfeasor. Mitchell v. Sanborn, 536 N.W.2d 678, 1995 N.D. LEXIS 150 (N.D. 1995).

Indemnity or Contribution by Employer.

This section bars any cause of action for contribution or indemnity that a third party may have against the employer, arising out of the third party’s common-law liability to an injured employee. White v. McKenzie Electric Cooperative, Inc., 225 F. Supp. 940, 1964 U.S. Dist. LEXIS 6497 (D.N.D. 1964).

Where employer had complied with the workers’ compensation statutes and injured employee had received workers’ compensation benefits for his injuries, employee was barred from recovery in tort action against employer for his injuries, and employer was properly dismissed, as a third party defendant in an action for the injuries brought by the employee against a third party who had joined the employer to the action in an attempt to seek contribution or indemnity. Gernand v. Ost Servs., 298 N.W.2d 500, 1980 N.D. LEXIS 300 (N.D. 1980).

In situations where an employer and a third-party tortfeasor both negligently cause an employee’s injuries, liability is imposed on the third-party tortfeasor for the negligence of the third party and the employer without permitting the third-party tortfeasor to get contribution from the employer. Barsness v. General Diesel & Equip. Co., 422 N.W.2d 819, 1988 N.D. LEXIS 108 (N.D. 1988).

The exclusive remedy rule prohibiting a third-party tortfeasor from getting contribution from the employer does not prohibit enforcement of an employer’s contractual agreement to indemnify a third-party tortfeasor. Barsness v. General Diesel & Equip. Co., 422 N.W.2d 819, 1988 N.D. LEXIS 108 (N.D. 1988).

Injury Caused by Fellow Employee.

This section bars an action by a plaintiff who was unloading office equipment from a station wagon parked parallel to the curb in front of his place of employment when he was struck by an auto driven by a fellow employee whose duties were to have ended the day prior to the accident but who was coming back to the office in a company car with defective brakes to attend a required sales meeting and to bill out the sales made on his trip. Lacy v. Grinsteinner, 190 N.W.2d 11, 1971 N.D. LEXIS 140 (N.D. 1971).

Intentional Injuries.

While leaving open issue of whether or not an employee may institute civil action against his employer for an intentionally caused injury, an employee covered by workers’ compensation may not institute civil action against his employer for an accidental injury resulting from an intentional tort. Schreder v. Cities Serv. Co., 336 N.W.2d 641, 1983 N.D. LEXIS 388 (N.D. 1983).

Liability of General Contractor and Subcontractor.

Under former subdivision 9 c of N.D.C.C. § 65-01-02 (see present paragraph 16.c. for similar provisions) and this section, the employee of one contractor injured by the negligence of an employee of another contractor on the same project is not foreclosed from suing the employee of the other contractor and the other contractor for negligence. Boettner v. Twin City Constr. Co., 214 N.W.2d 635, 1974 N.D. LEXIS 249 (N.D. 1974).

Out-of-State Employer.

Where out-of-state employer provided coverage under North Dakota workers’ compensation law and also had workers’ compensation with a private insurance carrier under Minnesota law, which permitted coverage for accidents occurring outside Minnesota, and employee who was injured on a job in North Dakota applied for and received benefits under Minnesota law and then filed a lawsuit in North Dakota against two North Dakota corporations as a result of the injury, full faith and credit clause of United States Constitution did not require North Dakota to apply Minnesota workers’ compensation law, which permits tortfeasors to seek contribution from an employer for its percentage of negligence contributing to injury causing accident, and this section was applicable to bar North Dakota corporations from seeking contribution from out-of-state employer. Barry v. Baker Elec. Coop., 354 N.W.2d 666, 1984 N.D. LEXIS 361 (N.D. 1984).

Statute of Limitations.

Statute of limitations for commencement of an action based upon death of an employee of an uninsured employer is six years. State ex rel. Woods v. Hughes Oil Co., 58 N.D. 581, 226 N.W. 586, 1929 N.D. LEXIS 252 (N.D. 1929).

True Intentional Injury.

The North Dakota Workers Compensation Act does not preclude recovery for true intentional injuries, and an employee can pursue a civil cause of action against his employer for a true intentional injury. Zimmerman v. Valdak Corp., 1997 ND 203, 570 N.W.2d 204, 1997 N.D. LEXIS 261 (N.D. 1997).

An employer is deemed to have intended to injure if the employer had knowledge an injury was certain to occur and willfully disregarded that knowledge. Zimmerman v. Valdak Corp., 1997 ND 203, 570 N.W.2d 204, 1997 N.D. LEXIS 261 (N.D. 1997).

Collateral References.

Workers’ compensation law as precluding employee’s suit against employer for third person’s criminal attack, 49 A.L.R.4th 926.

Workers’ compensation act as precluding tort action for injury to or death of employee’s unborn child, 55 A.L.R.4th 792.

Law Reviews.

The Third Party’s Right to Contribution from an Employer Covered by Workmen’s Compensation, 56 N.D. L. Rev. 373 (1980).

Workers’ Compensation: The Assault on the Shield of Immunity — Coming to Blows with the Exclusive-Remedy Provisions of the North Dakota Workers’ Compensation Act, 70 N.D. L. Rev. 905 (1994).

Constitutional Law — Workers Compensation: Equal Protection Challenge to the Agriculture Exemption and Use of Rational Basis Scrutiny in Haney v. North Dakota Workers Compensation Bureau, 518 N.W.2d 195 (N.D. 1994), 71 N.D. L. Rev. 781 (1995).

Action Against Employer or Fellow Employee.

Injured employee is not entitled to receive benefits under the workers’ compensation act and also maintain an action against his employer or fellow employee at common law for intentional or willful injuries. Schlenk v. Aerial Contractors, 268 N.W.2d 466, 1978 N.D. LEXIS 258 (N.D. 1978).

Lien created.

District court properly dismissed a claimant’s appeal for lack of jurisdiction because he did not meet the statutory requirements to file the appeal in the county in which the injury occurred or the county in which he resided, the Workforce Safety and Insurance had a statutory lien on the claimant’s third party recovery, and he did not pay any of the sums secured by the lien as statutorily required. Decker v. Workforce Safety & Ins., 2021 ND 117, 2021 N.D. LEXIS 117 (N.D. 2021).

Action at Law.

Dependent father of deceased employee could sue at law for latter’s death. Olson v. Hemsley, 48 N.D. 779, 187 N.W. 147, 1922 N.D. LEXIS 101 (N.D. 1922).

The workers compensation bureau must pay fifty percent of the costs incurred by an employee prosecuting a third-party claim. 409 N.W.2d 344.

Any Ambiguity.

While this section may create an ambiguity in reference to the bureau’s obligation for costs through the insertion of language regarding proration and adjustment, any ambiguity must be interpreted in favor of the worker, and in pursuit of the legislative intent, providing a greater incentive to the injured worker to prosecute third-party claims. 409 N.W.2d 344.

Attorney's Fees.

This section does not regulate attorney fees payable by injured claimants on funds they recover due to the efforts of their private attorneys, or impose a legal obligation on private attorneys to follow the same procedure in calculating their attorney fees as the worker’s compensation bureau. Jones v. Pringle & Herigstad, P.C., 546 N.W.2d 837, 1996 N.D. LEXIS 119 (N.D. 1996).

Where worker’s compensation claimant entered agreement for attorneys to represent her in action against third party tortfeasor, and the method of determining the attorneys’ fee was clearly set out in the agreement, the fact attorneys later entered a written agreement to represent the worker’s compensation bureau for its statutory subrogated interest for benefits when a claimant seeks recovery for injuries from third persons did not render the agreement between claimant and her attorneys ambiguous, and claimant was bound to pay the fee according to the terms of the agreement. Jones v. Pringle & Herigstad, P.C., 546 N.W.2d 837, 1996 N.D. LEXIS 119 (N.D. 1996).

Where the attorney fully disclosed to the claimant that his fee would be one-third of the gross amount of the recovery from the third party, and the record showed there were difficult issues in the case, the case was time-consuming, and special expertise was required to perform the necessary legal services, the fee arrangement was not unreasonable. Disciplinary Bd. of the Supreme Court v. Dooley (In re Disciplinary Action Against Dooley), 1999 ND 184, 599 N.W.2d 619, 1999 N.D. LEXIS 204 (N.D. 1999).

Burden of Proof.

North Dakota Workforce Safety and Insurance (WSI) could apply the subrogation statute, N.D.C.C. § 65-01-09, to the employee’s settlement award where the employee did not prove that the settlement damages caused by the alleged third party negligence did not arise out of his initial work injury. Toso v. Workforce Safety & Ins., 2006 ND 70, 712 N.W.2d 312, 2006 N.D. LEXIS 75 (N.D. 2006).

Co-Employees.

Co-employees retain their status as co-employees and their immunity from tort liability so long as they are acting in the course of their employment; the most satisfactory test to determine course of employment for purposes of co-employee immunity is the same course-of-employment test used to determine basic compensation coverage. Under that standard, in determining co-employee immunity, the test is whether the negligent co-employee would have been entitled to receive workers’ compensation benefits if that co-employee had been injured in the same incident. Mitchell v. Sanborn, 536 N.W.2d 678, 1995 N.D. LEXIS 150 (N.D. 1995).

Contribution by Employer.

In situations where an employer and a third-party tortfeasor both negligently cause an employee’s injuries, liability is imposed on the third-party tortfeasor for the negligence of the third party and the employer without permitting the third-party tortfeasor to get contribution from the employer. Barsness v. General Diesel & Equip. Co., 422 N.W.2d 819, 1988 N.D. LEXIS 108 (N.D. 1988).

Contributory Negligence.

While the damages recovered by plaintiff reflect a twenty percent reduction from the damages he sustained because of negligence attributed to him, the North Dakota supreme court is unable to construe the language employed in this section to permit or require further reduction of the fund’s interest in the damages recovered by the percentage of negligence attributed to plaintiff. Kelsh v. North Dakota Workmen's Compensation Bureau, 388 N.W.2d 870, 1986 N.D. LEXIS 347 (N.D. 1986).

Election of Remedies.

Appointment of guardian for dependent minor is not essential to making of binding election to accept benefit of workers’ compensation act rather than to proceed against third-party tort-feasor. Nelson v. Westland Oil Co., 96 F. Supp. 656, 1949 U.S. Dist. LEXIS 1788 (D.N.D. 1949).

Exclusive Remedy Rule.

The exclusive remedy rule prohibiting a third-party tortfeasor from getting contribution from the employer does not prohibit enforcement of an employer’s contractual agreement to indemnify a third-party tortfeasor. Barsness v. General Diesel & Equip. Co., 422 N.W.2d 819, 1988 N.D. LEXIS 108 (N.D. 1988).

Employer’s related company was immune from liability in wrongful death action because decedent’s surviving spouse had received Workforce Safety and Insurance (WSI) benefits and for WSI exclusive remedy purposes, the employer and related company were the same entity as determined by the WSI under its authority of N.D.C.C. § 65-01-02(22) and thus, the company was a contributing employer under N.D.C.C. § 65-01-08. Therefore, the decedent’s estate representative was not permitted to proceed against the company under N.D.C.C. § 65-01-09 for third party liability. Trinity Hosps. v. Mattson, 2006 ND 231, 723 N.W.2d 684, 2006 N.D. LEXIS 237 (N.D. 2006).

Horseplay.

As a matter of law, employee’s act of horseplay in intentionally pushing the knees out from under co-employee was not a sufficiently substantial deviation from his course of employment so as to transform him from a co-employee to a third-person tortfeasor. Mitchell v. Sanborn, 536 N.W.2d 678, 1995 N.D. LEXIS 150 (N.D. 1995).

Interest Recovered in Suit.

The term damages within this section includes the interest recovered by the injured worker in suing. Therefore, the bureau properly included interest recovered by the worker in calculating its subrogation claim. Kavadas v. North Dakota Workers Compensation Bureau, 466 N.W.2d 839, 1991 N.D. App. LEXIS 4 (N.D. Ct. App. 1991).

Joint and Several Liability of Third Party.

Where employee was injured in work-related accident resulting from negligence of his employer, who was 75% negligent, and third party, who was 25% negligent, and employee received workers’ compensation benefits for his injuries and filed an action against third party in accordance with this section, trial court erred in reducing employee’s damage recovery against third party by percentage of negligence attributable to employer, who was immune from suit because of the workers’ compensation exclusive remedy provision; such reduction of damage recovery was contrary to express language of former N.D.C.C. § 9-10-07, which retains doctrine of joint and several liability, permitting employee to recover his damages in full from third party. Layman v. Braunschweigische Maschinenbauanstalt, Inc., 343 N.W.2d 334, 1983 N.D. LEXIS 434 (N.D. 1983).

Legislative Intent.

The legislature intended this statutory provision as an incentive for the worker to pursue and litigate legal claims against culpable third parties. 409 N.W.2d 344.

Release by Employee.

An injured employee’s release of cause of action against third person negligently causing injury does not bar action against employer for failing to comply with compensation act. State ex rel. Woods v. Hughes Oil Co., 58 N.D. 581, 226 N.W. 586, 1929 N.D. LEXIS 252 (N.D. 1929).

State As Party.

Actions wherein bureau is authorized to cause suit to be brought must be brought by state and not by bureau. Henderson v. Scott, 72 N.D. 616, 10 N.W.2d 490, 1943 N.D. LEXIS 100 (N.D. 1943); State ex rel. Workmen's Compensation Fund v. Thompson, 73 N.D. 56, 11 N.W.2d 113, 1943 N.D. LEXIS 61 (N.D. 1943).

Subrogation Rights of Bureau.

—In General.

The 1949 amendment changing the bureau’s right of subrogation did not operate retrospectively and an employee who had elected under the prior law to receive workmen’s compensation had no right to bring action against third-party wrongdoer. Gimble v. Montana-Dakota Utils. Co., 77 N.D. 581, 44 N.W.2d 198, 1950 N.D. LEXIS 153 (N.D. 1950) (1950) Contra Nelson v. Westland Oil Co., 181 F.2d 371, 1950 U.S. App. LEXIS 2617 (8th Cir. N.D. 1950).

Subrogation of compensation fund applies even though no compensation payments have been made and bureau may enforce subrogation by withholding payments that would otherwise be due. Breitwieser v. State, 62 N.W.2d 900, 1954 N.D. LEXIS 65 (N.D. 1954).

Where settlement is made under wrongful death law of another state and persons other than dependents are entitled to share in proceeds of settlement, compensation fund is subrogated only to extent to which beneficiaries of workers’ compensation act are entitled to share in proceeds as dependents. Breitwieser v. State, 62 N.W.2d 900, 1954 N.D. LEXIS 65 (N.D. 1954).

Workers’ compensation bureau was not entitled to subrogation as to sums paid or payable to surviving widow of deceased employee where the statute of limitations had expired as to widow’s claim against third parties for death of her husband before the widow or the bureau brought an action against the third parties. Ness v. St. Aloisius Hosp., 313 N.W.2d 781, 1981 N.D. LEXIS 364 (N.D. 1981).

The purpose of the bureau’s subrogation rights is to reimburse the fund, to the extent possible, at the expense of the persons at fault. Blaskowski v. North Dakota Workmen's Compensation Bureau, 380 N.W.2d 333, 1986 N.D. LEXIS 240 (N.D. 1986).

In 1965 the legislature reduced the bureau’s right to subrogation of third-party recoveries from one-hundred percent to fifty percent. This change apparently was made to induce employees to bring actions against third parties who were at fault. An obvious result of this change was that the bureau received less subrogation from third-party recoveries. The bureau responded to this decreased subrogation by adopting policies that more thoroughly protected the remainder of its subrogation interest. Blaskowski v. North Dakota Workmen's Compensation Bureau, 380 N.W.2d 333, 1986 N.D. LEXIS 240 (N.D. 1986).

The bureau does not automatically receive one-half of every recovery. It only receives one-half of a recovery if it pays benefits which add up to one-half of the recovery. Blaskowski v. North Dakota Workmen's Compensation Bureau, 380 N.W.2d 333, 1986 N.D. LEXIS 240 (N.D. 1986).

Fact that the bureau failed to indicate its intention to suspend future benefits in its claimed subrogation interest prepared by the bureau for employee in preparation of trial against third party would not result in the bureau losing any right to suspend future benefits. The statute does not require the bureau to make predictions regarding possible future costs resulting from possible future claims which may or may not arise. Blaskowski v. North Dakota Workmen's Compensation Bureau, 380 N.W.2d 333, 1986 N.D. LEXIS 240 (N.D. 1986).

The purpose of changing the language of the statute in 1981 from “paid or to be paid” to “it has paid or would otherwise pay in the future” was to clarify the language, and no substantive change was intended. An additional change made in 1981 was the addition of the clause: “The bureau’s subrogation interest may not be reduced by settlement, compromise, or judgment”. These two changes made statutory the bureau’s policies that were designed to ensure the bureau received its fifty percent subrogation interest. Blaskowski v. North Dakota Workmen's Compensation Bureau, 380 N.W.2d 333, 1986 N.D. LEXIS 240 (N.D. 1986).

The subrogation rights of the bureau are statutory, and equitable concepts are, therefore, not controlling. State by Workmen's Compensation Bureau v. Clary, 389 N.W.2d 347, 1986 N.D. LEXIS 327 (N.D. 1986).

While equity may support plaintiff ’s contention that the subrogation interest of the bureau should be reduced by the percentage of negligence assigned to the employee by a jury in a trial against a third-party tort-feasor, the statute does not provide for such a reduction. State by Workmen's Compensation Bureau v. Clary, 389 N.W.2d 347, 1986 N.D. LEXIS 327 (N.D. 1986).

To construe this section so as to prevent the bureau from suspending future benefits would hinder the bureau’s efforts to enforce its subrogation rights and would be contrary to the intent of the legislature. Blaskowski v. North Dakota Workmen's Compensation Bureau, 380 N.W.2d 333, 1986 N.D. LEXIS 240 (N.D. 1986).

This section unambiguously provides that the workers compensation bureau’s subrogation rights apply to the extent of fifty percent of the damages recovered, and neither permits nor requires the bureau’s subrogation interest to be further reduced when the recipient’s recovery from the third-party tortfeasor does not constitute a total recovery of the damages sustained by the recipient; the reason that a recipient secures only a partial recovery against the third-party tortfeasor is immaterial to the application of the bureau’s subrogation rights. Waith v. North Dakota's Workmen's Compensation Bureau, 409 N.W.2d 94, 1987 N.D. LEXIS 340 (N.D. 1987).

The workers compensation bureau should not receive a prorated subrogation interest when a benefit recipient recovers against a third-party tortfeasor less than the total damages sustained by the recipient because the tortfeasor, a political subdivision, is protected by N.D.C.C. § 32-12.1-03 maximum liability limit. Waith v. North Dakota's Workmen's Compensation Bureau, 409 N.W.2d 94, 1987 N.D. LEXIS 340 (N.D. 1987).

Neither N.D.C.C. § 32-03.2-02, nor this section, permits a reduction of the bureau’s subrogation rights because the claimant is unable to recover his full damages from all tortfeasors. Kavadas v. North Dakota Workers Compensation Bureau, 466 N.W.2d 839, 1991 N.D. App. LEXIS 4 (N.D. Ct. App. 1991).

This section provides the bureau with a statutory subrogation interest against “damages recovered” by an injured employee. In its calculation of damages recoverable under this section, the bureau included the interest a third party in a tort claim recovered on the damages, even though the section does not specifically include the word “interest.” Kavadas v. North Dakota Workers Compensation Bureau, 466 N.W.2d 839, 1991 N.D. App. LEXIS 4 (N.D. Ct. App. 1991).

The bureau’s right of subrogation does not extend to amounts paid to a wife for loss of consortium. Meyer v. North Dakota Workers Compensation Bureau, 512 N.W.2d 680, 1994 N.D. LEXIS 46 (N.D. 1994).

1999 version of N.D.C.C. § 65-01-09 did not grant to North Dakota’s Workforce Safety and Insurance agency a subrogation interest in an injured worker’s legal malpractice claim against the lawyers who failed to prosecute a medical malpractice action against a physician, who failed to provide proper treatment for the claimant’s work-related injuries, because the claimant recovered for the loss of a legal right, not a physical injury as contemplated by the statute. Haugenoe v. Workforce Safety & Ins., 2008 ND 78, 748 N.W.2d 378, 2008 N.D. LEXIS 79 (N.D. 2008).

—Attorney's Fees.

The attorney fee language in this section is unambiguous: the worker’s compensation bureau must pay attorney fees on funds recovered for the bureau based on given percentages. How the bureau internally accounts for attorney fees on suspended benefits does not impose a legal obligation on private attorneys to follow the same procedure in calculating their attorney fees. Jones v. Pringle & Herigstad, P.C., 546 N.W.2d 837, 1996 N.D. LEXIS 119 (N.D. 1996).

Constitutionality.

This statute does not impair the obligation of contracts. State ex rel. Amerland v. Hagan, 44 N.D. 306, 175 N.W. 372, 1919 N.D. LEXIS 213 (N.D. 1919), overruled, Benson v. North Dakota Workmen's Compensation Bureau, 283 N.W.2d 96, 1979 N.D. LEXIS 285 (N.D. 1979).

Burden of Proof.

—In General.

One seeking an award from workers’ compensation bureau has burden of establishing by preponderance of evidence that injury for which he claims compensation was received in course of his employment. Oberg v. North Dakota Workmen's Compensation Bureau, 57 N.D. 189, 220 N.W. 923, 1928 N.D. LEXIS 114 (N.D. 1928); Sandlie v. Workmen's Compensation Bureau, 70 N.D. 449, 295 N.W. 497, 1940 N.D. LEXIS 192 (N.D. 1940); Booke v. Workmen's Compensation Bureau, 70 N.D. 714, 297 N.W. 779, 1941 N.D. LEXIS 220 (N.D. 1941); Burkhardt v. State, 78 N.D. 818, 53 N.W.2d 394, 1952 N.D. LEXIS 80 (N.D. 1952).

Claimant against the North Dakota workers’ compensation fund has the burden of proving by a preponderance of the evidence the existence of an injury for which she is entitled to participate in the fund. Roberts v. North Dakota Workmen's Compensation Bureau, 326 N.W.2d 702, 1982 N.D. LEXIS 389 (N.D. 1982).

—Alcoholism.

This section provides that the burden of proof shifts to the bureau in cases in which the employee’s voluntary intoxication is the cause of the employee’s injury, and does not require the burden of proof to shift when the alleged injury is itself alcoholism. Darnell v. North Dakota Workers Compensation Bureau, 450 N.W.2d 721, 1990 N.D. LEXIS 6 (N.D. 1990).

—Of Bureau.

This section generally requires the claimant to prove a compensable injury by a preponderance of evidence in order to participate in the fund. However, the bureau has the burden of proof if it claims that an employee is not entitled to benefits because of the employee’s willful intent to injure himself or the employee’s voluntary intoxication. Darnell v. North Dakota Workers Compensation Bureau, 450 N.W.2d 721, 1990 N.D. LEXIS 6 (N.D. 1990).

Workers’ Compensation Bureau’s finding that claimant failed to prove that her current condition was related to a prior work injury was supported by a preponderance of the evidence; the bureau was responsible for weighing the credibility of medical evidence and in doing so explained why it gave more weight to their medical examiner’s opinion. Otto v. North Dakota Workers Compensation Bureau, 533 N.W.2d 703, 1995 N.D. LEXIS 111 (N.D. 1995).

Because the Bureau relied on parts of a independent medical examination report favorable to its decision and ignored parts of the report unfavorable to its decision, the Bureau’s decision was not supported by a preponderance of the evidence and the judgment was reversed and the case remanded to the Bureau for further proceedings to clarify the discrepancies in the independent medical examination report. Negaard-Cooley v. North Dakota Workers Compensation Bureau, 2000 ND 122, 611 N.W.2d 898, 2000 N.D. LEXIS 131 (N.D. 2000).

—Of Claimant.

Claimant has the burden of proving his right to participate in compensation benefits by showing that he was actually injured in the course of employment and that the ensuing disability is causally connected to the employment injury; compensation award cannot be made on surmise, conjecture or mere guess. Inglis v. North Dakota Workmen's Compensation Bureau, 312 N.W.2d 318, 1981 N.D. LEXIS 405 (N.D. 1981).

A claimant of compensation benefits has the burden to prove that he or she was actually injured in the course of employment and that the ensuing disability is causally connected to the employment injury. Robert v. North Dakota Workmen's Compensation Bureau, 321 N.W.2d 501, 1982 N.D. LEXIS 290 (N.D. 1982).

Claimant of compensation benefits has the burden of proving by a preponderance of the evidence that he or she is entitled to participate in the benefits available from the fund; such claimant must establish that the injury was incurred in the course of employment and that the disability is causally connected to the employment injury. Reynolds v. North Dakota Workmen's Compensation Bureau, 328 N.W.2d 247, 1982 N.D. LEXIS 402 (N.D. 1982).

Claimant had the burden of proving that his July 1985 head injury was related to his April 1986 headaches and hospitalization. Howes v. North Dakota Workers Compensation Bureau, 429 N.W.2d 730, 1988 N.D. LEXIS 259 (N.D. 1988), cert. denied, 489 U.S. 1014, 109 S. Ct. 1126, 103 L. Ed. 2d 189, 1989 U.S. LEXIS 904 (U.S. 1989).

If the bureau terminates benefits, after initially accepting a claim and paying benefits, the claimant has the burden of proving his or her right to continue receiving benefits. Howes v. North Dakota Workers Compensation Bureau, 429 N.W.2d 730, 1988 N.D. LEXIS 259 (N.D. 1988), cert. denied, 489 U.S. 1014, 109 S. Ct. 1126, 103 L. Ed. 2d 189, 1989 U.S. LEXIS 904 (U.S. 1989).

A claimant must show, by a simple preponderance of the evidence, a compensable injury in order to participate in the workers compensation fund. Moses v. North Dakota Workers Compensation Bureau, 429 N.W.2d 436, 1988 N.D. LEXIS 255 (N.D. 1988).

The claimant has the burden of proving by a preponderance of the evidence that she is entitled to receive benefits from the bureau. Risch v. North Dakota Workers Compensation Bureau, 447 N.W.2d 308, 1989 N.D. LEXIS 198 (N.D. 1989).

A claimant seeking benefits from the bureau has the burden of proving by a preponderance of the evidence that he is entitled to participate in the fund. Schmalz v. North Dakota Workers Compensation Bureau, 449 N.W.2d 817, 1989 N.D. LEXIS 241 (N.D. 1989).

To participate in the workers’ compensation fund, this section requires a claimant to prove a compensable injury by a preponderance of the evidence. Wherry v. North Dakota State Hosp., 498 N.W.2d 136, 1993 N.D. LEXIS 52 (N.D. 1993).

To receive workers’ compensation benefits, the claimant must prove by a preponderance of the evidence that his injury is causally related to his employment. Spangler v. North Dakota Workers Compensation Bureau, 519 N.W.2d 576, 1994 N.D. LEXIS 165 (N.D. 1994).

Where the worker’s treating physician, a second physician and a physical therapist concluded that the worker’s injury-related work restrictions did not preclude him from working altogether, but a third physician offered a conflicting medical opinion as to his ability to work, the worker did not meet his burden of establishing entitlement to disability benefits. Boger v. North Dakota Workers Compensation Bureau, 1999 ND 192, 600 N.W.2d 877, 1999 N.D. LEXIS 221 (N.D. 1999).

District court was correct in upholding the Workers Compensation Bureau’s order denying the claimant’s reapplication for temporary total disability benefits; the claimant was unable to prove actual wage loss, which was a prerequisite to reinstating discontinued disability benefits. Gronfur v. N.D. Workers Comp. Fund, 2003 ND 42, 658 N.W.2d 337, 2003 N.D. LEXIS 56 (N.D. 2003).

Causal Connection.

To be entitled to an award claimant must show direct causal connection between conditions under which his work was performed, and disease from which he is suffering. Wobbe v. Workmen's Compensation Bureau, 73 N.D. 256, 13 N.W.2d 712, 1944 N.D. LEXIS 57 (N.D. 1944).

Where competent evidence traces a causal connection between an affliction from which a workman was suffering and the accident, or shows that the accident either caused or accelerated the effect of such affliction, that is sufficient to establish a claim against the fund, but recovery cannot be allowed upon pure speculation. Kuntz v. North Dakota Workmen's Compensation Bureau, 139 N.W.2d 525, 1966 N.D. LEXIS 197 (N.D. 1966).

The claimant must show that an ensuing disability is causally connected to the employment injury. Howes v. North Dakota Workers Compensation Bureau, 429 N.W.2d 730, 1988 N.D. LEXIS 259 (N.D. 1988), cert. denied, 489 U.S. 1014, 109 S. Ct. 1126, 103 L. Ed. 2d 189, 1989 U.S. LEXIS 904 (U.S. 1989).

Employee’s workers compensation claim for a back condition was properly denied because there was no showing by a preponderance of the evidence that her job was a substantial contributing factor to her injury where the objective medical findings established that the employee had been suffering from a pre-existing back injury from a car accident since 1992. Myhre v. N.D. Workers Comp. Bureau, 2002 ND 186, 653 N.W.2d 705, 2002 N.D. LEXIS 239 (N.D. 2002).

Where Workforce Safety and Insurance denied a wife’s claim because she failed to show that asbestos exposure was a primary or direct cause of her husband’s lung cancer, WSI committed error because it did not analyze the evidence in light of the substantial contributing factor standard. It was possible that the husband’s smoking and the asbestos exposure were both substantial contributing factors in the husband’s lung cancer and testimony from the treating physician raised the question of whether the occupational exposure to asbestos was a substantial contributing factor in the development of his lung cancer. Manske v. Workforce Safety & Ins., 2008 ND 79, 748 N.W.2d 394, 2008 N.D. LEXIS 80 (N.D. 2008).

Because appellant was unable to show a causal connection between her unexplained fall at work and her employment, the administrative law judge properly denied her request for workers’ compensation. Appellant did not meet her burden of showing that she sustained a compensable injury under N.D.C.C. § 65-01-11. Fetzer v. N.D. Workforce Safety & Ins., 2012 ND 73, 815 N.W.2d 539, 2012 N.D. LEXIS 70 (N.D. 2012).

North Dakota Workforce Safety and Insurance properly denied the claimant medical benefits for his right vertebral artery occlusion because the preponderance of the evidence established that the condition was not causally related to his work injury. Brockel v. N.D. Workforce Safety & Ins., 2014 ND 26, 2014 N.D. LEXIS 24 (Feb. 13, 2014).

Cause of Death.

A heart attack was established with reasonable medical certainty as the cause of death where doctor testified that, although death could have been caused by a stroke or an aneurysm, it was his opinion that death was caused by a heart attack. Nelson v. North Dakota Workmen's Compensation Bureau, 316 N.W.2d 790, 1982 N.D. LEXIS 211 (N.D. 1982).

The standard of reasonable medical certainty is sufficient to establish the cause of death. Nelson v. North Dakota Workmen's Compensation Bureau, 316 N.W.2d 790, 1982 N.D. LEXIS 211 (N.D. 1982).

Co-Employees.

Co-employees retain their status as co-employees and their immunity from tort liability so long as they are acting in the course of their employment; the most satisfactory test to determine course of employment for purposes of co-employee immunity is the same course-of-employment test used to determine basic compensation coverage. Under that standard, in determining co-employee immunity, the test is whether the negligent co-employee would have been entitled to receive workers’ compensation benefits if that co-employee had been injured in the same incident. Mitchell v. Sanborn, 536 N.W.2d 678, 1995 N.D. LEXIS 150 (N.D. 1995).

Credibility.

The bureau may question the credibility of witnesses when such credibility is relevant. Ehli v. North Dakota Workers Compensation Bureau, 447 N.W.2d 313, 1989 N.D. LEXIS 195 (N.D. 1989).

The opinion of treating physician was held not to be entitled to greater weight than the opinion of an independent medical examiner; it is up to the worker’s compensation bureau to weigh the credibility of medical evidence. Symington v. North Dakota Workers Compensation Bureau, 545 N.W.2d 806, 1996 N.D. LEXIS 108 (N.D. 1996).

Employee’s workers compensation claim for chemical exposure was properly denied because the accepted medical evidence did not establish by a preponderance of the evidence that the employee’s sensitivity to smells and chemicals was the result of an exposure to spray glue that was used to make foam cushions; the workers compensation bureau was not required to accept medical evidence that was not considered medically or scientifically valid. Myhre v. N.D. Workers Comp. Bureau, 2002 ND 186, 653 N.W.2d 705, 2002 N.D. LEXIS 239 (N.D. 2002).

Denial of Benefits.

—In General.

Evidence held sufficient for the bureau to determine that further benefits should be denied to employee. Eull v. North Dakota Workers Compensation Bureau, 475 N.W.2d 129, 1991 N.D. LEXIS 172 (N.D. 1991).

—Explanation.

Where workers compensation bureau failed to adequately explain why it rejected claimant’s treating physician’s reports and administrative law judge’s recommendation to reinstate benefits, judgment affirming denial of benefits was reversed with instructions to remand claim to bureau to adequately explain its decision. Blanchard v. North Dakota Workers Compensation Bureau, 1997 ND 118, 565 N.W.2d 485, 1997 N.D. LEXIS 129 (N.D. 1997).

Trial court erred in reversing the N.D. Workforce Safety and Insurance Fund’s (WSI’s) denial of workers’ compensation benefits to an employee because WSI adequately explained its rationale and reasoning for accepting the opinion of its physician and rejecting the opinions of the employee’s physicians; WSI’s findings of fact were supported by a preponderance of the evidence. Bruder v. N.D. Workforce Safety & Ins. Fund, 2009 ND 23, 761 N.W.2d 588, 2009 N.D. LEXIS 29 (N.D. 2009).

Failure to Carry Burden.

Claimant had the burden of proving that her injury occurred during the course of her employment, and in view of inconsistencies in her claim and testimony which substantiated the bureau’s findings of a lack of credibility, as well as evidence of her prior medical history, a reasoning mind could have reasonably concluded that she failed to prove that her injuries arose out of and in the course of her employment. Ehli v. North Dakota Workers Compensation Bureau, 447 N.W.2d 313, 1989 N.D. LEXIS 195 (N.D. 1989).

The workers’ compensation bureau’s finding that claimant failed to prove a causal connection between his injury and his disability was supported by a preponderance of the evidence. Wherry v. North Dakota State Hosp., 498 N.W.2d 136, 1993 N.D. LEXIS 52 (N.D. 1993).

Court did not err in denying a claimant’s reapplication for worker’s compensation benefits where a doctor’s opinion that he was totally disabled from working in July 2002 did not prove that he was similarly disabled six months earlier when he quit his job in January 2002, or that a change in his medical condition caused him to leave his employment. Beckler v. Workforce Safety & Ins. (In re Beckler), 2005 ND 33, 692 N.W.2d 483, 2005 N.D. LEXIS 39 (N.D. 2005).

Employee did not prove that he suffered a compensable work related injury because the employee had symptoms consistent with a disc herniation before the claimed date of injury, and he was engaged in non-work activities that could have caused or contributed to the disc herniation. An expert testified the events and activities noted in the employee’s medical records, such as playing football or laying carpet, could have caused a disc condition to become more symptomatic. Schoch v. N.D. Workforce Safety & Ins., 2010 ND 25, 778 N.W.2d 542, 2010 N.D. LEXIS 26 (N.D. 2010).

Where claimant suffered off-the-job injuries to her lower back and had degenerative disc disease, picking up a band-aid at work triggered a preexisting condition within the meaning of N.D.C.C. § 65-01-02(10)(b) but did not substantially accelerate or worsen her condition. Claimant failed to prove by a preponderance of the evidence that she suffered a compensable injury; therefore, she was not entitled to benefits under N.D.C.C. § 65-01-11. Curran v. N.D. Workforce Safety & Ins., 2010 ND 227, 791 N.W.2d 622, 2010 N.D. LEXIS 230 (N.D. 2010).

Failure to Seek Immediate Medical Attention.

Failure to seek immediate medical attention after an alleged injury does not automatically preclude an award of compensation benefits. Robert v. North Dakota Workmen's Compensation Bureau, 321 N.W.2d 501, 1982 N.D. LEXIS 290 (N.D. 1982).

Horseplay.

As a matter of law, employee’s act of horseplay in intentionally pushing the knees out from under co-employee was not a sufficiently substantial deviation from his course of employment so as to transform him from a co-employee to a third-person tortfeasor. Mitchell v. Sanborn, 536 N.W.2d 678, 1995 N.D. LEXIS 150 (N.D. 1995).

Partial Disability.

Where claimant remained physically impaired by his sensitivity from his burns, but his physical impairment alone did not justify partial disability benefits, claimant had to show that his injury prevented him from continuing his employment as a truck driver, and nowhere in the record was there any medical evidence that he could not have returned to work with the proper thermal equipment. Absent such evidence, the bureau reasonably concluded that the greater weight of the evidence indicated that he had not suffered a loss of earning capacity, and the bureau’s denial of temporary partial disability benefits was affirmed. Rooks v. North Dakota Workers' Compensation Bureau, 506 N.W.2d 78, 1993 N.D. LEXIS 174 (N.D. 1993).

Preexisting Condition.

Where decedent employee died from rupture of aneurysm of aorta more than five weeks after injury to ankle while working in bowling alley, and where doctors testified at trial that it was reasonable to assume that a causal connection existed, but no positive medical testimony appeared in the record that the physicians knew the death was caused or accelerated by such injury, there could be no recovery. Kuntz v. North Dakota Workmen's Compensation Bureau, 139 N.W.2d 525, 1966 N.D. LEXIS 197 (N.D. 1966).

The testimony of one physician, to the effect that the injury to the claimant’s kidneys aggravated his preexisting blood pressure problem, was sufficient proof to establish a causal connection between his injury and his subsequent cerebral hemorrhage. O'Brien v. North Dakota Workmen's Compensation Bureau, 222 N.W.2d 379, 1974 N.D. LEXIS 160 (N.D. 1974).

Workforce safety and insurance benefits were denied because a claimant did not establish that his increased pain, increased need for medical care, and increased need for medication constituted a substantial worsening or acceleration of his preexisting back condition under N.D.C.C. § 65-01-02(10)(b)(7) [now N.D.C.C. § 65-01-02(11)(b)(7)]; the inconsistencies in the medical opinions were adequately addressed, and adequate reasons were given for disregarding evidence favorable to the claimant. Bergum v. N.D. Workforce Safety & Ins., 2009 ND 52, 764 N.W.2d 178, 2009 N.D. LEXIS 33 (N.D. 2009).

Reasoning mind could have found that the claimant failed to establish, by a preponderance of the evidence, that the claimant’s right shoulder pain was substantially accelerated or substantially worsened by the claimant’s work injury and vocational training, which meant that the claimant did not have a N.D.C.C. § 65-01-11 compensable injury. The injury was not compensable because N.D.C.C. § 65-01-02(10)(b)(7) [now N.D.C.C. § 65-01-02(11)(b)(7)] excluded preexisting injuries unless they substantially accelerated or substantially worsened a claimant’s prior injury, which the claimant was not able to show. Johnson v. N.D. Workforce Safety & Ins. Fund, 2012 ND 87, 816 N.W.2d 74, 2012 N.D. LEXIS 88 (N.D. 2012).

Presumption.

Presumption that one who performs services for another is an employee is not evidence of fact, and when evidence is introduced as to agreement under which employment is performed, evidence is controlling. Starkenberg v. North Dakota Workmen's Compensation Bureau, 73 N.D. 234, 13 N.W.2d 395, 1944 N.D. LEXIS 56 (N.D. 1944).

Rebutting Evidence of Causal Connection.

Bureau’s findings of fact were not supported by preponderance of evidence where, although one doctor concluded that based upon claimant’s history, work injury to feet did not cause claimant’s back problems, that doctor was not specifically asked whether claimant’s fall caused his back injury or whether back injury manifested itself when claimant returned to work; therefore, where another doctor explicitly opined that claimant’s fall caused his back pain, although the latter doctor’s opinion was necessarily reliant upon claimant’s history long after the fact of claimant’s initial injury, the testimony did not support the bureau’s determination that the fall in question did not cause claimant’s later back pain. In re Claim of Murray, 431 N.W.2d 651, 1988 N.D. LEXIS 223 (N.D. 1988).

Source of Injury.

The workers’ compensation bureau did not carry its burden of demonstrating that the claimant intentionally injured himself and faked a work-related fall for purposes of collecting benefits. Siewert v. North Dakota Workers Compensation Bureau, 554 N.W.2d 465, 1996 N.D. LEXIS 235 (N.D. 1996).

Temporary Benefits.

When claimant suffered an injury to his left leg and ankle that occurred while he was working as a heavy equipment operator, North Dakota Workforce Safety and Insurance accepted his claim under N.D.C.C. § 65-01-11; claimant was awarded medical benefits and received temporary total disability benefits because he did return to work. Johnson v. N.D. Workforce Safety & Ins., 2010 ND 198, 789 N.W.2d 565, 2010 N.D. LEXIS 195 (N.D. 2010).

Termination of Benefits.

Where employee was awarded a continuous, ongoing grant of benefits, he was entitled to benefits until workers compensation bureau sought to terminate further benefits based upon an updated medical report addressing the duration of worker’s disability. Frohlich v. North Dakota Workers Compensation Bureau, 556 N.W.2d 297, 1996 N.D. LEXIS 258 (N.D. 1996).

Widow of Employee.

The burden of proof is upon the alleged widow of the deceased employee to prove that an actual husband and wife relationship existed in a claim for widow’s benefits under this act. Fancher v. North Dakota Workmen's Compensation Bureau, 123 N.W.2d 105, 1963 N.D. LEXIS 105 (N.D. 1963).

Applicability.

The drafters of this section did not prohibit application of the statute based on the date of injury or specify another basis for being “subject to” the statute; therefore, cases falling under this section will follow the precedent that unless otherwise provided, the statutes in effect on the date of an injury govern workers’ compensation benefits. Wanstrom v. North Dakota Workers Compensation Bureau, 2000 ND 17, 604 N.W.2d 860, 2000 N.D. LEXIS 17 (N.D. 2000).

Construction with Other Laws.

Where claimant was injured before becoming subject to the terms of this section, the date of injury was the governing date and the presumption under N.D.C.C. § 65-01-02(18)(d) (now N.D.C.C. § 65-01-15.1) applied. Wanstrom v. North Dakota Workers Compensation Bureau, 2000 ND 17, 604 N.W.2d 860, 2000 N.D. LEXIS 17 (N.D. 2000).

Construction with Other Laws.

Where claimant was injured before becoming subject to the terms of N.D.C.C. § 65-01-15, the date of injury was the governing date and the presumption under N.D.C.C. § 65-01-15.1, applied. Wanstrom v. North Dakota Workers Compensation Bureau, 2000 ND 17, 604 N.W.2d 860, 2000 N.D. LEXIS 17 (N.D. 2000).

Failure to Rebut Presumption in Previous Enactment of this Section.

Medical expert’s opinion that regular smoke exposure was not a substantial causative factor for a firefighter’s lung disease was legally insufficient to rebut the presumption formerly contained in N.D.C.C. § 65-01-15.1 that a firefighter’s lung disease arose in the line of duty. Wanstrom v. North Dakota Workers Compensation Bureau, 2001 ND 21, 621 N.W.2d 864, 2001 N.D. LEXIS 22 (N.D. 2001).

Counsel.

Decision of Workforce Safety & Insurance denying an employee’s claim for benefits was void because the employer’s Ohio attorneys were not authorized to practice law in North Dakota, and the work they performed in filing a motion for reconsideration under N.D.C.C. § 65-01-16(4) and motion for extension of time was not preparatory work under the safe harbor provision of N.D.R. Prof. Conduct 5.5. Carlson v. Workforce Safety & Ins., 2009 ND 87, 765 N.W.2d 691, 2009 N.D. LEXIS 86 (N.D. 2009).

Due Process Violated.

Where an ALJ and workforce safety and insurance (WSI) found that a claimant had never received the mailed notice of intention to discontinue/reduce his benefits (NOID), WSI’s termination of his ongoing disability benefits violated due process as he had not received prior notice or an opportunity to respond and his benefits were reinstated as of the date of their termination. Rojas v. Workforce Safety & Ins., 2005 ND 147, 703 N.W.2d 299, 2005 N.D. LEXIS 182 (N.D. 2005).

Ex-Parte Communications.

The appellate court harmonized subsection (8) of this section with N.D.C.C. ch. 28-32 to allow the Bureau to consult with its outside litigation counsel when reviewing a pending ALJ recommendation, but to preclude those consultations from being ex parte. Lawrence v. North Dakota Workers Compensation Bureau, 2000 ND 60, 608 N.W.2d 254, 2000 N.D. LEXIS 64 (N.D. 2000).

Exhaustion Not Met.

District court did not err in dismissing a worker's complaint for lack of subject matter jurisdiction where he failed to meet the mandated statutory time frames for requesting reconsideration or appealing Workforce Safety and Insurance's (WSI's) final decision under N.D.C.C. § 65-01-16, and thus, he had statutory administrative remedies that he failed to exhaust before bringing an action for declaratory relief. Zerr v. N.D. Workforce Safety & Ins., 2017 ND 175, 898 N.W.2d 700, 2017 N.D. LEXIS 165 (N.D. 2017).

Trial court did not err by granting summary judgment to Workforce Safety and Insurance (WSI) in its collection action against the claimant because he did not administratively challenge the WSI notice of decision denying liability for his and requiring reimbursement for overpayment rendering it final. State v. Oden, 2020 ND 243, 951 N.W.2d 187, 2020 N.D. LEXIS 242 (N.D. 2020).

Rehearing.

On remand following an appeal in a worker’s compensation matter, an administrative law judge did not err in conducting a de novo evidentiary hearing. Miller v. Workforce Safety & Ins., 2009 ND 109, 767 N.W.2d 154, 2009 N.D. LEXIS 118 (N.D. 2009).

Remedies for Violation.

Appellate court reversed trial court’s judgment directing the North Dakota Workers Compensation Bureau to award benefits to claimant and instead directed that the case be remanded for reconsideration and rehearing where ex-parte communications took place between the Bureau’s outside counsel and the Bureau and its in-house counsel. Elshaug v. North Dakota Workers Compensation Bureau, 2000 ND 42, 607 N.W.2d 568, 2000 N.D. LEXIS 43 (N.D. 2000).

Control of Litigation.

Entire executive control of administration of functions of bureau is vested in commissioners and this executive control is extended to any litigation that bureau may have, so that attorney general has no power to compromise claims without consent of bureau. Robinson v. State, 63 N.W.2d 521, 1954 N.D. LEXIS 73 (N.D. 1954).

Removal of Commissioner.

Governor may remove a commissioner of workers’ compensation bureau who carries on private law practice in addition to his duties at bureau. State ex rel. Wehe v. North Dakota Workmen's Compensation Bureau, 46 N.D. 147, 180 N.W. 49, 1920 N.D. LEXIS 59 (N.D. 1920).

It is essential in order to confer jurisdiction on governor for removal of a commissioner, that hearing be had where accused may know nature of charges against him, may cross-examine witnesses, and may produce testimony to disprove charges. State ex rel. Wehe v. Frazier, 47 N.D. 314, 182 N.W. 545, 1921 N.D. LEXIS 116 (N.D. 1921).

Governor, in exercising power of removal over a commissioner, acts in quasi-judicial capacity pursuant to legislative limitations, and must exercise legal discretion in addition to an executive discretion. State ex rel. Wehe v. Frazier, 47 N.D. 314, 182 N.W. 545, 1921 N.D. LEXIS 116 (N.D. 1921).

Where governor fails to accord to a commissioner a hearing on his removal and where commissioner refuses to be sworn as witness unless such hearing is accorded, there is no jurisdiction to order removal. State ex rel. Wehe v. Frazier, 47 N.D. 314, 182 N.W. 545, 1921 N.D. LEXIS 116 (N.D. 1921).

Suit Against Bureau.

Workers compensation bureau is not a legal entity subject to suit, but suit against bureau in legal effect is suit against state. Watland v. North Dakota Workmen’s Comp. Bureau, 58 N.D. 303, 225 N.W. 812 (1929), overruled on other grounds, Bulman v. Hulstrand Constr. Co., 521 N.W.2d 632 (N.D. 1994), explained, Henderson v. Scott, 72 N.D. 616, 10 N.W.2d 490, 1943 N.D. LEXIS 100 (N.D. 1943).

In General.

This section, which authorizes the workers compensation bureau to promulgate and enforce rules, does not relieve the bureau of responsibility for compliance with the Administrative Agencies Practices Act in establishing those rules, including fee schedules. Johnson v. North Dakota Workers Compensation Bureau, 428 N.W.2d 514, 1988 N.D. LEXIS 182 (N.D. 1988), limited, Traynor Law Firm v. State, 2020 ND 108, 943 N.W.2d 320, 2020 N.D. LEXIS 107 (N.D. 2020).

Attorney’s Fee.

The phrase “attorney’s fee” as used in this section refers to expenses incurred for the services of an attorney. Howes v. North Dakota Workers Compensation Bureau, 429 N.W.2d 730, 1988 N.D. LEXIS 259 (N.D. 1988), cert. denied, 489 U.S. 1014, 109 S. Ct. 1126, 103 L. Ed. 2d 189, 1989 U.S. LEXIS 904 (U.S. 1989).

This section prevented the claimant’s attorney from seeking fees from the claimant and from otherwise seeking more than what was provided in the workers compensation bureau’s schedule of fees. Johnson v. North Dakota Workers Compensation Bureau, 428 N.W.2d 514, 1988 N.D. LEXIS 182 (N.D. 1988), limited, Traynor Law Firm v. State, 2020 ND 108, 943 N.W.2d 320, 2020 N.D. LEXIS 107 (N.D. 2020).

Record of workers compensation bureau’s rulemaking proceeding was adequate under the Administrative Agencies Practice Act, and its promulgation of maximum hourly compensation rates for claimant’s attorney’s fees and fee caps was not an arbitrary or capricious application of its statutory authority. Little v. Traynor, 1997 ND 128, 565 N.W.2d 766, 1997 N.D. LEXIS 131 (N.D. 1997).

Attorney who executed a notice of legal representation which provided that attorney’s sole remuneration for representing client before the Workers Compensation Bureau would be paid by the Bureau and who billed client after unilaterally terminating his representation committed a knowing violation of Prof. Conduct Rule 1.5(a), warranting a thirty day suspension from the practice of law and an assessment of all costs of the disciplinary proceeding. Disciplinary Bd. v. Moe, 1999 ND 110, 594 N.W.2d 317, 1999 N.D. LEXIS 98 (N.D. 1999).

The ambiguous language of this section must be construed to further its purpose of assisting injured workers in hiring and paying for competent representation, therefore, the statute only prohibits an attorney from receiving double fees from the client and the Bureau for legal services rendered to an injured employee; it does not prohibit an injured employee from entering a fee agreement with an attorney and then, upon prevailing in the case, seeking full or partial reimbursement from the Bureau, in the amount of the fees allowed under the statute. Ash v. Traynor, 2000 ND 75, 609 N.W.2d 96, 2000 N.D. LEXIS 83 (N.D. 2000).

N.D.C.C. §§ 65-02-08 and 65-10-03 and N.D.C.C. § 28-32-50 are not irreconcilable, and the goals and intent of the legislature can be harmonized. The Supreme Court of North Dakota concludes a prevailing injured employee is entitled to attorney’s fees in actions against Workforce Safety and Insurance (WSI) under N.D.C.C. §§ 65-02-08 and 65-10-03 up to the statutory limit, but when WSI denies or reduces the employee’s benefits without substantial justification, N.D.C.C. § 28-32-50 may be applied to award the employee reasonable attorney’s fees. Rojas v. Workforce Safety & Ins., 2006 ND 221, 723 N.W.2d 403, 2006 N.D. LEXIS 227 (N.D. 2006).

N.D.C.C. §§ 65-02-08 and 65-10-03 guarantee an automatic award of attorney’s fees to the prevailing party, but N.D.C.C. § 28-32-50 requires the party to not only prevail but also requires proof that the agency acted without substantial justification; the language of N.D.C.C. § 28-32-50 is expansive and inclusive, and does not exclude actions against WSI. The Supreme Court of North Dakota concludes these statutes are not irreconcilable and apply in different situations, and therefore can be harmonized. Rojas v. Workforce Safety & Ins., 2006 ND 221, 723 N.W.2d 403, 2006 N.D. LEXIS 227 (N.D. 2006).

Trial court erred in affirming the decision of Workforce Safety & Insurance (WSI) to pay a claimant only $9,876 for costs and attorney’s fees after he won his appeal to have his benefits reinstated, based upon the maximum amount WSI could pay under the fee cap in N.D.C.C. §§ 65-02-08 and 65-10-03, because the general attorney fee provision for administrative actions, N.D.C.C.§ 28-32-50, could apply to WSI cases where the claimant alleged that WSI acted without substantial justification in reducing or denying benefits. Therefore, the case was remanded for a determination as to whether the WSI acted without substantial justification warranting an additional award of attorney’s fees under N.D.C.C. § 28-32-50. Rojas v. Workforce Safety & Ins., 2006 ND 221, 723 N.W.2d 403, 2006 N.D. LEXIS 227 (N.D. 2006).

Improper Denial of Fees.

Bureau exceeded its statutory authority by denying a claimant attorney fees for representation before the bureau on his request for a lump sum settlement on the ground that his claim had not been “denied or reduced” under an administrative regulation adopted by the bureau. Moore v. North Dakota Workmen's Compensation Bureau, 374 N.W.2d 71, 1985 N.D. LEXIS 388 (N.D. 1985).

Section provides that the bureau shall pay a claimant’s attorney fees incurred “in proceedings before the bureau…”.The statute does not differentiate between types of proceedings in which attorney fees are authorized, nor can it be interpreted to limit the claimant’s right to attorney fees to situations in which the bureau has either “denied or reduced” a claim. Moore v. North Dakota Workmen's Compensation Bureau, 374 N.W.2d 71, 1985 N.D. LEXIS 388 (N.D. 1985).

Required Approval.

Workers compensation bureau did not act beyond its statutory authority in adopting a $100 limit for reimbursement of a claimant’s reasonable and necessary costs, unless approved by the bureau in advance of their accrual. Little v. Traynor, 1997 ND 128, 565 N.W.2d 766, 1997 N.D. LEXIS 131 (N.D. 1997).

Law Reviews.

North Dakota Supreme Court Review (Rojas v. Workforce Safety and Ins.), 83 N.D. L. Rev. 1085 (2007).

Conflicting Medical Evidence.

The bureau has the authority to decide conflicting medical evidence. That decision will be upheld unless it is not supported by a preponderance of the evidence. Latraille v. North Dakota Workers Compensation Bureau, 481 N.W.2d 446, 1992 N.D. LEXIS 42 (N.D. 1992).

Construction.

N.D.C.C. § 65-02-11 is construed to require an element of reasonableness in determining the scope of the phrase “anything necessary” in order to avoid unreasonable or absurd consequences. State v. Altru Health Sys., 2007 ND 38, 729 N.W.2d 113, 2007 N.D. LEXIS 38 (N.D. 2007).

Hearings.

The provisions of the workers’ compensation act and N.D.C.C. ch. 28-32 require that whenever the bureau has made an initial determination disallowing a claim based on a record made at an informal hearing, the claimant, upon request, is entitled to an evidentiary hearing if there is a dispute on material facts. Steele v. North Dakota Workmen's Compensation Bureau, 273 N.W.2d 692, 1978 N.D. LEXIS 188 (N.D. 1978).

Restrictions Upheld.

District court did not abuse its discretion under N.D.C.C. § 65-02-11, in restricting the Workforce Safety and Insurance (WSI) from requiring the claimant’s treating physician and physician’s assistant to review the WSI’s videotaped surveillance of the claimant in preparation for or during their ex parte, investigatory depositions, because the WSI’s attempt to require the treating physician and physician’s assistant to view the videotaped surveillance and answer questions relating to the videotape at the investigatory stage sought to interfere with the existing physician-patient relationship and went beyond the scope of the consent granted by the claimant in N.D.C.C. § 65-05-30. State v. Altru Health Sys., 2007 ND 38, 729 N.W.2d 113, 2007 N.D. LEXIS 38 (N.D. 2007).

Law Reviews.

North Dakota Supreme Court Review (State v. Altru Health Sys.), 83 N.D. L. Rev. 1085 (2007).

Approval of Agreement.

A quorum of the workers compensation bureau’s commissioners must approve an agreement before it is effective; where no such approval occurred, nor did the claimant offer evidence of such approval, the proposed stipulation for settlement did not establish a contract. Levey v. North Dakota Workers Compensation Bureau, 425 N.W.2d 376, 1988 N.D. LEXIS 137 (N.D. 1988).

Decision of Administrative Law Judge.

Administrative law judge’s (ALJ) decision that plaintiff was unable to return to his pre-injury employment would be deemed a recommendation, where record did not show workers compensation bureau’s request for ALJ to preside over proceeding asked ALJ to issue final order. Blanchard v. North Dakota Workers Compensation Bureau, 1997 ND 118, 565 N.W.2d 485, 1997 N.D. LEXIS 129 (N.D. 1997).

Finality.

Where the Workers Compensation Bureau requested a hearing officer to issue recommended findings of fact and conclusions of law with regard to whether the claimant was entitled to a higher permanent partial impairment award, the officer’s decision was a recommendation, not a final order. Feist v. North Dakota Workers Compensation Bureau (Northern Bottling Co.), 1997 ND 177, 569 N.W.2d 1, 1997 N.D. LEXIS 196 (N.D. 1997).

Due Process.

Workers’ compensation claimant’s due process rights were not violated because the North Dakota Workforce Safety and Insurance Fund (WSI) was not required to provide a trial type proceeding for a dispute resolution regarding a prosthetic device. Whedbee v. N.D. Workforce Safety, 2014 ND 79, 845 N.W.2d 632, 2014 N.D. LEXIS 90 (N.D. 2014).

Workers’ compensation claimant’s due process rights were not violated by the denial of a requested prosthetic device because he had no protectable property interest in receiving one prosthetic device over another; there was no termination of benefits that occurred, and the North Dakota Workforce Safety and Insurance Fund (WSI), through binding dispute resolution, decided the best medical solution in a cost-effective manner. Whedbee v. N.D. Workforce Safety, 2014 ND 79, 845 N.W.2d 632, 2014 N.D. LEXIS 90 (N.D. 2014).

Effective Date of Dispute Resolution Procedures.

The resolution procedures for disputes of managed care recommendations became effective only for disputes that occurred after the adoption of administrative rules providing these procedures; these rules were adopted effective January 1, 1994, and did not apply to recommendations of the managed care administrator to deny payments occurring before that date. Vickery v. North Dakota Workers Compensation Bureau, 545 N.W.2d 781, 1996 N.D. LEXIS 106 (N.D. 1996).

Judicial Review.

Where the North Dakota Workforce Safety and Insurance (WSI) sent claimant a letter denying her request to increase the level of reimbursement for her home health care services, the letter was not an appealable decision under N.D.C.C. § 65-02-20 and claimant did not appeal the subsequent decision of WSI’s binding dispute resolution (BDR) program. Therefore, the district court did not have subject matter jurisdiction to review WSI’s decision, and the district court’s judgment affirming the BDR decision was void. Carroll v. N.D. Workforce Safety & Ins., 2008 ND 139, 752 N.W.2d 188, 2008 N.D. LEXIS 140 (N.D. 2008).

District court did not have subject matter jurisdiction to review the binding dispute resolution decision by North Dakota Workforce Safety and Insurance to deny payment for a myoelectric-powered prosthesis recommended for the injured worker because the request for binding dispute resolution was made by the injured worker’s medical provider and not the injured worker, and the medical provider could not have been acting on the injured worker’s behalf because the medical provider was not a licensed North Dakota lawyer. Jassek v. N.D. Workforce Safety & Ins., 2013 ND 69, 830 N.W.2d 582, 2013 N.D. LEXIS 79 (N.D. 2013).

Prosthetic Device.

In a workers’ compensation case, it was not an abuse of discretion for the North Dakota Workforce Safety and Insurance Fund (WSI) to deny a claimant’s request for a myoelectric prosthesis during binding dispute resolution because the WSI was not required to provide the claimant’s preferred device; it considered each device’s durability, cost, and impact on the amputation injuries suffered. Whedbee v. N.D. Workforce Safety, 2014 ND 79, 845 N.W.2d 632, 2014 N.D. LEXIS 90 (N.D. 2014).

Treating Physician.

In a workers’ compensation case, an opinion from a benefit claimant’s doctor was not entitled to controlling weight because the statute relating to treating doctor’s opinions did not apply to managed care programs. Whedbee v. N.D. Workforce Safety, 2014 ND 79, 845 N.W.2d 632, 2014 N.D. LEXIS 90 (N.D. 2014).

Constitutionality.

It is not unconstitutional for legislature to delegate power to classify employments with respect to degree of hazards to workers’ compensation bureau. State ex rel. Amerland v. Hagan, 44 N.D. 306, 175 N.W. 372, 1919 N.D. LEXIS 213 (N.D. 1919), overruled, Benson v. North Dakota Workmen's Compensation Bureau, 283 N.W.2d 96, 1979 N.D. LEXIS 285 (N.D. 1979).

Classification Of Employees.

Workforce Safety and Insurance (WSI) did not err in refusing to create a new rate classification for an assisted living retirement facility or for resident service aides employed therein for the purpose of establishing their employer’s insurance premiums because N.D.C.C. § 65-04-01 did not require WSI to adjudicate individual contested claims at the lowest possible scheduled rate and any claim for the creation of new classifications or rates had to be made in the context of the actuarial process. Spectrum Care v. Workforce Safety & Ins., 2004 ND 229, 690 N.W.2d 233, 2004 N.D. LEXIS 372 (N.D. 2004).

Classification by Workforce Safety and Insurance (WSI) of resident service aides employed in an assisted living retirement facility as “9002 Domestics” with a designated rate of 3.31 for purposes of establishing the employer’s insurance premiums was affirmed because a reasoning mind could have reasonably concluded that resident service aides spent about 75 percent of their time on domestic type duties that fit within the description of “9002 Domestics” in WSI’s Classification Manual, WSI’s findings were supported by a preponderance of the evidence, and its findings supported its conclusions of law and decision. Spectrum Care v. Workforce Safety & Ins., 2004 ND 229, 690 N.W.2d 233, 2004 N.D. LEXIS 372 (N.D. 2004).

Equitable Estoppel.

There is no good reason to refuse to apply the doctrine of estoppel against the workers’ compensation fund created by the payment of premiums by employers, which payments earn the employers immunity from claims for relief by injured employees. Linnertz v. North Dakota Workers' Compensation Bureau, 502 N.W.2d 528, 1993 N.D. LEXIS 134 (N.D. 1993).

Premium Rates.

It is no objection to validity of rates that, as first determined, they may prove to be somewhat higher than required to cover risk. State ex rel. Johnson v. Hughes Elec. Co., 51 N.D. 45, 199 N.W. 128, 1924 N.D. LEXIS 143 (N.D. 1924).

Presumption of Validity.

There is a presumption that classification of industries and rates of premiums fixed by bureau are valid and fixed in conformity to statute; such presumption may be rebutted only by clear showing that they do not so conform, or that they are unreasonable or confiscatory. State ex rel. Johnson v. Hughes Elec. Co., 51 N.D. 45, 199 N.W. 128, 1924 N.D. LEXIS 143 (N.D. 1924).

Solvency of Fund.

Workers’ compensation bureau is required to maintain solvency of fund at all times. State ex rel. Stearns v. Olson, 43 N.D. 619, 175 N.W. 714, 1919 N.D. LEXIS 64 (N.D. 1919).

Equitable Estoppel.

There is no good reason to refuse to apply the doctrine of estoppel against the workers’ compensation fund created by the payment of premiums by employers, which payments earn the employers immunity from claims for relief by injured employees. Linnertz v. North Dakota Workers' Compensation Bureau, 502 N.W.2d 528, 1993 N.D. LEXIS 134 (N.D. 1993).

Individual Risk Basis.

Premiums are based upon risk involved by each employer and cover protection provided for his employees only; each employer pays in proportion to his payroll and his accident experience shown in each case. State ex rel. Workmen's Compensation Fund v. E. W. Wylie Co., 79 N.D. 471, 58 N.W.2d 76, 1953 N.D. LEXIS 55 (N.D. 1953).

Public Moneys.

Moneys collected from employers by the workers’ compensation bureau pursuant to its established premium rates are public moneys within the meaning of section 12, article X of the constitution to be deposited with the state treasurer. They can be disbursed only pursuant to an appropriation contained in that section or made by the legislature. North Dakota Workmens Comp. Bureau v. S.A. Healy Co., 109 N.W.2d 249 (N.D. 1960).

Refunds.

The workers’ compensation bureau has no power to grant refunds to employers who have paid premiums pursuant to rates established by the bureau nor may the bureau be compelled to hold a hearing on an application for such refund. North Dakota Workmens Comp. Bureau v. S.A. Healy Co., 109 N.W.2d 249 (N.D. 1960).

Unpaid Premiums.

Due to the mandatory nature of workers’ compensation premium payments, an employer’s unpaid premiums are nondischargeable priority excise taxes under 11 USCS § 523(a)(1)(A). North Dakota Workers Compensation Bureau v. Voightman (In re Voightman), 239 B.R. 380, 1999 Bankr. LEXIS 1185 (B.A.P. 8th Cir. 1999).

Individual Risk Basis.

This statute implies that premiums are based upon risk involved by each employer and cover protection provided for his employees only. State ex rel. Workmen's Compensation Fund v. E. W. Wylie Co., 79 N.D. 471, 58 N.W.2d 76, 1953 N.D. LEXIS 55 (N.D. 1953).

Charge to Employer’s Experience Rating Proper.

Workers Compensation Bureau properly found worker’s acute septicemia infection originated in laceration sustained during the course of his employment and concluded, even if he had not been affected by a preexisting diabetic condition, he would have been disabled by the infected laceration for at least six months, and properly charged employer’s experience rating for claim expenses incurred within six months of the laceration. Berg Transp. v. North Dakota Workers Compensation Bureau, 542 N.W.2d 729, 1996 N.D. LEXIS 24 (N.D. 1996).

Construction and Interpretation.

This section applies to determine what part of claim is chargeable to particular employer’s classification or risk and what part shall be chargeable to subsequent injury fund; it does not apply to determine whether claimant is entitled to benefits. Johnson v. North Dakota Workmen's Compensation Bureau, 344 N.W.2d 480, 1984 N.D. LEXIS 248 (N.D. 1984).

Purpose.

A second or subsequent injury fund protects employees because it provides full compensation to a previously impaired worker who suffers a subsequent work injury by apportioning claim expenses between the current employer’s experience rating and the fund, and it encourages employers to hire previously impaired employees because the apportionment scheme charges an employer’s experience rating only for injuries attributable to the employer’s work environment. Berg Transp. v. North Dakota Workers Compensation Bureau, 542 N.W.2d 729, 1996 N.D. LEXIS 24 (N.D. 1996).

Collateral References.

Workers’ compensation: compensability of injuries incurred traveling to or from medical treatment of earlier compensable injury, 83 A.L.R.4th 110.

Clerical Error.

Clerical error by bureau in its premium notice and pay-in-order, whereby an employer was charged at higher rate on employees than bureau’s published or manual rate does not invalidate such notice and order, nor does it relieve employer from paying manual or fixed rate for that industry. State ex rel. Johnson v. Hughes Elec. Co., 51 N.D. 45, 199 N.W. 128, 1924 N.D. LEXIS 143 (N.D. 1924).

Failure to Pay Premiums.

Failure of an employer to pay premium due on or before date fixed by pay-in-order issued by bureau automatically suspends right of employees to share in fund under control bureau. LIGHT v. NORTH DAKOTA WORKMEN'S COMPENSATION BUR., 57 N.D. 487, 222 N.W. 952, 1929 N.D. LEXIS 342 (N.D. 1929).

Partial Payment.

Where partial payments are made on judgment against an employer for recovery of premium due, employees are entitled to participate in fund from date fixed by pay-in-order and for such portion of year thereafter as amount paid bears proportionately to annual premium. LIGHT v. NORTH DAKOTA WORKMEN'S COMPENSATION BUR., 57 N.D. 487, 222 N.W. 952, 1929 N.D. LEXIS 342 (N.D. 1929).

Applicability.

Under this section, an officer or director of a corporation can be held personally liable for unpaid workers compensation insurance premiums, regardless of whether that individual has an ownership interest in the corporation. Grand Forks Prof'l Baseball, Inc. v. N.D. Workers Comp. Bureau, 2002 ND 204, 654 N.W.2d 426, 2002 N.D. LEXIS 275 (N.D. 2002), cert. denied, 538 U.S. 1057, 123 S. Ct. 2221, 155 L. Ed. 2d 1107, 2003 U.S. LEXIS 4093 (U.S. 2003).

This section unambiguously imposes liability upon directors for unpaid premiums regardless of whether they owned corporate stock. Grand Forks Prof'l Baseball, Inc. v. N.D. Workers Comp. Bureau, 2002 ND 204, 654 N.W.2d 426, 2002 N.D. LEXIS 275 (N.D. 2002), cert. denied, 538 U.S. 1057, 123 S. Ct. 2221, 155 L. Ed. 2d 1107, 2003 U.S. LEXIS 4093 (U.S. 2003).

Plain language of N.D.C.C. § 65-04-26.1(1) requires a corporation or limited liability company to be liable in the first instance in order for that liability to extend to a manager or governor of the limited liability company; the liability of the Cherokee entities’ general manager was dependent on whether the Cherokee entities were liable for the amounts. If the Cherokee entities were arms of the tribe and immune from claims, they could not be held liable for premiums or reimbursements. Remand was required. State v. Cherokee Servs. Grp., LLC, 2021 ND 36, 955 N.W.2d 67, 2021 N.D. LEXIS 33 (N.D. 2021).

Current Officer.

The corporate liability statute, by placing responsibility only on an “officer ... who fails ... to make payments as required,” strongly suggests the potentially liable officer must in fact be an officer at the time the default occurs. Raboin v. North Dakota Workers Compensation Bureau, 1997 ND 221, 571 N.W.2d 833, 1997 N.D. LEXIS 283 (N.D. 1997).

Remedies.

Initiation of an action by the bureau against a corporation for unpaid workers’ compensation insurance premiums does not constitute an election of remedies precluding the bureau from seeking payment of the unpaid premiums from the individual corporate officers and directors. Grand Forks Prof'l Baseball, Inc. v. N.D. Workers Comp. Bureau, 2002 ND 204, 654 N.W.2d 426, 2002 N.D. LEXIS 275 (N.D. 2002), cert. denied, 538 U.S. 1057, 123 S. Ct. 2221, 155 L. Ed. 2d 1107, 2003 U.S. LEXIS 4093 (U.S. 2003).

Because under this section, the personal liability of corporate officers and directors survives dissolution, reorganization, or bankruptcy of the corporation, where the bureau believes that a corporate entity is now defunct and attempts to collect workers compensation insurance premiums would be futile, the bureau has no statutory requirement to first attempt to settle its claim with the corporation. Grand Forks Prof'l Baseball, Inc. v. N.D. Workers Comp. Bureau, 2002 ND 204, 654 N.W.2d 426, 2002 N.D. LEXIS 275 (N.D. 2002), cert. denied, 538 U.S. 1057, 123 S. Ct. 2221, 155 L. Ed. 2d 1107, 2003 U.S. LEXIS 4093 (U.S. 2003).

In a case in which an individual appealed a district court’s affirmation of an administrative law judge’s (ALJ) finding, the ALJ correctly determined that the individual was an employer under N.D.C.C. § 65-01-02(17) and that the individual was aware workers’ compensation coverage was required for all employees and that he intentionally tried to avoid the responsibility to provide coverage. The Individual was personally liable for past premiums and penalties owed to Workforce Safety and Insurance. Muldoon v. N.D. Workforce Safety & Ins. Fund, 2012 ND 244, 823 N.W.2d 761, 2012 N.D. LEXIS 251 (N.D. 2012).

Construction.

N.D.C.C. § 65-04-27.2(1) does not allow Workforce Safety and Insurance (WSI) to issue cease and desist orders to insurance companies because they provided coverage to an employer; thus, WSI’s order to the insurance company to cease and desist from writing workers compensation coverage in the state of North Dakota exceeded the scope of authority granted to WSI by statute. State v. Cherokee Servs. Grp., LLC, 2021 ND 36, 955 N.W.2d 67, 2021 N.D. LEXIS 33 (N.D. 2021).

Constitutionality.

This section does not, by exonerating employers from common-law liability while leaving third persons subject thereto, violate equal privileges and immunities clause of state constitution or Equal Protection Clause of federal constitution. State ex rel. Workmen's Compensation Fund v. E. W. Wylie Co., 79 N.D. 471, 58 N.W.2d 76, 1953 N.D. LEXIS 55 (N.D. 1953).

Common Law and Statutory Tort Law.

The workers’ compensation act is a distinct body of law separate from common law and other statutory tort-law provisions. State by Workmen's Compensation Bureau v. Clary, 389 N.W.2d 347, 1986 N.D. LEXIS 327 (N.D. 1986).

Exclusive Remedy.

Generally, when an employer complies with the workers’ compensation statutes, the employee’s exclusive remedy against the employer is limited to recovery under the workers’ compensation statutes. Barsness v. General Diesel & Equip. Co., 422 N.W.2d 819, 1988 N.D. LEXIS 108 (N.D. 1988).

Third-party indemnity and contribution action for fraud and deceit against employer was barred by the exclusive remedy provisions of the Workers' Compensation Act. Smith v. Vestal, 494 N.W.2d 370, 1992 N.D. LEXIS 270 (N.D. 1992).

Injured employee had a right to bring a tort action against an employer for personal injuries which the employee suffered while working for the employer, which incorrectly classified the employee as an independent contractor, because the exclusive remedy provisions of the North Dakota workers' compensation laws did not preclude the action under provisions authorizing the action for the employer willfully misrepresenting to an insurer the amount of payroll upon which a premium was based, or for willfully failing to secure coverage for employees. Vail v. S/L Servs., 2017 ND 202, 900 N.W.2d 271, 2017 N.D. LEXIS 204 (N.D. 2017).

District court did not err in dismissing an employee’s negligence action because an employee and coworker were immune from suit under the Workforce Safety and Insurance Act’s exclusive remedy provisions; the determinations in California administrative proceedings were irrelevant for deciding statutory immunity because the employer paid Workforce Safety and Insurance premiums to secure coverage on the employee’s behalf, and the employee received benefits throughout the California proceedings. Brock v. Price, 2019 ND 240, 934 N.W.2d 5, 2019 N.D. LEXIS 251 (N.D. 2019).

Employer was entitled to supervisory writs directing a district court to grant the employer summary judgment barring civil liability for deceased and injured workers’ injuries because Workforce and Safety Insurance’s unappealed decision that the workers were employees was res judicata. Plains Trucking, LLC v. Hagar, 2019 ND 226, 932 N.W.2d 541, 2019 N.D. LEXIS 227 (N.D. 2019).

“Dual Capacity Theory” of Employer’s Liability.

The “dual capacity theory” of employer’s liability is not applicable under North Dakota’s workers’ compensation act, therefore when employee receives an injury covered by the act he may not maintain an action against his employer on theory that employer’s liability stems from breach of warranty or products liability. Schlenk v. Aerial Contractors, 268 N.W.2d 466, 1978 N.D. LEXIS 258 (N.D. 1978).

Equitable Estoppel.

There is no good reason to refuse to apply the doctrine of estoppel against the workers’ compensation fund created by the payment of premiums by employers, which payments earn the employers immunity from claims for relief by injured employees. Linnertz v. North Dakota Workers' Compensation Bureau, 502 N.W.2d 528, 1993 N.D. LEXIS 134 (N.D. 1993).

Indemnity or Contribution by Employer.

This section bars any cause of action for contribution or indemnity that a third party may have against the employer, arising out of the third party’s common-law liability to an injured employee. White v. McKenzie Electric Cooperative, Inc., 225 F. Supp. 940, 1964 U.S. Dist. LEXIS 6497 (D.N.D. 1964).

In situations where an employer and a third-party tortfeasor both negligently cause an employee’s injuries, liability is imposed on the third-party tortfeasor for the negligence of the third party and the employer without permitting the third-party tortfeasor to get contribution from the employer. Barsness v. General Diesel & Equip. Co., 422 N.W.2d 819, 1988 N.D. LEXIS 108 (N.D. 1988).

Third-Party Liability.

This section does not relieve an employer of common-law liability to an injured employee of another employer, even though injury was incurred in course of employment and both employers had complied with statute. State ex rel. Workmen's Compensation Fund v. E. W. Wylie Co., 79 N.D. 471, 58 N.W.2d 76, 1953 N.D. LEXIS 55 (N.D. 1953).

The operation of the joint and several liability provision of former N.D.C.C. § 9-10-07 and the immunity provision of this section rendered the joint tortfeasor liable for the negligence of the immune employers, as well as its own negligence. Beaudoin v. Texaco, Inc., 653 F. Supp. 512, 1987 U.S. Dist. LEXIS 1310 (D.N.D. 1987).

The “person against whom recovery is sought” under former N.D.C.C. § 9-10-07 includes statutorily immune employers who were not made parties to the action. Beaudoin v. Texaco, Inc., 653 F. Supp. 512, 1987 U.S. Dist. LEXIS 1310 (D.N.D. 1987).

The exclusive remedy rule prohibiting a third-party tortfeasor from getting contribution from the employer does not prohibit enforcement of an employer’s contractual agreement to indemnify a third-party tortfeasor. Barsness v. General Diesel & Equip. Co., 422 N.W.2d 819, 1988 N.D. LEXIS 108 (N.D. 1988).

True Intentional Injury.

The North Dakota Workers Compensation Act does not preclude recovery for true intentional injuries, and an employee can pursue a civil cause of action against his employer for a true intentional injury. Zimmerman v. Valdak Corp., 1997 ND 203, 570 N.W.2d 204, 1997 N.D. LEXIS 261 (N.D. 1997).

An employer is deemed to have intended to injure if the employer had knowledge an injury was certain to occur and willfully disregarded that knowledge. Zimmerman v. Valdak Corp., 1997 ND 203, 570 N.W.2d 204, 1997 N.D. LEXIS 261 (N.D. 1997).

Election of Remedies.

Minor under sixteen years of age, who commenced an action for personal injuries against employer made an election of remedies, and no express allegation of such election in complaint was necessary. Schnoor v. Meinecke, 75 N.D. 768, 33 N.W.2d 66, 1948 N.D. LEXIS 104 (N.D. 1948).

Collateral References.

Workers’ compensation law as precluding employee’s suit against employer for third person’s criminal attack, 49 A.L.R.4th 926.

Law Reviews.

Workers’ Compensation: The Assault on the Shield of Immunity — Coming to Blows with the Exclusive-Remedy Provisions of the North Dakota Workers’ Compensation Act, 70 N.D. L. Rev. 905 (1994).

Civil Action Against Employer.

Where employee is injured in the course of his employment and at the time of the injury the employer is uninsured for workers’ compensation coverage, and where the injured employee has not been awarded workers’ compensation benefits under former N.D.C.C. § 65-09-03, such employee’s option under N.D.C.C. § 65-09-02 to pursue a civil action against the employer is not negated by fact that employer, subsequent to the injury, has paid the premiums, penalties and interest required by this section. Shaughnessy v. Bohnet, 303 N.W.2d 337, 1981 N.D. LEXIS 244 (N.D. 1981).

Injured employee had a right to bring a tort action against an employer for personal injuries which the employee suffered while working for the employer, which incorrectly classified the employee as an independent contractor, because the exclusive remedy provisions of the North Dakota workers' compensation laws did not preclude the action under provisions authorizing the action for the employer willfully misrepresenting to an insurer the amount of payroll upon which a premium was based, or for willfully failing to secure coverage for employees. Vail v. S/L Servs., 2017 ND 202, 900 N.W.2d 271, 2017 N.D. LEXIS 204 (N.D. 2017).

Compensation Not Insurance.

The statutory references to insurance in the workers’ compensation laws do not make the protections provided by a workers’ compensation board into insurance as contemplated in N.D.C.C. ch. 26.1-42, governing the guaranty association. The funds provided by the workers’ compensation board are not insurance; they are workers’ compensation, and are derived from a statutorily created scheme designed to protect workers injured in the course of their employment. Beyer's Cement v. North Dakota Ins. Guar. Ass'n, 417 N.W.2d 370, 1987 N.D. LEXIS 454 (N.D. 1987).

Failure to Notify.

Failure to notify the workers compensation bureau of intention to hire employees, as required by this section, did not constitute a failure of the employer to be insured as provided by former N.D.C.C. § 65-04-12, and create a civil remedy under N.D.C.C. § 65-09-01 for injured employees, where the employer had paid his premium. Courchene v. Delaney Distribs., 421 N.W.2d 811, 1988 N.D. LEXIS 80 (N.D. 1988).

N.D.C.C. § 65-04-33(1) does not impose an ongoing obligation on employers to report every day-to-day fluctuation in their number of employees during a premium period, because premium adjustments are made on an annual basis. Carlson v. GMR Transp., Inc., 2015 ND 121, 863 N.W.2d 514, 2015 N.D. LEXIS 126 (N.D. 2015).

Employer was entitled to supervisory writs directing a district court to grant the employer summary judgment barring civil liability for deceased and injured workers’ injuries because no fact question existed as to whether an exception to the employer’s immunity due to the employer reporting an inaccurate payroll to Workforce Safety and Insurance (WSI) applied, as WSI (1) found no such violation, (2) did not try to collect additional premiums, and (3) gave no notice that WSI processed the workers’ claims under N.D.C.C. ch. 65-09. Plains Trucking, LLC v. Hagar, 2019 ND 226, 932 N.W.2d 541, 2019 N.D. LEXIS 227 (N.D. 2019).

Failure to Notify of Hiring Employees.

Failure to notify the workers compensation bureau of intention to hire employees, as required by former N.D.C.C. § 65-01-05 (now this section), did not constitute a failure of the employer to be insured as provided by this section and create a civil remedy under N.D.C.C. § 65-09-01 for injured employees, where the employer had paid his premium. Courchene v. Delaney Distribs., 421 N.W.2d 811, 1988 N.D. LEXIS 80 (N.D. 1988).

Willfulness.

In a case in which an individual appealed a district court’s affirmation of an administrative law judge’s (ALJ) finding, the ALJ correctly determined that the individual was an employer under N.D.C.C. § 65-01-02(17) and that the individual was aware workers’ compensation coverage was required for all employees and that he intentionally tried to avoid the responsibility to provide coverage. The Individual was personally liable for past premiums and penalties owed to Workforce Safety and Insurance. Muldoon v. N.D. Workforce Safety & Ins. Fund, 2012 ND 244, 823 N.W.2d 761, 2012 N.D. LEXIS 251 (N.D. 2012).

District court did not err in holding that the company had not lost its employer immunity under the workers' compensation laws where the ultimate determination that the driver was an independent contractor had not been overruled in subsequent decisions, and reasonable persons could have only concluded that the company had not willfully misrepresented the amount of its payroll for purposes of N.D.C.C. § 65-04-33(2). Carlson v. GMR Transp., Inc., 2015 ND 121, 863 N.W.2d 514, 2015 N.D. LEXIS 126 (N.D. 2015).

Law Reviews.

Constitutional Law — Workers Compensation: Equal Protection Challenge to the Agriculture Exemption and Use of Rational Basis Scrutiny in Haney v. North Dakota Workers Compensation Bureau, 518 N.W.2d 195 (N.D. 1994), 71 N.D. L. Rev. 781 (1995).

Applicability of Amendments.

Where the legislature did not direct retroactive application of 1993 amendments to N.D.C.C. § 65-05-01, and the workers compensation bureau’s findings were based on pre-1993 evidence and it contended claimant’s claim arose before the 1993 amendment, the 1993 amendment was inapplicable. Anderson v. North Dakota Workers Compensation Bureau, 553 N.W.2d 496, 1996 N.D. LEXIS 210 (N.D. 1996).

Burden of Proof.

A defense based on the statute of limitations in a civil proceeding is an affirmative defense, and the workers compensation bureau has the burden of proving the statute of limitations has run when relying on this section to deny a claim. Anderson v. North Dakota Workers Compensation Bureau, 553 N.W.2d 496, 1996 N.D. LEXIS 210 (N.D. 1996).

Commencement of Time to File.

Workers’ compensation claimant’s time to file began when he was first informed that he had a herniated disc which was linked to a fall suffered at work, rather than from the date he actually fell, where the claimant was initially informed by a physician that his back pain was the result of arthritis. White v. North Dakota Workers Compensation Bureau, 441 N.W.2d 908, 1989 N.D. LEXIS 103 (N.D. 1989).

Where defendant had received medical treatment for his lung condition, had missed numerous work days because of that condition, and had been informed by his doctor that the condition was work-related, he reasonably knew that he had a compensable injury which began the period for filing a claim. Grotte v. North Dakota Workers' Compensation Bureau, 489 N.W.2d 875, 1992 N.D. LEXIS 178 (N.D. 1992).

Construction of Claims.

Rules of construction applicable to insurance contracts apply to claims against workers’ compensation fund. Bordson v. North Dakota Workmen's Compensation Bureau, 49 N.D. 534, 191 N.W. 839, 1922 N.D. LEXIS 84 (N.D. 1922).

Employer Misrepresentation.

—Access to Claim Forms.

Evidence of free employee access to insurance forms, but limited access to injury report forms necessary for filing workers’ compensation claims, was indicative of employer discouragement of workers’ compensation claims and of the employer’s contribution to a general pattern of employee confusion about when to file workers’ compensation claims and when to file insurance claims. Linnertz v. North Dakota Workers' Compensation Bureau, 502 N.W.2d 528, 1993 N.D. LEXIS 134 (N.D. 1993).

—Statute Tolled.

An employer’s provision of private insurance payments covering eighty percent of its injured employee’s chiropractic expenses, coupled with evidence of employer misrepresentation and a general pattern of employee confusion facilitated by the employer, warranted tolling the statute of limitations until the last insurance payment. Linnertz v. North Dakota Workers' Compensation Bureau, 502 N.W.2d 528, 1993 N.D. LEXIS 134 (N.D. 1993).

Where an employer was alleged to have facilitated a general pattern of employee confusion about when to file a workers’ compensation claim and when to file an insurance claim, the employer had the burden of showing that it made reasonable efforts to inform employees about when an insurance claim was appropriate, when a workers’ compensation claim was appropriate, and of the necessity of timely filing of workers’ compensation claims. Where the employer failed to meet that burden, the one-year period within which to file a workers’ compensation claim under this section is equitably tolled until the injured worker receives the last private insurance carrier payment. Linnertz v. North Dakota Workers' Compensation Bureau, 502 N.W.2d 528, 1993 N.D. LEXIS 134 (N.D. 1993).

Workers’ compensation benefits for allege workplace injuries in 1999 or 2000 were properly denied as time-barred, notwithstanding that the employer had allegedly misled the worker to believe that the injuries were not covered, because the worker did not file a timely claim after discovering in 2002 that the claims were covered, at which time the tolling of the statute of limitations for those claims ended. Nagel v. Workforce Safety & Ins., 2007 ND 202, 743 N.W.2d 112, 2007 N.D. LEXIS 205 (N.D. 2007).

Equitable Estoppel.

Equitable estoppel may be applied to bar an assertion that a claim was untimely under this section. Linnertz v. North Dakota Workers' Compensation Bureau, 502 N.W.2d 528, 1993 N.D. LEXIS 134 (N.D. 1993).

There is no good reason to refuse to apply the doctrine of estoppel against the workers’ compensation fund created by the payment of premiums by employers, which payments earn the employers immunity from claims for relief by injured employees. Linnertz v. North Dakota Workers' Compensation Bureau, 502 N.W.2d 528, 1993 N.D. LEXIS 134 (N.D. 1993).

Failure to Seek Immediate Medical Attention.

Failure to seek immediate medical attention after an alleged injury does not automatically preclude an award of compensation benefits. Robert v. North Dakota Workmen's Compensation Bureau, 321 N.W.2d 501, 1982 N.D. LEXIS 290 (N.D. 1982).

Knowledge of Compensable Injury.

A reasoning mind could conclude that petitioner had knowledge of a compensable injury once he knew that his emphysema was a result of his employment and was informed that he should quit working. Rogers v. North Dakota Workers Compensation Bureau, 482 N.W.2d 607, 1992 N.D. LEXIS 58 (N.D. 1992).

Without loss of work time, significant medical expense, or specific medical advice, a reasonable person would not reasonably know of a compensable work injury. Anderson v. North Dakota Workers Compensation Bureau, 553 N.W.2d 496, 1996 N.D. LEXIS 210 (N.D. 1996).

Late Filing of Claim.

Where claim was filed with bureau more than sixty days after injury and death of employee, but within one year after his death and denied as not being incurred within course of employment, objections as to prompt filing of claim within statutory period were not material. Gotchy v. North Dakota Workmen's Compensation Bureau, 49 N.D. 915, 194 N.W. 663, 1923 N.D. LEXIS 42 (N.D. 1923).

Where the claimant testified that he was aware of the connection between stress on the job and his headaches in August and September of 1984, the claimant’s claim was filed more than one year after the date of injury and/or the date that he knew or should have known that the condition was related to his employment, and was properly dismissed, as untimely. Evjen v. North Dakota Workers Compensation Bureau, 429 N.W.2d 418, 1988 N.D. LEXIS 251 (N.D. 1988).

Workplace Safety and Insurance Fund’s finding that a claimant failed to file a timely claim for workers compensation benefits within one year of his work injury, as required by N.D.C.C. § 65-05-01, was supported by a preponderance of the evidence; although the claimant knew or should have known that he had suffered a work-related injury, he did not file a claim for benefits until some three years later. Ringsaker v. Workforce Safety & Ins. Fund, 2005 ND 44, 693 N.W.2d 14, 2005 N.D. LEXIS 47 (N.D. 2005).

Claimant failed to timely file a claim for workers’ compensation benefits because the claimant had at all times indicated that his psychological problems began when he was trapped at work on December 5, 2013; he sought medical treatment shortly after the incident and he was encouraged to apply for worker’s compensation benefits by a medical professional; and, if he received a physical injury from repeatedly hitting his head against the wall during the work incident, the evidence supported a finding that a reasonable lay person, not learned in medicine, knew or should have known that he suffered a compensable work-related injury on December 5, 2013; however, the claimant did not file a claim for workers’ compensation benefits until May 2016. Lechner v. N.D. Workforce Safety & Ins., 2018 ND 270, 920 N.W.2d 288, 2018 N.D. LEXIS 270 (N.D. 2018).

Liberal Construction.

The purpose of the Workers’ Compensation Act is remedial and should be construed liberally in favor of the injured worker. Liberal construction resolves reasonable doubt in favor of the injured worker because it was for the workers’ benefit that the Act was passed. Kallhoff v. North Dakota Workers' Compensation Bureau, 484 N.W.2d 510, 1992 N.D. LEXIS 97 (N.D. 1992).

“Reasonable Person”.

As used in this section, the term “reasonable person” refers to a wage worker, an ordinary reasonable lay person, and not a person learned in medicine; the term “reasonable” varies and takes on full meaning from the setting of the employment and the degree of skill or type of skill and knowledge needed to satisfactorily perform the job. Teegarden v. North Dakota Workmen's Compensation Bureau, 313 N.W.2d 716, 1981 N.D. LEXIS 369 (N.D. 1981).

Reasonable Person Standard.

The legislature intended that any doubt about whether a claimant can determine the actual date of a compensable injury with certainty must be resolved by testing the claimant’s knowledge under the reasonable person standard. White v. North Dakota Workers Compensation Bureau, 441 N.W.2d 908, 1989 N.D. LEXIS 103 (N.D. 1989).

Any doubt about whether or not a claimant can determine the actual date of a compensable injury, should “be resolved by testing the claimant’s knowledge under the reasonable person standard.” Rogers v. North Dakota Workers Compensation Bureau, 482 N.W.2d 607, 1992 N.D. LEXIS 58 (N.D. 1992).

Scope of Statute.

Period of limitation contained in this statute is applicable only to claims for compensation out of workers’ compensation fund and does not apply to claims presented for an award against an employer who has failed to comply with act. Nyland v. Northern Packing Co., 56 N.D. 624, 218 N.W. 869, 1928 N.D. LEXIS 180 (N.D. 1928); State ex rel. Woods v. Hughes Oil Co., 58 N.D. 581, 226 N.W. 586, 1929 N.D. LEXIS 252 (N.D. 1929).

Late Filing of Claim.

Where claimant froze his toe, and it appeared that no serious consequence resulted until approximately ten months thereafter, claim which was filed more than year after original freezing was barred by time limitation provided in this statute. Bjorseth v. North Dakota Workmen’s Comp. Bureau, 62 N.D. 623, 244 N.W. 515 (1932), decided prior to the amendment to this section by Session Laws 1941, ch. 35; Session Laws 1967, ch. 484; Session Laws 1977, ch. 579; and Session Laws 1979, ch. 652.

Failure to file compensation claim within sixty days does not of itself destroy right to compensation under compensation act, but places on claimant burden of showing to bureau reasonable grounds for waiver. Pearce v. North Dakota Workmen's Compensation Bureau, 67 N.D. 512, 274 N.W. 587, 1937 N.D. LEXIS 107 (N.D. 1937).

Where claim is not filed until after expiration of sixty days, but within one year thereof, claimant must show to bureau reasonable grounds for permitting him to file his claim, and exercise of such discretion by bureau may be reviewed on appeal. Pearce v. North Dakota Workmen's Compensation Bureau, 67 N.D. 512, 274 N.W. 587, 1937 N.D. LEXIS 107 (N.D. 1937).

Workmen’s compensation bureau has no jurisdiction to pass on an original application for compensation made more than two years after an accident. Schmidt v. North Dakota Workmen’s Comp. Bureau, 73 N.D. 245, 13 N.W.2d 610 (1943), decided prior to the enactment of N.D.C.C. § 65-05-03.

Power of Bureau Limited.

This statute acts as a limitation upon power of bureau to allow claims for disability payable out of fund. Bjorseth v. North Dakota Workmen’s Comp. Bureau, 62 N.D. 623, 244 N.W. 515 (1932); Schmidt v. North Dakota Workmen’s Comp. Bureau, 73 N.D. 245, 13 N.W.2d 610 (1943), decided prior to the enactment of N.D.C.C. § 65-05-03.

Silicosis.

Silicosis did not become an injury for the purposes of the act until it became disabling, and a claim filed within sixty days of that time was filed within the required time even though almost three years after termination of the exposure that caused the disease. Beauchamp v. North Dakota Workmen’s Comp. Bureau, 126 N.W.2d 417 (N.D. 1964), decided prior to the amendment of N.D.C.C. § 65-05-01.

Collateral References.

When limitation period begins to run against cause of action or claim for contracting of disease, 11 A.L.R.2d 277.

Statute permitting new action after failure of original action commenced within period of limitations, as applicable in cases where original action failed for lack of jurisdiction, 6 A.L.R.3d 1043.

Effect of injured employee’s proceeding for workmen’s compensation benefits on running of statute of limitations governing action for personal injury arising from same incident, 71 A.L.R.3d 849.

Workers’ compensation: vocational rehabilitation statutes, 67 A.L.R.4th 612.

Workers’ compensation: recovery for home service provided by spouse, 67 A.L.R.4th 765.

Prejudicial effect of bringing to jury’s attention fact that plaintiff in personal injury or death action is entitled to workers’ compensation benefits, 69 A.L.R.4th 131.

When limitations period begins to run as to claim for disability benefits for contracting of disease under Workers’ Compensation or Occupational Diseases Act, 86 A.L.R.5th 295.

When time period commences as to claim under workers’ compensation or occupational diseases act for death of worker due to contraction of disease, 100 A.L.R.5th 567.

Right to Workers’ Compensation for Injury Suffered by Employee While Driving Employer’s Vehicle, 28 A.L.R.6th 1.

Construction.

Obvious purpose of N.D.C.C. §§ 65-05-01.2 and 65-05-01.3 is to provide notice to an employer to allow the employer to alleviate dangerous conditions to prevent injuries. The plain language of those statutes allows the Workforce Safety and Insurance to “consider” a claimant’s failure to notify an employer of an accident and the nature of the employee’s injuries. Mickelson v. N.D. Workforce Safety & Ins., 2012 ND 164, 820 N.W.2d 333, 2012 N.D. LEXIS 172 (N.D. 2012).

Collateral References.

When limitations period begins to run as to claim for disability benefits for contracting of disease under Workers’ Compensation or Occupational Diseases Act, 86 A.L.R.5th 295.

Law Reviews.

Are Employees Obtaining “Sure and Certain Relief” Under the 1995 Legislative Enactments of the North Dakota Workers’ Compensation Act?, 72 N.D. L. Rev. 349 (1996).

Construction.

Obvious purpose of N.D.C.C. §§ 65-05-01.2 and 65-05-01.3 is to provide notice to an employer to allow the employer to alleviate dangerous conditions to prevent injuries. The plain language of those statutes allows the Workforce Safety and Insurance to “consider” a claimant’s failure to notify an employer of an accident and the nature of the employee’s injuries. Mickelson v. N.D. Workforce Safety & Ins., 2012 ND 164, 820 N.W.2d 333, 2012 N.D. LEXIS 172 (N.D. 2012).

In General.

Bureau has full power and authority to hear and determine all questions within its jurisdiction, and its decision is final. Gotchy v. North Dakota Workmen's Compensation Bureau, 49 N.D. 915, 194 N.W. 663, 1923 N.D. LEXIS 42 (N.D. 1923).

Workers’ compensation bureau is charged with duty and vested with authority to hear and determine all claims by an injured employee for compensation from fund, and in exercise of such power it has full authority to hear and determine all questions within its jurisdiction. State ex rel. North Dakota Workmen's Compensation Bureau v. Broadway Inv. Co., 85 N.W.2d 251, 1957 N.D. LEXIS 148 (N.D. 1957).

Employees of Another State.

Courts of North Dakota will, on principles of comity, decline jurisdiction to hear suit for injuries suffered by an employee of coal mine operated within this state by state of South Dakota, such employee also being resident of North Dakota. Paulus v. State, 52 N.D. 84, 201 N.W. 867, 1924 N.D. LEXIS 113 (N.D. 1924).

Evidentiary Hearing.

A claimant’s right to an evidentiary hearing by the workers’ compensation bureau is not limited to only those instances where the claimant can make a further showing in addition to his original claim. A claimant is entitled to an evidentiary hearing whenever a dispute of material fact exists, including instances where the factual dispute arises from the original claim. Weber v. North Dakota Workmen's Compensation Bureau, 377 N.W.2d 571, 1985 N.D. LEXIS 436 (N.D. 1985).

Final Action.

Action of compensation bureau declining to reopen claim constitutes “final action”, and is appealable where determination evidences final decision refusing compensation. Hanson v. North Dakota Workmen's Compensation Bureau, 60 N.D. 220, 233 N.W. 900, 1930 N.D. LEXIS 223 (N.D. 1930).

Decision of workers’ compensation bureau on matters of fact is final, except on ground going to basis of claimant’s right, but bureau may not take arbitrary action. Wallace v. North Dakota Workmen's Compensation Bureau, 69 N.D. 165, 284 N.W. 420, 1939 N.D. LEXIS 138 (N.D. 1939).

When workers’ compensation bureau determined an applicant was entitled to share in compensation fund, any decision which it made as to amount of compensation, if any, to be allowed for any of different factors in injury, was declared to be final. Schmidt v. North Dakota Workmen’s Comp. Bureau, 74 N.D. 520, 23 N.W.2d 26 (1946), decided prior to the amendment to N.D.C.C. § 65-05-04.

The decision of the bureau is final and entitled to the same faith and credit as a judgment of the court of record, except that a claimant may appeal therefrom to the district court. Knutson v. North Dakota Workmen's Compensation Bureau, 120 N.W.2d 880, 1963 N.D. LEXIS 79 (N.D. 1963).

Question of whether an injury occurred “in course of employment” is within jurisdiction of workers’ compensation bureau, and its decision is res judicata unless timely appealed from, or unless it is shown in a subsequent proceeding that extenuating circumstances deprived claimant of opportunity to make an informed decision whether to file for benefits. Stine v. Weiner, 238 N.W.2d 918, 1976 N.D. LEXIS 194 (N.D. 1976).

Trial court did not err by granting summary judgment to Workforce Safety and Insurance (WSI) in its collection action against the claimant because he did not administratively challenge the WSI notice of decision denying liability for his and requiring reimbursement for overpayment rendering it final. State v. Oden, 2020 ND 243, 951 N.W.2d 187, 2020 N.D. LEXIS 242 (N.D. 2020).

Full Faith and Credit.

This section means only that when decisions of the bureau are final, and not merely interlocutory, they are entitled to full faith and credit. The statute does not render unappealable a final, noninterlocutory bureau decision. It does not speak to appealability; it addresses only the effect of finality, which is full faith and credit. Thus, an unappealed workers’ compensation decision is a final decision entitled to full faith and credit. Westman v. North Dakota Workers Compensation Bureau, 459 N.W.2d 540, 1990 N.D. LEXIS 167 (N.D. 1990).

Historical Review.

For a case discussing history of statutes concerning appealability and review of decisions of the workers compensation bureau, see Westman v. North Dakota Workers Compensation Bureau, 459 N.W.2d 540, 1990 N.D. LEXIS 167 (N.D. 1990).

Injury Outside State.

Employee of North Dakota firm who was injured in the course of his employment in Montana should have been given a choice of seeking workers’ compensation benefits in North Dakota or in Montana. Bekkedahl v. North Dakota Workmen's Compensation Bureau, 222 N.W.2d 841, 1974 N.D. LEXIS 167 (N.D. 1974), limited, United States Fidelity & Guar. Co. v. North Dakota Workmen's Compensation Bureau, 275 N.W.2d 618, 1979 N.D. LEXIS 216 (N.D. 1979).

Liberal Construction Rule.

Rule that workers’ compensation act should be given liberal construction to accomplish purpose intended applies not only to bureau’s duty to determine whether an injury is compensable, but also to its duty to determine who was employer at time of injury. State ex rel. North Dakota Workmen's Compensation Bureau v. Broadway Inv. Co., 85 N.W.2d 251, 1957 N.D. LEXIS 148 (N.D. 1957).

Position of Bureau to Claimant.

Although the claimant has the burden of establishing his right to receive benefits, the bureau should not place itself in a true or full adversary position to the claimant. Weber v. North Dakota Workmen's Compensation Bureau, 377 N.W.2d 571, 1985 N.D. LEXIS 436 (N.D. 1985).

Remand by District Court.

Where additional evidence has become available after a case has been appealed to the district court, the court should remand to the bureau to take the additional evidence and reconsider its decision since the court has no power to take the evidence itself. Knutson v. North Dakota Workmen's Compensation Bureau, 120 N.W.2d 880, 1963 N.D. LEXIS 79 (N.D. 1963) (decided before 1965 amendment of N.D.C.C. § 65-10-01).

Res Judicata.

An unappealed workers compensation bureau decision is res judicata unless the Bureau reopens a claim. Lass v. North Dakota Workmen's Compensation Bureau, 415 N.W.2d 796, 1987 N.D. LEXIS 426 (N.D. 1987).

The res judicata effect of a workers compensation bureau decision extends only to matters adjudicable at the time of that decision; thus, absent a reopening, an unappealed decision on an employee’s present medical condition is final and res judicata of his medical condition at that time; such a decision, however, is not res judicata of his future medical condition, which was not adjudicable at the time of that decision. Lass v. North Dakota Workmen's Compensation Bureau, 415 N.W.2d 796, 1987 N.D. LEXIS 426 (N.D. 1987).

Claimant could not retry the issue of whether his initial non-work injury was a preexisting condition sufficient to invoke the aggravation statute. Rieniets v. North Dakota Workers' Compensation Bureau, 512 N.W.2d 708, 1994 N.D. LEXIS 56 (N.D. 1994).

In the absence of new evidence or a change in medical condition, the bureau’s order awarding a claimant benefits for her work injury, entered with knowledge of a noncompensable injury and after a formal adjudicative hearing, precludes the bureau from relitigating the effect of the noncompensable injury on her work injury. Cridland v. North Dakota Workers Compensation Bureau, 1997 ND 223, 571 N.W.2d 351, 1997 N.D. LEXIS 281 (N.D. 1997).

In a collection action seeking to recover unpaid worker’s compensation insurance premiums, whether or not a company hired independent contractors was an issue that could not have been raised due to administrative res judicata. It was the precise issue decided in a prior administrative action determining liability. State ex rel. Workforce Safety & Ins. v. JFK Raingutters, LLC, 2007 ND 80, 733 N.W.2d 248, 2007 N.D. LEXIS 83 (N.D. 2007).

Law Reviews.

Administrative Law, Judicial Review of Administrative Decisions in North Dakota, 24 Bar Briefs, State Bar Ass’n of N.D. 211 (1948).

Judicial Review of Decisions of the Workmen’s Compensation Bureau of North Dakota, 3 Dak. L. Rev. 16 (1930).

In General.

Workers’ compensation bureau, upon determining that claimant is entitled to participate in compensation fund, has continuing jurisdiction over application and injury stated therein, whether injury is held temporary or permanent. Lillefjeld v. North Dakota Workmen's Compensation Bureau, 62 N.D. 388, 244 N.W. 36, 1932 N.D. LEXIS 192 (N.D. 1932).

Workers’ compensation bureau has continuing jurisdiction and may end, diminish, or increase compensation previously awarded, or may award where it previously has been refused or discontinued. Dahl v. Workmen's Compensation Bureau, 63 N.D. 327, 248 N.W. 273, 1933 N.D. LEXIS 187 (N.D. 1933).

Additional Proof of Claim.

It is duty of bureau to consider and pass upon any additional proof that may be made in support of properly filed claim. Hanson v. North Dakota Workmen's Compensation Bureau, 56 N.D. 525, 218 N.W. 215, 1928 N.D. LEXIS 167 (N.D. 1928).

Appeal.

Absent an appeal from an order denying benefits, a workers compensation bureau decision not to reopen a claim for consideration of new or additional evidence of medical condition at the time of a denial which is sought to be reopened is not appealable, but a bureau decision not to reopen a claim upon a request based upon a change in the claimant’s medical condition since the original decision is appealable. Lass v. North Dakota Workmen's Compensation Bureau, 415 N.W.2d 796, 1987 N.D. LEXIS 426 (N.D. 1987).

Burden of Proof.

If bureau terminates benefits after initially accepting claim and paying benefits, claimant has burden of proving his or her right to continue receiving benefits. Froysland v. North Dakota Workers Compensation Bureau, 432 N.W.2d 883, 1988 N.D. LEXIS 233 (N.D. 1988).

Decision Not to Reopen Claim.

After bureau’s order on claim has become final, bureau’s decision regarding whether or not to reopen original claim is discretionary and claimant has no right to appeal from that decision. Jones v. North Dakota Workmen's Compensation Bureau, 334 N.W.2d 188, 1983 N.D. LEXIS 292 (N.D. 1983).

Claimant had no right to appeal bureau’s decision not to reopen his claim. Manikowske v. North Dakota Workmen's Compensation Bureau, 338 N.W.2d 823, 1983 N.D. LEXIS 354 (N.D. 1983).

Although when a claimant seeks to reopen a claim based upon evidence of a change in medical condition, the bureau must exercise its jurisdiction and consider the request on its merits, and the bureau’s decision thereon is appealable, the bureau’s decision whether to reopen an original claim and relitigate the claimant’s earlier medical condition is discretionary, and the claimant has no right to appeal that decision. Olson v. North Dakota Workers Compensation Bureau, 453 N.W.2d 606, 1990 N.D. LEXIS 78 (N.D. 1990).

Denial of Review, Appeal.

Where compensation claim is allowed and application for review thereafter made, claimant is without right of appeal from action of bureau in denying review. Ethen v. North Dakota Workmen's Compensation Bureau, 62 N.D. 394, 244 N.W. 32, 1932 N.D. LEXIS 193 (N.D. 1932).

Determination As to Injury.

Where an application is made within time required by statute, fact that bureau may have allowed compensation based upon mere partial knowledge of extent of injury does not prevent applicant from having application reopened long after time for filing original claims has passed. Schmidt v. North Dakota Workmen’s Comp. Bureau, 73 N.D. 245, 13 N.W.2d 610 (1943), decided prior to the enactment of N.D.C.C. § 65-05-03.

Workplace Safety and Insurance (WSI) appropriately exercised its continuing jurisdiction on its own motion, under N.D.C.C. § 65-05-04, to assess a claimant’s vocational rehabilitation and that the claimant was properly found in noncompliance with vocational rehabilitation; N.D.C.C. §§ 65-05.1-01(8)(a) also provided that WSI could initiate vocational rehabilitation services on its own motion. Drayton v. Workforce Safety & Ins., 2008 ND 178, 756 N.W.2d 320, 2008 N.D. LEXIS 180 (N.D. 2008).

Discovery Rights.

Where bureau terminates previous award, claimant whose application to combat termination is accepted, has right to examine all of files and records in case upon which bureau based its decision to terminate award. Wallace v. North Dakota Workmen's Compensation Bureau, 69 N.D. 165, 284 N.W. 420, 1939 N.D. LEXIS 138 (N.D. 1939).

Jurisdiction of Board After Judgment.

After judgment on an appeal, bureau may not deny or refuse right of claimant established upon an appeal, but it may increase or decrease award, or may award lump sum comformably to judgment rendered. Gotchy v. North Dakota Workmen's Compensation Bureau, 49 N.D. 915, 194 N.W. 663, 1923 N.D. LEXIS 42 (N.D. 1923).

Judgment awarding compensation to an injured workman when acted upon by bureau becomes award of bureau and subject to its continuing jurisdiction the same as any other award. Dahl v. Workmen's Compensation Bureau, 63 N.D. 327, 248 N.W. 273, 1933 N.D. LEXIS 187 (N.D. 1933).

Continuing jurisdiction is jurisdiction to modify awards with respect to payments falling due in future in accordance with facts later found to exist, and, where an award has been made by court and incorporated in judgment, continuing jurisdiction of bureau must be exercised pursuant to and consistent with judgment rendered. Hanson v. North Dakota Workmen's Compensation Bureau, 63 N.D. 479, 248 N.W. 680, 1933 N.D. LEXIS 201 (N.D. 1933).

The bureau at any time, on its own motion or on application, may review award and in accordance with facts found on such review, may end, diminish, or increase compensation previously awarded, or, if compensation has been refused or discontinued, may award compensation; and this authority to review is not limited to consideration of change in claimant’s condition. Geo. E. Haggart, Inc. v. North Dakota Workmen's Compensation Bureau, 171 N.W.2d 104, 1969 N.D. LEXIS 81 (N.D. 1969).

Workforce Safety and Insurance’s exercise of continuing jurisdiction was beyond the scope of the supreme court’s remand in the first appeal; WSI was bound by the supreme court’s judgment in the first appeal and, under the law of the case doctrine, was precluded from using its continuing jurisdiction to readjudicate whether the worker was the employer’s employee. Carlson v. Workforce Safety & Ins., 2012 ND 203, 821 N.W.2d 760, 2012 N.D. LEXIS 211 (N.D. 2012).

Noninsured Employer.

This section does not apply to claims against noninsured employer. State ex rel. Woods v. Hughes Oil Co., 58 N.D. 581, 226 N.W. 586, 1929 N.D. LEXIS 252 (N.D. 1929).

Reapplication for Benefits.

Workers Compensation Bureau’s notice of its intention to discontinue benefits after discovering worker had previously accepted a lump sum settlement in lieu of future benefits established that Bureau had not accepted the worker’s reapplication for benefits. Kerzman v. North Dakota Workers Compensation Bureau, 1999 ND 44, 590 N.W.2d 888, 1999 N.D. LEXIS 48 (N.D. 1999).

Res Judicata.

An unappealed workers compensation bureau decision is res judicata unless the bureau reopens a claim. Lass v. North Dakota Workmen's Compensation Bureau, 415 N.W.2d 796, 1987 N.D. LEXIS 426 (N.D. 1987).

The res judicata effect of a workers compensation bureau decision extends only to matters adjudicable at the time of that decision; thus, absent a reopening, an unappealed decision on an employee’s present medical condition is final and res judicata of his medical condition at that time; such a decision, however, is not res judicata of his future medical condition, which was not adjudicable at the time of that decision. Lass v. North Dakota Workmen's Compensation Bureau, 415 N.W.2d 796, 1987 N.D. LEXIS 426 (N.D. 1987).

The language of this section which authorizes the Bureau to review an award “at any time” does not preclude application of the doctrine of administrative res judicata to bureau decisions entered after a formal adjudicative hearing. Cridland v. North Dakota Workers Compensation Bureau, 1997 ND 223, 571 N.W.2d 351, 1997 N.D. LEXIS 281 (N.D. 1997).

Appellate court concluded administrative res judicata prevented the Bureau from relying on claimant’s termination from employment to deny wage loss benefits where this issue was not litigated at the hearing. Baier v. North Dakota Workers Compensation Bureau, 2000 ND 78, 609 N.W.2d 722, 2000 N.D. LEXIS 89 (N.D. 2000).

Workers Compensation Bureau correctly interpreted N.D.C.C. § 65-05-08(1) in determining the decedent failed to show an actual wage loss caused by a significant change in his compensable medical condition; when the decedent withdrew his appeal of a Bureau order denying further disability benefits, that order became res judicata of the decedent’s medical condition at that time, subject only to reopening under this section. Bachmeier v. N.D. Workers Comp. Bureau, 2003 ND 63, 660 N.W.2d 217, 2003 N.D. LEXIS 76 (N.D. 2003).

When appellant suffered a workplace injury to his nose, he began having headaches and was treated for a sexual dysfunction. Administrative res judicata under N.D.C.C. § 65-05-04 did not bar the Workforce Safety and Insurance Fund’s denial of benefits for appellant’s headaches and vision problems, because an award of duplicate benefits for Viagra was the dispositive issue before the administrative law judge in the prior case; rather than the compensability of appellant’s headaches and vision problems. Landrum v. Workforce Safety & Ins. Fund, 2011 ND 108, 798 N.W.2d 669, 2011 N.D. LEXIS 114 (N.D. 2011).

Review and Modification.

The authority provided in this section to review and modify awards is not limited to a consideration of a change in the claimant’s condition. Lass v. North Dakota Workmen's Compensation Bureau, 415 N.W.2d 796, 1987 N.D. LEXIS 426 (N.D. 1987).

Termination of Benefits.

In a workers’ compensation case, where the workers compensation bureau decides to terminate benefits after initially granting compensation, the burden is on the claimant to establish that he or she has a continuing right to receive the benefits. Kopp v. North Dakota Workers Compensation Bureau, 462 N.W.2d 132, 1990 N.D. LEXIS 224 (N.D. 1990).

Appeal.

Former N.D.C.C. § 65-01-14 provided an informal decision of the workers compensation bureau was final, absent a request for reconsideration, subject only to reopening under this section. McArthur v. North Dakota Workers Compensation Bureau, 1997 ND 105, 564 N.W.2d 655, 1997 N.D. LEXIS 104 (N.D. 1997).

Bureau’s Waiver of Issues.

When the workers’ compensation bureau dismissed, its appeal from an award of disability benefits and stipulated that the only remaining issue was whether the court had erred in stopping benefits after a claimant had accepted Montana benefits, the bureau waived all other issues, including the issue of whether the claimant had factually established a right to receive disability benefits. Jones v. North Dakota Workers' Compensation Bureau, 502 N.W.2d 509, 1993 N.D. LEXIS 137 (N.D. 1993).

Claims by Dependents.

Under workers’ compensation act, rights of claimant to participate in compensation fund because of dependency on deceased insured employee are individual rights, and claimants asserting such rights have separate claims. Weisgerber v. Workmen's Compensation Bureau, 70 N.D. 165, 292 N.W. 627, 1940 N.D. LEXIS 157 (N.D. 1940).

Exclusivity.

District court did not err in dismissing an employee’s negligence action because an employee and coworker were immune from suit under the Workforce Safety and Insurance Act’s exclusive remedy provisions; the determinations in California administrative proceedings were irrelevant for deciding statutory immunity because the employer paid Workforce Safety and Insurance premiums to secure coverage on the employee’s behalf, and the employee received benefits throughout the California proceedings. Brock v. Price, 2019 ND 240, 934 N.W.2d 5, 2019 N.D. LEXIS 251 (N.D. 2019).

Filing in Each State.

While an employee may choose to file for benefits in the state which provides the benefits the employee finds most desirable, he may not pick and choose which benefits he will file for in each state. Each state has adopted a compensation plan as a whole. To allow an employee to file for the highest benefits of one type in one state and the highest benefit of another type in another state would allow the employee to receive greater compensation than either state contemplated. Plante v. North Dakota Workers Compensation Bureau, 455 N.W.2d 195, 1990 N.D. LEXIS 100 (N.D. 1990).

As amended, the statute strengthened North Dakota's policy by discouraging claimants from seeking duplicate or supplemental benefits in a second State after obtaining North Dakota benefits; even if that indirect effect conflicted with the policies of other States like Colorado, it was consistent with North Dakota's valid policy and thus survived rational basis review. DeCrow v. N.D. Workforce Safety & Ins. Fund, 864 F.3d 989, 2017 U.S. App. LEXIS 13877 (8th Cir. N.D. 2017).

In Course of Employment.

An injury is received “in the course of employment” under the workers compensation act when it occurs while workman is performing duties of his employment. O'Leary v. North Dakota Workmen's Compensation Bureau, 62 N.D. 457, 243 N.W. 805, 1932 N.D. LEXIS 204 (N.D. 1932).

Protection afforded to an employee by workers’ compensation act covers such duties as an employee would reasonably and ordinarily be called upon to perform in employment listed and returned to compensation bureau by employer in his application for classification. O'Leary v. North Dakota Workmen's Compensation Bureau, 62 N.D. 457, 243 N.W. 805, 1932 N.D. LEXIS 204 (N.D. 1932).

Generally, an injury received by an employee in going to and from work is not an injury received “in the course of his employment” within workers’ compensation act. Fink v. Workmen's Compensation Bureau, 68 N.D. 531, 282 N.W. 505, 1938 N.D. LEXIS 143 (N.D. 1938).

An injury is received “in due course of employment”, within meaning of the workers’ compensation act, when it comes while workman is doing duty which he is employed to perform. Moug v. Workmen's Compensation Bureau, 70 N.D. 656, 297 N.W. 129, 1941 N.D. LEXIS 212 (N.D. 1941).

Workers’ compensation fund is created to protect workmen, but is limited to injuries by accident occurring in course of employment, and is not health or accident insurance fund. Booke v. Workmen's Compensation Bureau, 70 N.D. 714, 297 N.W. 779, 1941 N.D. LEXIS 220 (N.D. 1941).

Compensable injury is not limited to one arising out of employment so long as it is sustained in course of employment. State ex rel. Kusie v. Weber, 72 N.D. 705, 10 N.W.2d 741, 1943 N.D. LEXIS 108 (N.D. 1943).

If an employee is injured while performing duty required by his employment, fact that he is at same time going home from his work will not preclude him from recovering compensation. Johnson v. North Dakota Workmen's Compensation Bureau, 75 N.D. 604, 31 N.W.2d 447, 1948 N.D. LEXIS 86 (N.D. 1948).

If injury occurs within period of employment at place where employee may reasonably be and while he is engaged in performing duties of his contract of employment or is engaged in something incident thereto and contemplated thereby, injury arises in course of his employment and is compensable. Welch v. North Dakota Workmen's Compensation Bureau, 75 N.D. 608, 31 N.W.2d 498, 1948 N.D. LEXIS 87 (N.D. 1948).

An injury arising in course of employment, which is not caused by employee’s willful intention to injure himself or to injure another or by voluntary intoxication of employee, is compensable injury. Lippmann v. North Dakota Workmen's Compensation Bureau, 79 N.D. 248, 55 N.W.2d 453, 1952 N.D. LEXIS 117 (N.D. 1952).

Workers compensation bureau’s decision that injury had not occurred in the course of employment was not supported by a preponderance of the evidence where there were discrepancies in a medical report relied upon by the bureau, which discrepancies were not clarified, and the bureau relied only upon the part of the report favorable to its decision and rejected or disregarded the part of the report and evidence unfavorable to its decision; under such circumstances, the bureau had a duty to clarify the discrepancies as part of its preliminary investigation. In re Claim of Bromley, 304 N.W.2d 412, 1981 N.D. LEXIS 214 (N.D. 1981).

Injury Outside State.

Compensation fund is not liable for injuries sustained in course of an employment situs of which is outside state. Altman v. North Dakota Workmen's Compensation Bureau, 50 N.D. 215, 195 N.W. 287, 1923 N.D. LEXIS 86 (N.D. 1923).

Where there is no express contract providing for extraterritorial coverage, an appointive peace officer of county receiving injuries outside state in course of his employment is not entitled to compensation on account of his injuries. MacArthur v. North Dakota Workmen's Compensation Bureau, 62 N.D. 572, 244 N.W. 259, 1932 N.D. LEXIS 216 (N.D. 1932).

This statute was intended to prevent duplication of benefits, and was held not to apply where claimant, who was not informed of his rights, had drawn partial benefits in Montana, and wanted to apply for the remainder of his benefits under the North Dakota law. Bekkedahl v. North Dakota Workmen's Compensation Bureau, 222 N.W.2d 841, 1974 N.D. LEXIS 167 (N.D. 1974), limited, United States Fidelity & Guar. Co. v. North Dakota Workmen's Compensation Bureau, 275 N.W.2d 618, 1979 N.D. LEXIS 216 (N.D. 1979).

Claimant who made an informed choice in applying for and receiving benefits under another state’s compensation program for death of her husband that occurred in that state irrevocably waived any rights to obtain benefits under North Dakota compensation program by such application and receipt. United States Fidelity & Guar. Co. v. North Dakota Workmen's Compensation Bureau, 275 N.W.2d 618, 1979 N.D. LEXIS 216 (N.D. 1979).

Legislative Intent.

The legislative intent of this provision was to compel the claimant to seek workers’ compensation benefits in just one jurisdiction in order to avoid duplication of benefits. 466 N.W.2d 148.

Payments to Insurance Companies.

Workers’ compensation statutes contain no provisions authorizing the bureau to pay contribution or indemnification to an insurance company that provides coverage for an out-of-state workers’ compensation program; insurance company which provided benefits to claimant under the Minnesota compensation program did not have standing to sue the North Dakota bureau for contribution or indemnification on grounds that North Dakota was the primary situs of employment and primarily liable. United States Fidelity & Guar. Co. v. North Dakota Workmen's Compensation Bureau, 275 N.W.2d 618, 1979 N.D. LEXIS 216 (N.D. 1979).

Person Entitled to Payment.

This section authorizes the bureau to pay compensation only to employees or their dependents and does not authorize contribution or indemnification payments to an insurance company. United States Fidelity & Guar. Co. v. North Dakota Workmen's Compensation Bureau, 275 N.W.2d 618, 1979 N.D. LEXIS 216 (N.D. 1979).

Private Insurance Policy.

This section was inapplicable where workers’ compensation policy was a private insurance policy which employer required employee to purchase and pay for himself; employee did not receive workers’ compensation benefits from the state of Indiana; the benefits paid under the policy were equal to the level of workers’ compensation benefits payable under Indiana law since that is where employee was injured. 466 N.W.2d 148.

Purpose.

The purpose of this section is to avoid a duplication of benefits and to compel the claimant to seek his remedy in one jurisdiction. United States Fidelity & Guar. Co. v. North Dakota Workmen's Compensation Bureau, 275 N.W.2d 618, 1979 N.D. LEXIS 216 (N.D. 1979).

Rebutting Evidence of Causal Connection.

Bureau’s findings of fact were not supported by preponderance of evidence where, although one doctor concluded that based upon claimant’s history, work injury to feet did not cause claimant’s back problems, that doctor was not specifically asked whether claimant’s fall caused his back injury or whether back injury manifested itself when claimant returned to work; therefore, where another doctor explicitly opined that claimant’s fall caused his back pain, although the latter doctor’s opinion was necessarily reliant upon claimant’s history long after the fact of claimant’s initial injury, the testimony did not support the bureau’s determination that the fall in question did not cause claimant’s later back pain. In re Claim of Murray, 431 N.W.2d 651, 1988 N.D. LEXIS 223 (N.D. 1988).

Because an administrative law judge (ALJ) did not apply the correct standard when evaluating conflicting medical opinions on causation where the ALJ’s rationale for discounting the opinion favorable to the claimant relied upon the importance of supporting a medical opinion with another scientific authority, such as a treatise or a published report of a study and neither the statutes nor case law imposed such a requirement, and because the court was unpersuaded by the ALJ’s speculation as to factual errors in the opinions, the court reversed an order affirming a decision of the Workforce Safety & Insurance Fund denying benefits for treatment of a worker’s back injury. The court also noted that it did not understand the ALJ’s reference to a “particularly heavy burden” and stated that the claimant need only prove it was more likely than not that his injuries were caused by his employment. Swenson v. Workforce Safety & Ins. Fund, 2007 ND 149, 738 N.W.2d 892, 2007 N.D. LEXIS 151 (N.D. 2007).

Separate Out-of-State Award.

Claimant’s Minnesota award was a distinct and separate award from his North Dakota award rather than being an addition to the North Dakota award where the Minnesota award entailed different periods of time and different benefits than the North Dakota award; thus, the Minnesota award was not a “supplement” within the meaning of this section. Plante v. North Dakota Workers Compensation Bureau, 455 N.W.2d 195, 1990 N.D. LEXIS 100 (N.D. 1990).

N.D.C.C. § 65-05-05 barred the payment of the same benefits by the North Dakota Workforce Safety and Insurance Fund to treat appellant injured worker’s sexual dysfunction, because Virginia’s Workers’ Compensation Commission already awarded benefits for the Viagra. Landrum v. Workforce Safety & Ins. Fund, 2011 ND 108, 798 N.W.2d 669, 2011 N.D. LEXIS 114 (N.D. 2011).

Settlement agreements.

Worker’s compensation claimant failed to raise a genuine issue of material fact establishing that Workforce Safety and Insurance (WSI) was a party to the settlement agreement and that the attorney executing the settlement on behalf of the “insurer” had authority, ostensible or otherwise, to bind WSI to the agreement and to waive its claims for reimbursement, and therefore the trial court did not err in denying the claimant’s cross-motion for summary judgment and granting summary judgment to WSI. State v. Oden, 2020 ND 243, 951 N.W.2d 187, 2020 N.D. LEXIS 242 (N.D. 2020).

“Supplement” Construed.

The word “supplement,” for purposes of this section, entails benefits awarded in a second state which are in addition to benefits awarded in the first state for either the identical period of time or the same type of benefit. Plante v. North Dakota Workers Compensation Bureau, 455 N.W.2d 195, 1990 N.D. LEXIS 100 (N.D. 1990).

Total Disability.

The fact that a claimant may be one hundred percent disabled does not of itself warrant an award under this chapter. To be compensable, the disability must be traceable to an injury suffered in the course of the claimant’s employment, and where a very serious disability existed in claimant prior to the accident upon which his claims were based, claimant was entitled to compensation only for aggravation of the previous disability. Bender v. North Dakota Workmen's Compensation Bureau, 139 N.W.2d 150, 1965 N.D. LEXIS 91 (N.D. 1965).

Action Against Employer for Noncompensable Injuries.

Where decedent sustained injuries which were compensable under the act and for which his beneficiaries did in fact receive compensation, estate of decedent was barred from bringing tort suit against decedent’s employer for the noncompensable injuries of pain and suffering. Hulne v. International Harvester Co., 496 F. Supp. 849, 1980 U.S. Dist. LEXIS 13518 (D.N.D. 1980).

Co-Employees.

Co-employees retain their status as co-employees and their immunity from tort liability so long as they are acting in the course of their employment; the most satisfactory test to determine course of employment for purposes of co-employee immunity is the same course-of-employment test used to determine basic compensation coverage. Under that standard, in determining co-employee immunity, the test is whether the negligent co-employee would have been entitled to receive workers’ compensation benefits if that co-employee had been injured in the same incident. Mitchell v. Sanborn, 536 N.W.2d 678, 1995 N.D. LEXIS 150 (N.D. 1995).

Dual Capacity Doctrine.

Employee who applied for and received workers’ compensation for an injury caused by the shattering of a steel pin manufactured by his employer for use in the employer’s business was barred by this section from bringing an action against the contributing employer for the injury, and by failing to prove that the steel pin was manufactured for sale to the public rather than for the employer’s own use, the employee failed to establish any exception to this section that would entitle him to maintain an action against his employer under the dual capacity doctrine that the employer was also liable as a manufacturer of a defective product. Latendresse v. Preskey, 290 N.W.2d 267, 1980 N.D. LEXIS 203 (N.D. 1980).

Exclusive Remedy.

Truck driver who had received workers’ compensation for injuries was precluded from raising question of employment status in subsequent tort action against employer and fellow employee and thus had no right of action against either of them for same injuries and his wife had no right of action for loss of consortium. Lovelette v. Braun, 293 F. Supp. 41, 1968 U.S. Dist. LEXIS 11855 (D.N.D. 1968).

Generally, when an employer complies with the workers’ compensation statutes, the employee’s exclusive remedy against the employer is limited to recovery under the workers’ compensation statutes. Barsness v. General Diesel & Equip. Co., 422 N.W.2d 819, 1988 N.D. LEXIS 108 (N.D. 1988).

Third-party indemnity and contribution action for fraud and deceit against employer was barred by the exclusive remedy provisions of the Workers' Compensation Act. Smith v. Vestal, 494 N.W.2d 370, 1992 N.D. LEXIS 270 (N.D. 1992).

District court did not err in dismissing an employee’s negligence action because an employee and coworker were immune from suit under the Workforce Safety and Insurance Act’s exclusive remedy provisions; the determinations in California administrative proceedings were irrelevant for deciding statutory immunity because the employer paid Workforce Safety and Insurance premiums to secure coverage on the employee’s behalf, and the employee received benefits throughout the California proceedings. Brock v. Price, 2019 ND 240, 934 N.W.2d 5, 2019 N.D. LEXIS 251 (N.D. 2019).

Employer was entitled to supervisory writs directing a district court to grant the employer summary judgment barring civil liability for deceased and injured workers’ injuries because Workforce and Safety Insurance’s unappealed decision that the workers were employees was res judicata. Plains Trucking, LLC v. Hagar, 2019 ND 226, 932 N.W.2d 541, 2019 N.D. LEXIS 227 (N.D. 2019).

Horseplay.

As a matter of law, employee’s act of horseplay, in intentionally pushing the knees out from under co-employee, was not a sufficiently substantial deviation from his course of employment so as to transform him from a co-employee to a third-person tortfeasor. Mitchell v. Sanborn, 536 N.W.2d 678, 1995 N.D. LEXIS 150 (N.D. 1995).

Indemnity or Contribution by Employer.

Where employer had complied with the workers’ compensation statutes and injured employee had received workmen’s compensation benefits for his injuries, employee was barred from recovery in tort action against employer for his injuries, and employer was properly dismissed, as a third-party defendant in an action for the injuries brought by the employee against a third party who had joined the employer to the action in an attempt to seek contribution or indemnity. Gernand v. Ost Servs., 298 N.W.2d 500, 1980 N.D. LEXIS 300 (N.D. 1980).

This section bars any cause of action for contribution or indemnity that a third party may have against the employer, arising out of the third party’s common-law liability to an injured employee. White v. McKenzie Electric Cooperative, Inc., 225 F. Supp. 940, 1964 U.S. Dist. LEXIS 6497 (D.N.D. 1964).

In situations where an employer and a third-party tortfeasor both negligently cause an employee’s injuries, liability is imposed on the third-party tortfeasor for the negligence of the third party and the employer without permitting the third-party tortfeasor to get contribution from the employer. Barsness v. General Diesel & Equip. Co., 422 N.W.2d 819, 1988 N.D. LEXIS 108 (N.D. 1988).

The exclusive remedy rule prohibiting a third-party tortfeasor from getting contribution from the employer does not prohibit enforcement of an employer’s contractual agreement to indemnify a third-party tortfeasor. Barsness v. General Diesel & Equip. Co., 422 N.W.2d 819, 1988 N.D. LEXIS 108 (N.D. 1988).

Intentionally Inflicted Injuries.

Once the employee or his beneficiaries have received workers’ compensation benefits, they are precluded from pursuing a common-law action against employer, even for intentionally inflicted injuries. Hulne v. International Harvester Co., 496 F. Supp. 849, 1980 U.S. Dist. LEXIS 13518 (D.N.D. 1980).

Loss of Consortium.

Where widow received compensation benefits from workers’ compensation bureau for death of her husband who was killed in an industrial accident, she was barred from bringing suit in her individual capacity against her deceased husband’s employer and coemployee for loss of consortium. Schreder v. Cities Serv. Co., 336 N.W.2d 641, 1983 N.D. LEXIS 388 (N.D. 1983).

N.D.C.C. § 65-01-01 and this section bar the recovery of damages for loss of consortium by the spouse of an injured worker in an action against the injured worker’s employer. Wald v. Grafton, 442 N.W.2d 910, 1989 N.D. LEXIS 144 (N.D. 1989).

True Intentional Injury.

The North Dakota Workers Compensation Act does not preclude recovery for true intentional injuries, and an employee can pursue a civil cause of action against his employer for a true intentional injury. Zimmerman v. Valdak Corp., 1997 ND 203, 570 N.W.2d 204, 1997 N.D. LEXIS 261 (N.D. 1997).

An employer is deemed to have intended to injure if the employer had knowledge an injury was certain to occur and willfully disregarded that knowledge. Zimmerman v. Valdak Corp., 1997 ND 203, 570 N.W.2d 204, 1997 N.D. LEXIS 261 (N.D. 1997).

Collateral References.

Workmen’s compensation act as furnishing exclusive remedy for master’s failure to inform servant of disease or physical condition disclosed by medical examination, 69 A.L.R.2d 1213.

Law Reviews.

Workers’ Compensation: The Assault on the Shield of Immunity — Coming to Blows with the Exclusive-Remedy Provisions of the North Dakota Workers’ Compensation Act, 70 N.D. L. Rev. 905 (1994).

Accessible Van.

Injured worker was entitled to reimbursement for the difference between the cost of a handicap accessible van and the cost of a vehicle he would have otherwise owned. Meyer v. North Dakota Workers Compensation Bureau, 512 N.W.2d 680, 1994 N.D. LEXIS 46 (N.D. 1994).

Appeal.

—Failure to Preserve Issue.

The issue of whether the Workers’ Compensation Bureau denied worker a fair hearing because it failed to establish a system of peer review as required under subsection (3) of this section was not preserved for appeal where worker did not raise this issue in the administrative proceedings nor in her appeal before the district court; an issue which has not been properly raised before the trial court cannot be raised for the first time on appeal to the supreme court. Vail v. North Dakota Workers Compensation Bureau (In re Vail), 522 N.W.2d 480, 1994 N.D. LEXIS 212 (N.D. 1994).

Chiropractic Treatment.

Worker who underwent chiropractic treatment for a work-related knee injury without a physician’s referral was not entitled to payment of worker’s compensation benefits for the cost of the treatment. Vraa v. North Dakota Workers Compensation Bureau, 1999 ND 6, 588 N.W.2d 857, 1999 N.D. LEXIS 10 (N.D. 1999).

Fee Approval.

—Standing.

Claimant did not have standing to challenge the workers compensation bureau’s claimed lack of a peer review system. This section does not allow claimants to appeal adverse bureau decisions on matters of “reasonableness of fees and payment denials for unjustified treatments”. Swanson v. North Dakota Workers Compensation Bureau, 553 N.W.2d 209, 1996 N.D. LEXIS 212 (N.D. 1996).

Trial court erred in remanding matter to the Bureau with an order that the Bureau adopt a peer review process; a claimant does not have standing to challenge the Bureau’s lack of a peer review system. Sherman v. North Dakota Workers Compensation Bureau, 1998 ND 97, 578 N.W.2d 517, 1998 N.D. LEXIS 84 (N.D. 1998).

Prosthetic Device.

In a workers' compensation case, it was not an abuse of discretion for the North Dakota Workforce Safety and Insurance Fund (WSI) to deny a claimant's request for a myoelectric prosthesis during binding dispute resolution because the WSI was not required to provide the claimant's preferred device; it considered each device's durability, cost, and impact on the amputation injuries suffered. Whedbee v. N.D. Workforce Safety, 2014 ND 79, 845 N.W.2d 632, 2014 N.D. LEXIS 90 (N.D. 2014).

Standing to Challenge Denial of Payment.

Worker lacked standing to challenge worker’s compensation bureau denial of payment for medical tests worker had received, since worker did not show that he was personally billed for those services, nor that he was denied medical services as a result of the bureau’s refusal to pay. Vickery v. North Dakota Workers Compensation Bureau, 545 N.W.2d 781, 1996 N.D. LEXIS 106 (N.D. 1996).

Collateral References.

Insured’s receipt of or right to workmen’s compensation benefits as affecting recovery under accident, hospital, or medical expense policy, 40 A.L.R.3d 1012.

Workers’ compensation: value of home services provided by victim’s relative, 65 A.L.R.4th 142.

Workers’ compensation: vocational rehabilitation statutes, 67 A.L.R.4th 612.

Workers’ compensation: reasonableness of employee’s refusal of medical services tendered by employer, 72 A.L.R.4th 905.

Compensability of specially equipped van or vehicle under workers’ compensation statutes, 63 A.L.R.5th 163.

Activities Considered Work.

Claimant’s activities of opening a restaurant at 5:00 a.m. and staying until 7:00 a.m., baking rolls, making coffee, signing receipts for deliveries, and cooking for customers, picking up supplies and performing maintenance work were considered work within the common understanding of work and were not for his benefit as therapy or self-care. Snyder v. North Dakota Workers Compensation Bureau, 2001 ND 38, 622 N.W.2d 712, 2001 N.D. LEXIS 38 (N.D. 2001).

While performing yard work and participating in a rummage sale did not constitute work, videotapes of the employee engaged in such activities were evidence of the employee’s physical abilities and were material to the evidence of fraud. Sjostrand v. N.D. Workers Comp. Bureau, 2002 ND 125, 649 N.W.2d 537, 2002 N.D. LEXIS 168 (N.D. 2002), cert. denied, 538 U.S. 928, 123 S. Ct. 1578, 155 L. Ed. 2d 321, 2003 U.S. LEXIS 2274 (U.S. 2003).

Activities Not Considered Work.

Order terminating an employee’s workers compensation benefits was reversed and remanded because the workers compensation bureau did not prove that the employee willfully made a material false statement justifying forfeiture of future benefits under N.D.C.C. § 65-05-33. The employee’s failure to report the receipt of money from the sale of vegetables was not material because the amount of money did not equal 10 percent of his income under this section, the bureau did not provide the notice of penalties required by this section, and the employee’s failure to report his gardening and harvest activities were not willful because casual activities not engaged in for remuneration or for an employer are not reasonably understood to be work. Wanner v. N.D. Workers Comp. Bureau, 2002 ND 201, 654 N.W.2d 760, 2002 N.D. LEXIS 272 (N.D. 2002).

Applicability of Amendments.

Amendment of this section which abrogated claimant’s vested right to receive disability benefits did not apply to his claim; his entitlement to benefits was governed by the statutes in effect at the time of his injury. Jensen v. North Dakota Workers Compensation Bureau, 1997 ND 107, 563 N.W.2d 112, 1997 N.D. LEXIS 112 (N.D. 1997).

Claimant's Knowledge and Intent.

Benefits could not be denied under this section where evidence in the record was insufficient to establish that claimant had knowledge of specific restrictions and intentionally exceeded those restrictions. Tangen v. North Dakota Workers Compensation Bureau, 2000 ND 135, 613 N.W.2d 490, 2000 N.D. LEXIS 140 (N.D. 2000).

Determination of Eligibility.

Where workers compensation bureau failed to adequately explain why it rejected claimant’s treating physician’s reports and administrative law judge’s recommendation to reinstate benefits, judgment affirming denial of benefits was reversed with instructions to remand claim to bureau to adequately explain its decision. Blanchard v. North Dakota Workers Compensation Bureau, 1997 ND 118, 565 N.W.2d 485, 1997 N.D. LEXIS 129 (N.D. 1997).

Where an ALJ and workforce safety and insurance (WSI) found that a claimant had never received the mailed notice of intention to discontinue/reduce his benefits (NOID), WSI’s termination of his ongoing disability benefits violated due process and WSI erred when it applied the reapplication statute, N.D.C.C. § 65-05-08(1), which was only applicable if the claimant’s prior disability benefits had been validly terminated, in deciding when benefits should have been resumed. Rojas v. Workforce Safety & Ins., 2005 ND 147, 703 N.W.2d 299, 2005 N.D. LEXIS 182 (N.D. 2005).

Due Process Rights Under Subsection (3).

RTW cards sent to worker under subsection (3) did not violate his procedural due process rights given that this section applied to him despite its enactment after his date of injury. Furthermore, the fact that the cards fail to define work or put claimants on notice as to what the Bureau considers work also does not violate claimants’ due process rights given that while the Bureau may not agree with the claimants’ view of work, the Bureau takes the risk that the courts will not agree with its application of the term to particular facts. Snyder v. North Dakota Workers Compensation Bureau, 2001 ND 38, 622 N.W.2d 712, 2001 N.D. LEXIS 38 (N.D. 2001).

Expert Medical Testimony.

In cases where expert medical testimony is desirable if not essential to a determination of causation, the bureau may not simply ignore competent medical testimony without expressly setting forth in its findings of fact adequate reasons, which are supported by the record, for doing so. Lang v. North Dakota Workers Compensation Bureau, 1997 ND 133, 566 N.W.2d 801, 1997 N.D. LEXIS 133 (N.D. 1997).

Injury and Accident Distinguished.

There is distinction between an injury and an accident as used in workers’ compensation act, injury meaning result of an accident and including all effects of accident, so that in allowing compensation workers’ compensation bureau considers all features of injuries resulting from an accident and awards compensation for all as one injury, but, if workman is injured in two or more separate accidents he may apply for compensation for each injury. Schmidt v. North Dakota Workmen’s Comp. Bureau, 73 N.D. 245, 13 N.W.2d 610 (1943), decided prior to the enactment of N.D.C.C. § 65-05-03.

Justification for Refusing Job Offer.

In determining whether a worker is justified in refusing a job offer, a court looks to see if a reasonably prudent person would refuse the offer under the same or similar circumstances, and also at the following nonexclusive factors found in Pulver v. Dundee Cement Co., 445 Mich. 68, 515 N.W.2d 728 (Mich. 1994): the timing of the offer, if the employee has moved, the reasons for moving, the diligence of the employee in trying to return to work, whether the employee has actually returned to work with some other employer and, whether the effort, risk, sacrifice or expense is such that a reasonable person would not accept the offer. Lawrence v. North Dakota Workers Compensation Bureau, 2000 ND 60, 608 N.W.2d 254, 2000 N.D. LEXIS 64 (N.D. 2000).

Periodic Reporting of Work Status.

Claimant’s argument that subsection (3) of this section did not apply to him because it was not in effect at the time of his work injury in 1988 was without merit given that N.D.C.C. § 65-05-04, providing that the Bureau may review any award and determine whether a worker remains disabled, has been in effect since 1919 and this section provides the Bureau with an appropriate way to investigate such claims by requiring claimants to complete reporting forms on a periodic basis regarding any work they might be performing. Snyder v. North Dakota Workers Compensation Bureau, 2001 ND 38, 622 N.W.2d 712, 2001 N.D. LEXIS 38 (N.D. 2001).

Reapplication for Benefits.

Whether worker sustained a significant change in his medical condition attributable to his work injury, and not the “good faith work trial” standard, applies to cases in which worker has reapplied for benefits. Johnson v. North Dakota Workers' Compensation Bureau, 539 N.W.2d 295, 1995 N.D. LEXIS 187 (N.D. 1995).

Subsection (1) did not govern claimant’s request for resumption of disability benefits, precluding award of benefits commencing more than thirty days before his reapplication, where 1989 amendment adding subsections (1) and (5) did not apply to his vested right to receive disability benefits upon again becoming disabled under statute in effect on the date of his injury. Jensen v. North Dakota Workers Compensation Bureau, 1997 ND 107, 563 N.W.2d 112, 1997 N.D. LEXIS 112 (N.D. 1997).

Workers Compensation Bureau’s notice of its intention to discontinue benefits after discovering worker had previously accepted a lump sum settlement in lieu of future benefits established that Bureau had not accepted the worker’s reapplication for benefits. Kerzman v. North Dakota Workers Compensation Bureau, 1999 ND 44, 590 N.W.2d 888, 1999 N.D. LEXIS 48 (N.D. 1999).

Where Bureau refuses to pay benefits despite an order to do so, the appropriate remedy for claimant was to seek a writ of mandamus in district court directing the Bureau to pay benefits in accordance with its order instead of reapplying for benefits under this section. Baier v. North Dakota Workers Compensation Bureau, 2000 ND 78, 609 N.W.2d 722, 2000 N.D. LEXIS 89 (N.D. 2000).

District court was correct in upholding the Workers Compensation Bureau’s order denying the claimant’s reapplication for temporary total disability benefits; the claimant was unable to prove actual wage loss, which was a prerequisite to reinstating discontinued disability benefits under subsection (1) of this section. Gronfur v. N.D. Workers Comp. Fund, 2003 ND 42, 658 N.W.2d 337, 2003 N.D. LEXIS 56 (N.D. 2003).

Former employee’s reapplication for benefits for a 1983 lower back injury was properly denied because the employee was unable to show that there was an actual wage loss as a result of the worsening of the prior injury; the employee was able to work until terminated for misconduct, and the employee was not eligible for further benefits until all of the requirements of subsection (1) of this section were satisfied. Lesmeister v. N.D. Workers Comp. Bureau, 2003 ND 60, 659 N.W.2d 350, 2003 N.D. LEXIS 74 (N.D. 2003).

Court did not err in denying a claimant’s reapplication for worker’s compensation benefits where a doctor’s opinion that he was totally disabled from working in July 2002 did not prove that he was similarly disabled six months earlier when he quit his job in January 2002, or that a change in his medical condition caused him to leave his employment. Beckler v. Workforce Safety & Ins. (In re Beckler), 2005 ND 33, 692 N.W.2d 483, 2005 N.D. LEXIS 39 (N.D. 2005).

Using the definition of “wage” found in N.D.C.C. § 65-01-02(37) in the context of “actual wage loss” under N.D.C.C. § 65-05-08(1)(b), the claimant must prove that he has sustained an actual loss of remuneration from employment which would be reportable to the internal revenue service as earned income for federal income tax purposes. To demonstrate an actual loss of wages or remuneration as a result of a change in the claimant’s compensable medical condition, the claimant must necessarily first demonstrate that he was earning wages from employment when the change in his medical condition occurred and must then show that the change caused at least a partial loss of those wages. Beckler v. Workforce Safety & Ins. (In re Beckler), 2005 ND 33, 692 N.W.2d 483, 2005 N.D. LEXIS 39 (N.D. 2005).

Workforce Safety and Insurance erred in applying N.D.C.C. § 65-05-08(1) and denying the claimant’s second application for workers’ compensation disability benefits because N.D.C.C. § 65-05-08(1) applied to a reapplication only when disability benefits had been discontinued, yet the claimant had never received benefits for his work-related injury. Therefore the claimant’s “reapplication” did not fit within the clear language of N.D.C.C. § 65-05-08(1). Houn v. Workforce Safety & Ins., 2005 ND 115, 698 N.W.2d 271, 2005 N.D. LEXIS 130 (N.D. 2005).

Denial of the employee’s reapplication for disability benefits was proper pursuant to N.D.C.C. § 65-05-08(1) because, while he was entitled to subpoena his doctors or to present telephonic testimony from his doctors, he nevertheless relied on written opinions from his doctors without any further elaboration and he did not present testimony from any other employees to support his claim. The employee therefore failed to make a record to establish his claim that he sustained a significant change in his compensable medical condition. Aga v. Workforce Safety & Ins., 2006 ND 254, 725 N.W.2d 204, 2006 N.D. LEXIS 261 (N.D. 2006).

District court erred in affirming an administrative agency order denying a claimant’s reapplication for workers’ compensation disability benefits under N.D.C.C. § 65-05-08, because the agency’s factual findings did not sufficiently address medical evidence in the record which showed that the claimant had suffered a significant change in his compensable medical condition and a resulting actual wage loss. Additional findings on these issues were required on remand, pursuant to N.D.C.C. § 28-32-46(7). Huwe v. Workforce Safety & Ins., 2008 ND 47, 746 N.W.2d 158, 2008 N.D. LEXIS 49 (N.D. 2008).

When claimant was injured at work and received temporary total disability benefits, he filed a claim for additional benefits three years later; North Dakota Workforce Safety and Insurance properly denied his claim. Claimant failed to meet the standard for a reapplication for benefits under N.D.C.C. § 65-05-08(1), because he had not shown an actual wage loss caused by a significant change in his compensable medical condition. Johnson v. N.D. Workforce Safety & Ins., 2010 ND 198, 789 N.W.2d 565, 2010 N.D. LEXIS 195 (N.D. 2010).

Voluntary Limitation of Income.

Evidence supported the North Dakota Workforce Safety and Insurance’s finding that by accepting and remaining in a lower position, the claimant voluntarily limited her income and lost her entitlement to partial disability benefits under N.D.C.C. § 65-05-08. Vogel v. Workforce Safety & Ins., 2005 ND 43, 693 N.W.2d 8, 2005 N.D. LEXIS 46 (N.D. 2005).

Wage Loss.

Under subdivision (1)(b) of this section, the claimant must prove that he has sustained an actual loss of remuneration from employment which would be reportable to the Internal Revenue Service as earned income; to demonstrate an actual loss of wages or remuneration as a result of a change in the claimant’s compensable medical condition, the claimant must necessarily first demonstrate that he was earning wages from employment when the change occurred and must then show that the change caused at least a partial loss of those wages. Gronfur v. N.D. Workers Comp. Fund, 2003 ND 42, 658 N.W.2d 337, 2003 N.D. LEXIS 56 (N.D. 2003).

Law Reviews.

North Dakota Supreme Court Review (Wanner v. North Dakota Workers’ Compensation Bureau, 2002 ND 201, 654 N.W.2d 760), see 79 N.D. L. Rev. 589 (2003).

Bureau’s Obligation to Request Certification.

The onus is on the workers compensation bureau to request medical certification of the duration of a claimant’s disability, and thereafter the claimant must ensure that the requested reports are filed. Frohlich v. North Dakota Workers Compensation Bureau, 556 N.W.2d 297, 1996 N.D. LEXIS 258 (N.D. 1996).

Content of Doctor’s Report.

The doctor’s report must include information relating to the extent of employee’s disability, whether the employee is able to return to some employment, including light or sedentary work and, if the employee is not totally disabled, a statement of the employee’s restrictions and physical limitations. Lindell v. N.D. Workers Comp. Bureau, 1998 ND 174, 584 N.W.2d 520, 1998 N.D. LEXIS 185 (N.D. 1998).

Degree of Disability.

Letter from worker’s physician failed to meet the disability verification requirements of this section where the letter did not address the degree of disability experienced by the worker and expressed no medical opinion regarding the expected length of the disability. Lindell v. N.D. Workers Comp. Bureau, 1998 ND 174, 584 N.W.2d 520, 1998 N.D. LEXIS 185 (N.D. 1998).

Disability Not Shown.

The Bureau did not err in denying claimant disability benefits after October 27, 1997, because a reasoning mind reasonably could have determined from the evidence that claimant failed to establish the statutory requirements for verifying disability after October 27, 1997, where she relied on a chiropractor’s report which verified disability for only 17 days; a medical report which did not include a disability rating; and a chiropractor’s report issued just one week prior to the hearing and found to be untimely and therefore inadmissible. Mikkelson v. North Dakota Workers Compensation Bureau, 2000 ND 67, 609 N.W.2d 74, 2000 N.D. LEXIS 82 (N.D. 2000).

Failure to Request Certification.

Workers compensation bureau’s failure to request doctor certification of the period of claimant’s temporary total disability benefits violated this section, and bureau was directed to award claimant benefits through date at which he was certified as at maximum medical improvement; bureau was not absolved from its responsibility to request updated medical certification under this section by protracted administrative and judicial proceedings. Frohlich v. North Dakota Workers Compensation Bureau, 556 N.W.2d 297, 1996 N.D. LEXIS 258 (N.D. 1996).

Legislative Intent.

The clear intent of this section is to protect a claimant’s right to rely upon regular ongoing benefits, not to provide a windfall to applicants on initial claims. Nemec v. North Dakota Workers Compensation Bureau, 543 N.W.2d 233, 1996 N.D. LEXIS 28 (N.D. 1996).

Termination of Benefits.

Due process requires the bureau to give a claimant prior notice of termination of disability benefits, a summary of the medical evidence supporting termination, and an opportunity to respond. Flink v. North Dakota Workers Compensation Bureau (Fargo Trailer Ctr.), 1998 ND 11, 574 N.W.2d 784, 1998 N.D. LEXIS 22 (N.D. 1998).

Pre-termination notice informing worker his disability benefits were going to be terminated based on information that the worker had been working during the time he had been claiming to be totally disabled was not inadequate. Unser v. North Dakota Workers Compensation Bur., 1999 ND 129, 598 N.W.2d 89, 1999 N.D. LEXIS 149 (N.D. 1999).

An allegation that a worker had made “false statements” concerning his physical disability status did not satisfy the fundamental requirements of notice and procedural due process. Vernon v. North Dakota Workers Compensation Bur., 1999 ND 153, 598 N.W.2d 139, 1999 N.D. LEXIS 168 (N.D. 1999).

The fact that the worker was given a transcript of his interview in which he disclosed to an investigator that he had done some snow removal work while receiving disability benefits did not cure the inadequate statement of evidentiary grounds for discontinuing benefits in the notice of intention to discontinue benefits given by the Workers Compensation Bureau. Stewart v. North Dakota Workers Compensation Bureau, 1999 ND 174, 599 N.W.2d 280, 1999 N.D. LEXIS 194 (N.D. 1999).

When worker’s work-related carpal tunnel syndrome resolved and she was subsequently permanently disabled as a result of a non-work-related back injury, she was no longer eligible for temporary disability benefits. Bjerke v. North Dakota Workers Compensation Bureau, 1999 ND 180, 599 N.W.2d 329, 1999 N.D. LEXIS 202 (N.D. 1999).

North Dakota Workforce Safety and Insurance erred in terminating the claimant?s disability benefits because the claimant was denied a fair hearing as he was not adequately advised that WSI contemplated terminating his disability benefits on the ground of lack of verification. Brockel v. N.D. Workforce Safety & Ins., 2014 ND 26, 2014 N.D. LEXIS 24 (Feb. 13, 2014).

Worker's rehabilitation and disability benefits were properly terminated because a reasoning mind could reasonably conclude the worker could return to work when (1) three medical providers, including one aware of the worker's employment duties, released the worker to return to work, and (2) no medical doctor certified the worker's disability status. Welch v. Workforce Safety & Ins., 2017 ND 210, 900 N.W.2d 822, 2017 N.D. LEXIS 212 (N.D. 2017).

Benefit Rates.

Permanent impairment awards are to be based on the rate in effect at the time the impairment is determined, rather than the rate in effect on the date of injury. Gregory v. North Dakota Workmen's Compensation Bureau, 369 N.W.2d 119, 1985 N.D. LEXIS 334 (N.D. 1985).

Benefits Not Exclusive.

Since disability awards under this section were based on loss of earning capacity, such awards did not exclude an additional award for permanent partial disability under former N.D.C.C. § 65-05-12. Buechler v. North Dakota Workmen's Compensation Bureau, 222 N.W.2d 858, 1974 N.D. LEXIS 162 (N.D. 1974).

Neurosis.

Employee who suffered from hysteria and compensation neurosis causally connected with an injury sustained in the course of his employment and a resulting operation was entitled to recover under this act. Lyson v. North Dakota Workmen's Compensation Bureau, 129 N.W.2d 351, 1964 N.D. LEXIS 110 (N.D. 1964).

Nursing Home Costs.

Where claimant fractured her hip in the course of her employment in 1961, subsequently fell and broke her arm in hospital, was taken to nursing home in 1962, was declared permanently and totally disabled in 1964, received costs of nursing home care in addition to compensation from 1962 until 1965, and board’s 1965 application of compensation award to nursing home bill had been reversed, by district court, board could not, by 1969 resolution, reduce payments to claimant by applying large amount of her compensation award to the nursing home care either under theory that 1969 amendment allowing such a reduction of benefits was retroactive or theory that the section is merely remedial. Heddon v. North Dakota Workmen's Compensation Bureau, 189 N.W.2d 634, 1971 N.D. LEXIS 133 (N.D. 1971).

Retroactivity of 1969 Amendment.

N.D.C.C. § 1-02-10, which states that the code is not retroactively applicable unless expressly so declared, precludes the retroactive application of the 1969 amendment of this section concerning the right of the bureau to defray costs of nursing home care. Heddon v. North Dakota Workmen's Compensation Bureau, 189 N.W.2d 634, 1971 N.D. LEXIS 133 (N.D. 1971).

Social Security Offset.

The commissioner may take an offset against claimant’s lump sum temporary total disability award to the extent that the sum of the periodic workers’ compensation benefit and social security benefit exceeds 80% of claimant’s pre-disability income. Frost v. Chater, 952 F. Supp. 659, 1996 U.S. Dist. LEXIS 13442 (D.N.D. 1996).

Total Disability.

Generally speaking, total disability results when a workman is so disqualified from performing the usual tasks of a workman that he is unable to procure and retain employment, and in determining the extent of disability consideration must be given to the type of work being done at the time of the accident, the nature and extent of the injury, and the age, experience, training, and capabilities of the employee. Lyson v. North Dakota Workmen's Compensation Bureau, 129 N.W.2d 351, 1964 N.D. LEXIS 110 (N.D. 1964).

Benefit Rates.

Under N.D.C.C. § 65-05-09(1), an employee’s benefits would be recalculated upon the recurrence of the disability, but a recalculation of average weekly wage occurred only if the employee was able to return to employment for a period of 12 consecutive calendar months or more before the recurrence of the disability that was the subject of the recalculation, and because the claimant had not returned to work for a period of 12 consecutive months or more at the time of the latest recurrence of his disability, the North Dakota Workforce Safety and Insurance was not authorized by N.D.C.C. § 65-05-09(1) to recalculate his average weekly wage. Stein v. Workforce Safety & Ins., 2006 ND 34, 710 N.W.2d 364, 2006 N.D. LEXIS 38 (N.D. 2006).

Collateral References.

Admissibility of evidence that injured plaintiff received benefits from a collateral source, on issue of malingering or motivation to extend period of disability, 47 A.L.R.3d 234.

Admissibility of opinion evidence as to employability on issue of disability in health and accident insurance and workers’ compensation cases, 89 A.L.R.3d 783.

Workers’ Compensation: Tips or gratuities as factor in determining amount of compensation. 16 A.L.R.5th 191.

Construction and application of state workers’ compensation laws to claim for hearing loss — Resulting from single traumatic accident or event, 90 A.L.R.6th 425.

Applicability.

The social security offset does not apply if the state plan provides for a reduction in its benefits by reason of social security benefits. Frost v. Chater, 952 F. Supp. 659, 1996 U.S. Dist. LEXIS 13442 (D.N.D. 1996).

Amount of Offset.

Workers Compensation Bureau properly construed and applied the social security offset provisions of this section by computing the offset based solely on the claimant’s monthly SSA payment; this section neither requires nor allows the Bureau to adjust the social security offset because the Social Security Administration offset the claimant’s impairment award from her social security payments. Lee v. North Dakota Workers Compensation Bureau, 1998 ND 218, 587 N.W.2d 423, 1998 N.D. LEXIS 233 (N.D. 1998).

Federal Law.

Whether a payment received under a state workers compensation scheme constitutes a disability benefit which can be offset from social security benefits by the Social Security Administration is a question of federal law. Lee v. North Dakota Workers Compensation Bureau, 1998 ND 218, 587 N.W.2d 423, 1998 N.D. LEXIS 233 (N.D. 1998).

Permanently Disabled Employee.

There is no statutory presumption of retirement for any employee who is permanently and totally disabled as defined in this title. Kallhoff v. North Dakota Workers' Compensation Bureau, 484 N.W.2d 510, 1992 N.D. LEXIS 97 (N.D. 1992).

An employee who planned to retire and submitted his letter of intent to retire, but then became permanently and totally disabled before his intended retirement date, was entitled to collect workers’ compensation benefits after the date of his retirement. Shiek v. N.D. Workers Comp. Bureau, 2001 ND 166, 634 N.W.2d 493, 2001 N.D. LEXIS 186 (N.D. 2001).

As a matter of law, an employee who becomes permanently and totally disabled on or before the employee’s intended retirement date has not retired or voluntarily withdrawn from the labor force. Shiek v. N.D. Workers Comp. Bureau, 2001 ND 166, 634 N.W.2d 493, 2001 N.D. LEXIS 186 (N.D. 2001).

Receipt of Benefits Prior to 1995.

This section does not terminate the disability benefits of workers who were already receiving permanent total disability benefits before 1995 amendment to this section took effect. Gregory v. North Dakota Workers Compensation Bureau, 1998 ND 94, 578 N.W.2d 101, 1998 N.D. LEXIS 87 (N.D. 1998).

This section does not apply to terminate the disability benefits of a claimant or other worker already receiving total disability benefits before the 1995 statute took effect, even as amended by 1997 amendment. Ash v. Traynor, 1998 ND 112, 579 N.W.2d 180, 1998 N.D. LEXIS 131 (N.D. 1998).

Retirement Presumption.

Bureau erred in ruling claimant’s permanent and total disability was irrelevant to application of retirement presumption under this section; clear language of section excludes permanently and totally disabled employees from operation of the presumption. Shiek v. North Dakota Workers Compensation Bureau, 1998 ND 139, 582 N.W.2d 639, 1998 N.D. LEXIS 154 (N.D. 1998).

Claimant must establish by a preponderance of the evidence that the claimant is totally and permanently disabled for retirement presumption not to apply. Shiek v. North Dakota Workers Compensation Bureau, 1998 ND 139, 582 N.W.2d 639, 1998 N.D. LEXIS 154 (N.D. 1998).

Workforce Safety and Insurance did not err in holding that the retirement presumption provisions of N.D.C.C. § 65-05-09.3(2) applied to an employee’s workers’ compensation claim because when the employee’s total disability benefits were terminated for a period beginning in August 1995, the employee lost the reliance interest in continued benefits and the provisions of the retirement presumption statute became applicable to the claim. Eslinger v. N.D. Workforce Safety & Ins., 2009 ND 90, 765 N.W.2d 731, 2009 N.D. LEXIS 95 (N.D. 2009).

Voluntary Withdrawal.

For purposes of eligibility for disability benefits, this section creates a presumption that an employee has “retired” when the employee has “voluntarily withdrawn from the labor force.” So, retirement is linked with the ordinary and commonly understood meaning that retirement is voluntary. Kallhoff v. North Dakota Workers' Compensation Bureau, 484 N.W.2d 510, 1992 N.D. LEXIS 97 (N.D. 1992).

Law Reviews.

Are Employees Obtaining “Sure and Certain Relief” Under the 1995 Legislative Enactments of the North Dakota Workers’ Compensation Act?, 72 N.D. L. Rev. 349 (1996).

North Dakota Supreme Court Review (Tedford v. Workforce Safety & Ins., 2007 ND 142, 738 N.W.2d 29 (2007)), see 84 N.D. L. Rev. 567 (2008).

Earning Capacity.

One of the rehabilitative goals of North Dakota’s workforce safety and insurance law was to return a disabled employee to substantial gainful employee with a minimum of retraining, as soon as possible after an injury has occurred, according to N.D.C.C. § 65-05.1-01(3). Since the evidence presented in the claimant’s case showed that the claimant could go to work as a store greeter despite wrist and shoulder pain the claimant had experienced in the claimant’s prior job, the evidence showed that the claimant had a residual earning capacity of $ 290 per week and was consistent with the establishment of earning capacity pursuant to N.D.C.C. § 65-05-10(3). Johnson v. N.D. Workforce Safety & Ins. Fund, 2012 ND 87, 816 N.W.2d 74, 2012 N.D. LEXIS 88 (N.D. 2012).

Effect of Discharge for Just Cause.

A discharge for just cause does not automatically bar an employee from receiving disability benefits. Wendt v. North Dakota Workers Compensation Bureau, 467 N.W.2d 720, 1991 N.D. LEXIS 56 (N.D. 1991).

Eligibility for Partial Disability Benefits.

There are three factors for determining whether an individual is entitled to partial disability benefits: First, there should be a physical disability; second, the disability should be partial, or in other words, the employee should be able to work subject to the disability; and third, there should be an actual loss of earning capacity that is causally related to the disability. Wendt v. North Dakota Workers Compensation Bureau, 467 N.W.2d 720, 1991 N.D. LEXIS 56 (N.D. 1991).

Trial court erred in upholding an order terminating an employee’s total disability benefits and awarding the employee partial disability benefits where the employee could not be returned to substantial gainful employment, as defined in N.D.C.C.§ 65-05.1-01(3), and did not have a retained earnings capacity to meet the income test of N.D.C.C. § 65-05.1-01(3). Rodenbiker v. Workforce Safety & Ins., 2007 ND 169, 740 N.W.2d 831, 2007 N.D. LEXIS 171 (N.D. 2007).

Termination of Award.

Evidence supported finding that an injured claimant refused to participate in rehabilitation options that were available to him; as such, the district court properly affirmed the Workforce Safety and Insurance order that terminated the award of rehabilitation benefits and partial disability benefits, pursuant to N.D.C.C. § 65-05.1-01. Tverberg v. Workforce Safety & Ins., 2006 ND 229, 723 N.W.2d 676, 2006 N.D. LEXIS 234 (N.D. 2006).

Trial court properly overturned a decision from the North Dakota Workforce Safety and Insurance to discontinue an employee’s partial disability benefits on the ground that it had paid the employee benefits for longer than the five-year limit provided by a 1991 amendment to N.D.C.C. § 65-05-10 where there was no evidence that after the employee’s June 1990 work injury, the employee ever regained the employee’s earning capacity. The plain language of N.D.C.C. § 65-05-10 required application of the five-year limit on disability benefits when an injured worker’s partial loss of capacity to earn wages happened after June 30, 1991. Reopelle v. Workforce Safety & Ins., 2008 ND 98, 748 N.W.2d 722, 2008 N.D. LEXIS 98 (N.D. 2008).

When the language of N.D.C.C. § 65-05-10(2) is considered in conjunction with the sparse legislative history for the specific provisions of that subsection and the general purpose of the legislation as a “cost saving bill,” the North Dakota Supreme Court concludes that the intention of the legislation is to limit partial disability benefits to a cumulative time period of five years; the North Dakota Supreme Court declines to amend or add language to N.D.C.C. § 65-05-10(2) to authorize payment of partial disability benefits for five continuous years before those benefits may be terminated. Therefore, benefits were properly terminated in a case where a claimant had been paid for 5 cumulative years, but not for five continuous years. Zimmerman v. N.D. Workforce Safety & Ins. Fund, 2010 ND 42, 779 N.W.2d 372, 2010 N.D. LEXIS 38 (N.D. 2010).

Total Disability.

Total disability exists when workman is unable, solely because of his job-related injury, to perform or obtain any substantial amount of labor in his particular line of work, or in any other for which he would be fitted. Jimison v. North Dakota Workmen's Compensation Bureau, 331 N.W.2d 822, 1983 N.D. LEXIS 252 (N.D. 1983).

Waiver.

Under N.D.C.C. § 65-05-10, the Workforce Safety and Insurance Fund (WSI) waived the five-year time limit for partial disability benefits; WSI accepted the employee’s doctor’s decision to limit amount of hours she was released to work, and the employee was informed she would receive benefits as long as WSI had verification of her continued disability. Von Ruden v. N.D. Workforce Safety & Ins. Fund, 2008 ND 166, 755 N.W.2d 885, 2008 N.D. LEXIS 169 (N.D. 2008).

Where employer reduced employee’s benefits to partial disability benefits upon her return to work and later discontinued those benefits after five years, employer properly applied N.D.C.C. 65-05-10(2) to deny waiver of five-year limitation although employee met the statutory requirements in that she had long-term restrictions and worked less than 28 hours per week; the plain language of the statute gave the employer the discretion as to whether to waive the five-year limitation when an employee meets one of the exceptions of the statute. Midthun v. N.D. Workforce Safety & Ins., 2009 ND 22, 761 N.W.2d 572, 2009 N.D. LEXIS 22 (N.D. 2009).

Excercise of the waiver provision in N.D.C.C. § 65-05-10(2) was interpreted as discretionary rather than mandatory because there was no indication that a mandatory requirement was intended by the legislature. Midthun v. N.D. Workforce Safety & Ins., 2009 ND 22, 761 N.W.2d 572, 2009 N.D. LEXIS 22 (N.D. 2009).

Collateral References.

Workers’ Compensation: Tips or gratuities as factor in determining amount of compensation, 16 A.L.R.5th 191.

Construction and application of state workers’ compensation laws to claim for hearing loss — Resulting from single traumatic accident or event, 90 A.L.R.6th 425.

Constitutionality.

A worker’s right to receive partial permanent impairment benefits is not contractual in nature, and thus the application of this section to a worker injured before its effective date did not violate the constitutional prohibition against impairment of contract rights. Saari v. North Dakota Workers Compensation Bur., 1999 ND 144, 598 N.W.2d 174, 1999 N.D. LEXIS 173 (N.D. 1999).

Benefit Rates.

Permanent impairment awards are to be based on the rate in effect at the time the impairment is determined, rather than the rate in effect on the date of injury. Gregory v. North Dakota Workmen's Compensation Bureau, 369 N.W.2d 119, 1985 N.D. LEXIS 334 (N.D. 1985).

The right to receive permanent partial impairment benefits vests on the date eligibility is determined, not on the date of injury or the date of maximum medical improvement. Saari v. North Dakota Workers Compensation Bur., 1999 ND 144, 598 N.W.2d 174, 1999 N.D. LEXIS 173 (N.D. 1999).

Benefits Not Exclusive.

Since disability awards under former N.D.C.C. § 65-05-12 were based on the medical condition of the claimant, such awards did not exclude an additional award of permanent total disability under N.D.C.C. § 65-05-09. Buechler v. North Dakota Workmen's Compensation Bureau, 222 N.W.2d 858, 1974 N.D. LEXIS 162 (N.D. 1974).

Chronic Pain.

Where the claimant did not present medical evidence establishing that he was suffering from chronic pain nor that he was diagnosed with chronic pain syndrome, he was not entitled to a chronic pain syndrome evaluation under Chapter 15 of the AMA Guides Fourth Edition in order to assess an additional impairment based on chronic pain. Feist v. North Dakota Workers Compensation Bureau (Northern Bottling Co.), 1997 ND 177, 569 N.W.2d 1, 1997 N.D. LEXIS 196 (N.D. 1997).

Combination of Ratings.

The AMA Guides do not preclude the Workers Compensation Bureau from combining the ratings and awards for two separate claims pertaining to two separate anatomical impairments. Feist v. North Dakota Workers Compensation Bureau (Northern Bottling Co.), 1997 ND 177, 569 N.W.2d 1, 1997 N.D. LEXIS 196 (N.D. 1997).

This section as amended in 2001 requires that the total permanent impairment award given to workers with both prior and subsequent impairments must correspond to the combined value of all the prior and subsequent impairments on a whole-body impairment basis. Shiek v. N.D. Workers Comp. Bureau, 2002 ND 85, 643 N.W.2d 721, 2002 N.D. LEXIS 93 (N.D. 2002).

District court erred in affirming an administrative law judge’s order concluding that an injured employee was entitled to both the scheduled impairment award for vision loss and the whole body impairment award for his additional injuries because Workforce Safety and Insurance correctly determined that he was entitled to the greater of the combined rating for all accepted impairments under the AMA Guides or the injury schedule and the subject statute provided the greater permanent impairment multiplier. State v. Avila, 2020 ND 90, 942 N.W.2d 811, 2020 N.D. LEXIS 90 (N.D. 2020).

Construction of Award.

The term “weeks” in claimant’s permanent partial impairment award meant nothing more than dollars as compensation for loss of bodily function, did not substitute for periodic payments, and was not subject to social security offset. Frost v. Chater, 952 F. Supp. 659, 1996 U.S. Dist. LEXIS 13442 (D.N.D. 1996).

Factors Affecting Recovery.

Claimant who suffered five percent permanent partial disability due to partial loss of use of ankle was limited to recovery under schedule contained in former N.D.C.C. § 65-05-13 and was not entitled to have her earning capacity, age, or training considered in determining the amount of the award. Ambroson v. North Dakota Workmen's Compensation Bureau, 210 N.W.2d 85, 1973 N.D. LEXIS 112 (N.D. 1973).

Loss of Vision.

Bureau correctly applied former N.D.C.C. § 65-05-13, rather than former N.D.C.C. § 65-05-12, in determining and issuing a permanent partial impairment award to accident victim for injury to left eye resulting in partial loss of vision in such eye where the victim had an amblyopic defect in his right eye, which defect existed prior to the compensable injury to the left eye and which was not involved in the accident. Kavonius v. North Dakota Workmen's Compensation Bureau, 306 N.W.2d 209, 1981 N.D. LEXIS 292 (N.D. 1981).

Medical Opinion.

Where there was undisputed medical opinion of permanent partial impairment, and the workers compensation bureau failed to adequately explain its reasons for disregarding that evidence, the bureau erred in not finding that the claimant was entitled to benefits for permanent partial impairment. Hayes v. North Dakota Workers Compensation Bureau, 425 N.W.2d 356, 1988 N.D. LEXIS 151 (N.D. 1988).

Where the only medical evidence in the record showed that the claimant had a permanent partial impairment, both physicians discerned pain and its effect, and they identified objective evidence indicative of impairment, the workers compensation bureau erred in denying compensation solely because the claimant’s impairment was not substantiated by objective medical evidence under the American medical association’s guides to the evaluation of permanent impairment. Accordingly, the action was remanded for further proceedings by the bureau to determine the extent of impairment. Kroeplin v. North Dakota Workmen's Compensation Bureau, 415 N.W.2d 807, 1987 N.D. LEXIS 440 (N.D. 1987).

While injured employee’s doctor is required to report when employee reaches maximum medical improvement under subsection (5) of this section, such a report is not binding on the Workers Compensation Bureau. Sprunk v. North Dakota Workers Compensation Bureau, 1998 ND 93, 576 N.W.2d 861, 1998 N.D. LEXIS 88 (N.D. 1998).

District court properly held an administrative law judge erred in finding an employee had a 50% permanent partial impairment rating because the evidence was insufficient to establish a medical report relied on was based on the sixth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA Guides), as the report, while using similar language, did not state the report’s evaluation was conducted under the AMA Guides, and no finding or evidence showed which edition of the AMA Guides the report’s author might “likely” have used. State v. Beaulieu, 2018 ND 213, 917 N.W.2d 211, 2018 N.D. LEXIS 217 (N.D. 2018).

Notification of Benefit Availability.

Claimants do not have a clear legal right to require the workers’ compensation bureau to notify them of the availability of impairment benefits. Tooley v. Alm, 515 N.W.2d 137, 1994 N.D. LEXIS 89 (N.D. 1994).

Law Reviews.

Are Employees Obtaining “Sure and Certain Relief” Under the 1995 Legislative Enactments of the North Dakota Workers’ Compensation Act?, 72 N.D. L. Rev. 349 (1996).

Applicability.

Because the administrative law judge determined that an employee sustained a compensable injury, and his compensable injury could combine with a noncompensable injury, disease, or other condition, as contemplated under the statute, the case was remanded to determine whether the statute applied and, if so, the proper calculation for an award of benefits to the employee. State v. Sandberg, 2021 ND 39, 956 N.W.2d 342, 2021 N.D. LEXIS 39 (N.D. 2021).

Aggravation of Preexisting Condition.

Where claimant was mentally defective prior to accident upon which claim was based, and mental deterioration followed, but because of claimant’s low original mentality, any further aggravation was said by experts to be immeasurable, claimant was allowed to recover an award of ten percent disability, or the minimum award for aggravation, even though claimant was totally disabled. Bender v. North Dakota Workmen's Compensation Bureau, 139 N.W.2d 150, 1965 N.D. LEXIS 91 (N.D. 1965).

Interpreting the 1997 version of this section, North Dakota Bureau of Workers Compensation properly applied the aggravation statute where a reasoning mind reasonably could have found from the evidence that claimant had preexisting fibromyalgia which caused substantial interference with her functioning, and that the work injury substantially aggravated claimant’s underlying preexisting fibromyalgia. Mikkelson v. North Dakota Workers Compensation Bureau, 2000 ND 67, 609 N.W.2d 74, 2000 N.D. LEXIS 82 (N.D. 2000).

Employee did not suffer a compensable injury to the back under N.D.C.C. § 65-01-02(10)(b)(7) [now subsec. (11)(b)(7)] because the injury was attributable to a pre-existing injury suffered in a car accident; moreover, the employee was unable to establish that the condition was substantially accelerated or worsened by the conditions of employment, which included standing, lifting, and walking. Myhre v. N.D. Workers Comp. Bureau, 2002 ND 186, 653 N.W.2d 705, 2002 N.D. LEXIS 239 (N.D. 2002).

Applicability.

This section applies when a “new” work injury “combines with” and aggravates a preexisting condition. Bruns v. North Dakota Workers Compensation Bureau, 1999 ND 116, 595 N.W.2d 298, 1999 N.D. LEXIS 92 (N.D. 1999).

Where a claimant did not introduce any evidence that his back condition constituted an aggravation of a compensable injury by a nonemployment injury as distinguished, from a new injury to the same area of his back, compensation was not granted for a non-work-related injury. Nohr v. North Dakota Workers Compensation Bureau, 419 N.W.2d 545, 1988 N.D. App. LEXIS 6 (N.D. Ct. App. 1988).

Computation of Compensation.

Aggravation of a preexisting condition by a compensable injury is compensable on a proportionate basis. Darnell v. North Dakota Workers Compensation Bureau, 450 N.W.2d 721, 1990 N.D. LEXIS 6 (N.D. 1990).

Computation of Degree of Aggravation.

Question of the degree to which an industrial accident aggravated a preexisting coronary disease and combined with it to bring about the death of claimant’s decedent was one of fact to be determined after the taking of evidence by the workmen’s compensation board, and the excuse that medical testimony was difficult to obtain for apportionment purposes was not sufficient to justify the board’s practice of awarding 50% of full benefits in all heart attack cases; therefore, where it was settled that claimant was entitled to some compensation, and in the absence of an evidentiary hearing to determine the proper percentage apportionment, she was entitled to receive full benefits. Stout v. North Dakota Workmen's Compensation Bureau, 253 N.W.2d 429, 1977 N.D. LEXIS 278 (N.D. 1977).

Where the workers compensation bureau ignored the testimony of three doctors indicating aggravation of the claimant’s chondromalacia by stair climbing, but it was obvious that the claimant suffered considerable impact to her knees from the repetitive climbing of stairs during her work, the findings of fact made by the agency were not supported by a preponderance of the evidence, and by ignoring the effect of the distinctive conditions of her job, the bureau did not make a just determination of her claim. Moses v. North Dakota Workers Compensation Bureau, 429 N.W.2d 436, 1988 N.D. LEXIS 255 (N.D. 1988).

“Condition”.

To activate the aggravation statute, a preexisting condition must be accompanied by an actual impairment or disability known in advance of the work-related injury. Darnell v. North Dakota Workers Compensation Bureau, 450 N.W.2d 721, 1990 N.D. LEXIS 6 (N.D. 1990).

Construction with Other Laws.

Under this section, read together with N.D.C.C. § 26.1-41-13(1), and in light of their respective purposes, defendant insurer could not offset workers’ compensation benefits after the Workers Compensation Bureau had applied subsection (4) (see now (3)) of this section and had reduced plaintiff ’s benefits by fifty percent as a result of an injury sustained in a later motor vehicle accident not related to his employment. Kroh v. American Family Ins., 487 N.W.2d 306, 1992 N.D. LEXIS 112 (N.D. 1992).

Death Benefit Claim.

This section is applicable to a death benefit claim. Balliet v. North Dakota Workmen's Compensation Bureau, 297 N.W.2d 791, 1980 N.D. LEXIS 294 (N.D. 1980).

Distinction Between Injuries.

This section expressly differentiates between “injuries” when it says “[i]n case of aggravation of a prior compensable injury by a nonemployment injury, the aggravation statute may be invoked where the nonemployment injury acts upon the prior compensable injury.” Kroh v. American Family Ins., 487 N.W.2d 306, 1992 N.D. LEXIS 112 (N.D. 1992).

Everyday Activity.

Under subdivision (3) (see now (2)) of this section, “[t]he aggravation statute may not be invoked if the result is but a natural progression of the compensable injury.” Thus, in some sense, an everyday activity or event can never substantially contribute to the severity, acceleration, or progression of a condition. Roggenbuck v. North Dakota Workers Compensation Bureau, 481 N.W.2d 599, 1992 N.D. LEXIS 47 (N.D. 1992).

Incident Precipitating Need for Treatment.

The fact that an incident precipitated the need for treatment, or precipitated an injury’s becoming disabling does not necessarily mean that such an event substantially contributed to the severity, acceleration, or progression of the condition or that it was a substantial factor in it. Roggenbuck v. North Dakota Workers Compensation Bureau, 481 N.W.2d 599, 1992 N.D. LEXIS 47 (N.D. 1992).

The fact that a person would not have immediately required surgery had the precipitating event not occurred does not necessarily mean the event was in any way a substantial factor. Roggenbuck v. North Dakota Workers Compensation Bureau, 481 N.W.2d 599, 1992 N.D. LEXIS 47 (N.D. 1992).

Legislative Intent.

The legislature’s failure to express its intention to offset workers’ compensation benefits reduced by application of the aggravation statute, shows its intent that there be no such offset. Kroh v. American Family Ins., 487 N.W.2d 306, 1992 N.D. LEXIS 112 (N.D. 1992).

Out-of-State Injury.

An injury which occurs in another state and which does not fall within provisions of N.D.C.C. § 65-08-01 is not compensable injury for purposes of this section, and if an out-of-state injury is aggravated by compensable injury occurring in North Dakota, benefits are to be apportioned in accordance with this section. Johnson v. North Dakota Workmen's Compensation Bureau, 344 N.W.2d 480, 1984 N.D. LEXIS 248 (N.D. 1984).

Prior Physical Condition.

—In General.

If injury is proximate cause of death or disability for which compensation is sought, physical condition of employee at and prior to time of injury is important only if injury for which compensation is sought was occasioned by disease that existed prior to injury. TWETEN v. NORTH DAKOTA WORKMEN'S COMPENSATION BUR., 69 N.D. 369, 287 N.W. 304, 1939 N.D. LEXIS 163 (N.D. 1939).

Purpose.

The obvious purpose of the 1981 amendment to this section is to bar payment of workers’ compensation benefits for whatever aggravation that a nonemployment injury causes to a prior compensable injury. Providing benefits only for work-related injury and not for aggravation to work-related injury by nonemployment injury is in accord with the purpose of the Workers’ Compensation Act, to provide sure and certain relief for workers injured in their employment. Kroh v. American Family Ins., 487 N.W.2d 306, 1992 N.D. LEXIS 112 (N.D. 1992).

Structural Weakness of Claimant.

This statute applies only to aggravation of an existing disease and does not require or permit a structural weakness to be considered in allowance of compensation. TWETEN v. NORTH DAKOTA WORKMEN'S COMPENSATION BUR., 69 N.D. 369, 287 N.W. 304, 1939 N.D. LEXIS 163 (N.D. 1939).

Aggravation of Preexisting Condition.

Determination that worker’s prior knee injury was a preexisting condition at the time of his work-related knee injury was supported by the evidence. Bruns v. North Dakota Workers Compensation Bureau, 1999 ND 116, 595 N.W.2d 298, 1999 N.D. LEXIS 92 (N.D. 1999) (applying 1989 version of statute).

Law Reviews.

Evidence in Workmen’s Compensation Cases, Daniel E. Buchanan, 54 N.D. L. Rev. 173 (1977).

Marriage of Child, Annulment.

Where incompetent child of deceased employee has her marriage annulled because of such incompetency, thus avoiding marriage ab initio, incompetent is entitled to receive compensation from bureau as though no marriage ceremony ever took place. First Nat'l Bank v. North Dakota Workmen's Compensation Bureau, 68 N.W.2d 661, 1955 N.D. LEXIS 90 (N.D. 1955).

Separate Dependency Rights.

Claims of parents against workers’ compensation fund, based upon dependency, are separate claims upon which each parent may have separate right of appeal to district court. Weisgerber v. Workmen's Compensation Bureau, 70 N.D. 165, 292 N.W. 627, 1940 N.D. LEXIS 157 (N.D. 1940).

Rights of claimants to participate in fund because of dependency upon deceased insured employee are individual rights, and claims asserting such rights are separate claims. Weisgerber v. Workmen's Compensation Bureau, 70 N.D. 165, 292 N.W. 627, 1940 N.D. LEXIS 157 (N.D. 1940).

Collateral References.

Statute permitting new action after failure of original action commenced within period of limitations, as applicable in cases where original action failed for lack of jurisdiction, 6 A.L.R.3d 1043.

Acceptance as Waiver of Future Benefits.

Injured worker who agreed after consulting with counsel to forego any further disability benefits in exchange for a lump sum settlement from Workers Compensation Bureau was bound by the terms of the agreement and could not subsequently reapply for disability benefits based on a subsequent significant change in his medical condition. Kerzman v. North Dakota Workers Compensation Bureau, 1999 ND 44, 590 N.W.2d 888, 1999 N.D. LEXIS 48 (N.D. 1999).

Attorney Fees.

Bureau exceeded its statutory authority by denying a claimant attorney fees for representation before the bureau on his request for a lump sum settlement on the ground that his claim had not been “denied or reduced” under an administrative regulation adopted by the bureau. Moore v. North Dakota Workmen's Compensation Bureau, 374 N.W.2d 71, 1985 N.D. LEXIS 388 (N.D. 1985).

Inclusion of the phrase “or a lump sum stipulated to by the claimant after an opportunity to seek legal counsel” was not prompted by any concern to differentiate between instances in which attorney fees shall be paid for claimants seeking a lump sum settlement. Rather, the only intent that can be discerned for the amendment was to preserve the bureau’s general fund by allowing the bureau to pay a claimant less than it would otherwise have been required under the statute. Moore v. North Dakota Workmen's Compensation Bureau, 374 N.W.2d 71, 1985 N.D. LEXIS 388 (N.D. 1985).

Authority of Bureau.

The authority for the bureau to make a lump sum payment is given in this section. A lump sum “may” be paid if the bureau “determines [that] it is in the best interest of the claimant.” Schiff v. North Dakota Workers' Compensation Bureau, 480 N.W.2d 732, 1992 N.D. LEXIS 23 (N.D. 1992).

The bureau is not compelled to make a lump sum payment whenever a disabled claimant believes that it is in his “economic best interest.” Schiff v. North Dakota Workers' Compensation Bureau, 480 N.W.2d 732, 1992 N.D. LEXIS 23 (N.D. 1992).

Future Benefits.

The ordinary meaning of the phrase “present value of future payments,” with this section is the amount which, if presently received, could be invested in order to yield the sum of future benefits. Thus, present value has nothing to do with past due benefits. Effertz v. North Dakota Workers' Compensation Bureau, 481 N.W.2d 218, 1992 N.D. LEXIS 28 (N.D. 1992).

No Interest on Delayed Benefits.

This section merely authorized the bureau to pay a lump sum settlement if it is in the best interest of the claimant, the sum to be calculated by using standard mortality tables for all future payments of benefits. But, the court cannot discern any language within this section that authorizes the bureau to pay interest on delayed benefits. Effertz v. North Dakota Workers' Compensation Bureau, 481 N.W.2d 218, 1992 N.D. LEXIS 28 (N.D. 1992).

Power Limited to Bureau.

Express power to make lump-sum award, or to ascertain its necessity is not conferred upon, nor possessed by court, but is limited to discretion of bureau. Gotchy v. North Dakota Workmen's Compensation Bureau, 49 N.D. 915, 194 N.W. 663, 1923 N.D. LEXIS 42 (N.D. 1923).

Collateral References.

Workers’ Compensation: Tips or gratuities as factor in determining amount of compensation, 16 A.L.R.5th 191.

Aggravation Benefits.

The 1995 amendment to this section, which precludes aggravation benefits if the employee undertakes activities exceeding the treatment recommendations of his physician, applied to claimant’s reapplication for aggravation benefits where claimant did not have the right to claim aggravation benefits at the time of the original 1992 injury, but rather only at the time the aggravation occurred in 1997. Tangen v. North Dakota Workers Compensation Bureau, 2000 ND 135, 613 N.W.2d 490, 2000 N.D. LEXIS 140 (N.D. 2000).

Appointment of Third Physician.

Claimant was not entitled to appointment of third physician due to disagreement of two physicians where both physicians had been designated by the claimant and paid by the bureau; this section applied only when there was a disagreement between a physician selected and paid by the bureau and a physician selected and paid by the claimant. Ambroson v. North Dakota Workmen's Compensation Bureau, 210 N.W.2d 85, 1973 N.D. LEXIS 112 (N.D. 1973).

Burden of Proof.

If the employer or the Bureau invokes this section, legislative history demonstrates an intention to place the burden upon them to demonstrate that the employee performed activities beyond his restrictions. Tangen v. North Dakota Workers Compensation Bureau, 2000 ND 135, 613 N.W.2d 490, 2000 N.D. LEXIS 140 (N.D. 2000).

Intentional Obstruction of Testing.

A claimant who attempts to manipulate a functional capacity evaluation by willfully failing to perform to the full extent of his or her abilities may be found to have intentionally obstructed the test, and benefits may be suspended under N.D.C.C. § 65-05-28(4). Zueger v. North Dakota Workers Compensation Bureau, 1998 ND 175, 584 N.W.2d 530, 1998 N.D. LEXIS 190 (N.D. 1998).

Knowing and Intentionally Exceeding Work Restrictions.

District court’s judgment denying benefits reversed and case remanded where the Bureau’s findings failed to support an application of this section where neither the Bureau nor the ALJ determined that claimant knew of the specific light work restrictions and intentionally exceeded those known restrictions. Holen v. North Dakota Workers Compensation Bureau, 2000 ND 145, 615 N.W.2d 141, 2000 N.D. LEXIS 156 (N.D. 2000).

Payment of Cross-Examination.

Where, in disagreement between physicians making examination on part of bureau and employee’s physician, bureau appointed impartial physician, bureau could refuse to pay expenses of cross-examination of its physician or physicians by claimant. Froysland v. North Dakota Workers Compensation Bureau, 432 N.W.2d 883, 1988 N.D. LEXIS 233 (N.D. 1988).

Proximity to Claimant.

In a workers’ compensation case, a benefits claimant failed to show prejudice because an independent medical examination was not conducted closer to his residence; the claimant failed to show how that prejudiced him or discredited the opinion of his physician. Whedbee v. N.D. Workforce Safety, 2014 ND 79, 845 N.W.2d 632, 2014 N.D. LEXIS 90 (N.D. 2014).

Suspension of Benefits.

The legislature intended different meaning for the words “examination” and “treatment” used in this section; the Bureau may suspend benefits for an employee’s refusal to reasonably participate under subsection (4) only if the particular procedure constituted “treatment.” Ali v. North Dakota Workers Compensation Bureau, 1998 ND 146, 583 N.W.2d 115, 1998 N.D. LEXIS 168 (N.D. 1998).

Bureau’s decision to suspend benefits because worker failed to “reasonably participate” in examination was not in accordance with law; this section only provides for suspension of benefits for refusing to submit to or “intentionally obstructing” examination, as failure to “reasonably participate” refers to the worker’s involvement in the treatment. Ali v. North Dakota Workers Compensation Bureau, 1998 ND 146, 583 N.W.2d 115, 1998 N.D. LEXIS 168 (N.D. 1998).

Workforce Safety and Insurance’s decision to discontinue a worker’s benefits was supported by a preponderance of the evidence where the worker failed to provide sufficient evidence of a good cause for her failure to attend an independent medical examination. Bjerklie v. Workforce Safety & Ins., 2005 ND 178, 704 N.W.2d 818, 2005 N.D. LEXIS 209 (N.D. 2005).

Where WSI properly terminated a claimant’s benefits under N.D.C.C. §§ 65-05.1-04, 65-05-28(4) for the claimant’s noncompliance with a functional capacity evaluation, a district court abused its discretion in finding that WSI acted without substantial justification and in awarding attorney’s fees under N.D.C.C. § 28-32-50. Drayton v. Workforce Safety & Ins., 2008 ND 178, 756 N.W.2d 320, 2008 N.D. LEXIS 180 (N.D. 2008).

North Dakota Workforce Safety and Insurance (WSI) erred in finding that the employee failed to show that his wage loss was the result of his compensable left shoulder injury because the fact that his noncompensable vertebral artery occlusion made it impractical for him to either return to work or undergo surgery necessary to return him to employment did not break the causal connection, the employee had not unreasonably refused to undergo surgery for his left shoulder injury, and WSI's notice of intention to discontinue/reduce benefits seemed to foreclose a functional capacity assessment. Brockel v. N.D. Workforce Safety & Ins., 2014 ND 26, 2014 N.D. LEXIS 24 (Feb. 13, 2014).

Collateral References.

Employee’s reimbursement for travel expenses incurred in obtaining treatment of work-related injury, 36 A.L.R.5th 225.

Law Reviews.

North Dakota Supreme Court Review, 77 N.D. L. Rev. 589 (2001).

Authority of Bureau.

Subdivision (3) (now (1)(c)(1)) authorizes the bureau to make a claim for payments made, among other reasons, due to innocent misrepresentations by a recipient, or “made under an erroneous adjudication.” Johnson v. North Dakota Workers' Compensation Bureau, 484 N.W.2d 292, 1992 N.D. LEXIS 105 (N.D. 1992).

Collateral References.

Right of health or accident insurer to intervene in workmen’s compensation proceeding to recover benefits previously paid to claimant or beneficiary, 38 A.L.R.4th 355.

Double Jeopardy.

The Supreme Court would not consider whether worker’s criminal judgment for making a false statement and the subsequent imposition of a penalty under this section for his failure to report income while receiving disability benefits constituted double jeopardy based on counsel’s bald assertion first raised on appeal. Unser v. North Dakota Workers Compensation Bur., 1999 ND 129, 598 N.W.2d 89, 1999 N.D. LEXIS 149 (N.D. 1999).

The administrative remedy for making a false claim or false statement to the Workers Compensation Bureau is a civil sanction, and therefore a subsequent criminal prosecution of the worker does not violate the Double Jeopardy Clause of the federal constitution. State v. Stewart, 1999 ND 154, 598 N.W.2d 773, 1999 N.D. LEXIS 169 (N.D. 1999).

Defendant was properly convicted of workers’ compensation fraud under N.D.C.C. § 65-05-33 and N.D.C.C. § 65-05-08 after pleading guilty, and was not protected from criminal prosecution pursuant to double jeopardy because the administrative proceeding for reimbursement of benefits paid was considered civil sanction under N.D.C.C. § 65-05-33. State v. Hammer, 2010 ND 152, 787 N.W.2d 716, 2010 N.D. LEXIS 159 (N.D. 2010).

Due Process.

The employee’s due process rights were not violated when the North Dakota Workers Compensation Bureau (Bureau) terminated his benefits without a hearing as the employee had notice of the termination of benefits, a summary of the Bureau’s evidence, and the opportunity to respond in writing. Sjostrand v. N.D. Workers Comp. Bureau, 2002 ND 125, 649 N.W.2d 537, 2002 N.D. LEXIS 168 (N.D. 2002), cert. denied, 538 U.S. 928, 123 S. Ct. 1578, 155 L. Ed. 2d 321, 2003 U.S. LEXIS 2274 (U.S. 2003).

Expert Testimony.

N.D.C.C. § 65-02-24 did not compel a claimant’s treating physician to become an expert for the Workforce Safety and Insurance’s investigations into alleged violations of N.D.C.C. § 65-05-33 outside of the treating physician’s (or physician’s assistant) examination or treatment of the claimant. State v. Altru Health Sys., 2007 ND 38, 729 N.W.2d 113, 2007 N.D. LEXIS 38 (N.D. 2007).

Failure to Report Income.

Evidence was sufficient to support Workers Compensation Bureau’s finding that worker had willfully failed to report income while receiving disability benefits, and to support both forfeiture of future benefits and compulsory reimbursement of the benefits already received. Unser v. North Dakota Workers Compensation Bur., 1999 ND 129, 598 N.W.2d 89, 1999 N.D. LEXIS 149 (N.D. 1999).

Forfeiture of Future Benefits.

Where employee claimed workers’ compensation benefits and made a false statement about his prior medical history, in that he falsely reported that he had not had prior problems or injuries to the back, the worker’s compensation bureau reasonably determined that claimant’s false statement was sufficiently material to support a forfeiture of future benefits, even though it was not material enough to cause the bureau to pay initial benefits. F.O.E. Aerie 2337 v. North Dakota Workers Compensation Bureau, 464 N.W.2d 197, 1990 N.D. LEXIS 259 (N.D. 1990).

In worker’s reapplication for benefits, his misstatement of his last day of work with the employer, his false statement that his physician had advised him not to work, coupled with his false statement to a Bureau claims analyst that his new job involved light duty work “pushing buttons” when in fact it involved physical labor, were sufficiently material to warrant forfeiture of future benefits. Renault v. North Dakota Workers Compensation Bureau, 1999 ND 187, 601 N.W.2d 580, 1999 N.D. LEXIS 207 (N.D. 1999).

Based on the common understanding of work, claimant made a false statement when he reported no work activity while entering as a professional in major fishing tournaments, representing a marine store at boat shows, assisting on the sales floor, accepting entrance fees paid for by the store, and buying a new boat each season at a discounted price. Furthermore, the false statements were material and willful with regard to forfeiture of future benefits as they could have misled the Bureau to consider claimant’s physical capabilities unchanged and not pursue further inquiry into the true nature of his physical activities. Jacobson v. North Dakota Workers Compensation Bureau, 2000 ND 225, 621 N.W.2d 141, 2000 N.D. LEXIS 277 (N.D. 2000).

Order terminating an employee’s workers compensation benefits was reversed and remanded because the bureau did not prove that the employee willfully made a material false statement justifying forfeiture of future benefits under this section. The employee’s failure to report the receipt of money from the sale of vegetables was not material because the amount of money did not equal 10 percent of his income under N.D.C.C. § 65-05-08(8), the bureau did not provide the notice of penalties required by N.D.C.C. § 65-05-08(3), and the employee’s failure to report his gardening and harvest activities were not willful because casual activities not engaged in for remuneration or for an employer are not reasonably understood to be work. Wanner v. N.D. Workers Comp. Bureau, 2002 ND 201, 654 N.W.2d 760, 2002 N.D. LEXIS 272 (N.D. 2002).

Imposition of Sanctions.

The worker’s compensation bureau has the authority to impose administrative sanctions under this section upon its finding of a violation of such statute, regardless of whether the claimant is even prosecuted or convicted under the section. Hayden v. North Dakota Workers Compensation Bureau, 447 N.W.2d 489, 1989 N.D. LEXIS 191 (N.D. 1989).

Intentionality and Materiality.

—Evidence.

Evidence that a worker participated in an aerobics class, played golf, and engaged in weightlifting supported the Workers Compensation Bureau’s determination that the worker’s statements to medical providers about back pain, sitting intolerance, and lack of significant medical change over a four-year period were false. Vernon v. North Dakota Workers Compensation Bur., 1999 ND 153, 598 N.W.2d 139, 1999 N.D. LEXIS 168 (N.D. 1999).

Although there was substantial evidence regarding the nature and extent of the claimant’s work activities and income, in addition to her level of physical activity, from which a reasoning mind could reasonably have found that the claimant purposefully and intentionally made false statements, her misrepresentations had not caused workforce safety and insurance (WSI) to pay medical benefits in error or caused WSI to pay disability benefits in error after her surgery, as WSI had not provided any evidence that any of the medical benefits paid after that date would not have been paid as a result of the claimant’s work-related injuries. Forbes v. Workforce Safety & Ins. Fund, 2006 ND 208, 722 N.W.2d 536, 2006 N.D. LEXIS 211 (N.D. 2006).

There was substantial evidence regarding the nature and extent of the claimant’s work activities and income, in addition to her level of physical activity, from which a reasoning mind could reasonably have found that the claimant purposefully and intentionally made false statements; the false statements were material with regard to both the forfeiture of all future benefits and to the reimbursement of all disability benefits paid by workforce safety and insurance (WSI) up to the surgery performed on the claimant. Forbes v. Workforce Safety & Ins. Fund, 2006 ND 208, 722 N.W.2d 536, 2006 N.D. LEXIS 211 (N.D. 2006).

North Dakota Workforce Safety and Insurance (WSI) failed to prove that an employee made willful and material false statements in his claim for benefits because it had the employee’s medical records, it did not ask the employee about the chiropractic treatment, and the decision did not adequately explain the interrelationship of those records with WSI’s inconsistent findings about willfulness and with its conclusory statement that the employee’s failure to disclose the treatment was material. Schoch v. N.D. Workforce Safety & Ins., 2010 ND 25, 778 N.W.2d 542, 2010 N.D. LEXIS 26 (N.D. 2010).

Administrative law judge misinterpreted the statute when deciding a worker's false statements that the worker had received no money for work from any source other than Workforce Safety and Insurance were not willful because (1) the definition of “work” given to the worker did not except the worker's efforts assisting a brother in running a business, and (2) “willfully” only required the statements to be intentional in connection with a claim, so proof of intent to defraud was not required. Welch v. Workforce Safety & Ins., 2017 ND 210, 900 N.W.2d 822, 2017 N.D. LEXIS 212 (N.D. 2017).

—In General.

To trigger the statutory consequences of this section, a false statement must be intentional, not inadvertent, and material, not peripheral. F.O.E. Aerie 2337 v. North Dakota Workers Compensation Bureau, 464 N.W.2d 197, 1990 N.D. LEXIS 259 (N.D. 1990).

This section requires a materiality test to be applied to determine whether the false claim or false statement caused benefits to be paid in error, and allows for forfeiture of additional benefits in the future, whether or not the false claim or false statement is de minimis, because false statements should have some consequence. But a false statement must be intentional to trigger thee statutory consequences. F.O.E. Aerie 2337 v. North Dakota Workers Compensation Bureau, 464 N.W.2d 197, 1990 N.D. LEXIS 259 (N.D. 1990).

A false statement may be sufficiently material to support forfeiture of future benefits, even though it was not sufficiently material to mislead the bureau into paying initial benefits or to require the reimbursement of initial benefits. Dean v. North Dakota Workers Compensation Bureau, 1997 ND 165, 567 N.W.2d 626, 1997 N.D. LEXIS 184 (N.D. 1997).

In addition to proving that a false statement was made, the bureau must prove that the false statement was made intentionally. Hopfauf v. North Dakota Workers Compensation Bureau, 1998 ND 40, 575 N.W.2d 436, 1998 N.D. LEXIS 28 (N.D. 1998).

Claimant willfully and intentionally made material false statements when claiming he had not performed any work where credible evidence was presented that claimant acted as an auctioneer and ringmaster at approximately 35 auctions during the time he was receiving benefits. Hopfauf v. North Dakota Workers Compensation Bureau, 2000 ND 94, 610 N.W.2d 60, 2000 N.D. LEXIS 99 (N.D. 2000).

While the Bureau should have stated more specifically why it discounted medical evidence in the claimant’s favor regarding his inability to willfully make false statements to the Bureau, the weight of the evidence supported the Bureau’s finding that the claimant could indeed act willfully, for example, when he operated a forklift, did landscaping, operated a Bobcat, did concrete finishing, worked with sheet metal, worked on garage doors, did bookkeeping work for his business, and made bank deposits. Horob v. North Dakota Workers Compensation Bureau, 2000 ND 114, 611 N.W.2d 875, 2000 N.D. LEXIS 112 (N.D. 2000).

Bureau did not err in finding that claimant willfully made material false statements in his claims to the Bureau for reimbursement of mileage for doctors visits where claimant’s niece’s testimony about the trips along with other circumstantial evidence was sufficient to support that finding by a preponderance of the evidence. Aalund v. North Dakota Workers Compensation Bureau, 2001 ND 32, 622 N.W.2d 210, 2001 N.D. LEXIS 28 (N.D. 2001).

Claimant willfully made false statements in connection with his claim where he failed to report activities as work, within the common understanding of work, and failed to report income from those activities under N.D.C.C. § 65-05-08(3), both of which impeded the Bureau’s process of determining eligibility. Snyder v. North Dakota Workers Compensation Bureau, 2001 ND 38, 622 N.W.2d 712, 2001 N.D. LEXIS 38 (N.D. 2001).

—Forfeiture of Future Benefits.

If the bureau is seeking forfeiture of future benefits, a false claim or false statement is sufficiently material if it is a statement which could have misled the bureau or medical experts in a determination of the claim. Hausauer v. North Dakota Workers Compensation Bureau, 1997 ND 243, 572 N.W.2d 426, 1997 N.D. LEXIS 305 (N.D. 1997).

Claimant’s false statements regarding an injury occurring in 1995 did not justify termination of all future benefits related to a 1975 injury as those false statements could not have misled the Bureau or medical experts in determination of the earlier claim because the statements had nothing to do with the claimant’s continuing need for medical expense benefits related to that injury. Horob v. North Dakota Workers Compensation Bureau, 2000 ND 114, 611 N.W.2d 875, 2000 N.D. LEXIS 112 (N.D. 2000).

Where the Bureau found claimant willfully made false statements in connection with a claim, and those false statements were material and misled the Bureau in awarding him benefits, the record supported the Bureau’s finding that claimant forfeited any additional benefits because that he willfully made material false statements in his claims for reimbursement and not because he made a minor or innocent mistake. Aalund v. North Dakota Workers Compensation Bureau, 2001 ND 32, 622 N.W.2d 210, 2001 N.D. LEXIS 28 (N.D. 2001).

Where appellant submitted a claim for benefits to North Dakota Workforce Safety and Insurance (WSI) asserting that he injured his lower back while employed as a baker, he falsely indicated on the injury report that he had no prior lower back injuries; however, his medical records and chiropractic treatment records showed that he had sustained prior lower back injury in a car accident. The Supreme Court of North Dakota upheld WSI’s decision requiring appellant to forfeit future benefits under N.D.C.C. § 65-05-33 and to reimburse $11,500.47 for benefits WSI previously paid; appellant’s willful false statements were material and actually caused benefits to be paid in error. Neuhalfen v. N.D. Workforce Safety & Ins. Fund, 2009 ND 86, 765 N.W.2d 681, 2009 N.D. LEXIS 92 (N.D. 2009).

—Materality Tests.

There are differing materiality tests used to prove the materiality of a willful false statement dependent upon which civil penalty — the civil penalty of reimbursement of benefits paid and the civil penalty of forfeiture of future benefits — is sought by the bureau. Hausauer v. North Dakota Workers Compensation Bureau, 1997 ND 243, 572 N.W.2d 426, 1997 N.D. LEXIS 305 (N.D. 1997).

Two materiality tests are applied to false claims or statements under this section: if the bureau seeks reimbursement for benefits paid, the level of materiality required is proof by the bureau that the false claim or statement caused the benefits to be paid in error; however, if the bureau is seeking only forfeiture of future benefits, no such causal connection is required and a false claim or statement is sufficiently material for forfeiture if it could mislead the bureau or medical experts in a determination of the claim. Wanner v. N.D. Workers Comp. Bureau, 2002 ND 201, 654 N.W.2d 760, 2002 N.D. LEXIS 272 (N.D. 2002).

While a failure to report income from work is material to the workers compensation bureau’s ability to determine a claimant’s entitlement to benefits and to calculate the amount of benefits, a failure to report money received apart from work is not similarly material. Wanner v. N.D. Workers Comp. Bureau, 2002 ND 201, 654 N.W.2d 760, 2002 N.D. LEXIS 272 (N.D. 2002).

—Reimbursement.

If the bureau is seeking reimbursement for benefits paid, materiality requires the bureau to prove the false claim or false statement caused the benefits to be paid in error. Hausauer v. North Dakota Workers Compensation Bureau, 1997 ND 243, 572 N.W.2d 426, 1997 N.D. LEXIS 305 (N.D. 1997).

Legislative Intent.

The legislative history of this section indicates the intent was to create a penalty for anyone who accepts disability benefits for a period during which that person is actually working. Hayden v. North Dakota Workers Compensation Bureau, 447 N.W.2d 489, 1989 N.D. LEXIS 191 (N.D. 1989).

Nature of Employment.

The language of this section does not differentiate between permanent and temporary employment. Hayden v. North Dakota Workers Compensation Bureau, 447 N.W.2d 489, 1989 N.D. LEXIS 191 (N.D. 1989).

Nature of Sanctions.

A false statement in a claim can result in the claimant being required both to reimburse the worker’s compensation bureau for benefits paid and to forfeit future benefits. F.O.E. Aerie 2337 v. North Dakota Workers Compensation Bureau, 464 N.W.2d 197, 1990 N.D. LEXIS 259 (N.D. 1990).

Odd-Lot Doctrine.

The “odd-lot” doctrine, which has not been expressly adopted in this state, does not apply to the determination of whether or not there has been a violation of this section. The doctrine is used to determine whether or not a claimant is entitled to benefits due to the nature of the disability, not whether he has returned to work. Hayden v. North Dakota Workers Compensation Bureau, 447 N.W.2d 489, 1989 N.D. LEXIS 191 (N.D. 1989).

Penalized Actions.

This section penalizes three things: false claims, false statements in a claim, and acceptance of total disability benefits for a time after the claimant has returned to work. F.O.E. Aerie 2337 v. North Dakota Workers Compensation Bureau, 464 N.W.2d 197, 1990 N.D. LEXIS 259 (N.D. 1990).

Willful Under-Performance.

Worker’s willful under-performance on a functional capacity evaluation was not a “false statement” under this section. Zueger v. North Dakota Workers Compensation Bureau, 1998 ND 175, 584 N.W.2d 530, 1998 N.D. LEXIS 190 (N.D. 1998).

Law Reviews.

North Dakota Supreme Court Review (Wanner v. North Dakota Workers’ Compensation Bureau, 2002 ND 201, 654 N.W.2d 760), see 79 N.D. L. Rev. 589 (2003).

Constitutionality.

The 1992 limitations on vocational rehabilitation retraining benefits under this section did not violate claimant’s equal protection rights under either the federal constitution or N.D. Const., Art. I, § 21. Baldock v. North Dakota Workers Compensation Bureau, 554 N.W.2d 441, 1996 N.D. LEXIS 223 (N.D. 1996).

The 75% income limitation in subsection (3) (amended in 1995 to 662/3%) for returning injured workers to substantial gainful employment under this section is rationally related to a legitimate governmental purpose and therefore does not violate the equal protection clause of the Eagle v. North Dakota Workers Compensation Bureau, 1998 ND 154, 583 N.W.2d 97, 1998 N.D. LEXIS 160 (N.D. 1998).

Burden of Proof.

Claimant seeking disability and rehabilitative benefits did not have to prove that the work-related injury was the sole cause of her disability or even that it was a primary cause of that disability. To the contrary, the work injury need only have been a substantial contributing factor to the disability. Holtz v. North Dakota Workers Compensation Bureau, 479 N.W.2d 469, 1992 N.D. LEXIS 10 (N.D. 1992).

The Workers Compensation Bureau’s finding that the employee could physically perform duties as an accounting clerk was supported by the preponderance of the evidence. Held v. North Dakota Workers Compensation Bureau, 540 N.W.2d 166, 1995 N.D. LEXIS 209 (N.D. 1995).

The preponderance of the evidence supported the workers compensation bureau’s finding that the accounting clerk field for which the employee being trained would likely have employment which would be reasonably attainable upon the completion of his training. Held v. North Dakota Workers Compensation Bureau, 540 N.W.2d 166, 1995 N.D. LEXIS 209 (N.D. 1995).

Calculation of Earning Capacity.

—In General.

The worker’s average weekly earnings at the time of the injury constitute a reasonable formula for calculating earning capacity. Smith v. North Dakota Workers Compensation Bureau, 447 N.W.2d 250, 1989 N.D. LEXIS 188 (N.D. 1989) (decided prior to the 1989 amendments to this chapter).

Subsection (3) requires only that the job market present an opportunity for the employee to obtain a salary that comes as nearly as possible to the average weekly wage. Held v. North Dakota Workers Compensation Bureau, 540 N.W.2d 166, 1995 N.D. LEXIS 209 (N.D. 1995).

One of the rehabilitative goals of North Dakota’s workforce safety and insurance law was to return a disabled employee to substantial gainful employee with a minimum of retraining, as soon as possible after an injury has occurred, according to N.D.C.C. § 65-05.1-01(3). Since the evidence presented in the claimant’s case showed that the claimant could go to work as a store greeter despite wrist and shoulder pain the claimant had experienced in the claimant’s prior job, the evidence showed that the claimant had a residual earning capacity of $ 290 per week and was consistent with the establishment of earning capacity pursuant to N.D.C.C. § 65-05-10(3). Johnson v. N.D. Workforce Safety & Ins. Fund, 2012 ND 87, 816 N.W.2d 74, 2012 N.D. LEXIS 88 (N.D. 2012).

Administrative Law Judge (ALJ) erred in finding that an employee had a retained earnings capacity of zero because the ALJ misapplied the law by too broadly interpreting the term “valid”; the functional capacity evaluation, which noted that the employee gave a reliable effort, was “valid,” and the presumption of a retained earnings capacity was triggered, but the ALJ did not find by clear and convincing evidence that the presumption had been rebutted. State v. Taylor, 2019 ND 220, 932 N.W.2d 764, 2019 N.D. LEXIS 218 (N.D. 2019).

—“Earnings”.

For the purpose of subsection (3), the legislature unambiguously intended “earnings” and “wages” to be interpreted synonymously. Lucier v. North Dakota Workers Comp. Bureau, 556 N.W.2d 56 (N.D. 1996).

Employment Not Guaranteed.

This chapter does not require that the Workers’ Compensation Bureau’s rehabilitation plan guarantee plaintiff a job upon completion of the program. Thompson v. North Dakota Workers' Compensation Bureau, 490 N.W.2d 248, 1992 N.D. LEXIS 177 (N.D. 1992).

Rehabilitation plan gave claimant a reasonable opportunity to obtain substantial gainful employment in the state, and the fact some of the jobs claimant applied for may have required physical demands beyond the medium classification he was assigned under the plan did not make the plan unfeasible; neither a rehabilitation plan nor a vocational consultant can guarantee a claimant a job or a particular wage. Lucier v. North Dakota Workers Comp. Bureau, 556 N.W.2d 56 (N.D. 1996).

Good Faith Work Trial.

Where proffered employment as truck driver was at the same rate as worker had previously earned, and offered the opportunity to meet the wage threshold under the statute, because worker failed to make a good faith work trial in the job, her argument she could not drive enough miles to meet the wage threshold was purely speculative and did not excuse her failure to make a good faith work trial. Maginn v. North Dakota Workers Compensation Bureau, 550 N.W.2d 412, 1996 N.D. LEXIS 164 (N.D. 1996).

Interim Rehabilitation Benefits.

Where the bureau’s findings disclosed that claimant was not in a position to secure substantial gainful employment during the interim between the date of termination of his disability payments, and the beginning of his teaching position, and that during this interim he was disabled to the extent that he could not return to his previous employment or like employment, the bureau erred in its denial of disability and vocational rehabilitation benefits for the interim. Ehrmantraut v. North Dakota Workers Compensation Bureau, 469 N.W.2d 557, 1991 N.D. LEXIS 75 (N.D. 1991).

Legislative Intent.

The intent of the legislature was for the bureau to consider an individual’s medical limitations at the time that individual sustained a work-related injury. Holtz v. North Dakota Workers Compensation Bureau, 479 N.W.2d 469, 1992 N.D. LEXIS 10 (N.D. 1992).

No Entitlement to Retraining.

Bureau found that worker is now capable of performing unskilled laborer jobs in the “medium work” category that would give him earnings of about $4.50 an hour, which is the amount that he was receiving at the time of his injury, and that such jobs are available. The bureau correctly concluded that worker was not entitled to receive retraining, because the first appropriate option under the section was for him to return to a related occupation in the local or statewide job pool. Emery v. North Dakota Workers Compensation Bureau, 477 N.W.2d 202, 1991 N.D. LEXIS 186 (N.D. 1991).

Nonattendance.

Injured worker’s nonattendance at retraining program was not excused by the Workers Compensation Bureau’s subsequent determination that the program was an unsatisfactory retraining program. Hoffman v. North Dakota Workers Compensation Bureau, 1999 ND 66, 592 N.W.2d 533, 1999 N.D. LEXIS 70 (N.D. 1999).

Post-Injury Work.

Worker’s compensation bureau’s finding that claimant’s employer offered him a legitimate post-injury position was supported by a preponderance of the evidence. Baldock v. North Dakota Workers Compensation Bureau, 554 N.W.2d 441, 1996 N.D. LEXIS 223 (N.D. 1996).

North Dakota Workforce Safety and Insurance did not err in concluding that N.D.C.C. § 65-05.1-01(4)(e) was the first appropriate rehabilitation option based on an employee’s abilities where merely eliminating the need to lift large dogs by installing a $ 10,000 hoist mechanism would not necessarily allow the employee to perform her prior duties as a dog groomer. The employee’s projected income in another area of work would exceed her pre-injury income from the employer. Victor v. Workforce Safety & Ins., 2006 ND 68, 711 N.W.2d 188, 2006 N.D. LEXIS 73 (N.D. 2006).

In a worker’s compensation matter, several experts testified as to a claimant’s ability to obtain gainful employment as defined under N.D.C.C. § 65-05.1-01(3). A preponderance of evidence supported the decision to terminate the claimant’s benefits because it was for the North Dakota Workforce Safety and Insurance to weigh the credibility of the medical evidence and resolve conflicting medical opinions. Miller v. Workforce Safety & Ins., 2009 ND 109, 767 N.W.2d 154, 2009 N.D. LEXIS 118 (N.D. 2009).

ALJ’s finding that an injured employee was capable of performing the job of sheet metal worker identified in his vocational rehabilitation plan was supported by a preponderance of the evidence where his testimony, the testimony of his vocational manager, and the physical requirements of the job listed in the Dictionary of Occupational Titles established that kneeling was not a common job requirement. Beam v. N.D. Workforce Safety & Ins. Fund, 2020 ND 168, 946 N.W.2d 486, 2020 N.D. LEXIS 167 (N.D. 2020).

Pre-Existing Functional Limitations.

A vocational rehabilitation plan must take into account all of the injured worker’s functional limitations which existed at the time of the injury, not just those limitations directly caused by the current work injury. Svedberg v. North Dakota Workers Compensation Bureau, 1999 ND 181, 599 N.W.2d 323, 1999 N.D. LEXIS 200 (N.D. 1999).

Decision that a benefits claimant was able to return to work on a part-time basis was upheld on review because a vocational rehabilitation plan took into account the fact that the claimant had a preexisting hearing loss when it developed the plan; the proposed jobs considered the claimant’s prior 25 years in law enforcement and his explanation of the disability. Genter v. Workforce Safety & Ins. Fund, 2006 ND 237, 724 N.W.2d 132, 2006 N.D. LEXIS 240 (N.D. 2006).

Pre-Injury Earning Capacity.

The purpose of a vocational retraining program is to substantially rehabilitate a worker to his pre-injury earning capacity. Smith v. North Dakota Workers Compensation Bureau, 447 N.W.2d 250, 1989 N.D. LEXIS 188 (N.D. 1989) (decided prior to the 1989 amendments to this chapter).

A claimant is substantially rehabilitated if he can be employed to within ten percent of his pre-injury earning capacity, so that he is able, upon completion of the retraining program, to be employed at least at ninety percent of his pre-injury earning capacity. Smith v. North Dakota Workers Compensation Bureau, 447 N.W.2d 250, 1989 N.D. LEXIS 188 (N.D. 1989) (decided prior to the 1989 amendments to this chapter).

Prospective Application of Amendments to Chapter.

As S.L. 1989, chapter 771, amending and reenacting portions of this chapter, did not clearly express an intent that the amendments were to apply retroactively, the amendments must be applied only prospectively. Smith v. North Dakota Workers Compensation Bureau, 447 N.W.2d 250, 1989 N.D. LEXIS 188 (N.D. 1989) (holding however, that the amendments could be considered in order to fill a void in the preexisting legislation).

The 1989 amendments to this chapter applied to plaintiff ’s rehabilitation award where he did not sign a 1988 rehabilitation contract and therefore did not have a vested right to rehabilitation under that contract. Thompson v. North Dakota Workers' Compensation Bureau, 490 N.W.2d 248, 1992 N.D. LEXIS 177 (N.D. 1992).

Purpose.

The purpose of vocational rehabilitation is to return a disabled employee to substantial gainful employment with a minimum of retraining, as soon as possible after an injury. Hoffman v. North Dakota Workers Compensation Bureau, 1999 ND 66, 592 N.W.2d 533, 1999 N.D. LEXIS 70 (N.D. 1999).

Searching for Alternate Suitable Employment.

The workers compensation bureau reasonably found that the claimant was not entitled to rehabilitation benefits, where the claimant was aggressively searching for alternative suitable employment, and even though it was not successful, the search indicated that she had marketable skills. In re Claim of Olson, 419 N.W.2d 894, 1988 N.D. LEXIS 57 (N.D. 1988).

Nothing in N.D.C.C. § 65-05.1-02.1 requires the vocational consultant to include in the report an assessment of the worker’s specific job; instead, N.D.C.C. § 65-05.1-02(7) instructs the vocational consultant to assess the worker’s job options in light of the worker’s restrictions and limitations, to identify the category of work in which the worker can fairly engage. Johnson v. North Dakota Workers' Compensation Bureau, 539 N.W.2d 295, 1995 N.D. LEXIS 187 (N.D. 1995).

Subsequent Nonwork-Related Injuries.

An injured person with nonwork-related injuries which had occurred after a work-related injury and which had no causal connection to the work-related injury, may not have those subsequent injuries considered in a rehabilitation assessment. Holtz v. North Dakota Workers Compensation Bureau, 479 N.W.2d 469, 1992 N.D. LEXIS 10 (N.D. 1992).

Where claimant seeking disability and rehabilitative benefits did not claim that her disability was related to her employment, nor did she claim that her work-related dermatitis was a substantial contributing factor to any alleged disability, the bureau was not required to consider any medical limitation claimant suffered from subsequent nonwork-related injuries. Holtz v. North Dakota Workers Compensation Bureau, 479 N.W.2d 469, 1992 N.D. LEXIS 10 (N.D. 1992).

Substantial Gainful Employment.

Trial court erred in upholding an order terminating an employee’s total disability benefits and awarding the employee partial disability benefits where the employee could not be returned to substantial gainful employment, as defined in N.D.C.C. § 65-05.1-01(3), and did not have a retained earnings capacity to meet the income test of N.D.C.C. § 65-05.1-01(3); under the 1999 statutory scheme applicable in this case, if an injured worker could not be returned to substantial gainful employment as defined under N.D.C.C. § 65-05.1-01(3) and did not have a retained earnings capacity to meet N.D.C.C. § 65-05.1-01(3), then the injured worker was entitled to temporary total disability benefits or permanent total disability benefits. Rodenbiker v. Workforce Safety & Ins., 2007 ND 169, 740 N.W.2d 831, 2007 N.D. LEXIS 171 (N.D. 2007).

Despite a vocational consultant's report's lack of job market research, evidence supported a finding that Workforce Safety and Insurance provided the worker with a vocational rehabilitation plan that presented him with a reasonable likelihood of obtaining substantial gainful employment as an inspector-tester. Anderson v. Workforce Safety & Ins., 2015 ND 205, 868 N.W.2d 508, 2015 N.D. LEXIS 225 (N.D. 2015).

Vocational Rehabilitation.

Former ranch foreman thrown from a horse injured his left hip and pelvis, resulting in separation of pelvic cartilage. The bureau correctly ruled foreman was a candidate for vocational rehabilitation and was not entitled to lump sum payment of disability benefits where record contained no medical opinion saying that foreman’s physical condition and chronic pain precluded education and retraining. Schiff v. North Dakota Workers' Compensation Bureau, 480 N.W.2d 732, 1992 N.D. LEXIS 23 (N.D. 1992).

Evidence supported finding that an injured claimant refused to participate in rehabilitation options that were available to him; as such, the district court properly affirmed the Workforce Safety and Insurance order that terminated the award of rehabilitation benefits and partial disability benefits, pursuant to N.D.C.C. § 65-05.1-01. Tverberg v. Workforce Safety & Ins., 2006 ND 229, 723 N.W.2d 676, 2006 N.D. LEXIS 234 (N.D. 2006).

Workplace Safety and Insurance (WSI) appropriately exercised its continuing jurisdiction on its own motion, under N.D.C.C. § 65-05-04, to assess a claimant’s vocational rehabilitation and that the claimant was properly found in noncompliance with vocational rehabilitation; N.D.C.C. §§ 65-05.1-01(8)(a) also provided that WSI could initiate vocational rehabilitation services on its own motion. Drayton v. Workforce Safety & Ins., 2008 ND 178, 756 N.W.2d 320, 2008 N.D. LEXIS 180 (N.D. 2008).

Because the North Dakota Workforce Safety and Insurance (WSI) vocational rehabilitation plan to return a claimant to the same occupation with any employer was appropriate under N.D.C.C. § 65-05.1-01, where its goal was tailored to return claimant to substantial gainful employment which was reasonably attainable in light of claimant’s injury and which would substantially rehabilitate claimant’s earning capacity, the WSI adequately explained its reasons for disregarding medical evidence favorable to claimant, and its specific findings were supported by the evidence, a judgment denying claimant further benefits was affirmed. Shotbolt v. N.D. Workforce Safety & Ins., 2010 ND 13, 777 N.W.2d 853, 2010 N.D. LEXIS 13 (N.D. 2010).

Administrative law judge’s finding that the claimant was capable of performing the return-to-work options identified in her vocational rehabilitation plan was supported by a preponderance of the evidence, because the claimant’s treating neurologist was aware of her psychological impairments and treatments, and approved the identified return-to-work options. Bishop v. N.D. Workforce Safety & Ins., 2012 ND 217, 823 N.W.2d 257, 2012 N.D. LEXIS 229 (N.D. 2012).

North Dakota Workforce Safety and Insurance (WSI) erred in finding that the employee failed to show that his wage loss was the result of his compensable left shoulder injury because the fact that his noncompensable vertebral artery occlusion made it impractical for him to either return to work or undergo surgery necessary to return him to employment did not break the causal connection, the employee had not unreasonably refused to undergo surgery for his left shoulder injury, and WSI's notice of intention to discontinue/reduce benefits seemed to foreclose a functional capacity assessment. Brockel v. N.D. Workforce Safety & Ins., 2014 ND 26, 2014 N.D. LEXIS 24 (Feb. 13, 2014).

ALJ's conclusion that an injured worker's vocational rehabilitation plan was valid and properly considered his neck pain was affirmed where a treating physician's release of the worker to his pre-injury occupation allowed Workforce Safety and Insurance to reasonably conclude the worker was capable of performing his pre-injury occupation. Anderson v. Workforce Safety & Ins., 2015 ND 205, 868 N.W.2d 508, 2015 N.D. LEXIS 225 (N.D. 2015).

ALJ adequately addressed the inconsistencies in the medical opinions, provided a reasonable basis for her findings, and sufficiently explained the reasoning for her conclusion to disregard the medical evidence offered by another physician. Anderson v. Workforce Safety & Ins., 2015 ND 205, 868 N.W.2d 508, 2015 N.D. LEXIS 225 (N.D. 2015).

District court properly affirmed an order by Workforce Safety and Insurance because an employee was given a presumably viable rehabilitation option, his arguments concerning the cost of relocating or commuting were not ripe for review, his documented preexisting conditions were taken into account, and detailed findings were made with respect to his vocational rehabilitation plan. Higginbotham v. Workforce Safety, 2014 ND 147, 849 N.W.2d 233, 2014 N.D. LEXIS 160 (N.D. 2014).

Collateral References.

Workers’ compensation: vocational rehabilitation statutes, 67 A.L.R.4th 612.

Workers’ compensation: recovery for home service provided by spouse, 67 A.L.R.4th 765.

Law Reviews.

Are Employees Obtaining “Sure and Certain Relief” Under the 1995 Legislative Enactments of the North Dakota Workers’ Compensation Act?, 72 N.D. L. Rev. 349 (1996).

Assessment of Work Capacity.

Nothing in N.D.C.C. § 65-05.1-02.1 requires the vocational consultant to include in the report an assessment of the worker’s specific job; instead, N.D.C.C. § 65-05.1-02(7) instructs the vocational consultant to assess the worker’s job options in light of the worker’s restrictions and limitations, to identify the category of work in which the worker can fairly engage. Johnson v. North Dakota Workers' Compensation Bureau, 539 N.W.2d 295, 1995 N.D. LEXIS 187 (N.D. 1995).

Calculation of Earning Capacity.

The worker’s average weekly earnings at the time of the injury constitute a reasonable formula for calculating earning capacity. Smith v. North Dakota Workers Compensation Bureau, 447 N.W.2d 250, 1989 N.D. LEXIS 188 (N.D. 1989) (decided prior to the 1989 amendments to this chapter).

Worker’s compensation bureau did not err in refusing to base claimant’s average weekly wage on what he earned only during the four-week period just before his injury, where claimant alleged his hours had increased during those weeks and his supervisor told him he would continue to work increased hours, but whether claimant would have continued to work increased hours was speculation. Lucier v. North Dakota Workers Comp. Bureau, 556 N.W.2d 56 (N.D. 1996).

Medical Assessment Team.

The Workers’ Compensation Bureau’s reliance on plaintiff ’s treating physicians, complied with the statutory requirement to establish a medical assessment team on a case-by-case basis. Thompson v. North Dakota Workers' Compensation Bureau, 490 N.W.2d 248, 1992 N.D. LEXIS 177 (N.D. 1992).

North Dakota Workforce Safety & Insurance is not automatically required to establish a medical assessment team and seek a medical opinion in every case in which a worker claims an injury or preexisting condition, regardless of the factual basis for the worker’s claim; therefore, a decision not to establish a medical assessment team was not erroneous in a case where a benefits claimant had a preexisting hearing loss because the claimant was able to describe the disability, he was able to communicate with others throughout the course of his vocational plan development, and he was able to work for 25 years in law enforcement with the use of hearing aids. Genter v. Workforce Safety & Ins. Fund, 2006 ND 237, 724 N.W.2d 132, 2006 N.D. LEXIS 240 (N.D. 2006).

Pre-Injury Earning Capacity.

The purpose of a vocational retraining program is to substantially rehabilitate a worker to his pre-injury earning capacity. Smith v. North Dakota Workers Compensation Bureau, 447 N.W.2d 250, 1989 N.D. LEXIS 188 (N.D. 1989) (decided prior to the 1989 amendments to this chapter).

A claimant is substantially rehabilitated if he can be employed to within ten percent of his pre-injury earning capacity, so that he is able, upon completion of the retraining program, to be employed at least at ninety percent of his pre-injury earning capacity. Smith v. North Dakota Workers Compensation Bureau, 447 N.W.2d 250, 1989 N.D. LEXIS 188 (N.D. 1989) (decided prior to the 1989 amendments to this chapter).

Vocational Plan.

Bureau met its burden to present evidence of currently available jobs and the sufficiency of employee’s skills when it developed employee’s vocational plan and approved training him as a robotics technician. Wright v. N.D. Workers Comp. Bureau, 2001 ND 72, 625 N.W.2d 256, 2001 N.D. LEXIS 85 (N.D. 2001).

Assessment of Work Capacity.

Nothing in this section requires the vocational consultant to include in the report an assessment of the worker’s specific job. Instead, N.D.C.C. § 65-05.1-02(7) instructs the vocational consultant to assess the worker’s job options in light of the worker’s restrictions and limitations, to identify the category of work in which the worker can fairly engage. Johnson v. North Dakota Workers' Compensation Bureau, 539 N.W.2d 295, 1995 N.D. LEXIS 187 (N.D. 1995).

Reasonable Opportunity to Obtain Employment.

Rehabilitation plan gave claimant a reasonable opportunity to obtain substantial gainful employment in the state, and the fact some of the jobs claimant applied for may have required physical demands beyond the medium classification he was assigned under the plan did not make the plan unfeasible; neither a rehabilitation plan nor a vocational consultant can guarantee a claimant a job or a particular wage. Lucier v. North Dakota Workers Comp. Bureau, 556 N.W.2d 56 (N.D. 1996).

Applicability.

When claimant failed to meet the standard for a reapplication for benefits under N.D.C.C. § 65-05-08(1), North Dakota Workforce Safety and Insurance (WIS) properly denied his claim because he did not show an actual wage loss caused by a significant change in his compensable medical condition. N.D.C.C. § 65-05.1-04(4) did not apply, because vocational rehabilitation services were not initiated under N.D.C.C. ch. 65-05.1 and WSI did not make a determination of claimant’s first appropriate rehabilitation option. Johnson v. N.D. Workforce Safety & Ins., 2010 ND 198, 789 N.W.2d 565, 2010 N.D. LEXIS 195 (N.D. 2010).

Burden of Proof.

Where hearing officer cited evidence indicating that worker quit work for personal reasons, not because of his prior injury, and that worker did not prove that the physical requirements of his job were not in keeping with his physical capacity to perform, findings showed that he did not meet his burden of showing work trial was unsuccessful due to his prior work injury. Johnson v. North Dakota Workers' Compensation Bureau, 539 N.W.2d 295, 1995 N.D. LEXIS 187 (N.D. 1995).

Calculation of Earnings Capacity.

The worker’s average weekly earnings at the time of the injury constitute a reasonable formula for calculating earning capacity. Smith v. North Dakota Workers Compensation Bureau, 447 N.W.2d 250, 1989 N.D. LEXIS 188 (N.D. 1989) (decided prior to the 1989 amendments to this chapter).

Failure to Return to Work.

Where claimant was advised to return to work by her physician, she was obligated under this section to make herself available for modified work arranged for her before the bureau had any obligation to consider the necessity and feasibility of a rehabilitation program. Her failure to do so was noncompliance with this section and prevented the bureau from assessing or testing her capability to work and her need for rehabilitation. Risch v. North Dakota Workers Compensation Bureau, 447 N.W.2d 308, 1989 N.D. LEXIS 198 (N.D. 1989) (decided prior to the 1989 amendments to this chapter).

Workers compensation bureau’s finding worker was capable of performing modified job was supported by a preponderance of the evidence, where there was substantial medical evidence indicating worker was physically capable of performing, doctor who conducted independent medical examination specifically concluded modified position was within her physical abilities, and worker relied upon note of her doctor which contained no documentation or objective medical findings to support his cursory conclusion she could not perform. Maginn v. North Dakota Workers Compensation Bureau, 550 N.W.2d 412, 1996 N.D. LEXIS 164 (N.D. 1996).

Financial Inability.

The Workers Compensation Bureau’s conclusion that financial inability cannot constitute good cause for noncompliance with a rehabilitation plan is not in accordance with the law. Fuhrman v. North Dakota Workers Compensation Bureau, 1997 ND 191, 569 N.W.2d 269, 1997 N.D. LEXIS 237 (N.D. 1997).

Claimant presented good cause for failing to comply with his rehabilitation plan, in that he did not have the financial ability to relocate and attend an out-of-state training program. Fuhrman v. North Dakota Workers Compensation Bureau, 1997 ND 191, 569 N.W.2d 269, 1997 N.D. LEXIS 237 (N.D. 1997).

Worker whose request for a second domicile allowance was wrongfully denied by the Workers Compensation Bureau had good cause for his failure to attend a rehabilitation program located so far from the worker’s residence that it was not possible to commute to the program. Hoffman v. North Dakota Workers Compensation Bureau, 1999 ND 66, 592 N.W.2d 533, 1999 N.D. LEXIS 70 (N.D. 1999).

“Good Cause.”

Whether a worker has good cause not to attend an approved rehabilitation program turns on whether a reasonable and prudent person under the same or similar circumstances would have failed to comply. Hoffman v. North Dakota Workers Compensation Bureau, 1999 ND 66, 592 N.W.2d 533, 1999 N.D. LEXIS 70 (N.D. 1999).

Employee did not show good cause for failing to comply with a vocational rehabilitation plan because it was fundamental error for an administrative law judge to conclude that the employee did not have to comply until the employee’s appeal of an order establishing the plan was determined, as (1) the employee did not assert this as a ground for noncompliance, and (2) the employee was not relieved of compliance, absent a stay, until the appeal was resolved. Inwards v. N.D. Workforce Safety & Ins., 2014 ND 163, 851 N.W.2d 693, 2014 N.D. LEXIS 164 (N.D. 2014).

Good Faith Work Search.

Worker failed to make a good faith work search where he made no effort to find work, relying on the opinion of his vocational instructor who stated that an entry-level robotics technician “typically” begins as a field service engineer, a job the worker believed himself to be incapable of performing. Wright v. N.D. Workers Comp. Bureau, 2001 ND 72, 625 N.W.2d 256, 2001 N.D. LEXIS 85 (N.D. 2001).

No Entitlement to Rehabilitation Benefits.

Workers’ compensation claimant was not entitled to rehabilitation benefits where bureau determined that program of rehabilitation was not necessary under the facts presented, and claimant did not fulfill N.D.C.C. § 50-06.1-06’s requirement that executive director determine whether vocational rehabilitation could be satisfactorily achieved. Froysland v. North Dakota Workers Compensation Bureau, 432 N.W.2d 883, 1988 N.D. LEXIS 233 (N.D. 1988).

Noncompliance.

Claimant’s willful failure to give a maximum consistent effort during a functional capacity evaluation can constitute an act of noncompliance with a vocational rehabilitation plan under this section. Hoffman v. N.D. Workers Comp. Bureau, 2002 ND 138, 651 N.W.2d 601, 2002 N.D. LEXIS 180 (N.D. 2002).

Court properly upheld an order from the North Dakota Workforce Safety and Insurance (WSI) denying further disability and vocational rehabilitation benefits to an employee because the results of a functional capacity assessment on the employee represented a manipulated effort and an invalid representation of the employee’s physical capabilities. Finding of noncompliance under N.D.C.C. § 65-05.1-04(6) was proven by the weight of the evidence on the entire record. Thomas v. Workforce Safety & Ins., 2005 ND 52, 692 N.W.2d 901, 2005 N.D. LEXIS 52 (N.D. 2005).

Willful failure to give a maximum consistent effort in a functional capacity assessment can constitute noncompliance with vocational rehabilitation under N.D.C.C. § 65-05.1-04(6). Thomas v. Workforce Safety & Ins., 2005 ND 52, 692 N.W.2d 901, 2005 N.D. LEXIS 52 (N.D. 2005).

Workforce Safety and Insurance’s (WSI) decision to discontinue a worker’s benefits was supported by a preponderance of the evidence. The worker, who claimed that she was unable to drive to Fargo for the independent medical examination (IME), failed to provide sufficient evidence of a good cause for her failure to attend the IME. Her failure constituted noncompliance with N.D.C.C. § 65-05.1-04(6) and prevented WSI from assessing her capability to work and her need for rehabilitation. Bjerklie v. Workforce Safety & Ins., 2005 ND 178, 704 N.W.2d 818, 2005 N.D. LEXIS 209 (N.D. 2005).

Where WSI properly terminated a claimant’s benefits under N.D.C.C. §§ 65-05.1-04, 65-05-28(4) for the claimant’s noncompliance with a functional capacity evaluation, a district court abused its discretion in finding that WSI acted without substantial justification and in awarding attorney’s fees under N.D.C.C. § 28-32-50. Drayton v. Workforce Safety & Ins., 2008 ND 178, 756 N.W.2d 320, 2008 N.D. LEXIS 180 (N.D. 2008).

Pre-Injury Earning Capacity.

The purpose of a vocational retraining program is to substantially rehabilitate a worker to his pre-injury earning capacity. Smith v. North Dakota Workers Compensation Bureau, 447 N.W.2d 250, 1989 N.D. LEXIS 188 (N.D. 1989) (decided prior to the 1989 amendments to this chapter).

A claimant is substantially rehabilitated if he can be employed to within ten percent of his pre-injury earning capacity, so that he is able, upon completion of the retraining program, to be employed at least at ninety percent of his pre-injury earning capacity. Smith v. North Dakota Workers Compensation Bureau, 447 N.W.2d 250, 1989 N.D. LEXIS 188 (N.D. 1989) (decided prior to the 1989 amendments to this chapter).

Law Reviews.

North Dakota Supreme Court Review (Hoffman v. North Dakota Workers’ Compensation Bureau, 2002 ND 138, 651 N.W.2d 601), see 79 N.D. L. Rev. 589 (2003).

Vocational Rehabilitation.

The workers compensation bureau’s order awarding the claimant vocational rehabilitation benefits for a period of two years instead of four years was affirmed where the bureau normally awarded only two years of vocational rehabilitation benefits, the claimant was informed prior to enrolling in a four-year program that the bureau normally granted only two years of vocational rehabilitation benefits, and there were numerous two-year-degree programs which would qualify the claimant for employment. Levey v. North Dakota Workers Compensation Bureau, 425 N.W.2d 376, 1988 N.D. LEXIS 137 (N.D. 1988).

Vocational Rehabilitation.

The workers compensation bureau’s order awarding the claimant vocational rehabilitation benefits for a period of two years instead of four years was affirmed where the bureau normally awarded only two years of vocational rehabilitation benefits, the claimant was informed prior to enrolling in a four-year program that the bureau normally granted only two years of vocational rehabilitation benefits, and there were numerous two-year-degree programs which would qualify the claimant for employment. Levey v. North Dakota Workers Compensation Bureau, 425 N.W.2d 376, 1988 N.D. LEXIS 137 (N.D. 1988).

Construction.

This section governing supplemental benefits provides a minimum total benefit after supplementary benefits are added to permanent disability benefit awards. Effertz v. North Dakota Workers Compensation Bureau, 525 N.W.2d 691, 1994 N.D. LEXIS 276 (N.D. 1994).

In General.

If there is no contract for extraterritoral coverage between an employer and the bureau, the bureau’s responsibility for compensating injuries occurring outside of North Dakota is limited by the terms of this section. North Dakota. Souris River Tel. Mut. Aid Coop. v. North Dakota Workers Compensation Bureau, 471 N.W.2d 465, 1991 N.D. LEXIS 109 (N.D. 1991).

Identifiable Out-of-State Jobsite.

Subsection (1)(b) of the statute allows compensation for injuries occurring outside this state if the employee is engaged in a service which is “incidental to and is referable to the principal employment, the situs of which is within North Dakota.” However, subsection (2) of the statute modified subsection (1)(b) by declaring that services rendered are not incidental and referable to the North Dakota employment, if the injury is sustained at an “identifiable out-of-state jobsite.” North Dakota. Souris River Tel. Mut. Aid Coop. v. North Dakota Workers Compensation Bureau, 471 N.W.2d 465, 1991 N.D. LEXIS 109 (N.D. 1991).

The “identifiable out-of-state jobsite” provision was added to this section in 1989 at the request of the bureau. It is obvious from the legislative history that the purpose of the amendment was to prevent employers from taking advantage of North Dakota’s favorable workers compensation rates while having their employees work in another state without obtaining and paying premiums for out-of-state coverage. North Dakota. Souris River Tel. Mut. Aid Coop. v. North Dakota Workers Compensation Bureau, 471 N.W.2d 465, 1991 N.D. LEXIS 109 (N.D. 1991).

Legislative Intent.

In adopting the amendment to this section, the Legislature clearly intended to limit the bureau’s liability for uncontracted coverage of employees who are injured outside of North Dakota. Souris River Tel. Mut. Aid Coop. v. North Dakota Workers Compensation Bureau, 471 N.W.2d 465, 1991 N.D. LEXIS 109 (N.D. 1991).

Duty to Secure Payment.

One of duties imposed upon workers’ compensation bureau is to secure payment of an award from an uninsured employer. State ex rel. North Dakota Workmen's Compensation Bureau v. Broadway Inv. Co., 85 N.W.2d 251, 1957 N.D. LEXIS 148 (N.D. 1957).

Election of Remedies.

Where workman injured in course of his employment elects to proceed under workers’ compensation act, he is precluded from maintaining an action at law against his employer. Nyland v. Northern Packing Co., 56 N.D. 624, 218 N.W. 869, 1928 N.D. LEXIS 180 (N.D. 1928).

Employer-Employee Relationship.

To hold noncomplying employer liable, there must exist relationship of employer and employee. Kronick v. McLean County, 52 N.D. 852, 204 N.W. 839, 1925 N.D. LEXIS 152 (N.D. 1925); Mutual Life Ins. Co. v. State, 71 N.D. 78, 298 N.W. 773, 1941 N.D. LEXIS 138 (N.D. 1941).

A carpenter, whose employment was “both casual and not in the course of the trade, business, profession, or occupation of his employer” was not an employee within the provisions of N.D.C.C. § 65-01-02, former subsection 9 (now see subsection 16) and he could not recover damages for injuries sustained in the course of the employment from his uninsured employer under the provisions of this section. Kipp v. Jalbert, 110 N.W.2d 825, 1961 N.D. LEXIS 93 (N.D. 1961).

Employer Not Subject to Act.

Provisions of this section do not apply to an employer who is not subject to act and, where farmer-employer failed to give notice of his election to be bound by act, an injured employee had remedy of civil action against employer and three common-law defenses would be effective in action. Rosebear v. Anderson, 143 F. Supp. 721, 1956 U.S. Dist. LEXIS 3021 (D.N.D. 1956), aff'd, 245 F.2d 673, 1957 U.S. App. LEXIS 3269 (8th Cir. N.D. 1957).

Failure to Notify of Hiring Employees.

Failure to notify the workers compensation bureau of intention to hire employees, as required by former N.D.C.C. § 65-01-05 (now N.D.C.C. § 65-04-33), did not constitute a failure of the employer to be insured as provided by former N.D.C.C. § 65-04-12, and create a civil remedy under this section for injured employees, where the employer had paid his premium. Courchene v. Delaney Distribs., 421 N.W.2d 811, 1988 N.D. LEXIS 80 (N.D. 1988).

Liability Without Fault.

Noncomplying employer is liable under act for injuries, regardless of fault. Fahler v. Minot, 49 N.D. 960, 194 N.W. 695, 1923 N.D. LEXIS 46 (N.D. 1923); Lilly v. Haynes Coop. Coal Mining Co., 50 N.D. 465, 196 N.W. 556, 1923 N.D. LEXIS 126 (N.D. 1923); State ex rel. Dushek v. Watland, 51 N.D. 710, 201 N.W. 680, 1924 N.D. LEXIS 94 (N.D. 1924).

Employer was entitled to supervisory writs directing a district court to grant the employer summary judgment barring civil liability for deceased and injured workers’ injuries because no fact question existed as to whether an exception to the employer’s immunity due to the employer reporting an inaccurate payroll to Workforce Safety and Insurance (WSI) applied, as WSI (1) found no such violation, (2) did not try to collect additional premiums, and (3) gave no notice that WSI processed the workers’ claims under N.D.C.C. ch. 65-09. Plains Trucking, LLC v. Hagar, 2019 ND 226, 932 N.W.2d 541, 2019 N.D. LEXIS 227 (N.D. 2019).

Measure of Damages.

An employee electing to sue his uninsured employer is entitled to have such damages measured by rules applicable in common-law actions for negligence. Moen v. Melin, 59 N.D. 582, 231 N.W. 283, 1930 N.D. LEXIS 176 (N.D. 1930).

Release of Negligent Third Party.

An injured employee’s release of cause of action against third person negligently causing injury does not bar action against employer for failing to comply with compensation act. State ex rel. Woods v. Hughes Oil Co., 58 N.D. 581, 226 N.W. 586, 1929 N.D. LEXIS 252 (N.D. 1929).

Sovereign Immunity.

Defense of sovereign immunity is available to foreign state operating coal mine within state of North Dakota. Paulus v. State, 52 N.D. 84, 201 N.W. 867, 1924 N.D. LEXIS 113 (N.D. 1924).

Statute of Limitations.

Statute of limitations applicable to cause of action arising under this statute is six years. State ex rel. Woods v. Hughes Oil Co., 58 N.D. 581, 226 N.W. 586, 1929 N.D. LEXIS 252 (N.D. 1929).

Who May Sue.

This statute does not confine right to bring an action against noncomplying employer to personal representative of deceased employee. Olson v. Hemsley, 48 N.D. 779, 187 N.W. 147, 1922 N.D. LEXIS 101 (N.D. 1922).

Where employer has failed to comply with workers’ compensation act, dependent father of deceased employee is entitled to sue for his death. Olson v. Hemsley, 48 N.D. 779, 187 N.W. 147, 1922 N.D. LEXIS 101 (N.D. 1922).

Injured employee had a right to bring a tort action against an employer for personal injuries which the employee suffered while working for the employer, which incorrectly classified the employee as an independent contractor, because the exclusive remedy provisions of the North Dakota workers' compensation laws did not preclude the action under provisions authorizing the action for the employer willfully misrepresenting to an insurer the amount of payroll upon which a premium was based, or for willfully failing to secure coverage for employees. Vail v. S/L Servs., 2017 ND 202, 900 N.W.2d 271, 2017 N.D. LEXIS 204 (N.D. 2017).

Collateral References.

Farmowners’ liability insurance risks and coverage, 93 A.L.R.3d 472.

Construction and application of provisions of liability insurance policy expressly excluding injuries intended or expected by insured, 31 A.L.R.4th 957.

Liability insurance: intoxication and other mental incapacity avoiding application of clause in liability policy specifically exempting coverage of injury or damage caused intentionally by or at direction of insured, 33 A.L.R.4th 983.

Criminal conviction as rendering conduct for which insured convicted within provision of liability insurance policy expressly excluding coverage for damage or injury intended or expected by insured, 35 A.L.R.4th 1063.

Common-Law Right.

Common-law right of an injured employee to sue for damages when injured is not taken away by this statute, since he has an option of theories upon which to proceed. State ex rel. Workmen's Compensation Fund v. E. W. Wylie Co., 79 N.D. 471, 58 N.W.2d 76, 1953 N.D. LEXIS 55 (N.D. 1953).

Injured employee had a right to bring a tort action against an employer for personal injuries which the employee suffered while working for the employer, which incorrectly classified the employee as an independent contractor, because the exclusive remedy provisions of the North Dakota workers' compensation laws did not preclude the action under provisions authorizing the action for the employer willfully misrepresenting to an insurer the amount of payroll upon which a premium was based, or for willfully failing to secure coverage for employees. Vail v. S/L Servs., 2017 ND 202, 900 N.W.2d 271, 2017 N.D. LEXIS 204 (N.D. 2017).

Employer was entitled to supervisory writs directing a district court to grant the employer summary judgment barring civil liability for deceased and injured workers’ injuries because no fact question existed as to whether an exception to the employer’s immunity due to the employer reporting an inaccurate payroll to Workforce Safety and Insurance (WSI) applied, as WSI (1) found no such violation, (2) did not try to collect additional premiums, and (3) gave no notice that WSI processed the workers’ claims under N.D.C.C. ch. 65-09. Plains Trucking, LLC v. Hagar, 2019 ND 226, 932 N.W.2d 541, 2019 N.D. LEXIS 227 (N.D. 2019).

Notice of Hearing.

When claim is filed with bureau under this statute, bureau must fix date for hearing application and serve notice of hearing upon alleged employer in manner provided for service of summons in civil action, and on other interested parties by registered mail. Burkhardt v. State, 77 N.D. 232, 42 N.W.2d 670, 1950 N.D. LEXIS 122 (N.D. 1950).

Option of Employee.

Where employee is injured in the course of his employment and at the time of the injury the employer is uninsured for workers’ compensation coverage, this section gives the employee the option of either pursuing a civil action against the employer or filing an application for workers’ compensation benefits; where such employee has not been awarded workers’ compensation benefits pursuant to former N.D.C.C. § 65-09-03, the option to pursue a civil action against the uninsured employer is not negated by fact that employer, subsequent to the injury, has paid the premiums, penalties and interest required by former N.D.C.C. § 65-09-04 (now N.D.C.C. § 65-04-33). Shaughnessy v. Bohnet, 303 N.W.2d 337, 1981 N.D. LEXIS 244 (N.D. 1981).

Release.

Where injured workman, whose employer did not comply with workers’ compensation act, stipulated that negligence actions against employer would be dismissed, with prejudice, and district court entered order so dismissing negligence causes of action against employer, workman was not entitled to proceed with a further cause of action against employer for additional damages for employer’s noncompliance with Workers' Compensation Act. Kempel v. Streich, 196 N.W.2d 589, 1972 N.D. LEXIS 164 (N.D. 1972).

Law Reviews.

Are Employees Obtaining “Sure and Certain Relief” Under the 1995 Legislative Enactments of the North Dakota Workers’ Compensation Act?, 72 N.D. L. Rev. 349 (1996).

Appeal by Employer.

An employer may appeal a workers’ compensation bureau decision the same way in which a claimant may appeal — to the district court of the county where the injury occurred or the county where the claimant resides. Basin Elec. Power Coop. v. North Dakota Workers Compensation Bureau, 541 N.W.2d 685, 1996 N.D. LEXIS 1 (N.D. 1996).

Jurisdiction.

District court properly dismissed a claimant’s appeal for lack of jurisdiction because he did not meet the statutory requirements to file the appeal in the county in which the injury occurred or the county in which he resided, the Workforce Safety and Insurance had a statutory lien on the claimant’s third party recovery, and he did not pay any of the sums secured by the lien as statutorily required. Decker v. Workforce Safety & Ins., 2021 ND 117, 2021 N.D. LEXIS 117 (N.D. 2021).

Appeal from District Court.

Compensation proceeding is not triable de novo in supreme court and findings of trial court are presumed to be correct unless clearly opposed to preponderance of evidence. Dehn v. Kitchen, 54 N.D. 199, 209 N.W. 364, 1926 N.D. LEXIS 135 (N.D. 1926); Klemmens v. North Dakota Workmen's Compensation Bureau, 54 N.D. 496, 209 N.W. 972, 1926 N.D. LEXIS 48 (N.D. 1926).

In an appeal from judgment of district court rendered in an appeal from decision of bureau, supreme court, on demand for trial de novo, reviews whole record as any case tried to court without jury may be reviewed. Gullickson v. North Dakota Workmen's Compensation Bureau, 83 N.W.2d 826, 1957 N.D. LEXIS 127 (N.D. 1957), limited, Geo. E. Haggart, Inc. v. North Dakota Workmen's Compensation Bureau, 171 N.W.2d 104, 1969 N.D. LEXIS 81 (N.D. 1969).

On an appeal from a decision of the district court reviewing a decision of the workers’ compensation bureau, the supreme court will review the whole record from the district court. Fancher v. North Dakota Workmen's Compensation Bureau, 123 N.W.2d 105, 1963 N.D. LEXIS 105 (N.D. 1963).

Although the district court’s analysis is entitled to respect, the North Dakota supreme court will review the decision of the bureau, rather than that of the district court. Holmgren v. North Dakota Workers Compensation Bureau, 455 N.W.2d 200, 1990 N.D. LEXIS 101 (N.D. 1990).

In determining whether the bureau’s findings of fact are supported by a preponderance of the evidence, the supreme court does not make independent findings of fact or substitute its judgment for that of the agency. It determines only whether a reasonable mind could have determined that the factual conclusions were proved by the weight of the evidence from the entire record. Westman v. North Dakota Workers Compensation Bureau, 459 N.W.2d 540, 1990 N.D. LEXIS 167 (N.D. 1990).

Appealable Order.

An order of the workers compensation bureau finding that the claimant made false statements in connection with his claim and dismissing that claim was a final appealable order, and the court has jurisdiction to review it. McCarty v. North Dakota Workers Compensation Bureau (Oral Logic), 1998 ND 9, 574 N.W.2d 556, 1998 N.D. LEXIS 12 (N.D. 1998).

Burden of Proof.

On an appeal from decision of bureau disallowing claim for compensation for injury, claimant has burden of proving that injury for which compensation is claimed was received in course of employment. Moug v. Workmen's Compensation Bureau, 70 N.D. 656, 297 N.W. 129, 1941 N.D. LEXIS 212 (N.D. 1941).

A workers’ compensation claimant, when appealing to a district court, has the burden to show that the court has jurisdiction. Boyko v. North Dakota Workmen's Compensation Bureau, 409 N.W.2d 638, 1987 N.D. LEXIS 379 (N.D. 1987).

Bureau As Party.

Workers’ compensation bureau becomes party to litigation only where claimant appeals from bureau’s denial of his right to share in compensation fund, and on further appeal from decision of trial court taken either by claimant or bureau. Henderson v. Scott, 72 N.D. 616, 10 N.W.2d 490, 1943 N.D. LEXIS 100 (N.D. 1943).

Certiorari.

Certiorari will not lie to review finding of workers’ compensation bureau as to matter of fact within, and not touching, its jurisdiction. State ex rel. Craig v. North Dakota Workmen's Compensation Bureau, 53 N.D. 649, 207 N.W. 555, 1925 N.D. LEXIS 15 (N.D. 1925).

Change of Venue.

District court to which a decision of the workers compensation bureau was appealed could properly change the venue of the appeal by transferring the case to the district court of the place of injury pursuant to N.D.C.C. § 28-04-07, the district court of appropriate venue under this section. Hayden v. North Dakota Workers Compensation Bureau, 447 N.W.2d 489, 1989 N.D. LEXIS 191 (N.D. 1989).

The general change of venue statute, N.D.C.C. § 28-04-07, does not grant a district court authority to transfer an appeal from a workers’ compensation bureau decision to the proper district court. Basin Elec. Power Coop. v. North Dakota Workers Compensation Bureau, 541 N.W.2d 685, 1996 N.D. LEXIS 1 (N.D. 1996).

Consent to Suit.

Express authority given by this section to claimants to prosecute appeals to courts, is not consent to suit by fund or state. Watland v. North Dakota Workmen’s Comp. Bureau, 58 N.D. 303, 225 N.W. 812 (1929), overruled on other grounds, Bulman v. Hulstrand Constr. Co., 521 N.W.2d 632 (N.D. 1994), explained, Henderson v. Scott, 72 N.D. 616, 10 N.W.2d 490, 1943 N.D. LEXIS 100 (N.D. 1943).

Construction with N.D.R.Civ.P. 60(b).

In view of the district court’s purely appellate function in the administrative process and the nature of a motion for relief from judgment, we conclude Rule 60(b) is inconsistent with the statutory appeal procedures of the Administrative Agencies Practice Act and appeal of an administrative agency decision may not be taken under it. Lewis v. North Dakota Workers Compensation Bureau, 2000 ND 77, 609 N.W.2d 445, 2000 N.D. LEXIS 88 (N.D. 2000).

Construction with Former Section 28-32-15.

This section and former N.D.C.C. § 28-32-15 (now N.D.C.C. § 28-32-42) must be read together. Westman v. North Dakota Workers Compensation Bureau, 459 N.W.2d 540, 1990 N.D. LEXIS 167 (N.D. 1990).

This section grants a claimant a right to appeal under the specific circumstances it addresses. It does not, either explicitly or implicitly, limit the broader appeal rights contained within former N.D.C.C. § 28-32-15 (now N.D.C.C. § 28-32-42). Westman v. North Dakota Workers Compensation Bureau, 459 N.W.2d 540, 1990 N.D. LEXIS 167 (N.D. 1990).

Construing former N.D.C.C. § 28-32-15, now N.D.C.C. § 28-32-42, and this section together, N.D.C.C. § 28-32-42 authorizes a claimant to appeal from a decision of the bureau which grants benefits if that decision substantially affects the rights of the claimant. Westman v. North Dakota Workers Compensation Bureau, 459 N.W.2d 540, 1990 N.D. LEXIS 167 (N.D. 1990).

The catchall provision of former N.D.C.C. § 28-32-15 (now N.D.C.C. § 28-32-42) does not apply to appeals from final actions of the workers compensation bureau, and an appeal of such an action cannot be entertained by a district court under its general jurisdiction. Basin Elec. Power Coop. v. North Dakota Workers Compensation Bureau, 541 N.W.2d 685, 1996 N.D. LEXIS 1 (N.D. 1996).

Denial of Review.

Claimant whose claim has been allowed by bureau and who thereafter makes application for review of award thus made, has no right of appeal from action of bureau in denying his application for such review. Ethen v. North Dakota Workmen's Compensation Bureau, 62 N.D. 394, 244 N.W. 32, 1932 N.D. LEXIS 193 (N.D. 1932).

Where bureau decided that compensation previously awarded should not be increased because of subsequently discovered injury arising out of same accident, final action of bureau was not appealable. Schmidt v. North Dakota Workmen’s Comp. Bureau, 74 N.D. 520, 23 N.W.2d 26 (1946), decided prior to the amendment to N.D.C.C. § 65-05-04.

Exhaustion of Remedies.

A claimant seeking review of a Workers Compensation Bureau order denying benefits need not exhaust administrative remedies before appealing to the district court. Lende v. N.D. Workers' Comp. Bureau, 1997 ND 178, 568 N.W.2d 755, 1997 N.D. LEXIS 199 (N.D. 1997).

Failure to Appeal.

An appeal must be taken from decision of bureau within thirty days, and after this period has elapsed, decision, having become final because of no appeal is not rendered reviewable by subsequent denial of an application for another hearing upon an additional showing. Hanson v. North Dakota Workmen's Compensation Bureau, 56 N.D. 525, 218 N.W. 215, 1928 N.D. LEXIS 167 (N.D. 1928).

Where a worker failed to file a direct appeal to the district court challenging the Workers Compensation Bureau’s determination that the factual and legal grounds listed in her request for rehearing were insufficient, the district court did not abuse its discretion in denying her petition for an alternative writ of mandamus. Frank v. Traynor, 1999 ND 183, 600 N.W.2d 516, 1999 N.D. LEXIS 205 (N.D. 1999).

Finding of Proximate Cause.

Question of proximate cause of employee’s death is one of fact, and findings of trial court in that respect will not be disturbed. Gotchy v. North Dakota Workmen's Compensation Bureau, 49 N.D. 915, 194 N.W. 663, 1923 N.D. LEXIS 42 (N.D. 1923).

Historical Review.

For a case discussing history of statutes concerning appealability and review of decisions of the workers compensation bureau, see Westman v. North Dakota Workers Compensation Bureau, 459 N.W.2d 540, 1990 N.D. LEXIS 167 (N.D. 1990).

Informal Order.

A claimant’s appeal would be dismissed because he did not make a request for consideration after the bureau issued its informal order denying lost-time disability benefits. Freezon v. North Dakota Workers Compensation Bureau, 1998 ND 23, 574 N.W.2d 577, 1998 N.D. LEXIS 23 (N.D. 1998).

Judgment for Interest.

Judgment of court awarding interest in compensation case, assuming interest is not allowable under compensation act, is not void and is not subject to collateral attack. Hanson v. North Dakota Workmen's Compensation Bureau, 63 N.D. 479, 248 N.W. 680, 1933 N.D. LEXIS 201 (N.D. 1933).

Jurisdiction.

Appeals from the workers compensation bureau are statutory in nature and are not matters of original jurisdiction for the district courts but rather involve exercise of the appellate jurisdiction of the district courts conferred by statute; the statutory requirements for filing a notice of appeal from an administrative agency are thus jurisdictional and do not refer to venue. Boyko v. North Dakota Workmen's Compensation Bureau, 409 N.W.2d 638, 1987 N.D. LEXIS 379 (N.D. 1987).

Law Applicable.

On an appeal to district court, court is limited in its consideration of questions presented on appeal to law as it existed at time of bureau’s action upon claim. MacArthur v. North Dakota Workmen's Compensation Bureau, 62 N.D. 572, 244 N.W. 259, 1932 N.D. LEXIS 216 (N.D. 1932).

Personal Injury Suit.

Trial court appropriately postponed decision of the questions in a personal injury suit against the employer until appeal of workers’ compensation decision was concluded. Westman v. Dessellier, 459 N.W.2d 545, 1990 N.D. LEXIS 155 (N.D. 1990).

Review of Evidence.

On appeal from decision of bureau district court must review evidence contained in record certified from bureau to determine whether findings of fact made by bureau are supported by evidence and its decision is in accordance with law. Burkhardt v. State, 78 N.D. 818, 53 N.W.2d 394, 1952 N.D. LEXIS 80 (N.D. 1952); Gullickson v. North Dakota Workmen's Compensation Bureau, 83 N.W.2d 826, 1957 N.D. LEXIS 127 (N.D. 1957), limited, Geo. E. Haggart, Inc. v. North Dakota Workmen's Compensation Bureau, 171 N.W.2d 104, 1969 N.D. LEXIS 81 (N.D. 1969).

If district court finds evidence does not support findings of fact and conclusions of law made by bureau, such findings and conclusions will be modified or reversed, and new findings of fact, conclusions of law and order for judgment made by district court. Gullickson v. North Dakota Workmen's Compensation Bureau, 83 N.W.2d 826, 1957 N.D. LEXIS 127 (N.D. 1957), limited, Geo. E. Haggart, Inc. v. North Dakota Workmen's Compensation Bureau, 171 N.W.2d 104, 1969 N.D. LEXIS 81 (N.D. 1969).

Separate Dependency Claims.

Claims of parents against fund, based upon dependency, are separate claims upon which each parent may have separate right of appeal to district court. Weisgerber v. Workmen's Compensation Bureau, 70 N.D. 165, 292 N.W. 627, 1940 N.D. LEXIS 157 (N.D. 1940).

When Appeal Allowed.

District court may not entertain an appeal from workers’ compensation bureau until bureau denies compensation on grounds going to basis of claimant’s right. Crandall v. North Dakota Workmen's Compensation Bureau, 53 N.D. 636, 207 N.W. 551, 1925 N.D. LEXIS 14 (N.D. 1925).

Refusal of bureau to permit claimant to participate in fund on ground that his claim was not seasonably filed is denial of “right of the claimant to participate at all” in fund and is subject to review on appeal. Pearce v. North Dakota Workmen's Compensation Bureau, 67 N.D. 512, 274 N.W. 587, 1937 N.D. LEXIS 107 (N.D. 1937).

Where claim for compensation was denied by bureau without investigation and no appeal was taken and within year from accident second claim was filed on account of same injury, board’s action in considering and denying second claim was final action from which an appeal could be taken. Bergstrand v. North Dakota Workmen's Compensation Bureau, 69 N.D. 447, 287 N.W. 631, 1939 N.D. LEXIS 171 (N.D. 1939).

An appeal from final action of bureau may be taken only where bureau denies claimant right to participate at all in compensation fund on any ground. Weisgerber v. Workmen's Compensation Bureau, 70 N.D. 165, 292 N.W. 627, 1940 N.D. LEXIS 157 (N.D. 1940).

A workers compensation bureau decision on review of a prior award pursuant to a subsequent application based upon a change in the employee’s condition may be appealed to the courts. Lass v. North Dakota Workmen's Compensation Bureau, 415 N.W.2d 796, 1987 N.D. LEXIS 426 (N.D. 1987).

Because this section specifically provides for jurisdiction for appeals from final action of the workers compensation bureau, either in the county of residence of the claimant or the county wherein the injury was inflicted, former N.D.C.C. § 28-32-15 (now N.D.C.C. § 28-32-42) is inapposite in the instance in which the injury occurs in this state, and jurisdiction for appeal does not lie in the county where the hearing is held. Boyko v. North Dakota Workmen's Compensation Bureau, 409 N.W.2d 638, 1987 N.D. LEXIS 379 (N.D. 1987).

By denying future benefits, the workers compensation bureau denied the claimant the right to participate in the fund not only presently but also in the future, although he might well be entitled to participate in the fund in the future if his medical condition should change; thus, his appeal of the bureau’s order denying further benefits was authorized. Lass v. North Dakota Workmen's Compensation Bureau, 415 N.W.2d 796, 1987 N.D. LEXIS 426 (N.D. 1987).

Absent an appeal from an order denying benefits, a workers compensation bureau decision not to reopen a claim for consideration of new or additional evidence of medical condition at the time of a denial which is sought to be reopened is not appealable, but a bureau decision not to reopen a claim upon a request based upon a change in the claimant’s medical condition since the original decision is appealable. Lass v. North Dakota Workmen's Compensation Bureau, 415 N.W.2d 796, 1987 N.D. LEXIS 426 (N.D. 1987).

A claimant’s time for appeal does not begin to run until a notice of decision is given by the worker’s compensation bureau. Tooley v. Alm, 515 N.W.2d 137, 1994 N.D. LEXIS 89 (N.D. 1994).

The 30-day appeal period never began to run because the Workers Compensation Bureau never served claimant with a notice of a final determination upon reconsideration after the order become final, and thus claimant’s appeal was timely. Lende v. N.D. Workers' Comp. Bureau, 1997 ND 178, 568 N.W.2d 755, 1997 N.D. LEXIS 199 (N.D. 1997).

When Appeal Allowed.

Under former N.D.C.C. § 65-01-14(4), appeal of a workers compensation bureau’s final action denying a claim applied only following a request for reconsideration, and the necessity of a request for reconsideration in workers compensation cases prevailed over the general provisions in former N.D.C.C. §§ 28-32-14 and 28-32-15 (now N.D.C.C. §§ 28-32-40 and 28-32-42, respectively). McArthur v. North Dakota Workers Compensation Bureau, 1997 ND 105, 564 N.W.2d 655, 1997 N.D. LEXIS 104 (N.D. 1997).

Collateral References.

Exclusion or inclusion of terminal Sunday or holiday in computing time for taking or perfecting appeal from decision of workmen’s compensation board, 61 A.L.R.2d 482.

Statute permitting new action after failure of original action commenced within period of limitations, as applicable in cases where original action failed for lack of jurisdiction, 6 A.L.R.3d 1043.

Law Reviews.

Administrative Law, Judicial Review of Administrative Decisions in North Dakota, 24 Bar Briefs, State Bar Ass’n of N.D. 211 (1948).

Judicial Review of Decisions of the Workmen’s Compensation Bureau of North Dakota, 3 Dak. L. Rev. 16 (1930).

Limits on Jurisdiction of Board.

In exercise of its continuing jurisdiction bureau may not review final judgment of award, insofar as such judgment determines right of claimant up to date of judgment, nor correct same for errors of law inherent in its rendition. Hanson v. North Dakota Workmen's Compensation Bureau, 63 N.D. 479, 248 N.W. 680, 1933 N.D. LEXIS 201 (N.D. 1933).