Photo credit: Cindy Gomez

WSI Board Reviews Workers Bill of Rights

By Cindy Gomez
Editor

Recently, Sylvan Loegering (Volunteer Coordinator) and myself (Claims Assistance Coordinator) for North Dakota Injured Workers Support Group (NDIWSG) met April 15 in Bismarck with the state board of Workforce Safety and Insurance (WSI), North Dakota’s workers compensation system. This discussion was a direct result of NDIWSG’s efforts to promote fair treatment for workers injured on the job, using a Bill of Rights for Injured Workers of North Dakota. Given the great controversies over injured worker’s rights and WSI, the reception given to the Bill of Rights by WSI’s board is being watched closely by North Dakota’s workforce and, especially by NDIWSG.

NDIWSG was organized in 2008 with two goals: (1) assist injured workers in communicating with WSI and (2) work to change North Dakota laws, so that injured workers get the “sure and certain relief” promised in state statute. NDIWSG has held many local meetings to discuss issues and assist injured workers. Its first campaign was in support of Measure 4. The measure was placed on the ballot and approved by nearly two thirds of North Dakota voters. Major provisions of Measure 4 included making the governor directly responsible for WSI’s actions and making the Administrative Law Judge’s decisions final in workers compensation cases. This was a major victory for injured workers.

NDIWSG’s next campaign was lobbying for changes in workers compensation law during the 2009 legislative session. Representatives of NDIWSG testified at hearings on approximately two dozen bills. A handful of laws were enacted that helped injured workers to some extent. However, bills that would have made a more significant difference for injured workers were opposed by WSI and were defeated.

NDIWSG continues to promote changes in the wording and application of law in several areas:

WSI can and does deny medical treatment and other benefits due to preexisting or degenerative conditions.

Though there are steep penalties for misrepresentations by an injured worker to WSI in an effort to fraudulently get benefits, the workers compensation law does not make it illegal to lie in an effort to deny benefits to injured workers.

The mere accusation of “fraud” by WSI forces many injured workers to either expend money they don’t have to hire an attorney to defend against the accusation, or quit their claim altogether and slink away in silence.

WSI has the right to initiate a fraud investigation and surveillance of any injured worker, but they don’t have to have (nor do they in many cases) a legitimate suspicion that fraud is being committed to initiate an investigation.

Although WSI reserves the right to reopen any claim at any time, injured workers have no method of getting claims reopened without WSI’s approval. And
WSI rarely considers reopening claims, even when an extreme hardship (usually related to the catastrophic work injury) prevents the injured worker from complying with a WSI requirement.
There are problems with WSI’s disability system, and the length of time benefits can be collected by injured workers.

Recent successes include NDIWSG efforts to have issues affecting injured worker benefits studied by order of the legislature. These include policy regarding pre-existing/degenerative conditions, improvement in vocational rehabilitation programs, disability benefits at retirement age and availability of legal counsel for injured workers. The results of these studies will be available to the 2011 legislature. NDIWSG plans to be a significant party to discussions at that time.

The meeting with WSI’s board reviewed the NDIWSG-sponsored bill of rights, introduced in 2009 and consisting of 10 articles. Article topics are

I) Right to Workers Compensation,

II) Treating Physicians,

III) Right to Independent Medical Exams,

IV) Right to Benefits (especially as it pertains to pre-existing and degenerative conditions),
V) Right to Independent Review,

VI) Right to Disability Benefits,

VII) Protection from Fraud,

VIII) Offsets of Disability Income (subsequent study caused NDIWSG to drop its support of this provision)

IX) Vocational Rehabilitation and

X) Legal Representation.

The complete text of the bill of rights can be found on NDIWSG’s web site,  http://www.ndworkcomphelp.com.

The WSI board devoted a full hour to discussion of the bill of rights with NDIWSG. Loegering summarized each article for the board and gave vivid examples of real people facing barriers to access benefits and clearly illustrating the need for workers compensation reform. Specifically, reform in the areas of:

Employer fraud (to address accountability for employers who lied about the circumstances of work injuries and try to deny injured workers from receiving their benefits).

Individuals who permanently lost their benefits because they unwittingly missed a 30-day deadline.

Individuals who do not have the vocational or verbal knowledge to navigate the law and effectively request reconsideration of discontinued benefits (and those who cannot afford legal counsel).

WSI’s interpretation of “actual wage loss” and its effect on people who do not have a job (after losing it due to a work injury) when they reapply for benefits.

Workers in vocational rehabilitation who lose their benefits if they do not or cannot comply with orders to do five job searches per day. (ND Job Service requires two job searches per week to get unemployment.)

Loegering and I encouraged WSI to change policy and procedure in areas over which the agency has control. We also asked the board to assist in working for legislative changes in those areas where current law prevents WSI from following principles contained in the bill of rights. Loegering’s summary was followed by an active Q & A and agreement that discussions on various issues between WSI and NDIWSG will continue. In the meantime, NDIWSG and the workers of North Dakota will continue to watch and wait patiently (and many impatiently) for response and action from WSI’s board to alleviate problems that plague injured workers across the state when dealing with WSI.

A meeting of NDIWSG, open to the public, will be held at 7 pm, Thursday, April 22, at Nativity Catholic Church in Fargo. Topics of discussion will include public promotion of the bill of rights and reorganizing the group’s structure for a broader representation of members in NDIWSG’s leadership. The group presently has contacts across North Dakota but wishes to strengthen the involvement of people outside of the Fargo area in active leadership and decision-making.
Editor’s note: Claims Assistant can be reached by e-mail at .(JavaScript must be enabled to view this email address). Loegering is a resident of West Fargo, ND,  and currently the Dem-NPL candidate for State Senate in District 13. He can be reached by e-mail at .(JavaScript must be enabled to view this email address) or by phone at 701.282.8714.
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