Forum Editorial: North Dakota workers compensation should be regulated like any other insurance – InForum
A North Dakota Legislature committee just took two big steps back when it voted to recommend the rejection of a pair of measures that provided modest oversight of the state’s workers’ compensation program .
The Workers’ Compensation Review Board, which voted to disband, provided a forum for injured workers who have exhausted their remedies to appear and present their cases in hopes of improving the system.
Since its inception in 2005, based on worker feedback, the committee has made multiple recommendations that have been adopted into law, helping to bring about changes that benefit workers.
Panel members who voted to kill the panel said they were hearing from a dwindling number of aggrieved workers and wondered if the panel was accomplishing anything.
With less discussion, the committee also voted to eliminate the requirement that Workforce Safety and Insurance must undergo a performance review every four years to ensure it is administering benefits correctly and operating well. .
Together, these two actions are a slap in the face to workers. They have no choice but to file workers’ compensation and occupational disease claims with workers’ compensation. In exchange for giving up the right to sue their employer, employees are supposed to be guaranteed “sure and certain relief”.
This is the fundamental principle of workers’ compensation law. Instead of having to defend themselves against lawsuits, employers pay into an insurance fund that is supposed to pay workers’ medical bills and disability benefits.
But there is a huge financial conflict of interest at the heart of North Dakota’s workers’ compensation program.
Unlike almost every other state, North Dakota maintains the insurance fund and also controls the ability of workers to obtain relief from the fund through the laws it passes and implements. The state has an inbuilt tendency to be zealous in maintaining the financial health of the fund — which has a $1.1 billion surplus — even if that may mean being stingy in allocating benefits that are due to the workers.
Nearly 30% of workers’ medical claims and almost 25% of their disability claims are denied – and due to lack of oversight, we cannot say with certainty that these denials are justified.
It’s a classic case of the fox guarding the chicken coop. This is deeply unfair and helps explain the grievances that the legislative review board and performance audits were designed to address and prevent.
The system, which is overseen by an employer-dominated board, is biased on behalf of employers in fundamental ways. The first is that lawyers representing workers are only paid if they win, while private lawyers representing the fund are paid whether they win or lose.
As a result, only two or three attorneys in North Dakota are willing to take on injured worker cases. Think about it and ask yourself if this looks like a fair system. That’s a question Gov. Doug Burgum, who controls the agency, though it’s primarily overseen by the board, should be asking.
We have a simple solution that would help enforce fairness in the system. Workforce safety and insurance, now essentially unregulated, should be placed under the responsibility of the North Dakota Department of Insurance.
Insurance regulators, as they do for private health insurers as well as P&C insurers, would have the power to ensure that benefits are administered fairly and that the fund is financially sound.
Why can’t a system that works for other forms of insurance work for injured workers?
North Dakota must go further to ensure that “sure and certain relief” is a promise that is consistently kept.