19.0398.02000
Sixty-sixth
Legislative Assembly SENATE BILL NO. 2184
of North Dakota
Introduced by
Senators J. Lee, Hogan, Klein
Representatives P. Anderson, Keiser, Rohr
1 A BILL for an Act to amend and reenact subsection 7 of section 23-07.5-02, sections 65-01-02,
2 65-01-11, 65-01-15, 65-02-20, 65-02-21.1, 65-05-07, 65-05-08.1, and 65-05-08.3, subsections 5
3 and 12 of section 65-05-12.2, section 65-05-28, subsection 2 of section 65-05-29, section
4 65-05-30, subsection 3 of section 65-05-32, subsection 5 of section 65-05.1-01, subsection 6 of
5 section 65-05.1-02, and subsection 1 of section 65-07-03 of the North Dakota Century Code,
6 relating to the definition of allied health care professional and health care provider with respect
7 to workers' compensation claims and benefits.
8 BE IT ENACTED BY THE LEGISLATIVE ASSEMBLY OF NORTH DAKOTA:
9 SECTION 1. AMENDMENT. Subsection 7 of section 23-07.5-02 of the North Dakota
10 Century Code is amended and reenacted as follows:
11 7. The exposed individual shall pay the expense of testing. However, if the exposure
12 occurs at an employee's workplace, the worker's employer shall pay the expense of
13 testing unless otherwise provided by subdivision b of subsection 1011 of section
14 65-01-02. If the individual to be tested is convicted of a crime relating to the exposure
15 or the exposure occurred during an arrest or other contact with the exposed individual
16 in the course of that individual's official duties, a court may order the individual to be
17 tested to pay for the testing.
18 SECTION 2. AMENDMENT. Section 65-01-02 of the North Dakota Century Code is
19 amended and reenacted as follows:
20 65-01-02. Definitions.
21 In this title:
22 1. "Acute care" means a short course of intensive diagnostic and therapeutic services
23 provided immediately following a work injury with a rapid onset of pronounced
24 symptoms.
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1 2. "Adopted" or "adoption" refers only to a legal adoption effected prior to the time of the
2 injury.
3 3. "Allied health care professional" includes a health care provider, pharmacist,
4 audiologist, speech language pathologist, or naturopath or any recognized practitioner
5 who provides skilled services pursuant to the prescription of, or under the supervision
6 or direction of any of these individuals.
7 4. "Artificial members" includes a device that is a substitute for a natural part, organ,
8 limb, or other part of the body. The term includes a prescriptive device that is an aid for
9 a natural part, organ, limb, or other part of the body if the damage to the prescriptive
10 device is accompanied by an injury to the body. A prescriptive device includes
11 prescription eyeglasses, contact lenses, dental braces, and orthopedic braces.
12 4.5. "Artificial replacements" means mechanical aids, including braces, belts, casts, or
13 crutches as may be reasonable and necessary due to compensable injury.
14 5.6. "Average weekly wage" means the weekly wages the employee was receiving from all
15 employments for which coverage is required or otherwise secured at the date of first
16 disability. The average weekly wage determined under this subsection must be
17 rounded to the nearest dollar. If the employee's wages are not fixed by the week, they
18 must be determined by using the first applicable formula from the schedule below:
19 a. For seasonal employment, during the first consecutive days of disability up to
20 twenty-eight days the average weekly wage is calculated pursuant to the first
21 applicable formula in subdivisions b through g, and after that are calculated as
22 one-fiftieth of the total wages from all occupations during the twelve months
23 preceding the date of first disability or during the tax year preceding the date of
24 first disability, or an average of the three tax years preceding the date of first
25 disability, whichever is highest and for which accurate, reliable, and complete
26 records are readily available.
27 b. The "average weekly wage" of a self-employed employer is determined by the
28 following formula: one fifty-second of the average annual net self-employed
29 earnings reported the three preceding tax years or preceding fifty-two weeks
30 whichever is higher if accurate, reliable, and complete records for those fifty-two
31 weeks are readily available.
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1 c. Hourly or daily rate multiplied by number of hours or days worked per seven-day
2 week.
3 d. Monthly rate multiplied by twelve months and divided by fifty-two weeks.
4 e. Biweekly rate divided by two.
5 f. The usual wage paid other employees engaged in similar occupations.
6 g. A wage reasonably and fairly approximating the weekly wage lost by the claimant
7 during the period of disability.
8 6.7. "Average weekly wage in the state" means the determination made of the average
9 weekly wage in the state by job service North Dakota on or before July first of each
10 year, computed to the next highest dollar.
11 7.8. "Board" means the workforce safety and insurance board of directors.
12 8.9. "Brother" and "sister" include a stepbrother and a stepsister, a half brother and a half
13 sister, and a brother and sister by adoption. The terms do not include a married
14 brother or sister unless that person actually is dependent.
15 9.10. "Child", for determining eligibility for benefits under chapter 65-05, means a legitimate
16 child, a stepchild, adopted child, posthumous child, foster child, and acknowledged
17 illegitimate child who is under eighteen years of age and resides with the employee; or
18 is under eighteen years of age and does not reside with the employee but a duty of
19 support is substantiated by an appropriate court order; or is between eighteen and
20 twenty-two years of age and enrolled as a full-time student in any accredited
21 educational institution and dependent upon the employee for support; or is eighteen
22 years of age or over and is physically or mentally incapable of self-support and is
23 actually dependent upon the employee for support. A child does not include a married
24 child unless actually dependent on the employee as shown on the preceding year's
25 income tax returns.
26 10.11. "Compensable injury" means an injury by accident arising out of and in the course of
27 hazardous employment which must be established by medical evidence supported by
28 objective medical findings.
29 a. The term includes:
30 (1) Disease caused by a hazard to which an employee is subjected in the
31 course of employment. The disease must be incidental to the character of
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1 the business and not independent of the relation of employer and employee.
2 Disease includes effects from radiation.
3 (2) An injury to artificial members.
4 (3) Injuries due to heart attack or other heart-related disease, stroke, and
5 physical injury caused by mental stimulus, but only when caused by the
6 employee's employment with reasonable medical certainty, and only when it
7 is determined with reasonable medical certainty that unusual stress is at
8 least fifty percent of the cause of the injury or disease as compared with all
9 other contributing causes combined. Unusual stress means stress greater
10 than the highest level of stress normally experienced or anticipated in that
11 position or line of work.
12 (4) Injuries arising out of employer-required or supplied travel to and from a
13 remote jobsite or activities performed at the direction or under the control of
14 the employer.
15 (5) An injury caused by the willful act of a third person directed against an
16 employee because of the employee's employment.
17 (6) A mental or psychological condition caused by a physical injury, but only
18 when the physical injury is determined with reasonable medical certainty to
19 be at least fifty percent of the cause of the condition as compared with all
20 other contributing causes combined, and only when the condition did not
21 pre-exist the work injury.
22 b. The term does not include:
23 (1) Ordinary diseases of life to which the general public outside of employment
24 is exposed or preventive treatment for communicable diseases, except that
25 the organization may pay for preventive treatment for a health care provider
26 as defined in section 23-07.5-01, firefighter, peace officer, correctional
27 officer, court officer, law enforcement officer, emergency medical technician,
28 or an individual trained and authorized by law or rule to render emergency
29 medical assistance or treatment who is exposed to a bloodborne pathogen
30 as defined in section 23-07.5-01 occurring in the course of employment and
31 for exposure to rabies occurring in the course of employment.
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1 (2) A willfully self-inflicted injury, including suicide or attempted suicide, or an
2 injury caused by the employee's willful intention to injure or kill another.
3 (3) Any injury caused by the use of intoxicants or the illegal use of controlled
4 substances.
5 (4) An injury that arises out of an altercation in which the injured employee is an
6 aggressor. This paragraph does not apply to public safety employees,
7 including law enforcement officers or private security personnel who are
8 required to engage in altercations as part of their job duties if the altercation
9 arises out of the performance of those job duties.
10 (5) An injury that arises out of an illegal act committed by the injured employee.
11 (6) An injury that arises out of an employee's voluntary nonpaid participation in
12 any recreational activity, including athletic events, parties, and picnics, even
13 though the employer pays some or all of the cost of the activity.
14 (7) Injuries attributable to a pre-existing injury, disease, or other condition,
15 including when the employment acts as a trigger to produce symptoms in
16 the pre-existing injury, disease, or other condition unless the employment
17 substantially accelerates its progression or substantially worsens its
18 severity. Pain is a symptom and may be considered in determining whether
19 there is a substantial acceleration or substantial worsening of a pre-existing
20 injury, disease, or other condition, but pain alone is not a substantial
21 acceleration or a substantial worsening.
22 (8) A nonemployment injury that, although acting upon a prior compensable
23 injury, is an independent intervening cause of injury.
24 (9) A latent or asymptomatic degenerative condition, caused in substantial part
25 by employment duties, which is triggered or made active by a subsequent
26 injury.
27 (10) A mental injury arising from mental stimulus.
28 11.12. "Date of first disability" means the first date the employee was unable to work because
29 of a compensable injury.
30 12.13. "Date of maximum medical improvement" or "date of maximum medical recovery"
31 means the date after which further recovery from, or lasting improvement to, an injury
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1 or disease can no longer reasonably be anticipated based upon reasonable medical
2 probability.
3 13.14. "Director" means the director of the organization.
4 14.15. "Disability" means loss of earnings capacity and may be permanent total, temporary
5 total, or partial.
6 15. "Doctor" means doctor of medicine or osteopathy, chiropractor, dentist, optometrist,
7 podiatrist, or psychologist acting within the scope of the doctor's license, or an
8 advanced practice registered nurse or certified physician assistant.
9 16. "Employee" means an individual who performs hazardous employment for another for
10 remuneration unless the individual is an independent contractor under the
11 common-law test.
12 a. The term includes:
13 (1) All elective and appointed officials of this state and its political subdivisions,
14 including municipal corporations and including the members of the
15 legislative assembly, all elective officials of any county, and all elective
16 peace officers of any city.
17 (2) Aliens.
18 (3) County general assistance workers, except those who are engaged in
19 repaying to counties moneys the counties have been compelled by statute
20 to expend for county general assistance.
21 (4) Minors, whether lawfully or unlawfully employed. A minor is deemed sui juris
22 for the purposes of this title, and no other person has any claim for relief or
23 right to claim workforce safety and insurance benefits for any injury to a
24 minor worker, but in the event of the award of a lump sum of benefits to a
25 minor employee, the lump sum may be paid only to the legally appointed
26 guardian of the minor.
27 b. The term does not include:
28 (1) An individual whose employment is both casual and not in the course of the
29 trade, business, profession, or occupation of that individual's employer.
30 (2) An individual who is engaged in an illegal enterprise or occupation.
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1 (3) The spouse of an employer or the child under the age of twenty-two of an
2 employer. For purposes of this paragraph and section 65-07-01, "child"
3 means any legitimate child, stepchild, adopted child, foster child, or
4 acknowledged illegitimate child.
5 (4) A real estate broker or real estate salesperson, provided the individual
6 meets the following three requirements:
7 (a) The salesperson or broker must be a licensed real estate agent under
8 section 43-23-05.
9 (b) Substantially all of the salesperson's or broker's remuneration for the
10 services performed as a real estate agent must be directly related to
11 sales or other efforts rather than to the number of hours worked.
12 (c) A written agreement must exist between the salesperson or broker
13 and the person for which the salesperson or broker works, which
14 agreement must provide the salesperson or broker will not be treated
15 as an employee but rather as an independent contractor.
16 (5) The members of the board of directors of a business corporation who are
17 not employed in any capacity by the corporation other than as members of
18 the board of directors.
19 (6) An individual delivering newspapers or shopping news, if substantially all of
20 the individual's remuneration is directly related to sales or other efforts
21 rather than to the number of hours worked and a written agreement exists
22 between the individual and the publisher of the newspaper or shopping
23 news which states the individual is an independent contractor.
24 (7) An employer.
25 17. "Employer" means a person who engages or received the services of another for
26 remuneration unless the person performing the services is an independent contractor<