19.8015.01000
Sixty-sixth
Legislative Assembly HOUSE BILL NO. 1072
of North Dakota
Introduced by
Industry, Business and Labor Committee
(At the request of Workforce Safety and Insurance)
1 A BILL for an Act to create and enact a new subsection to section 65-04-27.2 of the North
2 Dakota Century Code, relating to cease and desist orders; to amend and reenact section
3 65-01-02, subsection 4 of section 65-01-08, sections 65-01-10, 65-04-04, 65-04-06, 65-04-19,
4 65-04-22, 65-04-24, and 65-04-26.2, subsection 3 of section 65-04-32, section 65-04-33, and
5 subsection 1 of section 65-09-01 of the North Dakota Century Code, relating to definitions, the
6 removal of the word "annual", off-setting premiums, the organizational seal, payroll reports,
7 payment of premiums, premiums in default, notice of premium owing, liability of a general
8 contractor, notices of decision, noncompliance of employers, and liability of uninsured
9 employers; to repeal section 65-06.2-09 of the North Dakota Century Code, relating to safety
10 and performance reviews; to provide a penalty; and to provide for an application.
11 BE IT ENACTED BY THE LEGISLATIVE ASSEMBLY OF NORTH DAKOTA:
12 SECTION 1. AMENDMENT. Section 65-01-02 of the North Dakota Century Code is
13 amended and reenacted as follows:
14 65-01-02. Definitions.
15 In this title:
16 1. "Acute care" means a short course of intensive diagnostic and therapeutic services
17 provided immediately following a work injury with a rapid onset of pronounced
18 symptoms.
19 2. "Adopted" or "adoption" refers only to a legal adoption effected prior to the time of the
20 injury.
21 3. "Artificial members" includes a device that is a substitute for a natural part, organ,
22 limb, or other part of the body. The term includes a prescriptive device that is an aid for
23 a natural part, organ, limb, or other part of the body if the damage to the prescriptive
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1 device is accompanied by an injury to the body. A prescriptive device includes
2 prescription eyeglasses, contact lenses, dental braces, and orthopedic braces.
3 4. "Artificial replacements" means mechanical aids, including braces, belts, casts, or
4 crutches as may be reasonable and necessary due to compensable injury.
5 5. "Average weekly wage" means the weekly wages the injured employee was receiving
6 from all employments for which coverage is required or otherwise secured at the date
7 of first disability. The average weekly wage determined under this subsection must be
8 rounded to the nearest dollar. If the injured employee's wages are not fixed by the
9 week, they must be determined by using the first applicable formula from the schedule
10 below:
11 a. For seasonal employment, during the first consecutive days of disability up to
12 twenty-eight days the average weekly wage is calculated pursuant to the first
13 applicable formula in subdivisions b through g, and after that are calculated as
14 one-fiftieth of the total wages from all occupations during the twelve months
15 preceding the date of first disability or during the tax year preceding the date of
16 first disability, or an average of the three tax years preceding the date of first
17 disability, whichever is highest and for which accurate, reliable, and complete
18 records are readily available.
19 b. The "average weekly wage" of a self-employed employer is determined by the
20 following formula: one fifty-second of the average annual net self-employed
21 earnings reported the three preceding tax years or preceding fifty-two weeks
22 whichever is higher if accurate, reliable, and complete records for those fifty-two
23 weeks are readily available.
24 c. Hourly or daily rate multiplied by number of hours or days worked per seven-day
25 week.
26 d. Monthly rate multiplied by twelve months and divided by fifty-two weeks.
27 e. Biweekly rate divided by two.
28 f. The usual wage paid other employees engaged in similar occupations.
29 g. A wage reasonably and fairly approximating the weekly wage lost by the
30 claimantinjured employee during the period of disability.
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1 6. "Average weekly wage in the state" means the determination made of the average
2 weekly wage in the state by job service North Dakota on or before July first of each
3 year, computed to the next highest dollar.
4 7. "Board" means the workforce safety and insurance board of directors.
5 8. "Brother" and "sister" include a stepbrother and a stepsister, a half brother and a half
6 sister, and a brother and sister by adoption. The terms do not include a married
7 brother or sister unless that person actually is dependent.
8 9. "Child", for determining eligibility for benefits under chapter 65-05, means a legitimate
9 child, a stepchild, adopted child, posthumous child, foster child, and acknowledged
10 illegitimate child who is under eighteen years of age and resides with the injured
11 employee; or is under eighteen years of age and does not reside with the injured
12 employee but a duty of support is substantiated by an appropriate court order; or is
13 between eighteen and twenty-two years of age and enrolled as a full-time student in
14 any accredited educational institution and dependent upon the injured employee for
15 support; or is eighteen years of age or over and is physically or mentally incapable of
16 self-support and is actually dependent upon the injured employee for support. A child
17 does not include a married child unless actually dependent on the injured employee as
18 shown on the preceding year's income tax returns.
19 10. "Compensable injury" means an injury by accident arising out of and in the course of
20 hazardous employment which must be established by medical evidence supported by
21 objective medical findings.
22 a. The term includes:
23 (1) Disease caused by a hazard to which an employee is subjected in the
24 course of employment. The disease must be incidental to the character of
25 the business and not independent of the relation of employer and employee.
26 Disease includes effects from radiation.
27 (2) An injury to artificial members.
28 (3) Injuries due to heart attack or other heart-related disease, stroke, and
29 physical injury caused by mental stimulus, but only when caused by the
30 employee's employment with reasonable medical certainty, and only when it
31 is determined with reasonable medical certainty that unusual stress is at
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1 least fifty percent of the cause of the injury or disease as compared with all
2 other contributing causes combined. Unusual stress means stress greater
3 than the highest level of stress normally experienced or anticipated in that
4 position or line of work.
5 (4) Injuries arising out of employer-required or supplied travel to and from a
6 remote jobsite or activities performed at the direction or under the control of
7 the employer.
8 (5) An injury caused by the willful act of a third person directed against an
9 employee because of the employee's employment.
10 (6) A mental or psychological condition caused by a physical injury, but only
11 when the physical injury is determined with reasonable medical certainty to
12 be at least fifty percent of the cause of the condition as compared with all
13 other contributing causes combined, and only when the condition did not
14 pre-exist the work injury.
15 b. The term does not include:
16 (1) Ordinary diseases of life to which the general public outside of employment
17 is exposed or preventive treatment for communicable diseases, except that
18 the organization may pay for preventive treatment for a health care provider
19 as defined in section 23-07.5-01, firefighter, peace officer, correctional
20 officer, court officer, law enforcement officer, emergency medical technician,
21 or an individual trained and authorized by law or rule to render emergency
22 medical assistance or treatment whothat is exposed to a bloodborne
23 pathogen as defined in section 23-07.5-01 occurring in the course of
24 employment and for exposure to rabies occurring in the course of
25 employment.
26 (2) A willfully self-inflicted injury, including suicide or attempted suicide, or an
27 injury caused by the employee's willful intention to injure or kill another.
28 (3) Any injury caused by the use of intoxicants or the illegal use of controlled
29 substances.
30 (4) An injury that arises out of an altercation in which the injured employee is an
31 aggressor. This paragraph does not apply to public safety employees,
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1 including law enforcement officers or private security personnel who are
2 required to engage in altercations as part of their job duties if the altercation
3 arises out of the performance of those job duties.
4 (5) An injury that arises out of an illegal act committed by the injured employee.
5 (6) An injury that arises out of an employee's voluntary nonpaid participation in
6 any recreational activity, including athletic events, parties, and picnics, even
7 though the employer pays some or all of the cost of the activity.
8 (7) Injuries attributable to a pre-existing injury, disease, or other condition,
9 including when the employment acts as a trigger to produce symptoms in
10 the pre-existing injury, disease, or other condition unless the employment
11 substantially accelerates its progression or substantially worsens its
12 severity. Pain is a symptom and may be considered in determining whether
13 there is a substantial acceleration or substantial worsening of a pre-existing
14 injury, disease, or other condition, but pain alone is not a substantial
15 acceleration or a substantial worsening.
16 (8) A nonemployment injury that, although acting upon a prior compensable
17 injury, is an independent intervening cause of injury.
18 (9) A latent or asymptomatic degenerative condition, caused in substantial part
19 by employment duties, which is triggered or made active by a subsequent
20 injury.
21 (10) A mental injury arising from mental stimulus.
22 11. "Date of first disability" means the first date the injured employee was unable to work
23 because of a compensable injury.
24 12. "Date of maximum medical improvement" or "date of maximum medical recovery"
25 means the date after which further recovery from, or lasting improvement to, an injury
26 or disease can no longer reasonably be anticipated based upon reasonable medical
27 probability.
28 13. "Director" means the director of the organization.
29 14. "Disability" means loss of earnings capacity and may be permanent total, temporary
30 total, or partial.
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1 15. "Doctor" means doctor of medicine or osteopathy, chiropractor, dentist, optometrist,
2 podiatrist, or psychologist acting within the scope of the doctor's license, or an
3 advanced practice registered nurse or certified physician assistant.
4 16. "Employee" means an individual who performs hazardous employment for another for
5 remuneration unless the individual is an independent contractor under the
6 common-law test.
7 a. The term includes:
8 (1) All elective and appointed officials of this state and its political subdivisions,
9 including municipal corporations and including the members of the
10 legislative assembly, all elective officials of any county, and all elective
11 peace officers of any city.
12 (2) Aliens.
13 (3) County general assistance workers, except those who are engaged in
14 repaying to counties moneys the counties have been compelled by statute
15 to expend for county general assistance.
16 (4) Minors, whether lawfully or unlawfully employed. A minor is deemed sui juris
17 for the purposes of this title, and no other person has any claim for relief or
18 right to claim workforce safety and insurance benefits for any injury to a
19 minor worker, but in the event of the award of a lump sum of benefits to a
20 minor employee, the lump sum may be paid only to the legally appointed
21 guardian of the minor.
22 b. The term does not include:
23 (1) An individual whose employment is both casual and not in the course of the
24 trade, business, profession, or occupation of that individual's employer.
25 (2) An individual who is engaged in an illegal enterprise or occupation.
26 (3) The spouse of an employer or the child under the age of twenty-two of an
27 employer. For purposes of this paragraph and section 65-07-01, "child"
28 means any legitimate child, stepchild, adopted child, foster child, or
29 acknowledged illegitimate child.
30 (4) A real estate broker or real estate salesperson, provided the individual
31 meets the following three requirements:
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1 (a) The salesperson or broker must be a licensed real estate agent under
2 section 43-23-05.
3 (b) Substantially all of the salesperson's or broker's remuneration for the
4 services performed as a real estate agent must be directly related to
5 sales or other efforts rather than to the number of hours worked.
6 (c) A written agreement must exist between the salesperson or broker
7 and the person for which the salesperson or broker works, which
8 agreement must provide the salesperson or broker will not be treated
9 as an employee but rather as an independent contractor.
10 (5) The members of the board of directors of a business corporation who are
11 not employed in any capacity by the corporation other than as members of
12 the board of directors.
13 (6) An individual delivering newspapers or shopping news, if substantially all of
14 the individual's remuneration is directly related to sales or other efforts
15 rather than to the number of hours worked and a written agreement exists
16 between the individual and the publisher of the newspaper or shopping
17 news which states the individual is an independent contractor.
18 (7) An employer.
19 17. "Employer" means a person whothat engages or received the services of another for
20 remuneration unless the person performing the services is an independent contractor
21 under the common-law test. The term includes:
22 a. The state and all political subdivisions thereof.
23 b. All public and quasi-public corporations in this state.
24 c. Every person, partnership, limited liability company, association, and private
25 corporation, including a public service corporation.
26 d. The legal representative of any deceased employer.
27 e. The receiver or trustee of any person, partnership, limited liability company,
28 association, or corporation having one or more employees as herein defined.
29 f. The presi