N.D. Cent. Code § 65-05-12.2
65-05-12.2. Permanent impairment - Compensation - Time paid
65-05-12.2. Permanent impairment - Compensation - Time paid
A permanent impairment is not intended to be a periodic payment and is not intended to
reimburse the employee for specific expenses related to the injury or wage loss. If a
compensable injury causes permanent impairment, the organization shall determine a
permanent impairment award on the following terms:
1.
The organization shall calculate the amount of the award by multiplying thirty-five
percent of the average weekly wage in this state on the date of the impairment
evaluation, rounded to the next highest dollar, by the permanent impairment multiplier
specified in subsection 10.
2.
The organization shall notify the employee by certified mail, to the last-known address
of the employee, when that employee becomes potentially eligible for a permanent
impairment award. After the organization has notified the employee, the employee
shall file, within one hundred eighty days from the date the employee was notified, a
written request for an evaluation for permanent impairment. Failure to file the written
request within the one hundred eighty-day period precludes an award under this
section.
3.
An injured employee is entitled to compensation for permanent impairment under this
section only for those findings of impairment that are permanent and which were
caused by the compensable injury. The organization may not issue an impairment
award for impairment findings due to unrelated, noncompensable, or pre-existing
conditions, even if these conditions were made symptomatic by the compensable work
injury, and regardless of whether section 65-05-15 applies to the claim.
4.
An injured employee is eligible for an evaluation of permanent impairment only when
all conditions caused by the compensable injury have reached maximum medical
improvement. The injured employee's doctor shall report to the organization the date
an employee has reached maximum medical improvement and any evidence of
impairment of function the injured employee has after that date. If the report states that
the employee is potentially eligible for a permanent impairment award, the
organization shall conduct a review and provide notice to the employee as provided by
subsection 2. If the injured employee files a timely written request under subsection 2,
the organization shall schedule an impairment evaluation by a doctor qualified to
evaluate the impairment.
5.
A health care provider evaluating permanent impairment shall include a clinical report
in sufficient detail to support the percentage ratings assigned. The organization shall
adopt administrative rules governing the evaluation of permanent impairment. These
rules must incorporate principles and practices of the sixth edition of the American
medical association's "Guides to the Evaluation of Permanent Impairment" modified to
be consistent with North Dakota law, to resolve issues of practice and interpretation,
and to address areas not sufficiently covered by the guides. Subject to rules adopted
under this subsection, impairments must be evaluated under the sixth edition of the
guides.
6.
The organization shall deduct, on a permanent impairment multiplier basis, from an
award for impairment under this section, any previous impairment award under the
workers' compensation laws of any jurisdiction.
7.
An injured employee is not entitled to a permanent impairment award due solely to
pain.
8.
Other than an award identified in subsection 11, an award may not be issued unless
specifically identified and quantified within the sixth edition of the American medical
association's "Guides to the Evaluation of Permanent Impairment".
9.
If an employee dies, the right to any compensation payable pursuant to an impairment
evaluation previously requested by the employee under subsection 2, which remains
unpaid on the date of the employee's death, survives and passes to the employee's
dependent spouse, minor children, parents, or estate, in that order. If the employee
dies, only those findings of impairment which are objectively verifiable such as values
for surgical procedures and amputations may be considered in a rating for impairment.
Impairment findings not supported by objectively verifiable evidence may not be
included in a rating for impairment. The deceased employee's dependents or
representatives shall request an impairment award under this subsection within one
year from the date of death of the employee.
10.
If the injury causes permanent impairment, the award must be determined based on
the percentage of whole body impairment in accordance with the following schedule:
Permanent impairment
Impairment:
multiplier of:
1 to 13 percent
0
14 percent
10
15 percent
10
16 percent
15
17 percent
15
18 percent
20
19 percent
20
20 percent
25
21 percent
25
22 percent
30
23 percent
30
24 percent
30
25 percent
35
26 percent
35
27 percent
35
28 percent
40
29 percent
45
30 percent
50
31 percent
60
32 percent
70
33 percent
80
34 percent
90
35 percent
100
36 percent
110
37 percent
120
38 percent
130
39 percent
140
40 percent
150
41 percent
160
42 percent
170
43 percent
180
44 percent
190
45 percent
200
46 percent
210
47 percent
220
48 percent
230
49 percent
240
50 percent
260
51 percent
280
52 percent
300
53 percent
320
54 percent
340
55 percent
360
56 percent
380
57 percent
400
58 percent
420
59 percent
440
60 percent
465
61 percent
490
62 percent
515
63 percent
540
64 percent
565
65 percent
590
66 percent
615
67 percent
640
68 percent
665
69 percent
690
70 percent
715
71 percent
740
72 percent
765
73 percent
790
74 percent
815
75 percent
840
76 percent
865
77 percent
890
78 percent
915
79 percent
940
80 percent
965
81 percent
990
82 percent
1015
83 percent
1040
84 percent
1065
85 percent
1090
86 percent
1115
87 percent
1140
88 percent
1165
89 percent
1190
90 percent
1215
91 percent
1240
92 percent
1265
93 percent
1290
94 percent
1320
95 percent
1350
96 percent
1380
97 percent
1410
98 percent
1440
99 percent
1470
100 percent
1500
11.
An amputation of a finger or toe at the level of the distal interphalangeal joint or
proximal to that joint, or the thumb or the great toe at the interphalangeal joint or
proximal to that joint, which is determined to result in a whole body impairment of less
than fourteen percent and which is not identified in the following schedule, is payable
as a fourteen percent impairment. If an evaluation for the loss of an eye or for an
amputation results in an award that is less than the permanent impairment multiplier
identified in the following schedule, the organization shall pay an award equal to the
permanent impairment multiplier set out in the following schedule:
Permanent impairment
For amputation of:
multiplier of:
A thumb
65
The second or distal phalanx of the thumb
28
The first finger
40
The middle or second phalanx of the first finger
28
The third or distal phalanx of the first finger
22
The second finger
30
The middle or second phalanx of the second finger
22
The third or distal phalanx of the second finger
14
The third finger
20
The middle or second phalanx of the third finger
16
The fourth finger
16
The middle or second phalanx of the fourth finger
12
The leg at the hip
234
The leg at or above the knee
195
The leg at or above the ankle
150
A great toe
30
The second or distal phalanx of the great toe
18
Any other toe
12
Permanent impairment
For loss of:
multiplier of:
An eye
150
Vision of an eye which equals or exceeds 20/200 corrected
100
The award for the amputation of more than one finger of one hand may not exceed an
award for the amputation of a hand. The award for the amputation of more than one
toe of one foot may not exceed an award for the amputation of a foot. If any of the
amputations or losses set out in this subsection combine with other impairments for
the same work-related injury or condition, the organization shall issue an impairment
award based on the greater of the permanent impairment multiplier allowed for the
combined rating established under the sixth edition of the American medical
association's "Guides to the Evaluation of Permanent Impairment" or the permanent
impairment multiplier set forth in this subsection.
12.
If there is a medical dispute regarding the percentage of an injured employee's
permanent impairment, all relevant medical evidence must be submitted to an
independent health care provider who has not treated the employee and who has not
been consulted by the organization in relation to the injury upon which the impairment
is based. The organization shall establish a list of health care providers who have the
training and experience necessary to conduct an evaluation of permanent impairment
and to apply the sixth edition of the American medical association's "Guides to the
Evaluation of Permanent Impairment". The organization shall define, by rule, the
process by which the organization shall choose an independent health care provider or
health care providers to review a disputed permanent impairment evaluation or rating.
The decision of the independent health care provider or health care providers chosen
under this process is presumptive evidence of the degree of permanent impairment of
the employee which can only be rebutted by clear and convincing evidence. This
subsection does not impose liability on the organization for an impairment award for a
rating of impairment for a body part or condition the organization has not determined to
be compensable as a result of the injury. The employee bears the expense of witness
fees of the independent health care provider or health care providers if the employee
disputes the findings of the independent health care provider or health care providers.
13.
An attorney's fees are not payable unless there is a bona fide dispute as to the
percentage of the employee's permanent impairment or unless there is a dispute as to
the employee's eligibility for an award for permanent partial impairment. An attorney's
fees payable in connection with a permanent impairment dispute may not exceed
twenty percent of the additional amount awarded upon final resolution of the dispute,
subject to the maximum fees established pursuant to section 65-02-08.
14.
An attorney may not seek or obtain from an employee through a contingent fee
arrangement, or on a percentage basis, costs or fees payable in connection with the
award or denial of compensation for permanent impairment. A permanent impairment
award is exempt from the claims of creditors, including an employee's attorney, except
as provided by section 65-05-29.
15.
If an injured employee qualifies for an additional award and the prior award was based
upon the number of weeks, the impairment multiplier must be used to compare against
the prior award of weeks in determining any additional award.