North Dakota's injured workers face losing 2 protections
The North Dakota Legislature's Workers' Compensation Review Committee voted to disband and also wants to end required performance evaluations of Workforce Safety and Insurance, the state's workers'
BISMARCK — Tracy Jund suffered life-altering injuries when the squad car he was driving on a rural road was struck by a negligent driver.
The crash happened while Jund was patrolling as a Ransom County sheriff's deputy, so his injuries, which included serious damage to his left arm, were the responsibility of Workforce Safety and Insurance (WSI), North Dakota’s workers’ compensation agency.
The 2008 crash resulted in a protracted, ongoing battle with WSI over medical and disability benefits, a summary of which he presented Thursday, Aug. 25, to the North Dakota Legislature’s Workers’ Compensation Review Committee.
“WSI has made and still makes my life a living hell,” Jund told the committee, saying it had denied treatment, unleashed private investigators on him and even tried to get his law-enforcement license revoked. “They’re not for the injured worker.”
When he finished his testimony, Sen. Scott Meyer, R-Grand Forks, the committee chairman, thanked Jund for coming forward with his story. “It does give us a lot of information to digest,” Meyer said.
But later in the same meeting, Meyer and a majority of five committee members who were present voted to disband the committee. Established in 2005 when WSI was embroiled in complaints and controversy, the committee was originally intended to expire in 2007.
A majority of committee members also voted to eliminate a requirement that WSI undergo a performance evaluation every four years by experts in workers’ compensation to ensure that it acts properly in caring for 386,414 covered workers.
The legislative review committee and quadrennial performance evaluation are two important oversight tools to ensure WSI, one of only a handful of state monopoly workers’ compensation programs in the nation, acts properly, said Rep. Mary Schneider, D-Fargo, who voted to oppose both actions.
“We’ve had some tremendously compelling cases,” Schneider said, noting that the committee’s mission is to propose improvements in workers’ compensation based on testimony from injured workers. “I think it’s important that we serve as a voice, a platform for injured workers to present their concerns.”
The independent performance evaluations have focused on issues including WSI’s heavy reliance on out-of-state medical reviewers who often disagree with workers’ physician s. Recent evaluations also have examined WSI's management of addictive opioid painkillers .
“The agency itself has very little oversight,” Schneider said. She noted that the board overseeing the agency is dominated by employers and is not subject to oversight by insurance regulators.
But other committee members said no other state agency falls under a special legislative review committee, and said oversight still could be done by other means, including individual legislators acting on behalf of their constituents.
“You listen to some really difficult stories,” said Rep. Greg Stemen, R-Fargo, referring to workers’ testimony before the committee. But he said the stories are the exception. Stemen later asked, “When is good enough good enough?”
WSI has been responsive, Stemen said. “I think they’re going in the right direction.”
Sen. Curt Kreun, R-Grand Forks, said North Dakota’s workers’ compensation program is the envy of other states, and was skeptical that the review committee is making a real difference. “How many people have we helped?” Kreun asked, adding that often there are no legislative solutions to the problems presented by workers.
Bryan Klipfel, director of Workforce Safety and Insurance, said the review committee’s input has been helpful over the years, resulting in clearer communications with injured workers. “This committee, we’ve come off with some good things,” he said.
But Klipfel added that he thought the input could take other forms.
Sen. JoNell Bakke, D-Grand Forks, said legislators have a duty to provide a forum for injured workers to present problems in the hope of improving the system.
“Our job is to serve the people of this state,” she said. “I do think it’s important to listen to the people out there.”
Dean Haas, a Bismarck lawyer who represents injured workers, once worked for North Dakota's workers' compensation program. He told The Forum that the program remains in need of oversight.
Haas published an article in the North Dakota Law Review in 2013 entitled, “Broken Promise: The Demise of ‘Sure and Certain Relief’ under the North Dakota Workers Compensation Act.”
“It’s only worse since that,” Haas said, noting that eligibility requirements for benefits have continued to become more restrictive. North Dakota’s workers’ compensation program is unregulated, he said.
“Other states have oversight,” Haas said, adding that he thinks the program should be subject to state insurance regulation.
Landis Larson, president of the North Dakota AFL-CIO labor union, said in an interview that eliminating the review committee and performance evaluations are steps backward and do not serve injured workers.
Performance evaluations have shed light on WSI’s heavy reliance on medical reviewers who disagree with workers’ treating physicians to deny benefits, he said. Figures from WSI indicate it denied 29.4% of medical claims from 2017 to 2021.
“To me that’s 30% of the people who are asking for help” and getting turned down, Landis said. WSI’s figures indicate the program denied 24.7% of claims for lost wages during the five-year period.
“To me that seems like a huge number of people who are trying to get help who aren’t getting it,” Larson said.
The performance evaluations were "a good guide for them on how they could improve the services for injured workers," Larson said.
Elimination of the review committee, he said, “Just takes away another opportunity for someone to try to get their just compensation from WSI.”
Workers who appear before the review committee have lost all of their appeals, or the appeal deadline has expired, but present information in the hope that legislators can draft solutions to problems they bring to light.
WSI’s fund surplus was $1.1 billion as of 2021, the most recent figure reported on its website. Employers’ average premium rate saw decreases in six of the last eight years, including a decline of 8% in 2021.
The votes over eliminating the Workers’ Compensation Review Committee and the performance evaluations largely followed party lines.
Republican members Meyer, Kreun and Stemens voted to eliminate the review committee and performance evaluations. Democrats Schneider and Bakke both opposed ending the committee, but split over whether to discontinue requiring reports including the quadrennial evaluations, with Schneider opposed and Bakke in support.
If the full North Dakota Legislature agrees with the committee’s votes to disband and to eliminate the evaluation requirement, Jund’s case could be one of the last to be heard by the review committee.
As a result of his work-related injuries, Jund developed chronic regional pain syndrome — which twice left him addicted to narcotic painkillers — and post-traumatic stress disorder, which is rarely compensable under North Dakota law. He told legislators he was tailed by private investigators hired by WSI and that the agency initiated an investigation that could have taken away his law-enforcement license.
“WSI pushed and pushed to get me back to work,” even when he was battling addictions, for which he is now in recovery. Apparently believing he was exaggerating his pain, WSI hired private investigators to surveil him, Jund said.
He spotted a man spying on his family and ran the license plate number, discovering the man was a private investigator. WSI alleged that he had acted improperly by running the license check, Jund said.
“WSI spent all that money to try to prove I wasn’t as badly injured as I was,” he told legislators. WSI attributed his anxiety and depression to pre-existing conditions, but those were under control and came up in his review to obtain a law enforcement license, Jund said.
“I feel this has to be changed,” he told the committee.
Tim Wahlin, WSI’s chief of injury services, gave the agency’s response to Jund’s testimony. He said Jund’s complaints reflected a “breakdown” between WSI and the injured worker despite the agency’s “best efforts.”
He added: “There’s a loss of trust, there’s antagonism. That is abnormal, in my opinion, but it occurs and it occurred in this case.”