North Dakota Code 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:
Terms Used In North Dakota Code 65-05-12.2
- children: includes children by birth and by adoption. See North Dakota Code 1-01-18
- Dependent: A person dependent for support upon another.
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- following: when used by way of reference to a chapter or other part of a statute means the next preceding or next following chapter or other part. See North Dakota Code 1-01-49
- Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
- Organization: includes a foreign or domestic association, business trust, corporation, enterprise, estate, joint venture, limited liability company, limited liability partnership, limited partnership, partnership, trust, or any legal or commercial entity. See North Dakota Code 1-01-49
- Process: means a writ or summons issued in the course of judicial proceedings. See North Dakota Code 1-01-49
- Rule: includes regulation. See North Dakota Code 1-01-49
- State: when applied to the different parts of the United States, includes the District of Columbia and the territories. See North Dakota Code 1-01-49
- written: include "typewriting" and "typewritten" and "printing" and "printed" except in the case of signatures and when the words are used by way of contrast to typewriting and printing. See North Dakota Code 1-01-37
- year: means twelve consecutive months. See North Dakota Code 1-01-33
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.