North Dakota Workers Comp Agency Changes Benefit Appeals Process

August 4, 2008

North Dakota’s workers compensation agency plans to resume using independent judges to review disputes over benefits for workers who are hurt on the job, its director says.

Two attorneys who represent injured workers suggested the change was influenced by a pending initiated measure that will, if approved, affect the management and appeals process at Workforce Safety and Insurance. WSI officials denied that.

The decision will affect relatively few benefit claims. During Workforce Safety’s last budget year, workers filed 21,309 benefit claims for injuries suffered on the job, agency data says. During the same period, there were 125 hearings held to appeal agency benefit decisions.

The hearings were formerly handled by administrative law judges who worked for the independent Office of Administrative Hearings, which is a North Dakota state agency.

However, Workforce Safety stopped using the office to handle appeals last November, saying its judges were too slow in making rulings. Instead, WSI hired a group of private attorneys to preside at the appeals, and offered them financial incentives to complete their rulings quickly.

Last March, a consultant’s report on Workforce Safety’s management recommended that the agency rehire the Office of Administrative Hearings. The new arrangement left workers with the impression that their cases were not getting an independent review, the consultant said.

Bruce Furness, who was hired in March as Workforce Safety’s interim chief executive officer, said Wednesday that restoring the relationship between WSI and the hearings office was one of his goals when he took the director’s job.

The new agreement with the hearings office requires that its administrative law judges complete their decisions within an average of 25 days after a worker’s appeal hearing ends. Before, it often took 40 days or more to get rulings.

Hearing officers will be paid $120 hourly for work time and $60 hourly for travel time, with a compensation limit of $2,940 per case, said Jodi Bjornson, Workforce Safety’s top lawyer.

The agreement requires the Office of Administrative Hearings to hire the seven lawyers that Workforce Safety was using as hearing officers until June 30, 2009. Afterward, the hearings office may hire other hearing officers, said Allen Hoberg, its director.

Hoberg said Rosellen Sand, a former administrative law judge and assistant attorney general, has also been hired as the new hearing officers’ supervisor.

“The important thing is that they’ll be out from WSI and under our management,” Hoberg said. “I think that makes a big difference in perception.”

Mark Schneider, a Fargo attorney who represents injured workers, said he was troubled that the agreement required the Office of Administrative Hearings to use the seven attorneys Workforce Safety had hired as its own hearing officers.

“They’re doing window dressing, is the nicest thing I can say about it,” Schneider said. “It makes it appear that these judges are independent, when in reality, they are still hand-picked by WSI … This just doesn’t pass the smell test. It just plain flat-out stinks.”

Schneider said Workforce Safety is less concerned about decision delays in other contexts, such as when a worker is awaiting an order on whether he or she is eligible for benefits.

“They will delay cases,” he said. “It is 24-karat (bunk) for them to say they are worried about the timeliness of (administrative law judge) decisions.”

Schneider and Stephen Little, a Bismarck attorney who represents injured workers and helped to organize the initiative campaign, said they believed the ballot measure influenced Wednesday’s announcement.

The initiative would give North Dakota’s governor explicit power to hire WSI’s chief executive, give the agency’s employees civil service job protection and specify that WSI may not unilaterally change an administrative law judge’s decisions on benefit appeals.

Supporters of the ballot measure plan to turn in their petitions next week, and they say they have enough signatures to guarantee a ballot spot in November.

“I think it’s clear that WSI would not have transferred control of the administrative law judges … without the specter of the initiated measure kind of breathing down their necks,” Little said. “I really think that is what drove it.”

Bjornson said the initiative was not an impetus for making the change, and Furness said it had been one of his goals when he became Workforce Safety’s interim director in March.

“This new arrangement takes WSI completely out of the management of the process,” Furness said.

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