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Patrick Springer, Published January 24 2013

Workforce Safety-backed bill: Pain not evidence of injury

FARGO – Legislation would eliminate pain as medical evidence of an injury that would qualify for workers’ compensation benefits for certain claims.

The bill is backed by Workforce Safety and Insurance, the state workers’ compensation program in North Dakota, but is opposed by lawyers who represent injured workers.

A workers advocate said House Bill 1163, heard earlier this week by a legislative committee, would put North Dakota outside the mainstream in its treatment of work-related aggravation to what are called pre-existing injuries or disease, such as arthritis.

An administrator for WSI said, however, that the bill would clarify workers’ compensation law.

At issue is whether pain qualifies as medical evidence that work activity has worsened an old injury or condition, or whether only a diagnostic image such as an X-ray counts as evidence, the position taken by WSI.

“Why should North Dakota be so out of the mainstream?” said Dean Haas, a Bismarck lawyer who represents injured workers. “What other state does this? I don’t know of any.”

Haas once worked for what was called the North Dakota Workers Compensation Bureau, from 1984 to 1995, before entering private practice.

The bill is a response to a North Dakota Supreme Court decision last year reversing a decision to deny benefits for a claim based on pain as evidence of work-related aggravation to an equipment operator’s arthritic back.

Tim Wahlin, WSI’s chief of injury services, testified that the decision could be costly if applied to pending and future claims but did not provide any figures in his written statement.

“Should this expansive reading of the statute ultimately prevail, it will have significant impacts on the fund,” Wahlin said in prepared testimony.

“Those pending and those future claims, even if generated from existing injuries, would be subject to this expansion of this interpretation of the term compensable injury,” he added.

WSI has prevailed in most of its cases under the current wording of the law and an interpretation that dates back 15 years, Haas said. “What were the dire consequences?”

A fiscal note WSI submitted along with the bill said, “No fiscal impact is anticipated as the proposed bill will not result in a change to WSI’s current and historical application of the statute.”

As people age, everyone has degenerative conditions, such as arthritis, that can be aggravated by the physical demands of work, Haas said.

With an aging workforce, more and more workers likely will face the possibility of aggravating conditions such as arthritis, he said.

A basic premise of workers’ compensation law throughout the country is to “take the worker as you find him,” including pre-existing injuries or illnesses, he said.

North Dakota’s laws defining eligibility for benefits already are the strictest in the nation, and would be further tightened by the proposal, Haas said.

“WSI doesn’t think it will change the current situation significantly, but it will help clarify an issue with which all jurisdictions struggle,” Clare Carlson, WSI’s deputy director, said in a statement.

Readers can reach Forum reporter Patrick Springer at (701) 241-5522

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