A consultant who determined that 14
percent of North Dakota workers compensation claims might have been
inappropriately denied recommended Monday that claims handlers be given more
discretion to decide cases involving gray areas.
The recommendation came as a legislative panel meeting in
Fargo weighed the merits of building more discretion into a complex system for
determining benefits that can comprise a lifeline for disabled workers.
Its a judgment call in some cases,
Anthony Walker, an executive for consultant Marsh USA, told legislative
committee members in testimony given by telephone.
He noted that his firm came to a different conclusion
involving legal interpretations in a dozen claims that had been denied by
Workforce Safety and Insurance, the North Dakota workers compensation
agency. In two other cases, claims files lacked documentation to determine
whether denials were appropriate.
Many claims deemed inappropriately denied concerned
work-caused aggravation of pre-existing injuries.
We felt those
claims could have been accepted based on our opinion, Walker said.
Several states have laws that give claims handlers more
discretion in deciding claims involving pre-existing conditions, within certain
parameters, he added.
Are we screwing it down too right so theres no
flexibility, asked Rep. Elwood Thorpe, D-Minot, who said he believed
there should be room for discretion in a system that deals with the human
Walker responded, I think there might be some
validity to that. In all, the consultants review found 14 of 84
denied claims were inappropriately rejected.
The denials were from a sample of 475 claims over a recent
three-year period, when the agency handled about 63,000 claims.
The discussion about how much discretion claims handlers
should have came as injured workers testified about their experiences with what
they portrayed as a bureaucracy that could be indifferent or even adversarial
when dealing with their disability benefits. A common theme involved
workers criticism of the agencys reliance on so-called independent
medical examiners who recommended denying their benefits based on incomplete
medical information and cursory examinations that contradicted the advice of
their treating physicians.
Workers also complained that they were required to follow
inappropriate rehabilitation or training programs, sometimes on the advice of a
The penalty for noncompliance: loss of benefits.
So far, more than 50 injured workers have contacted the
North Dakota Legislatures interim Industry, Business and Labor Committee,
which is exploring workers compensation reforms.
John Bjornson, a lawyer for the North Dakota Legislative
Council, said claims involving pre-existing conditions were by far the leading
cause of complaints, comprising perhaps 40 percent of grievances.
Other complaints included poor communications, complaints
about mishandled claims, independent medical examiners and inability to hire
lawyers, and doctors who refuse to take workers comp cases rounding out
the list, Bjornson said.
The lawyers dont get anywhere, the doctors
dont get anywhere, said Denise Locnikar of Fargo, one of the
injured workers who testified Monday. They dont listen to my
Darren Knutsvig, a disabled electrician from Buxton, said
his benefits stopped when he refused to go to school, after his doctor told him
he must take frequent breaks because of back and leg pain. He has been forced
to get assistance from other services.
Youre just putting more stress on the social
services of the state, Knutsvig told legislators.
Sen. Terry Wanzek, R-Jamestown, said the inappropriately
denied claims probably involve just 1 percent of all claims. He said the
challenge is to better focus on the complex cases, and wondered how other
states handle those cases.
Gordy Smith, a state auditor who is overseeing a
performance review of workers compensation, said a 1-percent
inappropriate denial rate could translate into more than 200 improper denials a
year, sometimes with catastrophic results, based on workers
The CIWS has pointed out how, in
Canada, the same things are happening - the culture of denial, the misuse of
so-called "independent" medical examiners, the adversarial bureaucracy, the
inappropriate rehabilitation or training programs and the downloading onto
other social programs.