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History of WSI helps explain controversy

Special to the West Fargo Pioneer

The West Fargo Pioneer recently featured an article about WSI and issues relating to benefits for North Dakota workers injured on the job.

A little history may help clarify how current controversy around WSI has evolved.

Before 1919, employees injured on the job in North Dakota were pretty much on their own. They got whatever medical care they could pay for, and, if they recovered, they went back to work. In the meantime, they went without income. If they didn't recover sufficiently to be able to work, they lived in abject poverty depending on charity or whatever meager income their dependent children could earn.

There were two possible exceptions. An employer who was fair-minded, kind-hearted and wealthy enough, might give the injured employee assistance. The other possibility was that the injured worker could sue his employer for damages. The system left a lot to be desired for everyone. Employees went to work knowing that an injury could mean his working days were over. An employer knew that an accident could bring legal expenses and/or a jury award that could put him out of business.

In 1919, the N.D. legislature established a workers compensation system protecting employers and employees. Employers would be immune from lawsuits over accidents if they put a portion of wages into a fund. The fund would reimburse employees for medical bills, lost wages, and other expenses resulting from on-the-job injuries, but employees lost the right to sue. Occasional court cases clarified application of the law and wording was fine-tuned by the legislature, but the system managed pretty much as designed.

In the 1990s, injured employees experienced serious delays in claims handling and the fund was going broke. Some blamed the governor-appointed director for mismanagement; others blamed the governor for keeping premiums artificially low for political reasons. Over several sessions, the legislature balanced the fund by making it easier to deny benefits and by raising premiums. They also made workers compensation independent of the governor and changed its name to Workforce Safety and Insurance (WSI).

According to the 2008 Performance Review, a change in philosophy by WSI in 2005-2007 produced more denials and fewer reversals of denials. This has resulted in hundreds of additional employees being denied benefits each year and a groundswell of dissatisfaction leading eventually to passage of Measure 4 by the voters in 2008. The governor is now officially responsible for WSI but premiums are set by law and not by the governor.

Currently, there are two views of WSI.

One camp says the fund has been balanced and claims are being handled much quicker. The vast majority of claims are paid. We have among the lowest workers compensation premiums in the country and everything is fine. Most notable in this group are WSI leaders, legislators who voted for the changes in the 90s, and those who want to keep business costs low.

The other camp points to denial rates going up (2005-2007) at the same time employers were receiving approximately 200 million dollars in premium rebates (2006-2008). They point out that the small percentage of unpaid claims are largely disabling injuries that have put people out of work. Employer premiums adjusted out of necessity have gone back down but changes in employee compensation instituted out of necessity have not been reversed. They say the employer still enjoys the original 1919 immunity from lawsuits but the employees have much less protection than they were given in 1919. They feel the fund has been balanced on the backs of injured workers. Most notable in this group are injured workers, their families, their friends and others who support injured workers that are having problems.

Where do we go from here? How workers compensation claims are handled is a result of internal philosophy at WSI and of the laws regulating them. We still have government of the people, by the people, and for the people. Good government depends on an informed citizenry. If voters become informed and let public leaders know their feelings they can influence that internal philosophy and legislative decisions. The ultimate control of North Dakota's workers compensation system belongs to the citizens of North Dakota.