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Proposed measure changing ND workers comp could be on ballot

State Rep. Marvin Nelson, D-Rolla

ROLLA, N.D.—A proposed ballot measure that would impact worker injury insurance in North Dakota is getting closer to the day when petitions could be on the street.

The measure could affect volunteer first responders, as well as address such issues as covering workers who suffer mental health issues or chronic pain related to their jobs. It would also remove Workforce Safety & Insurance from self-regulation and place it under the purview of the North Dakota Insurance Commission.

Rep. Marvin Nelson, D-Rolla, said supporters are working on the final language and should have a measure committee named shortly. Once those items are in place, the measure can be submitted to the Secretary of State for language approval so petitions can be circulated.

Currently, petitions are in circulation for a statewide ballot measure repealing the remaining restrictions in state law on Sunday opening for businesses.

Nelson hopes to have his group's petitions out soon because they must collect 13,452 signatures or more by a July 7, 2018, deadline to get on the November 2018 ballot.

"We are very close to having enough volunteers to form the committee," Nelson said. It's not a matter of finding members but ensuring a broad representation, he said.

"We could have the committee, but we want members from really all the different groups that are significantly affected," he said.

Among groups that would be affected are volunteer first responders. The measure would change the way WSI calculates benefits of an injured volunteer to allow payment based on either covered wages or the average weekly state wage. The change is necessary because volunteers, being unpaid, could receive nothing, Nelson said.

Another change would ensure that if a volunteer suffered a heart attack or stroke within 24 hours of a call, a presumption would exist that the incident is related to the volunteer activity.

Along with first responder issues, the proposed WSI measure covers other matters that Nelson said have been problematic for workers. His efforts to make those changes legislatively have been unsuccessful because of Republican resistance, he said.

One change would add work-related post-traumatic stress as a covered injury. Because WSI does not cover these mental health injuries, employers are subject to being sued, Nelson said. Changing WSI coverage would protect both workers and employers, he said.

"It doesn't make sense not to do this," he said.

The language would address situations such as one earlier this year involving Williston police officer Bill Holler, who was diagnosed with post-traumatic stress disorder after responding to a call that resulted in a gruesome suicide. WSI denied his claim. Mental harm accompanied by a physical injury is eligible for compensation but a mental injury arising from mental stimulus is not covered.

Rep. Dan Ruby, R-Minot, previously has stated coverage of PTSD would open up a "vast gray area for future claims" and significantly raise premiums for employers. Nelson argues premiums would rise marginally, but employers would save the cost of potential lawsuits or the cost of private insurance to cover possible PTSD claims that go uninsured by WSI.

Nelson also said WSI needs to be removed from self-regulation and placed under the purview of the North Dakota Insurance Commission. Insurance Commissioner Jon Godfread had no comment on the proposal, having not seen the measure. However, previous commissioner Adam Hamm had at one time supported the idea.

The measure draft would require the insurance commissioner and director of WSI to evaluate and develop a plan for transferring the regulation of workforce safety and insurance to the insurance department. The insurance commissioner could contract with a third party to perform the evaluation and assist in the development of an implementation plan.

The proposed measure also seeks to ensure coverage for chronic pain and would close a loophole that leaves workers uncovered by either WSI or traditional health insurance, Nelson said. Currently, a WSI ruling can be overturned only if a reasoning mind could not have reached the conclusion WSI reached. Other insurers use preponderance of evidence to show an injury is work-related and deny a claim. The measure allows courts to consider preponderance of evidence, giving insurance companies standing to dispute a WSI decision.

Nelson, who has long been an advocate for WSI changes, acknowledged supporters face hurdles in educating a public not well informed about WSI and in taking on opposition from well-funded business groups. He's committed to the cause, though.

"It's been a big issue for me," he said, noting it is his goal "to continue on and continue trying to keep my promises to these people and workers I have run into, and try to make it right to the greatest extent that I can."