1. The
terms used in this section have the same meaning as in North Dakota Century
Code title 65 and in North Dakota Administrative Code title 92, except:
a. "Covered employment" means hazardous
employment principally localized in this state which involves incidental
operations in another state. The term "covered employment" does not include
employment in which the employer is required by the laws of that other state to
purchase workers' compensation coverage in that other state.
b. "Employee" means any North Dakota employee
as that term is defined in North Dakota Century Code section 65-01-02 who
engages in covered employment and who is eligible to file for workers'
compensation benefits in another state if the employee suffers a work-related
illness or injury or dies as a result of work activities in that state. The
term "employee" also includes a person with optional workers' compensation
coverage in this state under North Dakota Century Code section 65-04-29 or
65-07-01 who engages in covered employment and is eligible to file for workers'
compensation benefits in another state if that person suffers a work-related
illness or injury or dies as a result of work activities in that
state.
c. "Employer" means an
employer as defined in North Dakota Century Code section 65-01-02, who is not
materially delinquent in payment of premium, and who has employees engaged in
covered employment. An employer is not materially delinquent in payment of
premium if the premium is no more than thirty days delinquent.
d. "Incidental operations" means business
operations of an employer for fewer than thirty consecutive days in which the
employer has no contacts sufficient, under the workers' compensation laws of
that other state to subject the employer to liability for payment of workers'
compensation premium in that other state and which operations do not require
the employer to purchase workers' compensation insurance under the laws of that
state.
2. If an
employee, hired in this state for covered employment by an employer covered by
the Workers' Compensation Act of this state, receives an injury while employed
in incidental operations outside this state, the injury is subject to the
provisions of this section if the employee elects to receive benefits under the
workers' compensation laws of that other state in lieu of a claim for benefits
in this state. This section applies only if the workers' compensation laws of
the other state allow the employee to elect to receive benefits under the laws
of that state. If the employee does not or cannot elect coverage under the laws
of another state, the injury is subject to the provisions of North Dakota
Century Code chapter 65-08.
The provisions of this section do not apply to:
a. States having a monopolistic state
fund.
b. States having a reciprocal
agreement with this state regarding extraterritorial coverage.
c. Compensation received under any federal
act.
d. Foreign
countries.
e. Maritime
employment.
f. Employer's liability
or "stop-gap" coverage.
3. An employee who elects to receive benefits
under the workers' compensation laws of another state waives the right to seek
compensation under North Dakota Century Code title 65.
4. The organization may pay, on behalf of an
employer, any regular workers' compensation benefits the employer is obligated
to pay under the workers' compensation laws of a state other than North Dakota,
with respect to personal injury, illness, or death sustained as a result of
work activities by an employee engaged in covered employment in that state, if
the employee or the employee's dependents elect to receive benefits under the
other state's laws in lieu of benefits available under the North Dakota
Workers' Compensation Act. The term "dependents" includes an employee's spouse.
The organization may pay benefits on behalf of an employer but may not act nor
be deemed as an insurer, nor may the organization indemnify an employer for any
liabilities, except as specifically provided in this section.
The benefits provided by this section are those mandated by
the workers' compensation laws of the elected state. This includes benefits for
injuries that are deemed compensable in that other state but are not
compensable under North Dakota Century Code chapters 65-05 and 65-08. Medical
benefits provided pursuant to this section are subject to any fee schedule and
other limitations imposed by the workers' compensation law of the elected
state. The North Dakota fee schedule does not apply to this section.
The organization may reimburse an employer covered by this
section for legal costs and for reasonable attorney's fees incurred.
Reimbursement will be considered only if the employer is sued in tort in
another state by an injured employee or an injured employee's dependents
relative to a work-related illness, injury, or death; or if the employer is
alleged to have failed to make payment of workers' compensation premium in that
other state by the workers' compensation authorities of that state. This
reimbursement may be made only if it is determined by the organization or by a
court of competent jurisdiction that the employer is subject to the provisions
of this section and was not required to purchase workers' coverage in that
other state relative to the employment of the injured employee. Attorney fees
and costs will be paid as set forth in section 92-01-02-11.1. If the other
state has an appeal process that differs from the organization, the
organization may pay fees consistent with, but may not exceed the fees and caps
set forth in section 92-01-02-11.1.
The organization may not reimburse any legal costs,
attorney's fees, nor any other costs to a coemployee sued in tort by an injured
employee.
5. If a claim for
workers' compensation benefits is compensable in this state and a claim for
workers' compensation benefits for the same injury or death is filed in another
state, the organization may defend, at the organization's expense, using
counsel and resources of the organization's choosing, any claim, proceeding, or
suit against a North Dakota covered employer. The organization may exceed the
fees and caps set forth in section 92-01-02-11.1 for this subsection. The
organization has the right to investigate and settle these claims, proceedings,
or suits.
The organization may not defend a claim for workers'
compensation benefits, proceeding, or suit if that claim for workers'
compensation benefits is not compensable in this state.
6. The organization may contract with a
qualified third-party administrator to adjust and administer claims arising
under this chapter. The organization shall pay the costs of the third-party
administrator from the general fund.
7. Benefits paid on behalf of an employer
pursuant to this section will be charged against the employer's account for
experience rating purposes. The experience rating loss will be equal to the
actual claim costs. The assessment charge plus appropriate penalties and
interest, if any, levied pursuant to North Dakota Century Code section
65-04-04.4, will be assessed on all claims brought under this
section.
8. The employer shall
notify the organization when a claim is filed in another state by an employee
covered by this section. The employer shall notify the organization of the
claim in writing. The employer has thirty days after actual knowledge of the
filing of a claim in which to notify the organization. That time can be
extended for thirty days by the organization if the employer shows good cause
for failing to timely notify the organization. If the employer fails to timely
notify the organization when a claim is filed in another state by an employee
covered under this section, the organization may not pay benefits under this
section.
The organization may not pay costs, charges, or penalties
charged against an employer for late reporting of an injury or claim to the
workers' compensation authorities of the state of injury.
9. The exclusive remedy provisions of North
Dakota Century Code sections 65-01-01, 65-01-08, 65-04-28, and 65-05-06 apply
to this section.