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Mar 01, 2019

Time is Money!

By: Allison Mann

The early bird gets the worm! This is a phrase most of us probably heard in our childhood from a parent, teacher, or family member. The gist of the phrase is that promptness yields rewards. Just like the bird who gets up early to search for a worm will be rewarded with a catch, so too will the person who gets up early accomplish his or her goals. Undoubtedly, this principle can also be applied to the workplace, such as reporting injuries sustained on the job. If injuries are not reported on time, an injured worker’s claim will be time barred, resulting in an otherwise valid claim being denied.

WSI Statutory Scheme:

North Dakota Workforce Safety & Insurance (“WSI”) is the sole provider and administrator of the workers’ compensation system in North Dakota. When a worker is injured on the job, state law provides that: “All original claims for benefits must be filed by the injured employee, or someone on the injured employee's behalf, within one year after the injury.” N.D.C.C. § 65-05-01. The date of injury is defined as: “the first date that a reasonable person knew or should have known that the employee suffered a work-related injury and has either lost wages because of a resulting disability or received medical treatment.” N.D.C.C. § 65-05-01. In other words, workers need to be aware that they must file WSI claims within one year of the date of their injury.

However, even if a worker files after the one-year statute of limitations, there are instances where the one-year statute of limitations will not apply, and WSI cannot deny the claim. If “an employer's willful conduct prevented an injured employee from filing a claim in a timely manner, that employer shall reimburse the organization [WSI] for the full amount of all benefits paid during the first five years of that claim.” N.D.C.C. § 65-05-01. This means that employers have an obligation to avoid willful conduct that prevents workers from timely filing WSI claims, otherwise they are liable to WSI for benefits paid out on an injured worker’s claim. An employer’s actions do not have to be purposely deceptive in order to amount to willful conduct. It is sufficient that an employer’s actions misled the claimant into believing that he or she can postpone filing their claim until the period of limitations has expired. These misleading statements will prevent the employer from applying the one-year statute of limitations as a bar to a late claim.

Injured on the Job: A Case Study

In one such case, a woman was injured on the job in 2002, and filed a WSI claim for her injuries. At the same time, she also claimed damage to her teeth that she sustained in falls in 1999 and in 2000 while at work. She did not report these to WSI within one year of the injuries, as required by the WSI statute of limitations. As a result, WSI denied her claim for dental injuries, citing that she failed to report her claim within the one-year statute of limitations for her 1999 and 2000 falls. As a defense, the woman argued that she did not report her injuries to WSI because her employer had told her that WSI did not cover dental injuries.

On appeal of this case, the North Dakota Supreme Court stated, with respect to workers compensation benefits: “[i]t is reasonable for an employee to rely on the employer’s presumably greater knowledge of such matters.” Nagel v. Workforce Safety & Ins., 2007 ND 202, ¶ 12, 743 N.W.2d 112 (citing, Linnertz v. N.D. Workers’ Comp. Bureau, 502 N.W.2d 528, 530 (N.D. 1993)). However, in this case, the court held that the 1999 and 2000 injuries were barred as she “failed to file a claim for these injuries after the notifying event in May of 2002, which ended the tolling of the statute of limitations for these injuries.” This notifying event should have alerted her to the fact that WSI did in fact accept dental claims, and she should have filed her claims for the 1999 and 2000 injuries. The fact that she did not file these claims after being made aware by the notifying event, resulted in her claims being time barred. The court, therefore, upheld WSI’s decision to deny her claim for dental benefits, and the employer was not required to compensate WSI for her damages related to late-filed claims.

In another such case the employer was not so lucky. A court found misrepresentations where an employer discouraged employees from filing workers’ compensation claims, while encouraging them to use the company’s private insurance carrier. Linnertz v. N.D. Workers’ Comp. Bureau, 502 N.W.2d 528, 530 (N.D. 1993). Employees had free access to medical forms for the company’s insurance provider, but limited access to workers’ compensation forms. The court held that this fostered employer-generated confusion among employees as to when to file workers’ compensation claims, and led to an employee failing to file his claim within the statute of limitations. The court held that such action was enough to preclude the application of the one-year statute of limitations. Employers must avoid such willful conduct as it can mislead employees.

The Takeaway:

Workers that are injured on the job must report injuries to WSI within the one-year statute of limitations, or their claim will be time barred and WSI will deny benefits. Employers have a statutory duty to avoid willful conduct that would prevent an injured worker from filing a claim in a timely manner, or risk becoming liable to WSI for payment of all benefits in an injured worker’s claim for the first five years of the claim. An employer can eliminate the tolling of the statute of limitations, by clearly notifying workers of the necessity of filing a claim within the statutory period.

Employers also ought to keep up to date on WSI regulations and encourage workers to timely file claims. Employers can educate and encourage their employees by using flyers in common areas in the workplace, highlighting early filing of WSI claims, keeping a record of workplace injuries, and advising injured employees of WSI requirements. Employers can also reach out to WSI for resources regarding WSI regulations.

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Reprinted with permission from an article submitted for publication in the March, 2019 Southwest Area Human Resource Association newsletter.