The History and Advantages of a Tribal Workers Compensation Program. Presented by Bob Dahl, TWC Program Manager

The History and Advantages

of a Tribal Workers’

Compensation Program

Program

Objectives

Understanding of Workers Compensation

The History of Tribal Workers’ Compensation Sovereign Rights and Self Determination

Advantages of a Tribal WC Program Comparison of the Programs

Understanding of AMERIND TWC

Workers’ Compensation

 Subject to State court  State Mandated Benefits

 Mandatory for Non-Tribal entities with 2 or more Employees

 With few exceptions, Tribes are exempt

 May be required by a State Gaming Compact

Case Law

 Allowed states to enforce its WC laws over

 All lands owned or held by USA by deed, act of cession or purchase

 WI and the Menominee (1936)

 AZ and the Navajo Nation (1941 & 1954)

 Did not apply to Tribes or tribal enterprise on Reservation  Intended to protect laborers of US govt. contractors

 1980s

 AZ and the Navajo Nation (1980-82)

 Applied to non-Indian employers on Reservation

 AZ and the White Mountain Apache (1985)

 Regardless of stat. coverage, State has no jurisdiction

The History

The 1989 MN Supreme Court case reviewed & decided whether a tribal employer was required to provide statutory workers’ compensation benefits to an employee injured in the course of employment. In rendering it’s decision the court cited a brief furnished by Berkley Risk, a MN TPA, concerning the sovereign immunity status of Tribal Nations and ruled in favor of the tribal employer. In doing so, the court affirmed the sovereign rights of Tribal Governments to exempt themselves from state workers’ compensation laws provided they choose not to purchase an insurance policy affording statutory benefits.

Subsequent to the Supreme Court’s ruling Berkley Risk was retained by many of the Midwestern Tribes to develop and administer sovereign Tribal WC Programs to offer generous benefits for work related injuries while maintaining the Tribe’s sovereign status.

Tribal WC Program

Tribal Law or Workers’ Compensation Ordinance Designed with cost control/rich benefits in mind

Exercise of Sovereign Rights and Self Determination UtilizesTribal Courts

Exempt from State Law and Requirements

Gaming Compacts

Not a waiver of Sovereignty, but an exercise of Sovereignty

The Advantages

Exercising tribal sovereignty allows the Tribe to achieve

additional advantages over an employer operating under the confines of a state Workers’ Compensation Law:

 The Tribe owns the program and it’s results.

 Draft a WC Ordinance specific to the tribe’s needs  Reduce attorney costs

 No insurance company profit incentive  No state taxes, fees or assessments  No premium tax

Program Comparisons

State Workers’ Compensation

Non-Indian focused High cost

State regulated

State law and courts Profit and taxes

Inflexible

Attorney focused Unlimited Liability

Requires waiver of sovereignty

Covers all employees for:

Wage loss Medical costs Body part loss Funeral expenses

Tribal Workers’ Compensation

Indian focused and owned

Lower cost – 10-25% savings or more Operated under Tribal Sovereignty Tribal law and courts

Not-for-profit and tax exempt Flexible

Arbitration focused

Capped Liability - $10,000,000 No waiver of sovereignty

Covers all employees for:

Wage loss Medical cost Body part loss Funeral expenses

AMERIND TWC Program

 A sovereign WC program that is not subject to

the authority or jurisdiction of state WC laws.

 Provides benefits generally provided under state

WC system.

 Covers all employees of the Tribe

;

 Full time, part time, temporary and seasonal  While in the course and scope of employment  Whether on or off Tribal lands

AMERIND TWC Benefits

 Medical Treatment

 Primary healthcare provider within 100 miles of employee’s home.  Provides for referral to a specialist subject to prior approval.

 Includes reimbursement of employee’s mileage to attend appointments.

 Temporary Total Disability

 Subject to 3 day waiting period

 Paid at 66 2/3% of employee’s wage, subject to a max of $750/week.

 Temporary Partial Disability

 Paid at 66 2/3% of difference in wages, subject to a max of $750/week.

 Permanent Total Disability

 Payable when an employee is no longer able to engage in any employment.

 Permanent Impairment

 Follows AMA Guidelines.

 Rehabilitation/Nurse Case Manager

 Assists employee in returning to work if needed or assist in coordinating medical treatment on claims with serious injuries.

 Death Benefits

 Paid to employee’s dependents (66 2/3% of employee’s wage, max of $750/week.  Includes $5000.00 burial allowance.

If an Incident/Injury Occurs

 Report any incident/injury (no matter the severity) to your supervisor, immediately after it occurs.

 Incidents/injuries need to be reported within 48 hours of occurrence or may be denied for late reporting.

 Will insure your claim is handled in a timely manner.  Will allow supervisor to get an accurate description of

occurrence and take necessary steps to prevent further injury in future.

 Details can be provided to Safety Committee to determine what can be done to prevent or eliminate similar occurrences in

future.

 Report of injury is completed and provided to claim administrator.

CONFIDENTIAL

Employee Responsibilities

 Report any injury (no matter the severity) to a supervisor, within 48 hours of occurrence.

 Provide accurate answers to claim handler’s questions and sign and return the forms as requested.

 Cooperate with any recommended medical treatment that is reasonable and necessary to treat a work related

injury.

 Cooperate with any rehabilitation specialist or nurse case manager assigned to assist with the claim.

 Maintain contact with employer at least one time per week and provide medical updates after each medical appointment.

CONFIDENTIAL

Dispute Resolution Process

 If an employee is

dissatisfied

 Employee has right to legal counsel at own expense.

 Claim petition filed by employee or legal counsel within 30 days.  Referred to Employee Injury Hearing Examiner for review.

 Hearing Examiner may request further information or evidence.  Review based on written evidence submitted by parties.

 Hearing Examiner’s written decision issued with 30 days.

CONFIDENTIAL

Your AMERIND Resource

 Expertise in Creating Tribal WC Programs

 Safety Training Programs

 Develop a Loss Control Plan

 Creating a Safety Committee

 Creating a Return to Work Program

 Develop a Claims Integration Process

Loss Control

 Identify loss drivers by entity, shift, occupation, etc.  Develop a comprehensive plan for Loss

Control/Claim Management

 Implement Supervisor/Employee training

 Assist in developing a Management/Accountability system

Claims

Develop claims integration process

Coordinate and implement communication protocol Establish quarterly claim review meetings

You know your employees far better than we do Establish online reporting and review

Results of combining a Tribal WC Ordinance (law)

with sound claim management practices

0.20 0.40 0.60 0.80 1.00 1.20 1.40 1.60 1.80 1995199619971998199920002001200220032004200520062007200820092010 Co s t per $ 1 0 0 of P a y roll Plan Year

Tribal Program Composite Performance Comparison Insurance Industry Average Cost vs. BRAC Actual Cost

Evaluated 12/31/2010

Thank You!