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Michael Jassek v. North Dakota Workforce Safety and Insurance

May 14, 2013

MICHAEL JASSEK,
APPELLANT
v.
NORTH DAKOTA WORKFORCE SAFETY AND INSURANCE, APPELLEE



Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Thomas J. Schneider, Judge.

The opinion of the court was delivered by: Kapsner, Justice.

N.D. Supreme Court

Jassek v. Workforce Safety and Insurance,

2013 ND 69 This opinion is subject to petition for rehearing.

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JUDGMENT VACATED. Opinion of the Court by Kapsner, Justice.

[¶1] Michael Jassek appealed from a district court judgment affirming the binding dispute resolution decision of Workforce Safety and Insurance ("WSI") that denied payment for a myoelectric prosthesis. We conclude the district court did not have subject matter jurisdiction, and we therefore vacate the judgment.

I

[¶2] Jassek sustained a serious work-related injury resulting in amputation of his left hand above the wrist. Jassek filed an application for workers compensation benefits, and WSI accepted the claim and paid benefits. WSI approved purchase of a hook-style body-powered prosthesis for Jassek. During the course of his treatment and rehabilitation Jassek's treating medical professionals, including his orthotist, Nathan McKenzie, recommended purchase or rental of a myoelectric-powered prosthesis. WSI, under its managed care program, rejected the recommendation of the treating medical professionals and denied the request for a myoelectric prosthesis.

[¶3] After WSI's initial denial, McKenzie submitted several letters to WSI providing additional information and requesting that WSI allow purchase or rental of the myoelectric prosthesis. WSI denied each of these requests. Finally, in July 2010, McKenzie wrote a letter to WSI stating: "This letter is in appeal of the ruling for Michael Jassek." McKenzie included additional documentation supporting the recommendation that Jassek receive a myoelectric prosthesis. WSI treated McKenzie's letter as a request for binding dispute resolution under WSI's managed care program. At WSI's request, Dr. Teresa Gurin conducted an independent medical examination of Jassek and concluded that the myoelectric prosthesis would not be the most appropriate or cost-effective prosthesis for Jassek. WSI thereafter issued its binding dispute resolution decision denying the request for the myoelectric prosthesis. Jassek appealed to the district court from WSI's decision denying McKenzie's request, and the court affirmed WSI's decision.

II

[¶4] Jassek contends that because WSI failed to explain its reasons for disregarding the medical evidence favorable to Jassek its binding dispute resolution decision was arbitrary, and that WSI's binding dispute resolution procedure violated his right to due process because it failed to provide a formal hearing.

[¶5] Under N.D.C.C. § 65-02-20, WSI has implemented a managed care program which allows an employee, employer, or medical provider to request binding dispute resolution if dissatisfied with WSI's initial managed ...


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