1. If the injury causes temporary partial disability resulting in decrease of earning capacity, the disability benefit is sixty-six and two-thirds percent of the difference between the injured employee's average weekly wage and the injured employee's wage-earning capacity after the injury in the same or another employment. Partial disability benefits are subject to a maximum of one hundred twenty-five percent of the average weekly wage in the state. The combined partial disability benefits, dependency allowance, and postinjury wage-earning capacity may not exceed ninety percent of the average weekly wage of the injured employee.
2. The benefits provided by this section are available to any otherwise eligible worker, providing the loss of earning capacity occurs after July 1, 1989. Partial loss of earning capacity occurring prior to July 1, 1989, must be paid at a rate to be fixed by the organization.
3. Benefits must be paid during the continuance of partial disability, not to exceed a period of five years. The organization may waive the five-year limit on the duration of partial disability benefits in cases of catastrophic injury as defined in section 65-05.1-06.1 or when the injured worker is working and has long-term restrictions verified by clear and convincing objective medical and vocational evidence that limits the injured worker to working less than twenty-eight hours per week because of the compensable work injury. This subsection is effective for partial loss of earnings capacity occurring after June 30, 1991.
4. The employee's earnings capacity may be established by expert vocational evidence of a capacity to earn in the statewide job pool where the worker lives. Actual postinjury earnings are presumptive evidence of earnings capacity if the job employs the employee to full work capacity in terms of hours worked per week, and if the job is in a field related to the employee's transferable skills. The presumption may be rebutted by competent evidence from a vocational expert that the employee's actual earnings do not fairly reflect the employee's earnings capacity in the statewide job pool, considering the employee's capabilities, education, experience, and skills. \n 65-05-10.1. Long-term temporary partial disability inflation adjustment. This benefit only applies to claims with a date of first disability or date of successful reapplication occurring after June 30, 1991. For these claims, beginning on the first day of July immediately following the fifth full year of partial disability and every year thereafter, an injured employee who has received a waiver of the five-year cap on partial disability benefits under section 65-05-10 is eligible for a lump sum inflation adjustment. The organization shall calculate the lump sum inflation adjustment under this section on July first of each year by multiplying the previous year's percent increase in the state's average weekly wage, if any, by the total amount of partial disability payments paid to the injured employee in the preceding twelve months, including the preceding year's inflationary adjustment award.\n\n Page No. 10 65-05-11. Maximum and minimum compensation allowances - Total and partial disability. Repealed by S.L. 1969, ch. 558, § 6. \n
Notes of Decisions
Midthun v. North Dakota Workforce Saf. & Ins., 2009 ND 22 (N.D. 2009).
· cites it 118× “It is better for both the worker and society to have the injured worker working part time than not at all. The purpose of the 1997 amendment to N.”
Reopelle v. Workforce Saf. & Ins., 2008 ND 98 (N.D. 2008).
· cites it 44× “WSI argues Reopelle’s right to further disability benefits is limited to five years under the version of N.D.C.C. § 65-05-10 enacted in 1991. We conclude Reo-pelle’s right to partial disability benefits is not controlled by the five-year limit because she has incurred a…”
Rodenbiker v. Workforce Saf. & Ins., 2007 ND 169 (N.D. 2007).
· cites it 30× “1-01 and N.D.C.C. § 65-05-10. The parties mistakenly agreed that the 2003 version of the statutes was the appropriate version to apply to Rodenbiker’s claim.”
Gronfur v. North Dakota Workers Comp. Fund, 2003 ND 42 (N.D. 2003).
· cites it 12× “Based upon those findings, the Bureau calculated Gronfur's partial disability benefit under N.D.C.C. § 65-05-10, and began paying him "$889.”
Von Ruden v. North Dakota Workforce Saf. & Ins. Fund, 2008 ND 166 (N.D. 2008).
· cites it 12× “WSI argues Von Ru-den’s right to receive disability benefits is limited to five years under N.D.C.C. § 65-05-10. We affirm the district court judgment, concluding WSI waived the five-year limit on Von Ruden’s temporary partial disability benefits.”
Hayes v. North Dakota Workers Comp. Bureau, 425 N.W.2d 356 (N.D. 1988).
· cites it 8× “The Bureau, in its written order, merely concluded that Hayes had failed to prove that he remains disabled or that he is entitled to "further benefits." Section 65-05-12, N.”
Tverberg v. Workforce Saf. & Ins., 2006 ND 229 (N.D. 2006).
· cites it 6× “1-01(6) gives meaning to the plain language of the rehabilitation and workers’ compensation statutes as a whole and explicitly incorporates N.D.C.C. § 65-05-10, which says an “employee’s earnings capacity may be established by expert vocational evidence of a capacity to earn in…”
Baldock v. North Dakota Workers Comp. Bureau, 554 N.W.2d 441 (N.D. 1996).
· cites it 8× “The plan also awarded Baldock partial disability payments under Section 65-05-10, N.D.C.C. The modified position paid slightly more than seventy-five percent of the state average weekly wage of $270.”
Zimmerman v. North Dakota Workforce Saf. & Ins. Fund, 2010 ND 42 (N.D. 2010).
· cites it 38× “The legislative history for N.D.C.C. § 65-05-10 generally reiterates the language of that statute without explaining how the five-year limit is calculated, but a labor representative commented at one point during the legislative process that partial disability benefits were for…”
Drayton v. Workforce Saf. & Ins., 2008 ND 178 (N.D. 2008).
· cites it 4× “1-01 and N.D.C.C. § 65-05-10. The parties mistakenly agreed that the 2003 version of the statutes was the appropriate version to apply to Rodenbiker’s claim.”
Higginbotham v. Workforce Saf. & Ins., 2014 ND 147 (N.D. 2014).
· cites it 6× “He relies on N.D.C.C. § 65-05-10(3), which states “[t]he employee’s earnings capacity may be established by expert vocational evidence of a capacity to earn in the statewide job pool where the worker lives.”
— N.D. Cent. Code § 65-05-10(2) — 3 cases
Zimmerman v. North Dakota Workforce Saf. & Ins. Fund, 2010 ND 42 (N.D. 2010).
“The legislative history for N.D.C.C. § 65-05-10 generally reiterates the language of that statute without explaining how the five-year limit is calculated, but a labor representative commented at one point during the legislative process that partial disability benefits were for…”
— N.D. Cent. Code § 65-05-10(3) — 9 cases
Gronfur v. North Dakota Workers Comp. Fund, 2003 ND 42 (N.D. 2003).
“Based upon those findings, the Bureau calculated Gronfur's partial disability benefit under N.D.C.C. § 65-05-10, and began paying him "$889.”
Higginbotham v. Workforce Saf. & Ins., 2014 ND 147 (N.D. 2014).
“He relies on N.D.C.C. § 65-05-10(3), which states “[t]he employee’s earnings capacity may be established by expert vocational evidence of a capacity to earn in the statewide job pool where the worker lives.”
Tverberg v. Workforce Saf. & Ins., 2006 ND 229 (N.D. 2006).
“1-01(6) gives meaning to the plain language of the rehabilitation and workers’ compensation statutes as a whole and explicitly incorporates N.D.C.C. § 65-05-10, which says an “employee’s earnings capacity may be established by expert vocational evidence of a capacity to earn in…”
Rodenbiker v. Workforce Saf. & Ins., 2007 ND 169 (N.D. 2007).
“1-01 and N.D.C.C. § 65-05-10. The parties mistakenly agreed that the 2003 version of the statutes was the appropriate version to apply to Rodenbiker’s claim.”
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