Chapter 20-5 TRIBAL CASINO OCCUPATIONAL INJURY CODE

CHAPTER 20-5
TRIBAL CASINO OCCUPATIONAL INJURY CODE

20-5-1 Forward.

There shall be a Tribal Occupational Injury Code for all covered employees and workers at the Prairie Band Potawatomi Nation’s Casino. The Prairie Band Potawatomi Nation, exercising its inherent sovereign authority, adopts this system, establishing a Tribal Occupational Injury Code. Indian tribes have a strong interest as a sovereign in regulating economic activity within their own territory, and they may enact laws governing such activity. A tribe may regulate the activities of nonmembers who enter consensual relationships through commercial dealings, contracts, leases, or other arrangements and may also exercise civil authority over the conduct of non-members on any lands within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe. Such consensual relationships with non-members include all transactions where the Nation or its members are involved, either directly or indirectly, in the activity to which the transaction relates. Tribal regulation of and jurisdiction over non-members may also be appropriate under other circumstances. Congress has recognized and declared under 25 U.S.C. §2701(5) that “Indian tribes have the exclusive right to regulate gaming activity on Indian lands” as long as the activity does not violate federal law or state criminal law. This exclusive right to regulate gaming facilities includes the right to determine when and how to compensate for claims for injuries occurring with respect to such gaming facilities. The Nation has a significant governmental and economic self-determination interest in all matters pertaining to its gaming facilities on its reservation.

20-5-2 Acknowledgment of Program and Notice to Employees.

(A) All covered employees, workers and persons asserting a claim shall be conclusively presumed to have elected to take occupational injury benefits in accordance with the tenets, conditions and provisions of this program (including the schedule of benefits) by virtue of employment at the Prairie Band Potawatomi Nation’s Casino, exclusive of any other claims the employee may have with regards to the injury. All covered employees and/or persons asserting a claim for occupational injury benefits acknowledge that the Prairie Band Potawatomi Nation is, in fact, a federally recognized Indian Tribe and for the purposes of occupational injury benefits, is exercising it inherent sovereign authority. This Tribal Occupational Injury Code applies regardless of location of injury.

(B) The employer at the Casino shall be responsible for posting a notice of this program in a conspicuous location in substantially the following form:

NOTICE TO EMPLOYEES

YOUR EMPLOYER IS INSURED UNDER THE PRAIRIE BAND POTAWATOMI NATION’S TRIBAL OCCUPATIONAL INJURY CODE.

If you have an injury or occupational disease arising out of and in the course of your employment at the Nation’s Casino, you may be entitled to benefits as provided by the Tribal Occupational Injury Code.

NOTIFY YOUR SUPERVISOR IMMEDIATELY OF ANY INJURIES, NO MATTER HOW SLIGHT.

If you fail to do so, you may lose your benefits under the Tribal Occupational Injury Code. In no event shall benefits be paid to an employee who failed to notify their employer within thirty (30) calendar days after sustaining such work related injury.

Your exclusive remedy for any such work related injury or disease is through the Prairie Band Potawatomi Nation’s Tribal Occupational Injury Code. The State Workers Compensation Commissioner will not accept a claim from you as you are employed with the territory of a sovereign Indian Nation which has exclusive jurisdiction under its Tribal Occupational Injury Code.

NOTICE TO EMPLOYERS

You are required to display this poster conspicuously in a manner

that will be of greatest benefit to employees.

It is your responsibility to file a claim on behalf of your employee.

You are required to report any injuries or notification of occupational disease as soon as possible, and in no event, more than ten (10) calendar days after you have knowledge thereof.

It is your responsibility to obtain any necessary forms from the following:

(Name, address and telephone

of Administrator)

20-5-3 Administration of Program.

(A) To provide medical treatment for injured workers and fair income benefits to injured workers and their dependents;

(B) To provide an administrative system for the delivery of medical and financial benefits to injured workers;

(D) To restore the injured worker physically and economically to a self-sufficient status in an expeditious manner and to the greatest extent practicable.

20-5-4 Definitions.

In this program, unless the context otherwise requires:

(A) “Administrator” means the insurance company providing coverage or its designee, including any third party administrator.

(B) “Benefit(s)” means the findings or decision of the Administrator or designee regarding the amount of medical and lost time benefits due to an injured employee or the dependent of a deceased employee under the rules of the Tribal Occupational Injury Code.

(C) “Claimant(s)” means the injured covered employee, or in the event of death of the covered employee, dependents of the deceased.

(D) “Compensation” means lost time wages while disabled or unable to work due to a work related injury. This also includes if the employer is unable to accommodate modified duty work within physical restrictions assigned by the treating physician.

(E) “Covered Employee(s)”, “Employee(s)” and “Worker(s)” means:

(1) Every person employed at the Prairie Band Potawatomi Nation’s Casino, but does not include leased employees, independent contractors or volunteers.

(2) Excluded as not in the employ at the Prairie Band Potawatomi Nation’s Casino are consultants, independent contractors and all other persons not considered under common law to be employed by the Prairie Band Potawatomi Nation or its manager unless a written contractual agreement between the Prairie Band Potawatomi Nation and an entity provides for occupational injury benefits. In the event of such a contract, the contract shall be specific as to whom, when, where, and why this coverage is provided and all third parties and/or covered employees shall agree to all terms, conditions and provisions of this program.

(F) “Occupational Injury Benefits” include weekly benefits and medical benefits further defined as follows:

(1) “Medical” means medical expense and other expenses associated with medical treatment reasonably related to the work injury. Medical mileage expense will be paid at the rate of $.30 per mile.

(2) “Weekly Benefit(s)” means 66 2/3 percent of the employee’s average weekly wage. In the case of temporary partial disability, the weekly benefit amount is 66 2/3 percent of the difference between the employee’s average gross weekly earnings at the time of the injury and the employee’s wages while temporarily working at the lesser paying job. The maximum weekly benefit payable is $483.00/week or such other appropriate amount under Section 20-4-5.

(3) “Temporary Total Disability Benefits” (TTD benefits) means the weekly benefit paid when an injury results in seven (7) or more calendar days of disability with a three (3) week retroactive period.

(4) “Temporary Partial Disability Benefits” (TPD benefits) means the weekly benefits paid if the employee returns to work at a lesser paying job, because of the injury but before the employee reaches maximum medical improvement.

(5) “Permanent Partial Disability Benefits” (PPD benefits) means the weekly benefits paid for the partial loss of a scheduled member or a non-scheduled member.

(6) “Permanent Total Disability Benefits” (PTD benefits) means the weekly benefits paid for a non-scheduled injury when the job-related injury leaves an employee totally and permanently incapacitated. This means that the employee’s physical disability causes the employee to be unable to secure anything more than sporadic employment resulting in an income of less than 90% of their average weekly wage at the time of injury.

(7) “Death Benefits” means the weekly benefits paid to dependents as a result of any fatality of the employee as a direct result of their employment.

(G) “Worker Appeal Committee” means the committee defined in Section 20-4-8.

20-5-5 Schedule of Benefits.

(A) Until amended by Tribal Resolution, and notwithstanding any other provision of this statute, the Prairie Band Potawatomi Nation’s Tribal Occupational Injury Code adopts the benefit levels equal to those under the Workers’ Compensation laws of the State of Kansas.

20-5-6 Procedures for Disputed Claims.

(A) In the event of any dispute over payment, denial or termination of benefits payable under this program, the claimant shall have the right to appeal the disputed claim as follows:

(1) Claimant must request reconsideration by the Administrator. The reconsideration request must be made in writing, specifying what action is in dispute, why the claimant disagrees with the Administrator’s action and the desired result. Any additional supporting documentation or evidence to be considered must be submitted by the claimant with the reconsideration request unless an extension of time to submit such evidence is specifically requested in the reconsideration request. The request for reconsideration must be filed within thirty (30) calendar days of the date of the Administrator’s adverse action or decision. A reconsideration request is deemed filed upon mailing by regular or certified mail. Failure to request reconsideration within the above time period shall be deemed a waiver of any further rights of appeal herein.

(2) Upon denial of the reconsideration request or an adverse decision of the reconsideration request, the claimant may request a hearing before the Worker Appeal Committee. The hearing request must be made in writing and shall contain a plain, concise statement of the disputed action of the Administrator, the date of the action and the claimant’s reasons for appeal. Any issues not raised in the request for hearing application by either party are deemed waived. Any new supporting documentation or evidence to be considered must be submitted by the claimant with the hearing request unless an extension of time to do so is specifically requested in the hearing request. A request for hearing must be filed by mail or hand-delivered within fourteen (14) calendar days of the date of the Administrator’s adverse decision to the Worker Appeal Committee, Prairie Band Potawatomi Nation Casino, 12305 150th Road, Mayetta, KS 66509. A hearing request is deemed filed upon mailing by regular or certified mail. Failure to request a hearing within the above time period shall be deemed a waiver of any further right of appeal herein.

(B) The burden of proof, throughout the above appeal process, rests on the covered worker to prove that the worker sustained an injury which is directly related to the employment and that the employee is entitled to the benefits claimed under this program.

(C) A claimant may be represented in an appeal by any person. Attorney fees shall be limited to twenty-five percent (25%) of the first $2,000 of increased benefit and twenty percent (20%) percent of the remaining increased benefit obtained by a claimant or the maximum fee of $4,500. “Increased benefit” means any benefits above those provided by the original decision of the Administrator. It is the claimant’s responsibility to pay the representative.

(D) Hearing procedures before the Worker Appeal Committee:

(1) Upon filing of a request for hearing before the Worker Appeal Committee, a copy of the hearing request and all supporting evidence submitted by the employee shall be sent by the Worker Appeal Committee to the Administrator within fourteen (14) calendar days of receipt of the hearing request. The Administrator, as the adverse party in this proceeding, shall have fourteen (14) calendar days to file a written response with the Worker Appeal Committee, with a copy to the employee. Any issues not raised at the time of hearing by either party are deemed waived.

(2) Any member of the Worker Appeal Committee having any personal interest in any claim or appeal presented before the Worker Appeal Committee shall be disqualified for cause. A claimant shall have the right to challenge for cause any member of the Worker Appeal Committee and in the event that disqualification(s) result in less than a quorum, alternate members shall be temporarily appointed to serve by the Tribal Council.

(3) A claimant or the claimant’s representative shall have the right, in all matters presented before the Worker Appeal Committee, to cross-examine all witnesses and to review all evidence of any nature, as may relate to the matter under consideration. However, attorney fees are limited as provided herein.

(4) The Worker Appeal Committee, the Prairie Band Potawatomi Nation or it’s manager, the Administrator and the claimant shall have the right to cross-examine all witnesses and to perform such discovery activity as may be deemed necessary to fully explore all aspects surrounding the occurrence and injury.

(5) The Worker Appeal Committee shall not be bound by the rules of evidence or by technical or formal rules of procedure and may conduct investigations in such a manner that is best calculated to ascertain the substantial rights of the parties and to carry out the spirit of the Nation’s Tribal Occupational Injury Code. Either party may request development of further medical evidence. The Administrator has the right to designate an examining medical expert at the Administrator’s expense. Failure of the employee to comply with any reasonable request for examination will result in dismissal of the employee’s appeal with prejudice.

(E) A full and complete record shall be kept of all proceedings held before the Worker Appeal Committee for investigation, appeals, or the taking of testimony by an electronic recording means. A party may request the proceeding be reported by a certified stenographer at the requesting party’s expense.

(F) The Worker Appeal Committee shall convene as necessary, but in no event will an employee be deprived of a hearing for more than forty-five (45) days after the Worker Appeal Committee’s receipt of written hearing request, unless a request for extension of time has been filed by a party.

(G) All parties shall have the right to request a continuance of the hearing after it has first convened for the purpose of further developing evidence.

(H) The Worker Appeal Committee shall act only by majority vote, in writing and with at least three (3) members present and voting. The Worker Appeal Committee may utilize Tribally approved attorneys as legal counsel. A written decision will be issued by the Worker Appeal Committee within ninety (90) calendar days of the hearing, which will become final and binding on the parties. However, decisions or settlements in excess of $50,000 in matters before the Worker Appeal Committee may be paid only if approved by the Nation’s Tribal Council, whose decision shall be final and binding on the parties.

(I) During the pendency of the appeal, claimant shall continue to receive all benefits approved by the Administrator in its original written decision, but shall not receive any new benefits claimed in the appeal. Payments made to claimant during the pendency of an appeal shall not be recouped or recovered by the Administrator or otherwise.

(J) Any award agreed to by the claimant for benefits under this program shall constitute a full and final settlement and all benefits shall cease upon settlement, except where the award provides for other than a lump sum settlement. If other than a lump sum settlement, the terms of the award agreement shall apply.

20-5-7 Experts.

(A) The employee may engage the services of medical or vocational experts for purposes of a disputed claim, at the employee’s cost, which is not reimbursable regardless of the ultimate outcome of the dispute. The opinions of such experts will be considered in a disputed case.

20-5-8 Worker Appeal Committee Membership.

(A) The Worker Appeal Committee shall be comprised of five (5) members. Three (3) of the members shall be those administrative employees at the Prairie Band Potawatomi Casino and any corresponding entity filling the administrative positions, such as the Human Resource Director and Finance Director from the same, as applicable. One member of the Committee shall serve as Chairperson. Three (3) members will constitute a quorum. All members of the Committee shall be appointed by, and may be removed by, the Tribal Council.

(B) The Worker Appeal Committee shall receive no additional expenses or compensation other than their regular salary. Expenses for training in the area of occupational injury benefits shall be paid by the Prairie Band Potawatomi Nation’s Casino.

20-5-9 Liability of Third Person to Injured Employee; Subrogation Powers.

(A) If a covered employee entitled to benefits under this system is injured or killed by the negligence or wrongful actions of another person(s) not in the employ of the Nation or one of its entities, such injured employee, or dependents in the event of death, may pursue a remedy against such other person while receiving benefits under this system. If the employee entitled to benefits under this system or dependents do not pursue a remedy against such other person by instituting an action within one year after the cause of action accrues, the claim against such other person shall be deemed assigned to the Tribal Occupational Injury Ordinance. Such a claim so assigned may be prosecuted or compromised by the Administrator for benefits paid. Acceptance of benefits under this Ordinance constitutes an assignment of the employee’s rights to the employer to the extent of benefits paid or payable.

(B) If employee or dependents proceed against such other person, occupational injury benefits shall be paid as provided in this program and the Tribal Occupational Injury Ordinance shall have a lien on the amount recovered from such other person to the extent occupational injury benefits were owed or paid. Compromise of any claim by the covered employee or the employee’s dependents at an amount less than the weekly benefits owed or paid shall be made only with written approval of the Administrator of the Tribal Occupational Injury Ordinance.

(C) The Administrator of the Tribal Occupational Injury Ordinance shall have the right of subrogation for the amount of occupational injury benefits paid under this program, upon the resolution of a claim or completion of a settlement with the claimant.

(Amended by PBP TC. No. 2008-042, February 7, 2008)

(Amended by PBP TC. No 2006-185, September 7, 2006, amended by PBP TC No. 2006-185a, October 10, 2006; amended by PBP TC. No. 2008-042, February 7, 2008.)