Chapter 9.15 WORKERS’ COMPENSATION

This chapter is intended to establish procedures to administer and define the Tribes’ self-administered workers’ compensation program, in a manner that is fair to both employees and the Tribes. All work-related injuries and deaths sustained by employees of the Tulalip Tribes and its enterprises are withdrawn from private controversy. To guarantee relief for employees killed or injured on the job and their families, regardless of questions of fault and to the exclusion of every other remedy, proceeding, or compensation, the following plan is adopted, which shall be known as the Tulalip Tribes workers’ compensation plan. The plan shall serve as the exclusive remedy for the injured employee, except as otherwise provided herein, and to that end all civil causes of action for such personal injuries or deaths and all jurisdictions of the Courts are hereby abolished. [Ord. 108 § 108.1.1, 10-6-2006 (Res. 2006-312)].

9.15.020 Scope.

This chapter shall apply to the Tulalip Tribes, every entity of the Tribes that is an employer, and to all employees of the Tribes and its entities. For purposes of this chapter, “every entity of the Tribes” includes every political subdivision, subordinate organization, economic enterprise, commission, and authority organized under Tribal law, including but not limited to the Tulalip Utility Authority and the Tulalip Gaming Organization. [Ord. 108 § 108.1.2, 10-6-2006 (Res. 2006-312)].

9.15.030 Sovereign immunity.

Except as expressly provided in this chapter, the Tulalip Tribes shall be immune from all liability for compensation for injuries sustained by Tribal employees arising out of and in the course of their employment.

(1) Limited Waiver for Claims Under This Chapter. For those claims outlined herein, this chapter contains a strictly limited waiver for suit only and solely in Tribal Court. This limited waiver shall extend only to Tribal employees and other persons specifically entitled to benefits under this chapter, and shall not be construed to apply or extend to actions by any other party or actions beyond the scope of this chapter.

(2) No Modification to Existing Law. Except as specifically provided in this chapter, the provisions herein shall not be construed as modifying or restricting the immunity of the Tribes from tort liability as it existed on the date of enactment. Except as to claims that are wholly covered by the Tulalip Tribes workers’ compensation plan, nothing in this chapter, or in any State law incorporated herein by reference, shall in any way waive or diminish the sovereign immunity of the Tulalip Tribes. [Ord. 108 § 108.1.3, 10-6-2006 (Res. 2006-312)].

9.15.040 Reporting obligations.

Any employee who has sustained an injury in the course of their employment shall immediately report the injury to the employer in accordance with TTC 9.15.330. In the case of an occupational disease, the employee shall report the condition to the employer immediately after the employee learns of, or reasonably should have been aware of, the connection between their employment and the occupational disease. All reports of injury and occupational disease shall be made in writing, in accordance with TTC 9.15.330. [Ord. 108 § 108.1.4, 10-6-2006 (Res. 2006-312)].

9.15.050 Exclusive remedy.

The right to receive compensation pursuant to this chapter for injuries sustained by a covered worker shall be the exclusive remedy against the Tribes and employees thereof, except as otherwise provided herein, and to that end, all civil causes of action against the Tribes and its employees for such personal injuries or death, all jurisdictions of the Courts, and all claims for contribution or indemnity asserted by third persons from whom damages are sought on account of such injuries, are hereby abolished. [Ord. 108 § 108.1.5, 10-6-2006 (Res. 2006-312)].

9.15.060 Administration.

(1) Workers’ Compensation Committee.

(a) Membership. There is hereby established a Tulalip Workers’ Compensation Committee, whose responsibility it shall be to administer the plan and to act as the first level of review in the case of a disputed claim. The Committee shall be composed of six members, one of which shall serve as Chairperson of the Committee. The Committee shall include one representative from the Tribal government, one representative from Quil Ceda Village, one representative from the Legal Department, one representative from the Finance Department, and two representatives from the Tulalip Gaming and Hospitality Organization. The Committee Chairperson and members shall be appointed by the Tulalip Board of Directors for terms of three years. Vacancies occurring due to resignation, removal, or death shall also be filled by this method of appointment. The Board of Directors may remove any member of the Committee for cause. A majority of the Committee members shall constitute a quorum, and a majority of those members present and constituting a quorum must concur in order for any decision of the Committee to be valid.

(b) Functions, Duties, and Authority. The Workers’ Compensation Committee shall:

(i) Contract with a professional claims administration firm to handle the duties of the Claims Administrator, as provided in subsection (2) of this section. The Committee may review and approve key actions taken by the Claims Administrator to ensure compliance with this chapter.

(ii) Establish and promulgate rules governing the administration of this chapter.

(iii) Purchase stop loss insurance covering all claims arising under this chapter in excess of those covered by the Tribal fund.

(iv) Hear protests from decisions of the Claims Administrator as provided in Article V of this chapter.

(v) Consult with outside physicians having medical expertise related to the injury, when necessary.

(vi) Manage the Tribal fund as provided in Article VI of this chapter.

(vii) Submit annual reports to the Board of Directors as provided in Article VI of this chapter.

(2) Claims Administrator.

(a) Appointment. The Workers’ Compensation Committee shall contract with a third party administrator to serve as the Claims Administrator.

(b) Functions, Duties, and Authority. The Claims Administrator shall:

(i) Supervise medical, surgical, and hospital treatment for injured employees to ensure that it meets the required standards of modern medicine at the lowest possible cost.

(ii) Open claims, verify time loss and other aspects of disability, handle disbursement of funds for employees and beneficiaries on Tribal checks drawn on the Tribal fund, make claim evaluations and determinations with respect to each claim made.

(iii) Compile statistics as will afford the Workers’ Compensation Committee reliable information upon which to base its decisions.

(iv) Make, and from time to time update, a fee chart of maximum charges to be made by any physician, surgeon, hospital, druggist, or other agency or person rendering services to the injured employee.

(v) Make a record of the commencement of every disability and termination thereof, and when bills are rendered for the care and treatment of injured employees, approve and pay those which conform to the promulgated rules, regulations, and practices of the Workers’ Compensation Committee, and reject any bill or item thereof incurred in violation of the provisions of this chapter or the rules and regulations promulgated under it. [Res. 2010-41; Ord. 108 § 108.1.6, 10-6-2006 (Res. 2006-312)].

9.15.070 Definitions.

(1) “Accident” means a specific occurrence, neither expected nor intended, which causes bodily injury to an employee.

(2) “Accredited school” means a school approved by the Tribes or the State, or a school regulated, licensed, or recognized by the Tribes as having approved course content.

(3) “Average monthly wage” means the average wage in the State of Washington, calculated by determining the total amount of wages paid by all employers in the State and dividing by 12 to derive the monthly average. RCW 51.08.018 defines “average monthly wage” as it is determined under RCW 50.04.355.

(4) “Award” means the monetary compensation benefits that the Claims Administrator or Committee determines an injured employee is entitled to.

(5) “Beneficiary” means a spouse, child, or dependent of an employee in whom shall vest a right to receive compensation under this plan.

(6) “Board of Directors” means the Board of Directors of the Tulalip Tribes.

(7) “Child” includes a posthumous child, a child legally adopted prior to the injury, a child toward whom the employee stands in the place of a parent, an illegitimate child, and a stepchild, if such stepchild was, at the time of the injury, a member of the employee’s family and substantially dependent upon the employee for support. A dependent physically or mentally incapacitated child is a child, for purposes of benefits, regardless of age, so long as the child was physically or mentally incapacitated at the time of the injury and thereafter remains incapacitated and substantially dependent on the employee for support. A child does not include any married children unless they are dependents. A person might also qualify as a child according to Tribal custom as determined by the Workers’ Compensation Committee.

(8) “Claim” means a written request for compensation from an employee or someone on the employee’s behalf, or any compensable injury of which the employer has notice or knowledge.

(9) “Claims Administrator” means the third party administrator appointed by the Tribes.

(10) “Committee” means the Workers’ Compensation Committee.

(11) “Compensation” means the compensation and benefits provided under this chapter and includes every benefit or payment conferred by this chapter upon an injured employee.

(12) “Compromise” means an agreement between parties to settle any liability that is claimed to exist under this chapter on account of injury or death.

(13) “Dependent” means any of the following named relatives of an employee whose death results from an injury and who leaves no surviving widow, widower, or child under the age of 18 years: father, mother, grandfather, grandmother, stepfather, stepmother, grandson, granddaughter, brother, sister, half-sister, half-brother, niece, nephew, or any other extended family member as approved by the Workers’ Compensation Committee, who at the time of the injury is actually and necessarily dependent in whole or in part upon the earnings of the employee.

(14) “Disability” means incapacity because of injury to earn wages in the same or any other employment.

(15) “Earning power” means actual wages. Loss of earning power is calculated with reference to an individual’s actual wages at the time of an injury compared to the employee’s wages, at any kind of work, after the injury.

(16) “Employee” means any person employed by the Tribes and its entities entitled to benefits under the provisions of Chapter 9.10 TTC, Human Resources, and authorized variances, including, but not limited to, the Tulalip Police Department Manual, Quil Ceda Village and Tulalip Gaming Agency human resources ordinances and manuals. “Employee” shall not be construed to include a consultant or contract employee unless specifically provided for in their written contract.

(17) “Employer” means the Tulalip Tribes and its enterprises.

(18) “Employer representative” means that person designated by the employer to receive injury reports and updates.

(19) “Injury” means the physical conditions resulting from a sudden and tangible happening of a traumatic nature, producing an immediate or prompt result. The term also encompasses the contraction of an occupational disease. (See Sault Ste. Marie and old Tulalip codes.)

(20) “Legal custody” means having been legally vested with the power and responsibility to care for a child, and/or the child’s property, by a court of competent jurisdiction.

(21) “Light duty” means any assignment, other than the employee’s usual job, designed to help the employee return to some sort of gainful employment.

(22) “Maximum medical improvement” means an injured employee has reached a treatment plateau from which it is reasonably believed the condition will not change. It can mean either that the employee has fully recovered from the injury or that the employee’s medical condition has stabilized to the point that, based on the medical evidence, no material change can be expected.

(23) “Occupational disease” means such disease or infection as arises naturally and proximately out of employment.

(24) “Permanent disability” means that maximum medical improvement has been reached and there is still a loss of use or function. Permanent disabilities can be partial, where there is still some use or function, or total, where the employee is unable to return to any gainful employment.

(25) “Preexisting medical condition” means any injury, disease, congenital abnormality, or medical condition that contributes or predisposes an employee to disability or the need for treatment and that precedes the injury or occupational disease that forms the basis for a claim under this chapter.

(26) “Spouse” means a person who is married to an employee under the law or customs recognized by the Tulalip Tribes. “Spouse” does not include a person who is living separately and apart from an employee and who has filed, in Court, a petition for legal separation or dissolution of marriage.

(27) “Temporary disability” means a physical incapacity that is expected to be completely curable or improved with proper medical attention. Temporary disabilities can be partial, where the employee can still perform some work though not necessarily their usual job, or total, where the employee is unable to perform at any gainful employment.

(28) “Travel expenses” means the standard GSA reimbursement rate for mileage or expenses incurred utilizing public transportation. It does not include money spent on gas or costs of a rental car, unless specifically approved by the Claims Administrator.

(29) “Treating physician” means a person licensed to independently practice one or more of the following professions: medicine and surgery; osteopathic medicine and surgery; chiropractic; naturopathic physician; podiatry; dentistry; and optometry. A treating physician actively treats an injured or ill worker.

(30) “Tribal Court” means the Tulalip Tribal Court.

(31) “Tribal fund” means the workers’ compensation fund established by the Tribes.

(32) “Tribes” means the Tulalip Tribes.

(33) “Willfully and deliberately” means intentionally, knowingly, or voluntarily acting in a particular manner. It is distinguished from accidental actions. [Res. 2010-41; Ord. 108 § 108.1.7, 10-6-2006 (Res. 2006-312)].

Article II. Coverage

9.15.080 Persons covered.

(1) Injured/Diseased Employees and Beneficiaries. Each employee injured or killed due to an accident or who has suffered an occupational disease in the course of his or her employment, or such employee’s dependents or beneficiaries, shall receive compensation in accordance with this chapter, except as otherwise provided herein. Such payment shall be in lieu of any and all causes of action whatsoever against the Tribes.

(2) Special Rules for Noncustodial Situations. If an injured employee, or the surviving spouse of a deceased employee, does not have the legal custody of a dependent child on whose account payments are required to be made under this chapter, such payment shall be made to the person having legal custody of such child, but only for the periods of time after the Workers’ Compensation Committee has been notified of the fact of such legal custody. It shall be the duty of any such person receiving payments because of legal custody of any child to immediately notify the Workers’ Compensation Committee of any change in such legal custody. [Ord. 108 § 108.2.1, 10-6-2006 (Res. 2006-312)].

9.15.090 Persons not covered.

(1) Intentional Injuries. If injury or death results to an employee from the deliberate intention of the employee to bring about such injury or death, neither the employee nor the widow, widower, child, or dependent of the employee shall receive any compensation whatsoever under this chapter.

(2) Institutionalized Child. A physically or mentally incapacitated child, while being supported and cared for in a Tribal, State, or Federal institution, shall not be a dependent or beneficiary or be counted as a beneficiary in fixing the amount of any compensation to be received under this chapter.

(3) Double Death Benefits for Children Precluded. A child may receive payments as either the natural child of a deceased employee, or the stepchild of another deceased employee, but shall not receive double payments as both.

(4) Children Who Become 18 Years of Age. Any payments to or on account of a minor dependent or beneficiary of a deceased or temporarily or totally permanently disabled worker shall terminate when any such child reaches the age of 18 years, unless such child is a dependent physically or mentally incapacitated child or is under 23 years of age and enrolled as a full-time student in an accredited school. Payments to students who have attained age 18 shall be made directly to the student. Payments to or on account of any dependent physically or mentally incapacitated child over the age of 18 years shall continue in the amount previously paid on the account of such child until they shall cease to be dependent. When enrolled as a full-time student in an accredited school, payments to children who thereafter reach age 18 shall continue in the amount previously paid on the account of such student until they reach age 23 or cease to be enrolled full-time, whichever comes first. Where the employee sustains an injury or dies when any of his or her offspring are over the age of 18 years and either a dependent physically or mentally incapacitated child or enrolled full-time in an accredited school and are under age 23, the payment to or on account of such beneficiary shall be made as herein provided.

(5) Minor Children Not Dependent. Minor children of the employee who are not dependents of the employee as defined in this chapter are not covered by these provisions. [Ord. 108 § 108.2.2, 10-6-2006 (Res. 2006-312)].

9.15.100 Employees with preexisting medical conditions.

If it is determined that an employee had, at the time of sustaining an injury and/or occupational disease, a preexisting medical condition, it shall be considered as follows:

(1) Compensability. If it is determined that an injured employee had, at the time of their injury, a preexisting medical condition and that such medical condition delays or prevents complete recovery from the injury, it shall be ascertained, as nearly as possible, the period over which the injury would have caused disability were it not for the preexisting medical condition.

(2) Permanent Partial Disability. In making a claim closing determination, it shall be ascertained, as nearly as possible, the extent of impairment which the injury/disease would have caused were it not for the preexisting condition. Disability benefits shall be awarded only for the portion of disability related to the work injury or disease. [Ord. 108 § 108.2.3, 10-6-2006 (Res. 2006-312)].

9.15.110 Acts outside course or scope of employment.

(1) Employees determined to be acting outside of the course or scope of their employment shall be afforded no coverage, compensation, or benefits under this chapter.

(2) An employee injury occurring while the employee is commuting to or from work is not within the due course or scope of employment unless such travel is in direct connection with the employee’s work and was specifically requested by the employer.

(3) Liability for compensation shall not exist against the Tribes for any injury sustained by an employee if the injury is caused by any of the following:

(a) Where the injury is caused by the intoxication, by any intoxicating substance or the unlawful use of a controlled substance, of the injured employee;

(b) Where the injury arises out of an altercation in which the injured employee is the initial physical aggressor;

(c) Where the injury is caused by the commission of a criminal act by the injured employee and the employee is found to have committed such act beyond a reasonable doubt by a court of competent jurisdiction;

(d) Where the injury arises out of voluntary participation in any off-duty recreational, social, or athletic activity not constituting a part of the employee’s work-related duties, including, but not limited to, activities sponsored by the employer, except where these activities are a reasonable expectancy of, or are expressly or impliedly required by, the employment; or

(e) Where the employee has willfully and deliberately caused his or her own death.

(4) Where the employee’s use of an intoxicating substance or unlawful use of a controlled substance at the time of injury has been established, there is a rebuttable presumption that the injury was caused by the intoxication. [Ord. 108 § 108.2.4, 10-6-2006 (Res. 2006-312)].

9.15.120 Incarcerated employees.

Any employee receiving benefits under this plan who is subsequently confined in, or who subsequently becomes eligible therefor while confined in, any penal institution under conviction and sentence shall have all payments of such compensation canceled during the period of confinement. After discharge from the institution, payment of benefits henceforth due shall be paid; however, no back pay for the time spent incarcerated shall be awarded to the employee. If the incarcerated employee has any beneficiaries during such confinement period, they shall be paid directly the monthly benefits which would have been paid to them had the employee not been so confined. No payment shall be made to or on behalf of the incarcerated employee during confinement. Any lump sum benefits to which the employee would otherwise be entitled but for the provisions of this section shall be paid on a monthly basis to the beneficiaries. [Ord. 108 § 108.2.5, 10-6-2006 (Res. 2006-312)].

Article III. Compensation and Medical Benefits

9.15.130 Medical services and supplies.

(1) Upon the occurrence of any injury to an employee entitled to compensation under the provisions of this chapter, the employee shall receive proper and necessary medical and surgical services at the hands of a physician and proper and necessary hospital care and services during the period of disability from the injury, as limited herein:

(a) In the case of temporary total disability, not to extend beyond the date of claim closure.

(b) In the case of permanent partial disability, medical and surgical treatment may be continued if, and so long as, the Claims Administrator deems such continuation necessary to reach maximum medical improvement.

(c) In the case of a permanent total disability, not to extend beyond the date on which a lump sum settlement is made to the employee or after they are placed upon the permanent pension roll. The Claims Administrator may authorize continued medical and surgical treatment for conditions previously accepted by the employer when they deem it necessary.

(d) Any change of physician after the initial visit for a particular injury under this chapter must be approved by the Claims Administrator, except in the case of a physician-to-physician referral.

(e) The physician must be a medical doctor licensed to practice medicine in the State of Washington. Payment for treatment of the employee by chiropractors, physical therapists, nurse practitioners, and medical doctors licensed to practice in a state other than Washington must be approved by the Claims Administrator.

(2) When injury to any employee is so serious as to require transportation from the place of injury to a place of treatment, the employer shall furnish transportation to the nearest place of proper treatment. [Ord. 108 § 108.3.1, 10-6-2006 (Res. 2006-312)].

9.15.140 Artificial substitutes and mechanical aids.

(1) Every employee whose injury results in the loss of one or more limbs or eyes shall be provided with proper artificial substitutes.

(2) Every employee who suffers an injury to an eye producing an error of refraction shall be once provided proper, and properly equipped, lenses to correct such error of refraction and the employee’s disability rating shall be based upon the loss of sight before correction.

(3) Every employee whose hearing aid or eyeglasses or lenses are damaged, destroyed, or lost as a result of an industrial accident shall have the same restored or replaced with substitutes comparable to those lost or damaged.

(4) Every employee whose accident results in damage to or destruction of an artificial limb, eye, or tooth shall have the same repaired or replaced.

(5) All medical appliances necessary in the treatment of an injured employee, such as braces, belts, casts, and crutches, shall be provided. All mechanical appliances required as permanent equipment after treatment has been completed shall continue to be provided or replaced without regard to the date of the injury or date treatment was completed. [Ord. 108 § 108.3.2, 10-6-2006 (Res. 2006-312)].

9.15.150 Modifications to residence or vehicle.

(1) Residence. Whenever, in the sole discretion of the Workers’ Compensation Committee, it is reasonable and necessary to provide residence modifications to meet the needs and requirements of the employee who has sustained catastrophic injury, the employer may be ordered to pay an amount not to exceed the average annual wage for one year as determined under RCW 51.08.018 toward the cost of the modifications or construction. Such payment shall only be made for the modification or construction of a residence in which the injured employee resides. Only one residence of any employee may be modified or constructed under this subsection, although the Workers’ Compensation Committee may order more than one payment for any one home up to the maximum amount permitted herein.

(2) Vehicle. Whenever in the sole discretion of the Workers’ Compensation Committee it is reasonable and necessary to modify a vehicle owned by an employee who has become an amputee or paralyzed because of an injury, the Committee may order up to 50 percent of the average annual wage for one year as calculated in RCW 51.08.018 to be paid toward the costs thereof. [Ord. 108 § 108.3.3, 10-6-2006 (Res. 2006-312)].

9.15.160 Employer liability for medical services and supplies.

(1) An employee whose injury is of such a short duration as to bring them within the time limit provisions of TTC 9.15.190 shall nevertheless receive during the omitted period medical, surgical, and hospital care and service and transportation under the provisions of this chapter.

(2) The liability of the employer for medical treatment as provided herein is not affected by the fact that the employee was injured through fault or negligence of a third party not in the same employ, or that suit has been brought against that third party. The employer shall, however, have a cause of action against the third party to recover any amounts paid by the employer pursuant to the provisions of this chapter. [Ord. 108 § 108.3.4, 10-6-2006 (Res. 2006-312)].

9.15.170 Time loss.

(1) If an employee is unable to work at their regular, or any, employment, because of their injuries, they will be paid a portion of their regular wages as time loss compensation, as calculated in the temporary or permanent disabilities sections. If a temporarily disabled worker does not fully recover but instead reaches a static impaired condition, the worker’s classification is changed from temporarily disabled to permanently disabled and the worker receives either a pension or a permanent partial disability award.

(2) As soon as recovery is so complete that the present earning power of the worker, at any kind of work, is restored to that existing at the time of the occurrence of the injury, the payments shall cease. If and so long as the present earning power is only partially restored, the employee will receive:

(a) Payments equal to 80 percent of the actual difference between the worker’s present wages and their earning power at the time of injury, but not to exceed 150 percent of the average monthly wage in the State as computed under RCW 51.08.018.

(b) However, no compensation will be payable under this subsection unless the loss of earning power exceeds five percent.

(3) In no event shall the monthly payment provided in this section for time loss exceed the maximum amount set forth in RCW 51.32.060. [Ord. 108 § 108.3.5, 10-6-2006 (Res. 2006-312)].

9.15.180 Utilizing sick leave.

Should an injured employee elect to take sick leave during any period of time they are unable to work, or should the employer continue to pay the injured employee their wages while they are unable to work for any reason, such injured employee shall not receive any compensation under this chapter except for medical benefits and supplies during the time the employee is receiving the sick leave or wages. [Ord. 108 § 108.3.6, 10-6-2006 (Res. 2006-312)].

9.15.190 Limitation on payment.

No employee will receive compensation for or during the day on which the injury was received or the three days following the same, unless their disability continues for a period of 14 consecutive calendar days from the date of injury; provided, that attempts to return to work in the first 14 days following the injury will not break the continuity if the disability continues 14 days after the injury occurred. [Ord. 108 § 108.3.7, 10-6-2006 (Res. 2006-312)].

9.15.200 Temporary partial disability.

When a disability is or becomes partial only, and is temporary in character, the worker shall receive, for a period not exceeding two years, that proportion of the payments provided for temporary total disability in TTC 9.15.220 which the loss of earning power at any kind of work bears to the earning power existing at the time of the occurrence of the injury. [Ord. 108 § 108.3.8, 10-6-2006 (Res. 2006-312)].

9.15.210 Payments on behalf of children.

(1) For any period of time where both parents of a child or children are entitled to compensation due to either a temporary or permanent disability under this chapter, only the parent having the higher wages of the two is entitled to claim their child or children for purposes of increased compensation.

(2) Any compensation payable under this chapter for children who are not in the custody of the injured employee as of the date of the injury shall be payable to the person with legal custody of the children. [Ord. 108 § 108.3.9, 10-6-2006 (Res. 2006-312)].

9.15.220 Temporary total disability.

When total disability is only temporary, the schedule of payments outlined in TTC 9.15.260 for permanent total disability shall apply, so long as the total disability continues.

(1) As soon as recovery is so complete that the present earning power of the employee, at any kind of work, is restored to that existing at the time of the injury, the payment will cease.

(2) If and so long as the present earning power is only partially restored, payments shall continue according to TTC 9.15.170.

(3) In no event shall the monthly payments for time loss provided in this section exceed the maximum amounts set forth in RCW 51.32.090. [Ord. 108 § 108.3.10, 10-6-2006 (Res. 2006-312)].

9.15.230 Return to work provisions.

(1) Whenever the employer requests that an employee entitled to temporary total or temporary partial disability be certified by a physician as able to perform available work other than their usual job, the employer shall furnish the physician, with a copy to the employee, a statement describing the available work in terms that will enable the physician to relate the physical activities of the work to the employee’s disability. The physician shall then determine whether the employee is physically able to perform the work described.

(a) If the employee is released by the physician for said work, and the work thereafter comes to an end before the employee’s recovery is sufficient in the judgment of the physician to permit the return to their usual job, or to perform other available work, the employee’s temporary total disability payments shall be resumed.

(b) Should the available work described, once undertaken by the employee, impede recovery to the extent that in the judgment of the physician the employee should not continue in that work, temporary total disability payments shall be resumed when the employee ceases such work.

(c) Once the employee returns to work as described herein, they shall not be assigned by the employer to work other than the light duty work described without the employee’s written consent, or without prior review and approval by the employee’s physician. In the event of any dispute as to the employee’s ability to perform the work offered by the employer, the Workers’ Compensation Committee shall make the final determination.

(2) An employer may, but is not required to, offer light duty work to injured employees who are given a limited release to return to work, but are not yet able to perform their regular job.

(a) An employer is not required to make light duty work available while a worker is on limited release. If an employer provides light duty work at a lower wage than the employee’s average hourly wage at the time of the injury, the employee will receive temporary partial disability benefits proportional to the difference between their usual wages and the wages of the light duty job.

(b) If the employee refuses the offer of light-duty work then benefits will cease.

(c) No loss of earning power compensation will be provided unless there is a five percent or greater difference between the wages. [Ord. 108 § 108.3.11, 10-6-2006 (Res. 2006-312)].

9.15.240 Determination of permanent disability.

(1) All determinations of permanent disabilities shall be made by the Claims Administrator from information supplied by licensed medical doctors whose specific training qualifies them to make an accurate determination. Either the employee or the employer may request a determination of permanent disability; however, the determination can only be made after the employee’s condition becomes fixed. In conjunction with this, the Claims Administrator may require that the employee present themselves for a special medical examination by a physician or physicians selected by the Claims Administrator. In such event, the costs of such examination or interview, including payment of any reasonable travel expenses and wages for any scheduled work hours missed, shall be paid by the fund.

(2) The Claims Administrator will reexamine periodically each permanent disability claim for which the Claims Administrator has current payment responsibility, to determine whether the worker is currently permanently incapacitated from regularly performing work at any gainful and suitable occupation. Reexamination will be conducted at least every two years or more frequently if the Workers’ Compensation Committee requires. Reexamination will include medical examinations, reports and other records that the Claims Administrator considers necessary or as the Workers’ Compensation Committee requires. The Claims Administrator will forward to the Workers’ Compensation Committee the results of each reexamination. [Ord. 108 § 108.3.12, 10-6-2006 (Res. 2006-312)].

9.15.250 Permanent partial disability.

(1) For the permanent partial disabilities described in RCW 51.32.080(1)(a), the injured employee shall receive compensation according to the schedule set out in RCW 51.32.080.

(2) Compensation for amputation of a member or part thereof at a site other than those described in RCW 51.32.080, and for loss of central visual acuity and loss of hearing other than complete, shall be in proportion to that which such amputation or partial loss of visual acuity or hearing most closely resembles and approximates.

(3) The total compensation for all unspecified permanent partial disabilities resulting from the same injury shall not exceed the amount mandated for total bodily impairment, except that the total compensation for all unspecified permanent partial disabilities involving injuries to the back that do not have marked objective clinical findings to substantiate the disability and which result from the same injury shall not exceed 75 percent of the amount allowed for total bodily impairment in RCW 51.32.080.

(4) If permanent partial disability compensation is followed by permanent total disability compensation, any portion of the permanent partial disability compensation which exceeds the amount that would have been paid the injured employee if permanent total disability compensation had been paid in the first instance shall be deducted from the pension reserve of the injured employee and his monthly compensation payments will be reduced accordingly.

(5) Should an employee receive an injury to a member or part of their body already, from whatever cause, permanently partially disabled, resulting in amputation thereof or aggravation or increase in such permanent partial disability, but not resulting in the permanent total disability of such employee, their compensation for such partial disability will be adjudged with regard to the previous disability of the injured member or part and the degree of the extent of the aggravation or increase of the disability.

(6) When compensation provided under this section exceeds three times the average monthly wage calculated in RCW 51.08.018, payment will be made in monthly payments until such compensation is paid in full, except that the first monthly payment will be in an amount equal to three times the average monthly wage, and interest will be paid at eight percent on the unpaid balance commencing with the second monthly payment. [Ord. 108 § 108.3.13, 10-6-2006 (Res. 2006-312)].

9.15.260 Permanent total disability.

(1) When the Claims Administrator determines that permanent total disability results from the injury, the employee shall receive on a monthly basis, during the period of disability:

(a) If married at the time of the injury, 65 percent of their monthly wages, but not less than $215.00 per month.

(b) If married with one child at the time of the injury, 67 percent of their monthly wages, but not less than $252.00 per month.

(c) If married with two children at the time of the injury, 69 percent of their monthly wages, but not less than $283.00 per month.

(d) If married with three children at the time of the injury, 71 percent of their monthly wages, but not less than $306.00 per month.

(e) If married with four children at the time of the injury, 73 percent of their monthly wages, but not less than $329.00 per month.

(f) If married with five or more children at the time of the injury, 75 percent of their monthly wages, but not less than $352.00 per month.

(g) If unmarried with one child at the time of the injury, 62 percent of their monthly wages, but not less than $222.00 per month.

(h) If unmarried with two children at the time of the injury, 64 percent of their monthly wages, but not less than $253.00 per month.

(i) If unmarried with three children at the time of the injury, 66 percent of their monthly wages, but not less than $276.00 per month.

(j) If unmarried with four children at the time of the injury, 68 percent of their monthly wages, but not less than $299.00 per month.

(k) If unmarried with five or more children at the time of the injury, 70 percent of their monthly wages but not less than $322.00 per month.

(2) If the character of the injury is such that it renders the employee so physically helpless as to require hiring an attendant, the employer shall make monthly payments to such attendant for their services as long as the requirement continues. [Ord. 108 § 108.3.14, 10-6-2006 (Res. 2006-312)].

9.15.270 Death during permanent total disability.

Every employee who becomes eligible for permanent total disability must select one of the three options listed below. Once an employee has selected an option, then if the employee should die during the period of permanent disability, whatever the cause of death, leaving a spouse or any dependents, payment shall be made in the manner and in the amounts as provided for by the option selected. If, however, an employee dies from a cause related to the injury during a period of permanent total disability, then their beneficiaries shall receive benefits under TTC 9.15.300.

(1) Option I. An injured employee selecting this option will receive the benefits provided under TTC 9.15.260. The benefits will cease upon the employee’s death, with no benefits being paid to the worker’s surviving spouse, children, or others. The employee must make the election in writing and the employee’s spouse, if any, must consent in writing as a prerequisite to electing this option.

(2) Option II. An injured employee selecting this option shall receive an actuarially reduced benefit, which upon death will be continued throughout the life of and be paid to the surviving spouse, child, or other dependent. The employee selecting this option must nominate the person to whom the benefits will be paid, in writing, at the time of the selection.

(3) Option III. An injured employee selecting this option shall receive an actuarially reduced benefit and, upon death, one-half of the reduced benefit shall be continued throughout the life of and be paid to the surviving spouse, child, or other dependent. The employee selecting this option must nominate the person to whom the benefits will be paid, in writing, at the time of the selection. [Ord. 108 § 108.3.15, 10-6-2006 (Res. 2006-312)].

9.15.280 Reduction of awards.

(1) Social Security Offset. For persons under the age of 65 receiving compensation for temporary or permanent total disability as provided in this chapter:

(a) Compensation provided under this chapter will be reduced by an amount equal to the benefits payable under the Federal Old-Age, Survivors and Disability Insurance Act, as now and hereafter amended, not to exceed the amount of reduction established pursuant to 42 U.S.C. 424a. However, compensation will not be reduced when the workers’ compensation provided herein combined with the Federal Old-Age, Survivors and Disability Insurance Act is less than the total benefit to which the Federal reduction would apply pursuant to 42 U.S.C. 424a.

(b) Where any person described in this section refuses to authorize the release of information concerning the amount of benefits payable to them under the Federal act, the employer’s estimate of the amount shall be deemed correct unless and until the actual amount is established. No adjustment will be made for any period of time covered by such refusal where the employer’s estimate is incorrect.

(c) Any reduction under this subsection (1) shall be effective the month following the month in which the employer is notified by the Federal Social Security Administration that the person is receiving disability benefits under the Federal act.

(2) Awards Through Other Compensatory Schemes. Where an employee is receiving payment under the workers’ compensation provisions of another political entity, it does not bar a claim for compensation under this chapter. However, the total amount of compensation paid to an injured employee under the other workers’ compensation law will be credited against the compensation due the employee or their beneficiary under this chapter.

(3) Failure to Follow Safety Procedures. Where an employee fails to follow standard operating safety procedures, including but not limited to failure to use safety devices or obey any reasonable rule adopted for the safety of employees, the award for any injury or occupational disease will be reduced by 15 percent.

(4) In the event of an overpayment of benefits, the employer may not recover more than the overpayments for the six months immediately proceeding the date the employer notifies the employee that overpayment has occurred.

(5) Upon a determination that there has been an overpayment, the employer shall immediately notify the person who received it that they will be required to make repayment pursuant to TTC 9.15.420. [Ord. 108 § 108.3.16, 10-6-2006 (Res. 2006-312)].

9.15.290 Compensation for additional accident.

Should a further accident occur to an employee receiving compensation for a temporary disability, or who has been paid or awarded compensation for a permanent disability, the award of compensation for such further injury will be made with regard to the combined effect of the injuries of the employee and past receipt of money for such disabilities. [Ord. 108 § 108.3.17, 10-6-2006 (Res. 2006-312)].

9.15.300 Death benefits.

If death results from an injury, payment will be made as follows:

(1) The expenses of burial, including transportation of the body, will be paid, but not exceeding the amount allowed for burial expenses under RCW 51.32.050.

(2) An amount equal to 100 percent of the average monthly wage as defined in RCW 51.08.018 will be paid to any surviving spouse, or child or children of a deceased employee if there is no surviving spouse, or dependent parent or parents, if there is no surviving spouse or child. Any such children or parent shall share and share alike the aforementioned amount.

(3) A surviving spouse of a deceased employee eligible for benefits under this chapter will receive, in addition to the lump sum payment in subsection (2) of this section, until remarriage, monthly payments as follows:

(a) If there are no children of the deceased employee, 60 percent of the deceased employee’s wages, but not less than $185.00;

(b) If there is one child of the deceased employee in the legal custody of the surviving spouse, 62 percent of the deceased employee’s monthly wages, but not less than $222.00;

(c) If there are two children of the deceased employee in the legal custody of the surviving spouse, 64 percent of the deceased employee’s monthly wages, but not less than $253.00;

(d) If there are three children of the deceased employee in the legal custody of the surviving spouse, 66 percent of the deceased employee’s monthly wages, but not less than $276.00;

(e) If there are four children of the deceased employee in the legal custody of the surviving spouse, 68 percent of the deceased employee’s monthly wages, but not less than $299.00;

(f) If there are five or more children of the deceased employee in the legal custody of the surviving spouse, 70 percent of the deceased employee’s monthly wages, but not less than $322.00.

(4) Where the surviving spouse does not have legal custody of any child or children of the deceased employee or where after the death of the employee legal custody of their child or children passes from the surviving spouse to another, any payment on account of the child or children not in the legal custody of the surviving spouse will be made to the person or people having the legal custody of the deceased employee’s children. The amount of the payments will be five percent of the monthly benefits payable as a result of the employee’s death for each child, but not to exceed 25 percent. The payments on account of such surviving children shall be subtracted from the amount to which the surviving spouse would have been entitled had they had legal custody of all of the children and the surviving spouse will receive the remainder after the payments for the surviving children have been deducted. The payments on account of a child or children not in the legal custody of the surviving spouse will be apportioned equally to all eligible children.

(5) Payments to the surviving spouse of the deceased employee will cease at the end of the month in which remarriage occurs; however, the monthly payment made on behalf of the child or children of the deceased employee shall continue following the surviving spouse’s remarriage in a sum equal to five percent of the deceased employee’s monthly wages for each child, not to exceed 25 percent, and shall be apportioned equally among all eligible children. Payments made pursuant to this section on behalf of the surviving children will be placed into an account for the benefit of the children unless they are 18 or older and then payments will be made directly to the child or children.

(6) If there is a child or children but no surviving spouse of the deceased employee, or the surviving spouse is not eligible to receive benefits under this chapter, benefits will be paid to the child or children as follows:

(a) For one child a sum equal to 35 percent of the deceased employee’s wages shall be paid monthly;

(b) For each additional child the benefits will be increased by an amount equal to 15 percent of the deceased employee’s wages but not to exceed 65 percent of the deceased employee’s wages;

(7) If the employee leaves no surviving spouse or child, but leaves a dependent or dependents, a monthly payment will be made to each dependent equal to 50 percent of the average monthly support actually received by such dependent from the employee during the 12 months preceding the occurrence of the injury, but the total payment to all dependents in any case shall not exceed 65 percent of the wages of the deceased employee at the time of death or 75 percent of the average monthly wage as calculated in RCW 51.08.018, whichever is less. If any dependent is under the age of 18 years old at the time of the occurrence of the injury, the payment to that dependent will cease when they reach 18, except that such payments will continue until the dependent reaches 23, while enrolled full-time in an accredited school. The payment will cease if and when, under the same circumstances, the necessity creating the dependency would have ceased if the injury had not happened.

(8) If the employee leaves no surviving spouse, child, or dependent, a lump sum payment of $10,000 will be paid to the employee’s estate, in addition to benefits provided for burial in subsection (1) of this section. [Ord. 108 § 108.3.18, 10-6-2006 (Res. 2006-312)].

9.15.310 Accelerating or converting awards.

(1) Where an employee has been awarded compensation for permanent partial disability, and the award has become final by operation of law or waiver of the right to appeal, the Workers’ Compensation Committee may, in its discretion, upon the employee’s application, order all or any part of the remaining unpaid award to be paid to the employee in a lump sum.

(2) In all cases where the award for permanent partial disability does not exceed the average monthly wages in the State, as calculated by RCW 51.08.018, the Claims Administrator shall pay the total award in a lump sum.

(3) An injured employee or surviving spouse may apply to have their monthly payments converted, in whole or in part, into a lump sum payment, in which event the monthly payment will cease in whole or in part. Each application for conversion will be decided by the Committee on the merits of the individual application. [Ord. 108 § 108.3.19, 10-6-2006 (Res. 2006-312)].

9.15.320 Protection of awards.

No money paid or payable under this chapter will, before the issuance and delivery of the check or warrant, be assignable, charged or taken in execution, attached, garnished or pass or be payable to any person by operation of law, any form of voluntary assignment, or power of attorney. [Ord. 108 § 108.3.20, 10-6-2006 (Res. 2006-312)].

Article IV. Claims Procedures

9.15.330 Notice of injury or occupational disease.

(1) Notice of Injury or Occupational Disease. Any employee who has sustained an injury or developed a disease in the course of employment shall immediately report the accident or diagnosis of disease to the supervisor in charge of the employee and to the designated employer representative. An injury may be reported by another on behalf of the employee. An occupational disease must be reported immediately after the employee learns of, or reasonably should have been aware of, the connection between their employment and the occupational disease.

(2) Form of Notice. Such notice shall be submitted in writing on a form provided by the employer.

(3) Failure to Provide Notice. If the employee fails to report the injury immediately, any award of compensation under this chapter may be reduced proportionately to any prejudice that the employer has sustained by reason of the employee’s failure to immediately report the injury. The burden of proof with respect to such prejudice shall rest on the employer. [Ord. 108 § 108.4.1, 10-6-2006 (Res. 2006-312)].

9.15.340 Employee’s application for compensation.

(1) Application for Compensation. Where an employee is entitled to compensation under this chapter, the employee shall file an application for compensation with the designated employer representative and shall identify their treating physician. No medical services covered in this plan shall be paid for at rates exceeding those promulgated by the Workers’ Compensation Committee.

(2) Failure to Submit Application for Compensation. An employee shall not be entitled to recover any amount expended by the employee for medical or other treatment or services unless they shall have filed an application for compensation.

(3) Physician’s Duty to Aid. It shall be the duty of the treating physician to lend all necessary assistance in making the application for compensation and such proof of other matters required by the rules of the Workers’ Compensation Committee without charge to the employee. [Ord. 108 § 108.4.2, 10-6-2006 (Res. 2006-312)].

9.15.350 Employee’s duty to report claim activity.

Where a claim has been filed and benefits are being provided, it shall be the obligation of the employee to contact the designated employer representative at least once every 30 days. [Ord. 108 § 108.4.3, 10-6-2006 (Res. 2006-312)].

9.15.360 Statute of limitations.

(1) One-Year Statute of Limitations. Except as otherwise provided herein, the right to compensation for disability or death under this chapter shall be barred unless a claim is filed within one year after the injury or death. The time for filing a claim shall not begin to run until the employee or beneficiary is aware, or by the exercise of reasonable diligence should have been aware, of the relationship between the injury or death and the employment.

(2) Incompetents and Minors. If an employee who is entitled to compensation under this chapter is mentally incompetent or a minor, the provisions herein shall not be applicable so long as such person has no guardian or other authorized representative, but shall be applicable from the date of appointment of such guardian or other representative. In the case of a minor, if no guardian is appointed before the minor becomes of age, then these provisions shall be applicable from the date such minor becomes of age.

(3) Occupational Disease. Claims for occupational disease or infection must be filed within one year following the date the employee or beneficiary had notice from a physician of the existence of the employee’s occupational disease without reference to its date of origin, or within one year after the employee or beneficiary is aware, or by the exercise of reasonable diligence should have been aware, of the relationship between the disease or death and the employment, but in no event longer than three years from the date the employee terminates their employment with the Tribes or one of its enterprises. [Ord. 108 § 108.4.4, 10-6-2006 (Res. 2006-312)].

9.15.370 Burden of proof.

The burden of proof to establish entitlement benefits under this chapter, except as set forth in TTC 9.15.380, shall rest on the covered employee, or their dependents in the case of death. [Ord. 108 § 108.4.5, 10-6-2006 (Res. 2006-312)].

9.15.380 Presumptions.

When a covered employee is found dead by accident under circumstances indicating that the accident took place within time and place limits of employment and no conclusive evidence is present to exclude coverage as provided herein, it shall be the presumption that death arose out of employment, and benefits shall be paid. [Ord. 108 § 108.4.6, 10-6-2006 (Res. 2006-312)].

9.15.390 Proof of dependency.

Upon request at any time, a dependent shall furnish the Claims Administrator with proof satisfactory to the Claims Administrator of the nature, amount, and extent of the contribution by the employee for such dependent’s support. [Ord. 108 § 108.4.7, 10-6-2006 (Res. 2006-312)].

9.15.400 Compromise and release.

Nothing in this chapter shall impair the rights of the parties to compromise, subject to the provisions herein, any liability which is claimed to exist under this chapter on account of injury, disease, or death. After reaching a compromise, a copy of the release or compromise agreement signed by both the claimant and the Claims Administrator shall be presented to the Workers’ Compensation Committee for approval. If approved, the Claims Administrator shall enter an award based on the release or compromise agreement. [Ord. 108 § 108.4.8, 10-6-2006 (Res. 2006-312)].

9.15.410 Claim closure.

(1) Closure Determination. An employee’s claim shall be closed when the Claims Administrator determines that the injured employee has reached the point where maximum medical improvement has been reached. Where a claim has been filed and where benefits have been provided by the employer, the Claims Administrator shall close an employee’s claim if there has been no claim activity for the previous 180 days. Such closure shall be deemed to occur by operation of law. The Claims Administrator shall serve written notice of the closure of the claim after expiration of the 180-day period.

(2) Reopening of Claims. Where any significant change in disability occurs within seven years of the closing of the claim, the employee may petition for a readjustment of the compensation rate. The Claims Administrator may, at any time, upon his or her own motion, readjust the rate of compensation, or in a proper case, terminate the payment. If an order denying an application to reopen is not issued within 90 days of receipt by the Claims Administrator, such application shall be deemed granted. However, for good cause, the Claims Administrator may extend the time for making the final determination on the application for an additional 60 days. [Ord. 108 § 108.4.9, 10-6-2006 (Res. 2006-312)].

9.15.420 Recovery of payments made due to error, mistake, erroneous adjudication, or fraud.

(1) Payments Due to Error and Mistake. Whenever any payment of benefits under this chapter is made because of clerical error, mistaken identity, innocent misrepresentation by or on behalf of the recipient thereof mistakenly acted upon, or any other circumstances of a similar nature not induced by fraud, the recipient shall repay it. Recoupment may be made from any future payments due the recipient on any claim against the Tribes. The Claims Administrator must make a claim for such repayment or recoupment within one year of the making of any such payment or it will be deemed that any claim therefor has been waived. The Claims Administrator may exercise their discretion to waive, in whole or in part, the amount of any such timely claim where the recovery would be against equity and good conscience.

(2) Payments Due to Erroneous Adjudication. Whenever any payment of benefits under this chapter has been made pursuant to a determination by the Claims Administrator and timely protest or appeal has been made, where the final decision is that any such payment was made pursuant to an erroneous adjudication or pursuant to the exhaustion of administrative appeals, the recipient shall repay it, and recoupment may be made from any future payments due the recipient on any claim being paid by the Tribes. The Claims Administrator may exercise their discretion to waive, in whole or in part, the amount of any such payments where the recovery would be against equity and good conscience.

(3) Payments Due to Fraud. Whenever any payment of benefits under this chapter has been induced by fraud, the recipient shall repay any such payments together with a penalty of 50 percent of the total of any such payments, and the amount of such total sum may be recouped from any future payments due the recipient on any claim against the Tribes. Such repayment or recoupment must be demanded within one year of the discovery of the fraud. In addition to the penalties provided under this chapter, the recipient may also be charged with a Class D offense under TTC 3.35.140, False claims to Tribal agencies. [Ord. 108 § 108.4.10, 10-6-2006 (Res. 2006-312)].

9.15.430 Medical examinations.

(1) Medical Examination May Be Required. When medical questions arise, an employee entitled to or claiming compensation under this chapter shall, if requested by the Claims Administrator, submit to medical examination at a time, and from time to time, and at a place reasonably convenient for the employee by a physician selected by the Claims Administrator.

(2) Medical Evaluations. Medical evaluations for purposes of determining permanent disability, claim reopening, and claim closure shall not be made by the employee’s treating physician. Such evaluations shall be made by an evaluating physician selected by the Claims Administrator.

(3) Refusal to Submit. If the employee refuses to submit to a medical examination or obstructs the same, or if any injured employee shall persist in unsanitary or injurious practices which tend to imperil or retard such worker’s recovery, or shall refuse to submit to such medical or surgical treatment as is reasonably essential to the employee’s recovery, the Claims Administrator, with notice to the employee, may reduce or suspend the employee’s compensation as long as such refusal or practice continues.

(4) Travel Expenses. If the employee necessarily incurs traveling expenses in attending a medical examination pursuant to the request of the Claims Administrator, such traveling expenses shall be repaid to the employee by the Tribes. [Ord. 108 § 108.4.11, 10-6-2006 (Res. 2006-312)].

9.15.440 Testimony of physicians not privileged.

Information obtained by the attending physician or surgeon while treating the injured employee shall not be a privileged communication if such information is required by the Claims Administrator for a proper understanding of the case and a determination of the rights involved. The Claims Administrator shall have the right to request a full and complete report from the physician or surgeon at times and in the form and detail deemed necessary to evaluate the claim. [Ord. 108 § 108.4.12, 10-6-2006 (Res. 2006-312)].

9.15.450 Confidentiality.

Information contained in the claims files and records of injured employees under the provisions of this plan shall be deemed confidential and shall not be open to public inspection. Representatives of the claimant, be it an individual or an organization, may review a claim file or receive specific information therefrom upon the presentation of the signed authorization of the claimant. The employer or its duly authorized representatives may review any files of their own injured employees in connection with any pending claims. Physicians treating or examining employees claiming benefits under this chapter, or physicians giving medical advice to the Claims Administrator regarding any claim, may, at the discretion of the Claims Administrator, inspect the claims files and records of the injured employee. Other persons may make such inspection, at the Claims Administrator’s discretion, when such persons are rendering assistance to the Claims Administrator at any stage of the proceedings on any matter pertaining to the administration of this chapter. [Ord. 108 § 108.4.13, 10-6-2006 (Res. 2006-312)].

9.15.460 Actions against third persons.

(1) Election to Bring Third Party Action. If a third person, not in the employ of the Tribes, is or may become liable to pay damages on account of an employee’s injury for which benefits and compensation are being provided under this chapter, the injured employee or their beneficiary may elect to seek damages from that third person. The injured employee will be entitled to the full compensation and benefits provided under this chapter regardless of any such third party action.

(2) Assignment of Action to Tribes. An election not to proceed against the third party operates as an assignment of the cause of action to the Workers’ Compensation Committee, which may prosecute or compromise the action, at its discretion, in the name of the injured employee, beneficiary or legal representative. If such an election is made, the injured employee or their beneficiary shall be entitled to any remaining balance of the award or settlement recovered after deduction of the expenses incurred in making the recovery, including reasonable legal services, and the compensation and benefits paid on behalf of the employee or their beneficiary by the Workers’ Compensation Committee.

(3) Notice to Parties. If either the employee or the Workers’ Compensation Committee brings an action against a third party for the injury, they shall give to the other a copy of the complaint either by personal service or certified mail. If either the employee or the Committee brings the action, the other may, at any time before trial on the facts, join as a party plaintiff or consolidate actions if they were brought independently.

(4) Distribution of Award or Settlement.

(a) In an action by an injured employee or their beneficiary against a third party, any award or settlement shall be distributed as follows:

(i) The costs and reasonable attorneys fees shall be paid;

(ii) The injured employee or their beneficiary shall be paid 25 percent of the balance of the award; provided, that in the event of a compromise and settlement by the parties, the injured employee or their beneficiary may agree to a sum less than 25 percent;

(iii) The balance of the award will be deposited with the Tribal fund, but only to the extent necessary to reimburse the fund for compensation benefits paid;

(iv) Any remaining balance shall be paid to the injured employee or their beneficiary.

(b) After the award or settlement has been distributed, no payment will be made to or on behalf of the employee or beneficiary from the Tribal fund for such injury until the amount of any further compensation or benefits that would have been due equals any such remaining balance under subsection (4)(a)(iv) of this section. Thereafter such benefits shall be paid from the fund to or on behalf of the employee or their beneficiary as though no third party action had been made.

(c) Any compromise or settlement of a third party cause of action that results in less than the entitlement in subsections (4)(a)(i) through (iii) of this section is void unless made with the written approval of the Workers’ Compensation Committee and the employee or their beneficiary.

(5) Award Subject to Lien. The award or settlement shall be subject to a lien in favor of the Tribal fund for its share under this section.

(6) Required Election. The Workers’ Compensation Committee may require the injured employee or their beneficiary to exercise the right to election herein by serving a written demand, either by mail or personal service, on the employee or their beneficiary. Unless an election is made within 60 days of receipt of the demand, the employee or beneficiary is deemed to have assigned the action to the Tribes. [Ord. 108 § 108.4.14, 10-6-2006 (Res. 2006-312)].

Article V. Protests and Appeals

9.15.470 Protests.

(1) What Can Be Protested. Any order, decision, or award made by the Claims Administrator can be protested to the Workers’ Compensation Committee after exhaustion of administrative appeals to the Claims Administrator. Whenever such an order, decision, or award is made, the employee, beneficiary, employer, and any other person affected by the decision shall be sent a copy of the decision by mail.

(a) Exhaustion of Administrative Appeals. Decisions of the Claims Administrator must be appealed within 15 days. If the administrative appeals process extends beyond 90 days from the time of filing, any benefits suspended during the pendency of the administrative appeals shall be reinstated from that date forward until the Claims Administrator issues a final decision.

(2) Procedure for Protest.

(a) Notice of Protest. Any employee, beneficiary, employer, or other person aggrieved by an order, decision, or award as initially made by the Claims Administrator must file a notice of protest with the Workers’ Compensation Committee within 15 days after receipt of the Claims Administrator’s final decision following exhaustion of administrative appeals. Such notice of protest need be in no particular form, but must be in writing. Any additional evidence, proof, or claim shall be submitted along with the notice of protest. A notice of protest is barred if it is not timely filed.

(b) Workers’ Compensation Committee Decision. The protest shall be considered by the Workers’ Compensation Committee, and a decision shall be rendered within 30 days of receipt of the notice of protest and additional evidence. The Workers’ Compensation Committee shall hold no hearing, but shall review the matter on the basis of the claim files and records. The Committee may also seek opinions from outside physicians, if necessary, and consider any supplementary materials submitted by the protestor. The written decision shall be sent to the protestor by mail.

(c) Scope of Decision. The Workers’ Compensation Committee has the power to approve, deny, or modify any order, decision, or award of the Claims Administrator upon protest. [Ord. 108 § 108.5.1, 10-6-2006 (Res. 2006-312)].

9.15.480 Appeals.

(1) Tribal Court Appeal. Any employee, beneficiary, employer, or other person aggrieved by the protest decision of the Workers’ Compensation Committee shall have the right to appeal that determination to the Tribal Court.

(2) Procedures for Appeal.

(a) Notice of Appeal. A Notice of Appeal must be filed within 30 days from the receipt of the written decision from the Workers’ Compensation Committee. Such notice must be filed with the Tribal Court and copies must be served either personally or by certified mail, return receipt requested, upon the Claims Administrator and Workers’ Compensation Committee.

(b) Contents of Notice. The Notice of Appeal must set forth in full detail the grounds upon which the appealing party considers the decision of the Workers’ Compensation Committee unjust or unlawful. The notice must include every issue to be considered by the Court. The appellant will be deemed to have waived all objections to irregularities concerning the matter on which such appeal is taken other than those specifically set forth in the Notice of Appeal.

(c) Administrator’s Record. The Claims Administrator shall transmit their original records, or legible copies certified as to their accuracy, to the Tribal Court within 10 days of receiving Notice of Appeal to the Tribal Court.

(d) Committee’s Record. The Workers’ Compensation Committee shall submit their original records, or legible copies certified by the Chairman as to their accuracy, to the Tribal Court within 10 days of receiving Notice of Appeal to the Tribal Court.

(e) Hearing. The Court will schedule a hearing to take place no later than 30 days from receipt of the Notice of Appeal. The Court Clerk will send notice of the time, date, and location of the hearing to the parties.

(f) Bond. No bond will be required on appeal to the Tribal Court.

(g) No Stay of Award. The commencement of an action for review by the Tulalip Court does not relieve the employer from payment of compensation as directed by the Workers’ Compensation Committee. If the Committee’s decision is overturned, then repayment will be governed by TTC 9.15.420.

(3) Proceedings in Tribal Court.

(a) Rules. The Tribal Court’s rules of civil procedure will govern any appeal to the Tribal Court, except where they conflict with the specific procedures herein.

(b) Evidence.

(i) Only such issues of law or fact that were properly included in the Notice of Appeal shall be heard by the Court. The Trial Court will review the case anew, but only on the basis of the evidence or testimony submitted in connection with the protest to the Workers’ Compensation Committee or contained in the Committee’s record filed in the Court. The Court may not receive new testimony, except as provided for in subsection (3)(b)(ii) of this section.

(ii) In cases of alleged procedural irregularities not shown in the record, the Court may take testimony from witnesses.

(c) Standards. In all Court proceedings under this chapter, the findings and decisions of the Workers’ Compensation Committee shall be considered correct on their face and the employee will have the burden of proving their case. If the Court determines that the Committee has correctly construed the law and found the facts, the decision of the Committee will be confirmed. Otherwise, the decision of the Committee will be reversed or modified. Where the Court modifies the Committee’s decision, the Court will remand to the Committee for further proceedings in accordance with the Court’s findings. However, the Court cannot remand for an award higher than that set out in the schedule of compensation provided for in this chapter.

(d) Decision. All Tribal Court decisions will be in writing, stating the issues as they appeared to the Court and the basis of the Court’s decision. Copies of the decision will be sent to all parties to the appeal. The Court will issue its decision within 30 days of the hearing. Decisions of the Tribal Court may not be appealed. [Ord. 108 § 108.5.2, 10-6-2006 (Res. 2006-312)].

9.15.490 Attorneys fees.

After appeal to the Tribal Court from the decision of the Workers’ Compensation Committee, a reasonable fee for the services of the prevailing party’s attorney may be fixed by the Court. [Ord. 108 § 108.5.2, 10-6-2006 (Res. 2006-312)].

Article VI. Funding

9.15.500 Purpose of fund.

There shall be established a Tribal fund for the purposes of payment of compensation claims under the Tulalip Tribes workers’ compensation plan. [Ord. 108 § 108.6.1, 10-6-2006 (Res. 2006-312)].

9.15.510 Administration of fund.

The Board of Directors shall direct the overall administration of the fund. Upon request from the Board, the Workers’ Compensation Committee shall provide annual reports on the status of the fund. The Tribes may require employees to contribute to the fund if deemed necessary by the Board of Directors to sustain the Tulalip Tribes workers’ compensation plan. [Ord. 108 § 108.6.2, 10-6-2006 (Res. 2006-312)].

Article VII. Severability

9.15.520 Severability.

If any provision of this chapter or its application to any person or circumstance is held invalid, the remainder of this chapter, or the application of the provision to other persons or circumstances, shall remain in effect. [Ord. 108 § 108.7.2, 10-6-2006 (Res. 2006-312)].