Red Lake Court of Indian Offenses
Code – “Revisions July 25, 2001”

[Editor's Note: this copy of the Red Lake Band of Chippewa Indians "tribal code" was received from what journalists call a "reliable source" in the tribal administration, apparently July 25, 2001 revisions of the Red Lake Court of Indian Offenses' Law and Order provisions that was adopted by the tribal council on September 11, 1990.  As a Court of Indian Offenses, the Red Lake Court is also subject to the federal regulations, including the law and order provisions in Title 25 of the Code of Federal Regulations.  Maquah.net makes no representation as to the accuracy or current status of this revised code.]


TITLE SIXTEEN XVI TRIBAL WORKER’S COMPENSATION PLAN

CHAPTER 1600

1600.01       Definitions.

1600.02       Purpose and Scope

1600.03           Reporting Obligations

1600.04       Medical Benefits

1600.05       Disability Benefits

1600.06       Dependency Benefits

1600.07       Recurrence

1600.08       Election of Remedies

1600.09       Administrator

1600.10       Appeals

 

 

 

TITLE SIXTEEN
XVI
TRIBAL WORKER’S COMPENSATION PLAN

 

CHAPTER 1600

 

1600.01           Definitions.

 

Subdivision 1.  “Council” means the Red Lake Band of Chippewa Indians Tribal Council and other participating Tribal organizations, also referred to as the Employer, or its designee.

 

Subdivision 2.  “Employer” means the Council and other participating Tribal organizations where they have obtained the labor services of a person for hire.

 

Subdivision 3.  “Employee” means any person who performs labor services alone for the Council or other participating Tribal Organization for hire at an established wage or salary.

 

Subdivision 4.  “Weekly Wage” means, for a full-time employee, the weekly Council salary or the Council wage normally earned in a normal full-time week.  If the hours worked are irregular or difficult to determine, the average daily wage is determined by totaling the earnings from the Council employment over the 26 calendar weeks prior to the injury and dividing the sum by the number of days worked in the same period. The number of days worked is then divided by the number of calendar weeks within the 26 week period in which the Employee had Council earnings to determine the average work week.  The average work week is then multiplied by the average daily wage to arrive at the Weekly Wage. In no case are overtime wages considered in determining Weekly Wage.  If an Employee is employed in more than one capacity by the Council, the earnings of the Employee in each capacity will be considered in determining Weekly Wage.

 

Subdivision 5.  “Compensation Rate” means 66 and 2/3 percent of the Weekly Wage as determined under Subdivision 4 of this section, subject to a maximum to $500.00 per week.

 

Subdivision 6.  “Waiting Period” means the first five scheduled work days lost, for which no workers’ compensation benefits will be paid, counted from the first day of disability due to a Compensable Injury.

 

Subdivision 7.   “Compensable” or “Compensable Injury” means a Bodily Injury to an Employee, caused by an Accident when that Injury arises out of a risk of the Employment, and the Injury occurs during a period of Employment and while performing the duties of the Employment in or on the premises of the Employer or wherever the Employer requires the Employee to perform the Employment activities.  Injury caused by a third person or fellow Employee intended to injure the Employee does not arise out of the Employment and is not Compensable under this Plan.

 

Subdivision 8.  “Bodily Injury” or “Injury” means actual physical injury to the body which arises by Accident under circumstances that constitute a Compensable Injury as defined in Subdivision 7 of this section.

 

Subdivision 9.  “Accident” means a specific occurrence, neither expected nor intended, which causes Bodily Injury to an Employee and arises under circumstances constituting a Compensable Injury.  Accident does not include a self-inflicted injury or injury suffered while the employee is under the influence of alcohol or non-prescription drugs. 

 

Subdivision 10.  “Dependent Child” means a natural or adopted unmarried child of the Employee, including posthumous child, under eighteen years of age, or under the age of twenty-two if the child is regularly attending a high school, college, university, or vocational or technical school as a full-time student.

 

Subdivision 11.  “Dependent Spouse” means the lawful wife or husband of the Employee, unless voluntarily living apart from the Employee at the time of the Employees’ injury or death.  Does not include a “common law” spouse.

 

Subdivision 12.  “Other Dependents” means stepchildren, grandchildren, nieces and nephews may be considered dependent but only to the extent that actual dependency can be shown.

 

Subdivision 13.  “Primary Physician” means a licensed medical doctor located and practicing within 100 miles of the borders of the Reservation and from whom the Employee receives medical treatment fro a Compensable Bodily Injury.  A Primary Physician may not be employed by the Indian Health Service and may not charge the Indian Health Service under contract care arrangements for medical services provided to the Employee.

 

Subdivision 14.  “Referral Physician” means a licensed medical doctor or chiropractor to whom the  Employee is referred by the Primary Physician for further specialized treatment with the approval of the Administrator or the Council.  A Referral Physician may not be employed by the Indian Health Service and may not charge the Indian Health Service under contract care arrangements for medical services provided to the Employee.

 

Subdivision 15.  “Independent Medical Examination” means a medical examination and/or evaluation of the Employee scheduled by the Employer or Administrator, at the Employer’s expense, for the purpose of obtaining medical information or opinion.

 

Subdivision 16.  “Administrator” means Berkeley Administrators, whom the Council has contracted with to act in behalf of the Council in the administration of this plan.

 

1600.02           Purpose and Scope

 

Subdivision 1.  The purpose of this Plan is to provide a system of compensating and medical benefits for Employees of the Council who suffer Compensable Injuries in the Employment of the Council.  Benefits under the Plan are the Employees exclusive remedy against the Employer.  Employees who are eligible for health services or benefits from the Indian Health Service because of their status as Indians are required to seek such services or benefits before applying for medical benefits under this Plan.  The purpose of this Plan is to supplement, not replace Indian Health Service benefits under this Plan only as a last resort.

 

Subdivision 2.  All employees of the Council are covered for Compensable Bodily Injuries whether the Accident and Bodily Injury occurs on or off the Reservation.  Benefits are limited as indicated in this ordinance.

 

Subdivision 3.  The medical expense benefits under this self-funded, self-insured Plan of the Tribe are expressly limited to those otherwise eligible expenses incurred from medical service providers other than the Indian health Service or its IHS contract health care providers.  This means that to be eligible for medical expense benefits under this Plan, an Employee or Dependent must secure medical services from medical service providers other than the Indian Health Service or its IHS contract health care providers.

 

Subdivision 4.  It is the intent of the Red Lake Band of Chippewa Indians, exercising its sovereign authority and acting through its governing body, the Red Lake Tribal Council, to provide this tribally-funded Plan and the medical expense benefits arising thereunder as the absolute last resort.  This means that the Tribe’s Plan, and the medical expense benefits arising thereunder, are absolutely immune from any subrogation claim presented to the Administrator by the Indian Health Service under purported authority of 25 U.S.C. 1682 and, if made, such subrogation claim shall cause an immediate and retroactive termination of the medical expense benefits under this Plan for which IHS seeks reimbursement.  The Plan is a self-insured program of the Tribe, self-funded by the Tribe.  The Tribe’s Plan is not a federal, state, local, or private insurance resource for payment of workers’ compensation claims as contemplated in 25 U.S.C. 1682 and its legislative history, and to the extent that the Indian Health Service seeks to construe it to be otherwise, the benefits under this Plan for which IHS seeks reimbursement are null and void ab initio.

 

Subdivision 5.  It is the intent of the Red Lake Band of Chippewa Indians, exercising its sovereign authority and acting through its Tribal Council, to provide this tribally-funded Plan and the medical expense benefits arising thereunder as the absolute last resort.  This means that the Tribes’s Plan, and the medical expense and other benefits arising thereunder are absolutely immune from any right of recovery claim made by the United States under purported authority of 25 U. S. C. 1621e(a) and, if made, such right of recovery claim shall cause an immediate and retroactive termination of the medical expense and other benefits under this Plan for which the United States seeks recovery.  The Plan is a self-insured program of the Tribe, funded by the Tribe.  The Tribes’s Plan is not a federal, state, local, or private insurance resource for payment of workers’ compensation claims as contemplated in 25 U.S.C. 162le(a) and its legislative history, and to the extent that the Indian Health Service seeks to construe it to be otherwise, the benefits under this Plan for which IHS seeks a right of recovery are null and void ab initio.

 

Subdivision 6.  This plan is a self-funded, self-insurance program of the Red Lake Band of Chippewa Indians, a sovereign Indian Tribal government operated solely for the governmental purpose of its governmental employees.  As such, it is not a workers’ compensation plan of any state government, or any political subdivision of a state, as contemplated in 25 U.S.C. 162le(b) and its legislative history, and to the extent the Indian Health Service seeks to construe it to be otherwise, the benefits under this Plan for which IHS seeks a right of recovery are null and void ab initio.

 

Subdivision 7.  Nothing in this Plan, including any assertion of right or privilege, shall waive, or be construed to work a constructive waiver of, the Tribe’s sovereign immunity from suit by any party.

 

1600.03           Reporting Obligations

 

Subdivision 1.  An Employee must report any injury, no matter how slight, to his/her supervisor within twenty-four hours of the Accident causing the Bodily Injury.  No compensation or medical Accident causing the Bodily Injury.  No compensation or medical benefits will be paid if a Bodily Injury is not reported within seven calendar days of the employee first receiving medical treatment for the Bodily Injury or first losing time from work due to the Bodily Injury.  If the Bodily Injury incapacitates the Employee, the seven days will not begin  to run until the incapacity ends.  A Bodily Injury may reported by another on behalf of the Employee.

 

Subdivision 2.  A Supervisor, receiving a report or notice of a Bodily Injury from the Employee or another acting in the Employees’ behalf, must promptly report the claim to the Administrator or to the Council’s designee for reporting.

 

1600.04           Medical Benefits

 

Subdivision 1.  The Plan will pay the cost of all reasonable and necessary First Aid, Medical, Surgical and Hospital services incurred by the Employee as a direct result of a Compensable Bodily Injury subject to the following restrictions and limited to a maximum benefit of $100,000.00 for any injury.  Benefits payable through the Veterans Administration or under any policy of No-Fault Automobile Insurance will be primary to benefits payable under this Plan.

 

Subdivision 2.  Once an Employee has made a second visit to a physician, that physician is the employee’s Primary Physician under the Plan.  After this second visit, the Employee may not change Primary Physicians without the approval of the Administrator or the Council.

 

Subdivision 3.  The Plan will pay hospital and related charges only for services ordered by the Primary or Referral Physician.

 

Subdivision 4.  The Plan will pay the cost of medicines and supplies and equipment of a therapeutic nature necessary to treat the bodily Injury only if ordered by the Primary or Referral Physician.

 

Subdivision 5.  The Plan will pay surgical charges only if the surgery is done on an emergency basis or if it has been previously approved by the Administrator or the Employer.  The Administrator or the Employer may require a second opinion prior to approving any surgical procedure.

 

Subdivision 6.  The Plan will reimburse the Employee for the reasonable cost of mileage and other related expenses necessarily incurred to obtain medical treatment other than the cost of child care.

 

Subdivision 7.  The Plan will pay reasonable and necessary medical care costs up to the maximum allowed for similar services by the Medical Fee Schedule adopted by the Council and attached to this Plan and designated as Addendum Number 1.

 

Subdivision 8.  If the Employee unreasonably fails to appear for a scheduled Independent Medical Examination, the responsibility of the Employer for payment under this Plan of medical expenses incurred after the scheduled date of that Examination ceases.  Likewise, the Employer’s responsibility for the payment of all other benefits accruing under this Plan ceases immediately upon that failure to appear. 

 

Subdivision 9.  The Administrator or Council may contract for the services of a rehabilitation consultant to assist the Employee in rehabilitation and return to work efforts.  If the Employee fails to cooperate in rehabilitation efforts and medical expenses under this Plan will cease.

 

Subdivision 10.  The Employee must provide written authorization for present and past medical expenses by the Administrator or the Council.  If the Employee fails to provide authorization within  20 days of a written request to do so, the responsibility of the Employer for payment of all benefits and medical expenses under this Plan will cease.

 

1600.05           Disability Benefits

 

Subdivision 1.  “Temporary Total Disability” means that time, after the Waiting Period, when, solely as a direct result of the Bodily Injury, the Employee is totally disabled from performing for the Council the Employee’s normal duties which the Employee was engaged in at the time of the Bodily Injury, or of other light, restricted or modified work which the Employer offers.  Total Disability must be evidenced by medical opinion based on examination and treatment rendered at the time of the claimed disability.  The weekly benefit for Temporary Total Disability is limited to the applicable Compensation Rate under Subdivision 4 and 5 of Section 1600.01.

 

Subdivision 2.  “Temporary Partial Disability” means loss of actual earnings suffered after the Waiting Period by an Employee who has returned to light duty, restricted or modified work offered by the Employer solely because of the ongoing effects of the Bodily Injury and the Employee’s physical inability to return to the Employee’s normal duties of Employment with the Council which the Employee was engaged in at the time of the Bodily Injury.  The weekly benefit for Temporary Partial Disability is 66 and 2/3 percent of the difference between the Weekly Wage at the time of the Bodily Injury as determined under Subdivision 4 of Section 1600.01 and the wage the Employee is able to earn in the light duty, restricted or modified work which the Employee offers.  Temporary Partial Disability benefits are limited to the maximum Compensation Rate under Subdivision 5 of Section 1600.01.

 

Subdivision 3.  If an Employee refuses light, restricted or modified work, offered by the Employer or becomes voluntarily unemployed, all benefits, except medical benefits, will cease.

 

Subdivision 4.  Payments of Temporary Total and/or Temporary Partial disability benefits will not be paid beyond 26 calendar weeks from the first day of disability if the Employee is covered under a Group Long Term Disability Program provided by the Council, or a maximum of 104 calendar weeks from the first day of disability if the Employee is not covered by a Group Long Term Disability Program.  Disability Benefits will cease at that time or upon the rating and commencement of payment of Permanent Partial Disability benefits, whichever comes first.

 

Subdivision 5.  Permanent Disability benefits are intended to compensate the injured Employee for any permanent loss of or loss of use to the body as a whole suffered directly as a result of a Compensable Bodily Injury.  Preexisting disabilities are not be considered in rating Permanent Partial Disability.  A rating of Permanent Partial Disability must represent only that loss resulting solely from the compensable Bodily Injury.  All ratings of Permanent Partial Disability shall be based on the Permanent Disability Schedules adopted by the Council and attached to this Plan and designated as Addendum Number 2.  The percentage of disability determined under the Schedule shall be multiplied by $75,000.00 to determine the dollar amount payable to the Employee.  The amount payable to the Employee shall be paid in weekly installments at the Compensation Rate to which the Employee is entitled under Subdivisions 4 and 5 of Section 1600.01.  Periodic payments will begin as soon as reasonably possible after receipt of the rating by the Administrator but no later than thirty (30) days after receipt unless the Administrator has scheduled an Independent Medical Examination..

 

Subdivision 6.  Permanent Partial Disability benefits are not payable concurrently with temporary Total, Temporary Partial, or Dependency benefits.

 

Subdivision 7.  The Council or the Administrator may, at their option, pay disability benefits two week increments.

 

Subdivision 8.  If a Bodily Injury results in disability which is partially due to a congenial condition a prior disease or injury, the benefits payable for the disability will be reduced by the proportion of the disability which is due to the preexisting disability.

 

Subdivision 9.  If the Employee unreasonably fails to appear for a scheduled Independent Medical Examination, the liability of the Employer for payment of disability benefits ceases.  Likewise, the employer’s responsibility for payment of all other benefits accruing under this Plan ceases immediately upon that failure to appear.

 

Subdivision 10.  Receipt by the Employee of Social Security Retirement Benefits will be considered conclusive evidence of retirement and liability of the Employer for payment of further disability benefits will cease.

 

1600.06           Dependency Benefits

 

Subdivision 1.  In the event of the death of an Employee due to a Compensable Injury, payment of all disability and medical benefits shall cease and a maximum of $25,000.00, less any benefits payable under a Group Life Insurance Program provided by the Council will be payable to the Dependents of the deceased Employee.  Dependents will receive weekly payments equal to the indicated percentage of the Weekly Wage as determined under Subdivision 4 of Section 1600.01.  Weekly payments are subject to the maximum compensation Rate under Subdivision 5 of Section 1600.01 and will be paid as described in Subdivision 2 through 11 of this Section 1600.06.

 

Subdivision 2.  Dependent Spouse alone - 50 percent of the Weekly Wage.

 

Subdivision 3.  Dependent Spouse and one or more Dependent Children - 66 and 2/3 percent of the Weekly Wage.

 

Subdivision 4.  One Dependent Child, but no Dependent Spouse - 40 percent of the Weekly Wage.

 

Subdivision 5.  Two or more Dependent Children, but no Dependent Spouse - 60 percent of the Weekly Wage.

 

Subdivision 6.  Other Dependents will receive benefits in the percentage that their provable dependency on the decedent bears to the maximum benefit available and to the dependency of other Dependents.  Regardless of the number of Dependents, the maximum benefit will not exceed 66 and 2/3 percent of the Weekly Wage at the time of the Injury.

 

Subdivision 7.  If a Dependent Spouse remarries, no further benefits shall be payable to that Spouse.  If one or more Children remain Dependent, benefits will continue to be paid for the benefit of the Child or Children, pursuant to the Subdivisions 4 or 5 of this Section 1600.06, until they cease to be Dependent.

 

Subdivision 8.  Benefits payable to Dependents shall be paid to them or to any guardian or other responsible party as directed by the Council for the use and benefit of the Dependents.

 

Subdivision 9.  If a Dependent Child, upon reaching the age at which that Child would cease to be Dependent, is totally disabled due to a physical or mental impairment, benefits will continue to be paid under the appropriate provision above until the disability ends or the maximum is paid, whichever comes first.

 

Subdivision 10.  The Council or the Administrator may, at their option, pay Dependency benefits in two week increments.

 

Subdivision 11.  In all cases where an Employee’s death results from a Compensable Injury, the reasonable expenses of burial, not to exceed $2,000.00, will be paid in addition to any other benefits payable under this Section 1600.06

 

1600.07           Recurrence

 

If, within one year from the date on which an Employee has returned to full-time, light, restricted or modified work, the Employee, while in the course of Council employment, suffers a Recurrence of the original Compensable Bodily Injury, the Recurrence will be considered a continuation of the earlier claim and injury and subject to the monetary and time limitations of the initial claim.  A Recurrence occurring in other non-Council employment is not compensable under this Plan.

 

1600.08           Election of Remedies

 

Subdivision 1.  If an Employee’s Compensable Bodily Injury or death is caused or contributed to by a party other than the Employee or the Employer and the Employee or Dependents could file a claim or lawsuit against the other party, the Employee or Dependents may not present claims under this Plan and against the other party.

 

Subdivision 2.  If the Employee or Dependents elect to claim benefits under this Plan, the Employee or Dependents must assign their cause of action against the other party to the Council and cooperate with the council and the Administrator in the pursuit of that action.  Once assigned, the Employer shall bear all costs of collection.  If the Employee or the Dependents fail to assign the cause of action or fail to cooperate in the pursuit of that action, all benefits under this Plan will cease and the Employee or Defendants will be required to reimburse the Council for any benefits paid to or on behalf of the Employee or the Dependents under the Plan.

 

Subdivision 3.  If the Employee or Dependents elect to pursue a cause of action against the other party, no benefits will be payable under this Plan unless, within 180 days of the injury, the Employee or Dependents assign their claim to the Council and agree to cooperate in pursuit of the action.  In that event, only benefits accruing or medical or collection expenses incurred after the date of the assignment will be paid under this Plan by the Employer.

 

Subdivision 4.  If an Employee or Dependents have assigned a cause of action to the Council under this Section 1600.08 and if the recovery from that cause of action exceeds the amounts paid or payable to the Employee or Dependents, any excess, after reimbursement to the Council of the benefits paid or payable under this Plan and deduction of the costs of collection, will be paid over to the Employee or Dependents.

 

1600.09           Administrator

 

Subdivision 1.  The Administrator will act on behalf of the Council in receiving and processing Worker’s Compensation claims under this Plan.  The responsibility of the Administrator to make determinations and decisions will include, but not be limited, to the following areas.

 

a)         Based upon investigation and available medical information, the Administrator will make a determination of the responsibility of the Employer and will accept or deny a claim.  Within 30 days of receipt of a First Report of Injury, the Administrator will advise the Employee and Employer of its determination.

 

b)         The Administrator will determine the reasonableness and necessity of medical care and charges under Section 1600.04 and will determine amounts payable under this Plan.  The Administrator will also approve or disapprove any change of Primary Physician, referral to a Referral Physician, or Surgical Procedure.

 

c)         Based on information supplied by the Employer and/or Employee, the Administrator will determine the Compensation Rate payable for Temporary Total, Temporary Partial, and Permanent Partial Disability, and for Dependency.

 

d)         The Administrator will determine the length of time during which Temporary Total Disability or Temporary Partial Disability Benefits are payable.

 

e)         The Administrator will determine the amount of Permanent Partial Disability Benefits payable.

 

f)          The Administrator will determine the eligibility of Dependents and the term of any Dependency Benefits payable.

 

g)         In the event of the need to allocate Dependency Benefits between Dependents living in different households, the Administrator will make the necessary allocation, based on the obligations, legal or otherwise of the decedent.

 

h)         If an Employee claim is subject to the limitations of Section 1600.07, the Administrator will advise the Employee and Employer of the effect of this limitation in writing.

 

i)          The Administrator will, on behalf of the Employer, vigorously pursue any cause of action assigned to the Employer under Section 1600.08.

 

1600.10           Appeals

 

Subdivision 1.  The Council will appoint three individuals to act as an Appeals Board to hear any issues and make any necessary final determination relative to Compensability of a Bodily Injury, Medical care or charges, extent of Disability, Dependency, or any other issue that may arise under this Plan.

 

Subdivision 2.  The members of the Appeals Board will include one member representing the Council, one member representing employees of the Council and one other member of the Red Lake Band of Chippewa Indians who neither a member of the Council nor a Council employee.

 

Subdivision 3.  The Appeals Board will consider evidence, hear witnesses and receive exhibits in keeping with its goal of making a just final determination.

 

Subdivision 4.  The Appeals Board will weigh the evidence, testimony of witnesses, and exhibits and will make its decision on the basis of the preponderance of evidence and credibility of the evidence and witnesses.

 

Subdivision 5.  The burden of proof in any hearing before the Appeals Board will be on the Employee or Dependents.

 

Subdivision 6.  The Employee or Dependents may have legal representation at any hearing before the Appeals Board.  The cost of representation will be borne by the Employee or Dependents.

 

Subdivision 7.  Any Employee or Dependent who disagrees with a determination made by the Administrator may request a hearing before the Appeals Board.  If the Employee or Dependent requests, the Appeals Board may, within 30 days, set a date on which the Employer and the Employee or Dependent, or their representatives, may meet with one member of the Board to discuss and attempt to resolve the issues.  The Board member will moderate the discussion and may offer opinions and advice to the parties but will not reach any decision on the issues.  If the Employee or Dependents and the issues, such agreement will be reduced to writing by the parties and will be binding on the parties.

 

Subdivision 8.  If no meeting is requested under Subdivision 7 of this Section 1600.10, or if a meeting under said Subdivision 7 fails to resolve the issue, the matter will be scheduled for a hearing before the full Appeals Board within 90 days of the receipt of the request for a hearing from the Employee or Dependents.  The Employee or Dependents may request an extension of up to 90 days which must be granted by the Board.

 

Subdivision 9.  Any decision of the Appeals Board must have the concurrence of a majority of the Board members in order to have legal effect.  All decisions of the Board are final.

 

Subdivision 10.  An Appeals Board Decision must be issued in writing and copies must be mailed to all interested parties.  The Decision need not recite nor review the evidence or testimony nor need it compare the merits of the evidence or testimony of the opposing parties.  The Decision need only set out the final determination of the Appeals Board on all issues before it.

 

Subdivision 11.  In the event the Appeals Board cannot reach a majority Decision, the matter before it will be submitted to the Council for final determination. 



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