Nottawaseppi Huron Band of the Potawatomi, MI Workers' Compensation Claim Code

If the injury to an employee is due to the negligence or wrong of a third party who is not an employee of the injured employee's employer, the injured employee, or beneficiary, may also elect to seek damages from the third party. The injured worker, or beneficiary, shall be entitled to the full compensation and benefits provided by this chapter regardless of any such third-party action.

An election not to proceed against the third party operates as an assignment of the cause of action to the employer, which may prosecute or compromise the action in its discretion in the name of the injured employee, beneficiary or legal representative. If such an election is made, the injured employee, or beneficiary, shall be entitled to the remaining balance of any award or settlement recovered by the employer after deduction of the expenses incurred in making the recovery, including reasonable costs of legal services and the compensation and benefits already paid and those anticipated to be paid in the future on behalf of the injured employee, or beneficiary, by the employer.

The Administrator may require the injured employee or beneficiary to exercise the right of election provided for in this section by serving a written demand sent by mail or making personal service on the employee or beneficiary.

Unless an election is made within thirty (30) days of the receipt of the demand, the injured employee, or beneficiary, is deemed to have assigned the action to the employer.

ARISING OUT OF AND IN THE COURSE OF EMPLOYMENT

If the injured employee, or beneficiary, elects to seek damages from the third party, notice of the election must be given to the Administrator, and the injured worker, or beneficiary, shall be allowed ninety (90) days from this election to institute the action, or that right to proceed is deemed assigned to the employer. The notice shall be by mail or personal service. When an action is filed by the injured employee, or beneficiary, a copy of the complaint shall be sent to the Administrator. A return showing service of the notice on the Administrator may be filed with the court to give notice to the defendant of the lien imposed as authorized in this chapter.

§ 5.5-5 Definitions.

As used in this chapter, the following terms shall have the meanings indicated:

ADMINISTRATOR

The person or agency designated by the employer who is responsible for managing the claims involving employees of such employer under the Nottawaseppi Huron Band of Potawatomi Tribal Workers' Compensation Code. Managing the claims includes the duties set forth in § 5.5-9 below.

An accidental injury happening to an employee or an occupational disease of an employee originating while engaged in the line of duty in the business or affairs of the employer upon the employer's premises, or while engaged elsewhere for the employer's business or affairs by the direction, express or implied, of the employer, provided:

A personal injury shall not be deemed to arise out of the employment unless causally traceable to the employment other than through weakened resistance or lowered vitality;

For aggravation of a preexisting injury or occupational disease, compensation shall be allowed only if the employee establishes that the work injury caused a change in the underlying pathology in a significant manner.

BENEFIT

The indemnity and medical payments provided by this code. "Indemnity" shall mean total disability and partial disability income, and "medical" shall mean medical expense, mileage, and other expenses associated with medical treatment.

CHILD or CHILDREN

Includes dependent natural children, dependent stepchildren, adopted children who are under the age of 18; but does not include married children unless they are shown to be dependent.

CLAIMANT

An employee or dependent who follows the appropriate protocol to submit a claim for benefits under this code, and who is determined to have sustained a compensable injury.

COMPENSABLE INJURY

A specific injury (resulting from one incident or exposure), occupational disease, cumulative trauma (result of repetitive or continuous activity or exposure) or condition, including damage to artificial limbs, dentures, hearing aids, eyeglasses, and medical braces of all types (provided that such damage is incidental to an injury), where such injury, illness, or condition meets the standards set forth in § 5.5-10 of this code. In the case of an accidental injury, a disability or a death due to the use of alcohol or narcotic drugs shall not be construed to be a compensable injury. "Narcotic drugs" means any illegal or controlled substance, but does not include drugs used properly as prescribed in the course of medical treatment or in a program of research operated under the direction of a physician or pharmacologist.

Where the primary injury, illness, or condition meets the standards set forth in § 5.5-10 of this code, consequential injuries alleged to be attributed to the compensable injury will be compensable only where the Administrator deems there to be objective medical evidence which directly correlates such a consequence to the original injury, and where there is no intervening or superseding event.

CUMULATIVE TRAUMA

An injury or occupational disease that develops as result of repetitive or continuous activity or exposure to environmental hazards that are directly and substantially caused by job-related direct trauma or exposure. For example, claims based on degenerative arthritis or carpal tunnel syndrome are presumed not to have arisen out of employment absent substantial evidence that the employee did not have symptoms or other preexisting medical conditions related to the syndrome prior to his/her employment with the employer. Similarly, heart attacks, strokes and all their medical connotations are presumed not to have arisen out of employment, notwithstanding their having occurred during the course of employment, absent substantial evidence of extraordinary physical stresses not normally associated with the performance of the worker's job in close temporal proximity to the clinical manifestation of the event.

DAYS

Calendar days unless otherwise specified.

DEATH BENEFITS

Funeral expenses and wage loss benefits as provided in this code provided to a deceased employee's dependents where the death of the employee is the direct result of a compensable injury.

DEPENDENT(S)

Any of the following named relatives of an employee whose death results from a work-related injury or who leaves no surviving widow, widower or child under the age of eighteen (18) years: father, mother, grandmother, grandfather, stepfather, stepmother, grandson, granddaughter, brother, sister, half-sister, half-brother, niece or nephew or any other category extended family member(s) that might be approved by resolution of the Tribal Council, who at the time of the injury is actually and necessarily dependent upon the earnings of the deceased employee.

EMPLOYEE

A person employed by or in service of an employer under any at-will arrangement, contract of hire, express or implied, oral or written, under which such individual receives a salary or wages. The term "employee" includes every employee in the service of the Tribe (including any tribal entity) who is hired and carried on the payroll of the Tribe (or a tribal entity), elected members of the Tribal Council, appointed members of the Tribal Judiciary, Gaming Commission, and appointed members of tribal committees. Employee shall not include any person who qualifies as an independent contractor, contractor, outside consultant, or volunteer. Employee may, however, include a volunteer if the employer expressly elects to include all or some categories of volunteers under its workers' compensation coverage.

EMPLOYER

The Nottawaseppi Huron Band of Potawatomi ("NBHP") or any "tribal entity," as defined in this code. For purposes of this code, the term "employer" includes the NHBP Tribal Government, FireKeepers Development Authority, d/b/a FireKeepers Casino Hotel, Waseyabek Development Company, L.L.C.

IDIOPATHIC INJURY

An injury to an employee that arises spontaneously from an unknown or obscure etiology or cause, or a risk or injury that is peculiar to the employee, the cause of which is precipitated not by an event that can be causally linked to employment.

INDEPENDENT MEDICAL EXAMINATION

An evaluation by a physician performed in order to assist the Administrator in making a determination regarding causation, extent, medical status, work status, entitlement to benefits, apportionment, or other similar attribute of an injury, illness, or condition, at the request of the Administrator at the employer's expense in order to resolve a medical dispute.

INTOXICATION

Blood alcohol content in excess of the legal limit according to the laws of any jurisdiction or conviction of the offense of driving while intoxicated by any jurisdiction or loss of the normal use of one's mental and/or physical faculties resulting from the voluntary introduction into the body of:

An alcoholic beverage;

A controlled substance;

A mind-altering drug and/or hallucinogenic;

A glue or aerosol paint; or

Any other similar substance.

OCCUPATIONAL DISEASE or CUMULATIVE TRAUMA

Only those diseases or traumas which arise out of and in the course of the employee's employment. Such diseases or trauma shall have a direct causal connection with the employment and must have followed as a natural incident thereto from injurious exposure occasioned by the nature of the employment. Such disease or trauma must be incidental to the character of the business, occupation, or process in which the employee was employed. Such disease or trauma need not have been foreseen or expected but after its contraction it must appear to have had its origin in a risk connected with the employment and to have resulted from that source as an incident and rational consequence. A disease or trauma which follows from a hazard to which an employee has or would have been equally exposed outside of said occupation is not compensable as an occupational disease or trauma.

PSYCHIATRIC INJURY

A mental disorder diagnosed pursuant to the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, 4th Edition, which is medically attributable to employment by a preponderance of evidence, and which resulted in its entirety from a specific compensable injury.

SPOUSE

The legally ordained husband or wife or domestic partner of the employee; however, a domestic partner will only be considered a spouse under this code if at the time of the compensable injury the employee and said domestic partner cohabitated and were registered with a governmental Domestic Partners Registry.

TEMPORARY PARTIAL DISABILITY

A nonpermanent medical status that results in the employee being able to perform modified or light work duties or reduced hours at the direction of or as opined by a physician approved by the Administrator, that results in diminished earnings when compared with the preinjury average weekly wage.

TEMPORARY TOTAL DISABILITY

A nonpermanent medical status that results in the employee being physically unable to perform any work at the direction of or as opined by a physician approved by the Administrator, that results in a complete loss of earnings.

TRIBE

The Nottawaseppi Huron Band of Potawatomi and/or any of its entities, enterprises, offices, agencies, branches, divisions, committees, councils, or subparts, and/or any employees or officers thereof.

TRIBAL ENTITY

Any entity created as a political subdivision or instrumentality of the Tribe, to carry out economic development, governmental or other purposes, which is wholly owned and controlled by the Tribe or persons appointed by the Tribal Council. Tribal entities include, but are not limited to, the tribal committees, the Election Board, the Gaming Commission, FireKeepers Development Authority, and Waseyabek Development Authority, L.L.C. The term "tribal entity" does not, however, include any business enterprise which is organized to pursue for-profit purposes and whose employees perform services that are wholly or substantially performed outside the Tribe's Reservation lands, including business enterprises organized to pursue contract opportunities under the Small Business Administration 8(a) program, and any corporation, limited liability company, or partnership formed under the laws of the State of Michigan or another state.

VOCATIONAL REHABILITATION

The costs of vocational retraining or rehabilitation in order to return to gainful employment.

WRITTEN DECISION

Any of the following, when reduced to writing and sent to an employee or claimant:

The finding(s) and/or decision(s) of the Administrator to accept or deny, in full or in part, any aspect of a claim; or

Determinations of entitlement by the Administrator of any available benefit; or

Decisions made by the Administrator to close the claim.

§ 5.5-6 Acknowledgement of code.

All employees and persons asserting a claim shall be conclusively presumed to have elected to take benefits in accordance with the tenants, conditions, and provisions of this code by virtue of employment with the Nottawaseppi Huron Band of Potawatomi or other employers as defined herein. All employees and/or persons asserting a claim for benefits acknowledge that the Nottawaseppi Huron Band of Potawatomi is a federally recognized American Indian Tribe and is exercising its inherent sovereign authority in providing benefits under this code.

The employer shall be responsible for and shall have posted in a conspicuous location a notice as follows:

NOTICE TO TRIBAL GOVERNMENT AND ENTERPRISE EMPLOYEES

AS EMPLOYEES OF THE TRIBE OR ITS ENTERPRISES, YOU ARE INSURED FOR ON-THE-JOB INJURIES UNDER THE TRIBAL WORKERS' COMPENSATION CLAIM CODE.

If you are injured or sustain an occupational disease while at work, you may be entitled to benefits as provided by the Tribal Workers' Compensation Code. NOTIFY YOUR EMPLOYER IMMEDIATELY OF ANY INJURIES, NO MATTER HOW SLIGHT. Failure to notify your employer will result in denial of benefits under this Code.

It is your responsibility to file a claim for benefits under the Code with the Administrator of the system. You are required to file a claim for any injuries or occupational disease no more than thirty (30) days after you have knowledge thereof, except in cases where an extraordinary reason prevented the employee from reporting the injury or occupational disease to the employer in a timely manner. It is your responsibility to obtain any necessary forms from Human Resources at:

Your exclusive remedy for any work-connected injury or disease is through the Tribal Workers' Compensation claim system. The State's Workers Compensation System has no authority to accept a claim from you under the Tribal Workers' Compensation Claim Code as you are employed by the Nottawaseppi Huron Band of Potawatomi, a sovereign Indian Nation employer, which is exclusively under the jurisdiction of its own Tribal Workers' Compensation system.

§ 5.5-7 Reporting obligations.

An employee must report any injury, illness, or condition that is actually or is thought to be potentially related to employment, no matter how slight, to his or her supervisor immediately. No benefits will be paid under this code if an employee does not report the injury within thirty (30) calendar days after the injury occurs or within fourteen (14) calendar days after the employee first receives medical treatment for the injury or first loses time from work due to the injury, whichever time period is shorter.

If an employee is incapacitated, another person may report the injury on the employee's behalf, as soon as practicable. In no event will a claim for benefits be accepted if filed or submitted after the expiration of the statute of limitations set forth in § 5.5-8, below, except in cases where an extraordinary reason prevented the employee from reporting the injury or occupational disease to the employer in a timely manner.

Once the injury, illness, or condition is reported to the supervisor, the requisite claim forms must be completed by the employee. These claim forms include, but are not limited to:

An employer's first report of injury;

A signed statement from the employee as to how the incident occurred and the specific body parts affected or illness or condition claimed;

A post-accident investigation report;

A medical authorization release and a list of past treating physicians;

An occupational injury questionnaire.

A supervisor, receiving a report or notice of a work injury from the employee or on his or her behalf, must promptly report the claim to the person(s) or department designated by the employer (i.e., Human Resources or Risk Management) within twenty-four (24) hours of receipt, or the next business day in the event of office closure. A failure of the supervisor to report an injury shall toll the statute of limitations when the employee can verify to the employer or to the Administrator that the employee properly reported the injury.

An employee must cooperate in requests for post-injury or post-accident drug screens in order to qualify as a claimant eligible to receive benefits.

§ 5.5-8 Statute of limitations.

Filing a claim: No proceedings for compensation under the provisions of this code shall be maintained unless a written notice of claim for compensation is given within one year from the date of the accident and claim is made within one year from the first manifestation of a symptom of the occupational disease, as the case may be, which caused the personal injury, provided if death has resulted within one year from the date of the accident or first manifestation of a symptom of the occupational disease, a dependent or dependents, or the legal representative of the deceased employee, may make a claim for compensation within the one-year period or within one (1) year from the date of death, whichever is later.

Appealing a decision: Should an employee, claimant, dependent or any representative thereof disagree with any written decision of the Administrator, he or she must appeal that decision in writing within thirty (30) days of the date of the Administrator's correspondence, in a manner and form consistent with the requirements set forth in § 5.5-14 below. A failure to submit an appeal within this time frame will render the decision of the Administrator final and binding, with no further rights to appeal.

Reopening a claim: Once a claim has been closed pursuant to § 5.5-14 below, after six (6) months have passed from the last date of medical treatment, a claim shall be presumed permanently closed with no opportunity to reopen it unless the Administrator should, in its discretion and with new, additional, or previously undiscovered medical findings, decide otherwise. A claim that has been permanently closed will relieve the Tribe of any and all further liability associated with that claim, including any Medicare liens.

§ 5.5-9 Claims Administrator duties.

Each employer covered under this code shall designate a person or entity with responsibility for administering the workers' compensation system established under this code. The person or other entity designated by each employer shall have the Administrator for purposes of carrying out the duties and responsibilities described herein.

The Administrator shall act on behalf of the Tribe with respect to each employer subject to this code in receiving, processing, and administering Claims, including payment of benefits under this code. The Administrator's responsibilities include, but are not limited to:

Determining the compensability of claims pursuant to Section 10 below;

Making payments to claimants pursuant to Section 11 below;

Processing and paying bills and reports submitted by medical providers and other vendors;

Managing a trust account on behalf of each employer for the purpose of dispensing the Tribe's workers' compensation liabilities;

Making reports to the employer regarding its workers' compensation program and individual claims where required;

(6)

Making reports to the excess insurance earner regarding its program and individual claims where required;

(7)

Providing a mechanism for reporting claims on-line;

(8)

Participating in file reviews at the request of or at intervals established by the Tribe or the employer;

(9)

Ensuring compliance with Medicare reporting where required.

The responsibility of the Administrator to make determinations and decisions on behalf of the Tribe shall also entail the following duties:

Conduct a thorough investigation of each claim filed, and complete initial contacts within seventy-two (72) hours of receipt of the claim;

Administer a written decision and send to the employee as to whether to accept, deny, or further investigate a claim within fourteen (14) days of receipt of the claim. Where the claim is accepted, the Administrator shall establish a reserve on the file to reflect the anticipated exposure of the claim, with a detailed analysis of how the reserve was calculated, including an estimate of the benefits due and the duration and frequency of those benefits. Should the Administrator determine, within the specified period, that further investigation is required, a detailed plan of action regarding the purpose of the investigation and what is sought to be discovered should be established, best efforts shall be made to complete the investigation expeditiously, and under such circumstances a final written decision outlining compensability should be made within ninety (90) days from the date the claim was filed.

The Tribe through its designated Administrator(s) shall retain full medical control over claims for their duration. Each designated Administrator shall determine the reasonableness and necessity of medical care and charges and shall determine amounts payable under this code. Each Administrator shall promptly approve or disapprove any referrals, procedures, surgeries, or other medical requests made by approved and authorized medical providers. Disapproval of such requests shall not be arbitrary, but instead based upon sufficient justification, including but not limited to medical evidence to the contrary, peer review, utilization review, surveillance video, etc.

Each Administrator shall determine the eligibility benefits under this code. In the case of death benefits, the Administrator shall determine the eligibility of dependents and the terms of any benefits payable. In the event of the need to allocate dependency benefits between dependents living in different households, the Administrator shall make the necessary allocation, based on the obligations, legal or otherwise, of the deceased employee.

The Administrator shall, on behalf of the employer, vigorously pursue any cause of action for, or vigorously defend any cause of action or claim against, the Tribe or the employer under this code.

The failure or alleged failure of the Administrator to perform any of the duties or responsibilities outlined above will not as a matter of law or operation create any cause of action by a third party, nor will the right to benefits or recovery for any employee and/or claimant be expanded or presumed in such an event. The Administrator as an agent of the Tribe is entitled to the same sovereign immunity protection from the jurisdiction of state or federal courts or administrative boards as the Tribe would be afforded.

§ 5.5-10 Compensability; exclusions.

In order for an employee or a claimant to receive any benefits for workers' compensation under this code, it must be demonstrated by a preponderance of evidence that he or she sustained a compensable injury.

A compensable injury must be initiated by filing a claim pursuant to §§ 5.5-7 and 5.5-8 above.

A compensable injury must arise out of and in the course of employment.

A claim for benefits will not be accepted, nor will payment of any benefits be continued, nor will any incident or accident be considered or qualify as a compensable injury upon the finding or discovery of the following:

Where the employee fails to adhere to the reporting requirements or reporting statute of limitations as established under § 5.5-7 or 5.5-8 of this code;

Where the injury is caused by intoxication, by alcohol, illegal drugs, or the unlawful use of any other controlled substance;

Where the injury is either intentionally self-inflicted; or an employee unreasonably refused to obey written or verbal instructions which, if obeyed, would have reasonably prevented or significantly reduced the likelihood of injury or death;

Suicide except when the suicide is determined to be the product of a "psychiatric injury" as defined in this code;

Where the injury results from an assault unconnected with the employment and the assault arises out of personal reasons;

(6)

Where the injury is caused by or during the commission by the injured employee of a felony, crime, or misdemeanor;

(7)

Where the injury arises out of voluntary participation in an off-duty recreational, social, or athletic activity that is not part of the employee's usual and customary duties;

(8)

Where the claim is filed after notice of termination or layoff, and it is determined by the Administrator that the filing of the claim was retaliatory in nature;

(9)

Where the injury is deemed by the Administrator to have been idiopathic in nature;

(10)

Where the injury results from participation in an activity deemed by the Administrator to have been horseplay;

(11)

Where, at the time of injury, an employee refuses or fails to utilize or wear personal protective equipment or other safety apparatus that is considered a prerequisite of the job, where such refusal or failure would be formally admonished by the Tribe if it were discovered, and the injury is caused by such a refusal or failure to wear or use that personal protective equipment or other safety apparatus;

(12)

Where the injury is a purely emotional or mental injury except when the injury qualifies as a "psychiatric injury" as defined in this code;

(13)

Where the injury results from or is attributable to secondhand smoke, which is considered an inherent risk of employment, which an employee is deemed to have assumed by accepting any position with a tribal entity involving any workplace within which smoking is permitted;

(14)

Where the employee refuses to cooperate in the investigation of the claim, thus impeding the Administrator's right to discovery;

(15)

Where causation or compensability of the claim is in issue, the resolution of which depends on a medical determination made pursuant to an independent medical examination and the employee, without good cause shown, fails to present or appear for the scheduled appointment;

(16)

Where compensability is based on misrepresentation or willful omission of a material fact, where if such misrepresentation or omission were known by the Administrator or Tribe, the claim would have been denied, or benefits would have been provided at lesser levels than what was actually paid in reliance upon the misrepresentation or willful omission.

(17)

Where the injury is determined by the Administrator to have been a flare-up or exacerbation of a preexisting injury, illness, or condition where no change in the underlying pathology of the preexisting condition has been shown by the claimant by objective evidence;

(18)

Where the employee does not comply with the treating physician's medical treatment plan.

§ 5.5-11 Benefits.

An employee who receives a personal injury arising out of and in the course of employment with the Tribe or any tribal entity shall be paid compensation as provided in this code. Such benefits shall be in lieu of any and all causes of action whatsoever against the Tribe and the employer.

No compensation shall be payable for total or partial incapacity under the provisions of this code on account of any injury which does not incapacitate the injured employee for a period of more than seven (7) days from earning full wages at his customary employment. If the incapacitation continues for a period of more than seven (7) days but less than fourteen (14) days, compensation shall begin at the expiration of the first seven (7) days of total or partial incapacity. If the incapacity continues for a period of fourteen (14) days, compensation shall begin from the date of the injury. The employee has the option, but is not required, to use PTO for days missed due to the seven-day waiting period.

When a serious health condition results from injury to an employee while on the job, the employer may require that the employee's family medical leave entitlement (if applicable) will run concurrently with any workers' compensation benefits.

Reports of physicians not privileged.

Information obtained by the attending physician or surgeon while in attendance of an injured employee shall not be a privileged communication if such information is required by the Administrator or Hearing Officer for a proper understanding of the case and a determination of the rights involved.

The 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, and to present questions required to evaluate the claim.

Confidentiality. Information contained in the claim's files and records of injured workers under the provisions of this code shall be deemed confidential and shall not be open to public inspection. A representative of the claimant may review a claim file or receive specific information from it upon the presentation of a signed authorization of the claimant. The Tribe or its duly authorized representatives may review any files of injured workers in connection with any pending claims. Physicians treating or examining workers claiming benefits under this code, or physicians giving medical advice to the Administrator regarding any claim may, at the discretion of the Administrator, inspect the claims files and records of the injured worker; and other persons may make such inspection, at the Administrator's discretion, when such persons are rendering assistance to the Administrator or any appellate body at any stage of the proceedings on any matter pertaining to the administration of this code.

Workers' compensation benefits shall include the following:

Medical benefits:

A claimant shall be entitled to all medical, surgical, hospital, or dental treatment and any therapy, durable medical equipment, medications, diagnostic testing, radiology, and any other medical service related thereto a compensable injury, as requested or prescribed by a provider authorized and approved by the Administrator. An employer may require that all work-related injuries shall be initially assessed by an emergency medical technician, if one is readily available at the work site.

The Administrator on behalf of the Tribe shall retain medical control for the life of the claim, subject to the following:

[1]

Life-threatening, serious, or severe injury. Where an employee has sustained a serious or severe injury which requires immediate emergency medical attention, the employee should go to the nearest emergency room or urgent care facility. All subsequent treatment is subject to the medical control of the employer through its Administrator and/or preferred vendor medical facility.

[2]

Minor injury: Where an employee has sustained a minor injury, the employer may require the employee to go to a health care provider designated by the employer.

[a]

The designated health care provider shall determine the employee's initial treatment, which may include seven (7) days of self-treatment;

[b]

If an employee elects not to go to the designated health care provider, the employer's workers' compensation system shall not be financially responsible for any further medical treatment, or any treatment performed by any other health care provider.

(c)

Neither the Tribe or any tribal entity, nor the designated Administrator, shall be responsible for any bill or amount in excess of what is allowable under the State of Michigan's fee schedule for similar bills in the statutory system.

Temporary disability benefits:

The Tribe and each tribal entity has established a return-to-work program, such that best efforts will be made to accommodate recommendations for light duty or modified work duty as prescribed by an authorized and approved physician.

In instances where light duty or modified duty results in diminished wages as compared to the preinjury average weekly wage of the claimant, the claimant will be entitled to temporary partial disability payments at a rate of 80% of the difference between actual weekly earnings during the period of modified and/or light duty and the preinjury average weekly wages

(c)

In instances where light duty or modified duty cannot be accommodated by the Tribe, or where a claimant is deemed temporarily totally disabled (TTD) by the Administrator, the claimant will be entitled to temporary total disability benefits at a rate 2/3 of the preinjury average weekly wage calculated as provided in Subsection F(2)(f) of this section, subject to the maximum rates generally recognized by the State of Michigan at the time such temporary total disability is applicable. The maximum duration that temporary total disability benefits will be paid by the Tribe or its Administrator is five hundred (500) weeks. If the term of any temporary total disability exceeds one hundred four (104) weeks, the Administrator may reexamine any total disability claim for which the employer has current payment responsibility to determine whether the claimant continues to be totally incapacitated from regularly performing work at a gainful and suitable occupation. Reexamination shall include such medical examination, report and other records as the Administrator considers necessary or may require.

(d)

Coordination of benefits. Wage loss benefits shall be reduced by 100% of the amount of benefits paid or payable to the claimant under the Michigan Employment Security Act, 50% of the benefits paid or payable for old-age insurance benefits under the Social Security Act, 42 U.S.C. 301 to 1397F; 100% of payments under a self-insurance plan, a wage continuation plan, or a disability insurance policy provided by the employer, 100% of pension or retirement payments pursuant to a plan to which the employer contributed, without reduction based upon the percent contributed by the employer.

(e)

No temporary disability benefits, whether temporary partial disability or temporary total disability, shall be paid under circumstances where:

[1]

The claimant is incarcerated, provided that such payments will only be withheld during the period of said incarceration; or

[2]

The claimant does not have authorization from the medical provider assigned or designated by the Administrator to be off work; or

[3]

The claimant is terminated for misconduct, or quits work, or declines a bona fide offer of light or modified duties by the Tribe where such a bona fide offer is for work within the physical limitations prescribed by the authorized or approved physician; or

[4]

The claimant receives wages during a period where the claimant was opined to have been temporarily totally disabled (TTD).

(f)

For purposes of this section, a claimant's preinjury average weekly wage shall be calculated by adding all reported earnings for one year preceding the date of injury, and dividing the resulting amount by 52. In the event the claimant has been employed for less than a year, the preinjury average weekly wage shall be calculated by adding all reported earnings for the actual period worked prior to the date of injury, and dividing the resulting amount by the number of applicable weeks worked. In the event the claimant has worked for less than a week, the preinjury average weekly wage will be calculated by multiplying the claimant's hourly rate by the number of hours he or she is expected to or was hired to work.

Death benefits:

If death results from a compensable injury, the person and/or entity who incurred the liability for the costs of the burial shall be reimbursed for either the actual costs incurred for such reasonable burial expenses, or $10,000, whichever is less.

Death benefits are only payable to dependents of the deceased claimant as determined by the Administrator.

(c)

A child will remain eligible for death benefits if:

[1]

He or she is under the age of eighteen (18).

[2]

He or she is under the age of twenty-three (23) and enrolled as a full-time student in an accredited university, college, or vocational school.

[3]

He or she is developmentally disabled and incapable of caring for himself or herself and is dependent on the employee for primary support and maintenance.

(d)

Death benefits can either be issued on a biweekly basis, at a rate commensurate to what would have been paid under temporary total disability benefits but for the death, or can be paid in a lump sum at a reasonable present-day value calculation as determined by the Administrator and subject to the acquiescence of the dependents.

Compensation not assignable or alienable. Except as provided in this section, no compensation payable under this code on account of work-related injuries or death are subject to assignment prior to their receipt by the beneficiary entitled to them, nor shall they pass by operation of law. All such compensation and the right to receive them are exempt from seizure on execution, attachment, or garnishment, or by the process of any court, except as required by a provision of any tribal code or by a federal law applicable to the Tribe, and except for income assignments imposed or executed under the direction of a court of competent jurisdiction for the payment of child support (subject to time limits contained in 15 U.S.C. 1673).

Recovery of erroneous payments.

Whenever any payment of benefits under this code is made because of clerical error, mistaken identity, innocent misrepresentation by or on behalf of the employee or beneficiary mistakenly acted upon, or any other circumstance of a similar nature not induced by fraud, the recipient shall repay such amount. Recoupment may be made from any future payments due the recipient on any claim. The Administrator must make a claim for repayment or recoupment within one year after such erroneous payment is made, or it will be deemed waived. The Administrator may exercise his/her or its 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.

Whenever any payment of benefits under this code has been induced by fraud, the recipient shall repay any such payment together with a penalty of fifty percent (50%) of the total of any such payments, and the amount of such total sum may be recouped from any future benefit payments due the recipient on any claim. Such repayment or recoupment must be demanded within one year after discovery of fraud.

§ 5.5-12 Pandemic.

Pandemic infection contracted by a first responder. A pandemic infection contracted by a first responder shall be presumed to be due to exposure in the course of the first responder's employment. The presumption may only be rebutted by clear and convincing evidence. The following definitions apply in determining eligibility for compensation under this section:

FIRST RESPONDER

A law enforcement officer, firefighter, or an emergency medical technician or paramedic employed by the Tribe, including a volunteer firefighter, or a health care worker required to work during a pandemic.

PANDEMIC

An outbreak of an emerging disease prevalent in the United States or the whole world.

Employees who are not first responders.

For an employee who is not a first responder as defined in Subsection A of this section, disability or death resulting from a pandemic infection shall be presumed to be compensable if the employee receives a positive laboratory test or a diagnosis by a licensed health care provider and either:

Had documented occupational exposure in the course of employment to an individual with a positive test or diagnosis of a pandemic infection by a licensed health care provider; or

That the pandemic infection was contracted in the course of and arising out of the employee's employment outside of the employee's home.

The presumption of compensability in Subsection B(1)(a) and (b) of this section shall not apply if it is shown by a preponderance of the evidence that the disease was caused by non-employment-connected risk factors or non-employment-connected exposure.

§ 5.5-13 Cumulative injury.

Benefits for a claim due to cumulative injury will be reduced if the employee has been employed for a limited time as follows:

Employees are not eligible for benefits when employed full-time for a period up to six (6) months.

Employees receive 25% of eligible benefits for a claim made while employed full-time for a period of six (6) to nine (9) months.

Employees shall receive 50% of eligible benefits for a claim made while employed full-time for a period of nine (9) to fifteen (15) months.

Employees receive 75% of eligible benefits for a claim made while employed full-time for a period of fifteen (15) to eighteen (18) months.

Employees eligible for full compensation after being employed full-time more than eighteen (18) months.

The time frames, which are provided in this section, shall be lengthened appropriately for employees who are employed on a part-time basis.

§ 5.5-14 Claim closure.

A claimant's claim for benefits shall be closed when any of the following circumstances occur:

The Administrator has paid a settlement to the claimant that has been agreed upon by both the claimant and the Administrator in exchange for a general release of any and all further liability; any liability resulting from the injury may be redeemed by the payment of a lump sum by agreement of the parties. Except as provided in this section, any claimant must, as part of the redemption, agree to a termination of employment and release and waiver of any seniority and all claims against the employer, including any right to seek reemployment with the employer or any other tribal entity. In the case of any claimant who is an enrolled member of the Tribe, the claimant may be eligible for rehire with the employer or another tribal entity after a period of time that is not less than the lesser of:

The period of time for which benefits were redeemed on a lump-sum basis; or

Twenty-four (24) months.

The Administrator has extended all benefits due under this code to any claimant or dependents;

The employee or dependent fails to appeal a written decision within the time frame prescribed in § 5.5-15 below;

The claimant has either unreasonably failed to follow up with medical treatment, or has abandoned medical treatment as evidenced by failure to present for two consecutive medical appointments without good cause shown or, with respect to supportive medical care, a failure to treat within one year from the last date of authorized medical care under his or her claim;

The claimant has reached the point where no further material improvement would reasonably be expected from medical treatment, where all other benefits have been exhausted and/or otherwise paid;

(6)

Upon the discovery of any issues impacting compensability or continuing benefits as more fully described in § 5.5-10 above;

(7)

Pursuant to an order following a hearing under § 5.5-14;

(8)

Any other reason set forth in this code as determined by the Administrator.

Nothing in this code shall impair the rights of the parties to compromise any liability that is claimed to exist under this code on account of injury, disease or death, subject to the provisions herein. No compromise and release settlement shall be paid without a general release signed by both parties.

§ 5.5-15 Protests.

What can be protested. Any final order, decision, or award made by the Administrator can be protested to the Hearing Officer. Whenever such a final order, decision, or award is made by the Administrator, the employee, beneficiary, employer, and any other person affected by the decision shall be sent a copy of the decision by registered mail thirty (30) days after the Administrator's decision.

Exhaustion of administrative appeals. If the Administrator establishes any administrative appeals process, which extends beyond 90 days from the time the affected person files an administrative appeal, any benefits suspended during the pendency of the administrative appeals shall be reinstated from that date forward until the Administrator issues a final decision. The person affected by a final decision shall be sent a copy of the decision by mail.

Procedure for protest.

Notice of protest. Any employee, beneficiary, employer, or other person aggrieved by a final order, decision, or award as initially made by the Administrator must file a notice of protest with the Hearing Officer within thirty (30) days after receipt of the 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.

Hearing Officer decision. The protest shall be considered by the Hearing Officer, and a decision shall be rendered within forty-five (45) days of receipt of the notice of protest and additional evidence. The Hearing Officer shall hold no hearing, but shall review the matter on the basis of the claim files and records. The Hearing Officer may also seek opinions from attending or outside physicians, if necessary, and consider any supplementary materials submitted by the protestor. The written decision containing findings of fact and conclusions of law shall be sent to the protestor and the employer by registered mail as soon as it is rendered. The notice of decision shall inform the protester and the employer of their right to appeal the decision to the Tribal Court.