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State high court backs insurer in dispute over worker's prosthetic arm


North Dakota's monopoly workers compensation insurer acted appropriately when it denied an injured worker's preferred choice of prosthetic limb and sent him out of state for a medical exam to determine what kind of prosthesis he should receive, the North Dakota Supreme Court ruled in a split decision.

Dennis Whedbee worked as a safety specialist for Black Hawk Energy Services Inc. in Williston, North Dakota, and was injured in a 2012 oil rig explosion, court records show. The North Dakota Workforce Safety & Insurance Fund, the state's comp insurer, accepted liability for Mr. Whedbee's injuries and care, including the amputation of his left arm below the elbow.

Mr. Whedbee lives in Pennsylvania and received treatment from Dr. Marshall Balk in his home state, records show. Dr. Balk recommended that Mr. Whedbee receive a myoelectric prosthesis, which uses muscle contractions in an amputated limb to control movements in the prosthesis.

Dr. Balk said that the myoelectric prosthesis would allow Mr. Whedbee to continue working for Black Hawk and that it was “more elaborate” than Mr. Whedbee needed for his job duties, records show.

Workforce Safety & Insurance requested an independent medical examination from Dr. Ronald Bateman in Edina—St. Louis Park?, Minnesota to determine whether a myoelectric prosthesis would be appropriate for Mr. Whedbee, court records show. Dr. Bateman recommended that Mr. Whedbee receive a body-powered prosthesis, which is controlled by a cable attached to a person's healthy limb.

Dr. Bateman recommended the body-powered prosthesis partly because he felt the weight of a myoeletric model would strain Mr. Whedbee's recovering left shoulder and that the myoelectric version would be “very fragile and expensive to repair,” records show. Additionally, the doctor said that Mr. Whedbee could receive an artificial hand to cover a split hook at the end of the body-powered prosthesis if Mr. Whedbee was concerned with appearances.

Workforce Safety & Insurance denied Mr. Whedbee's request for the myoelectric prosthesis based on Dr. Bateman's findings. Mr. Whedbee appealed, arguing that the myoelectric prosthesis was cost-effective and medically appropriate.


The insurer's binding dispute resolution committee and the McKenzie County, North Dakota District Court both upheld the insurer's prior decision and approved the body-powered prosthesis, according to court records. Mr. Whedbee appealed to the North Dakota Supreme Court.

The North Dakota Supreme Court upheld the lower court ruling in a 4-1 decision Tuesday. In its majority opinion, the court found that Workforce Safety & Insurance appropriately considered the medical opinions of both Dr. Balk and Dr. Bateman, including the fact that Dr. Balk deemed a myoelectric prosthesis to be “more elaborate” than Mr. Whedbee needed for work.

“WSI is not required to provide Whedbee's preferred device,” the majority ruling reads. “WSI appropriately considered each device's durability, cost and impact on Whedbee's injuries. WSI was not arbitrary, capricious or unreasonable in concluding the body-powered prosthesis was the best medical solution in a cost-effective manner.”

The high court also found that Workforce Safety & Industries acted appropriately when it assigned Mr. Whedbee to have his independent medical examination performed in Minnesota, rather than his home state of Pennsylvania.

“Nothing in the record established that Whedbee objected to this independent medical examination or that WSI did not attempt to find a doctor located closer to Whedbee,” the majority opinion reads. “Further, Whedbee has not shown how the location of the independent medical examination prejudices him or discredits Dr. Bateman.”

In his dissent, Justice Dale V. Sandstrom said Dr. Bateman only considered Mr. Whedbee's workplace needs, rather than deciding which prosthesis would allow Mr. Whedbee to best perform “other activities of daily living.”

“Under the needs-only-of-the-job analysis, WSI could say that a worker who lost a leg on the job could now do the job sitting down and therefore a wheelchair or crutches, instead of a prosthesis, would be the 'best medical solution,' ” said Justice Sandstrom, who would have reversed the lower court decision. “Or, if a worker needs only one eye to do a job, an eye patch could be the 'best medical solution' for a correctable eye injury. Such a legal standard is inconsistent with the fundamental fairness necessary to sustain the 'grand bargain' ” of workers comp coverage.