dissenting.
[¶ 18] I respectfully dissent.
[¶ 19] In his independent medical evaluation, Ronald Bateman, O.D., and WSI, in its decision, considered only the needs of the claimant’s job and not the claimant’s “other activities of daily living” in deciding the “best medical solution” as required by our statute. Because of this flawed framework of analysis, the decision in not in accordance with the law, and I would reverse and remand.
[¶ 20] 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.” 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.”
[¶ 21] “The workers’ compensation system ... constitutes a grand bargain in which injured workers forego the possibility of larger awards potentially available through the tort system (the quid) in exchange for a no fault system that provides more certainty of an award (the quo).” Satterlee v. Lumberman’s Mut. Cas. Co., 2009 MT 868, ¶ 56, 353 Mont. 265, 222 P.3d 566 (Morris, J., dissenting). “The employee gives up the right to sue the employer for negligently inflicted injuries, in exchange for sure and certain benefits for all workplace injuries, regardless of fault.” Fleck v. ANG Coal Gasification Co., 522 N.W.2d 445, 453 (N.D.1994). The Supreme Court of Oregon explained:
As an integrated system of social welfare legislation, workmen’s compensation embodies two principal and unique social policy purposes. These can be characterized as the social bargain and social insurance purposes.... The impetus, of course, was to alleviate the plight of injured workers who often suffered without remedy under the common law. This purpose has been characterized as a “socially-enforced bargain which compels an employee to give up his valuable right to sue in the courts for full recovery of damages ... in return for a certain, but limited, award. It compels the employer to give up his right to assert common-law defenses in return for assurance that the amount of recovery by the employee will be limited.”
Woody v. Waibel, 276 Or. 189, 195 n. 6, 554 P.2d 492, 495 n. 6 (1976) (quoting Van Horn v. IAC, 219 Cal.App.2d 457, 467, 33 Cal.Rptr. 169, 174 (1963)).
[¶ 22] Section 65-02-20, N.D.C.C., provides: “The organization shall establish a managed care program ... to effect the best medical solution for an injured employee .... ” (Emphasis added.) Although North Dakota has little interpretive case-law explaining how to determine the best medical solution for an injured employee, Arkansas courts have developed a line of cases addressing the proper medical procedure which should be provided when an individual is covered under workers’ compensation.
*638[¶23] In affirming the approval of a particular medical procedure, an Arkansas court of appeals stated, “The administrative law judge found that the surgical procedure in question was necessary to restore claimant, as far as practicable, to the physical condition he enjoyed immediately preceding this injury.” Crain Burton Ford Co. v. Rogers, 12 Ark.App. 246, 250, 674 S.W.2d 944, 947 (1984) (quotations omitted). In another Arkansas case, a court held:
Given the testimonies of appellee’s plastic and reconstructive surgeon and the board-certified prosthetic orthotist, there was substantial evidence to support the finding that the myoelectric prosthesis was reasonably necessary to restore appellee as far as practicable to his physical condition before this work-related injury. See Crain Burton Ford Co. v. Rogers, 12 Ark.App. 246, 674 S.W.2d 944 (1984).
While there is evidence that appellee could still become a secondary school math teacher with a less costly conventional prosthesis, it is undisputed that the more advanced myoelectric one would more closely restore appellee to his physical condition that existed before being injured at work.
Air Compressor Equip, v. Sword, 69 Ark.App. 162, 167, 11 S.W.3d 1, 3 (2000).
[¶ 24] These courts recognized that the bargain of workers’ compensation is not to ensure only that medical treatment enables an injured worker to perform his previous job, but to attempt to restore the worker as close as possible to the physical condition he enjoyed prior to the injury. See id.
[¶ 25] Again, in a more recent case, another Arkansas court similarly concluded that because a prosthetic device would not offer any additional functional capabilities or psychological or physiological benefit, the device was not a reasonable and necessary medical treatment. Shaver v. Land O'Frost, 2010 Ark.App. 117 at *3-5, 2010 WL 502975 (2010). The court reasoned:
[I]f Shaver’s desired cosmetic prosthesis would “restore [him] as far as practicable to his physical condition before the work-related injury,” appellee should be required to provide it. However, prior to his injury Shaver had a working left hand. After his injury, Shaver received a working prosthesis, outfitted with both a metal hook and a rubber-hand attachment. Both provide Shaver with the ability to grasp objects. The requested prosthesis does not bolster Shaver’s arm function; it diminishes it.
Id. at *4.
[¶ 26] In this case, I would adopt the same framework of analysis as the Arkansas courts. There was evidence demonstrating that the myoelectric prosthesis would bolster Whedbee’s arm function, helping him in daily activities. Whedbee presented evidence that the more functional prosthesis would provide him the opportunity of being restored, as closely as possible, to the physical condition he enjoyed prior to his work injury. Employing a needs-only-of-the-job analysis and failing to consider Whedbee’s “other activities of daily living” in deciding the “best medical solution,” as required by our statute, constituted fundamental error. I would reverse and remand for WSI to apply the correct legal standard as its framework of analysis.
[¶ 27] DALE V. SANDSTROM