§ 65-05-10 — Partial disability - Weekly benefit

1. If the injury causes temporary partial disability resulting in decrease of earning
capacity, the disability benefit is sixty-six and two-thirds percent of the difference
between the injured employee's average weekly wage and the injured employee's
wage-earning capacity after the injury in the same or another employment. Partial
disability benefits are subject to a maximum of one hundred twenty-five percent of the
average weekly wage in the state. The combined partial disability benefits,
dependency allowance, and postinjury wage-earning capacity may not exceed ninety
percent of the average weekly wage of the injured employee.
2. The benefits provided by this section are available to any otherwise eligible worker,
providing the loss of earning capacity occurs after July 1, 1989. Partial loss of earning
capacity occurring prior to July 1, 1989, must be paid at a rate to be fixed by the
organization.
3. Benefits must be paid during the continuance of partial disability, not to exceed a
period of five years. The organization may waive the five-year limit on the duration of
partial disability benefits in cases of catastrophic injury as defined in section
65-05.1-06.1 or when the injured worker is working and has long-term restrictions
verified by clear and convincing objective medical and vocational evidence that limits
the injured worker to working less than twenty-eight hours per week because of the
compensable work injury. This subsection is effective for partial loss of earnings
capacity occurring after June 30, 1991.
4. The employee's earnings capacity may be established by expert vocational evidence
of a capacity to earn in the statewide job pool where the worker lives. Actual postinjury
earnings are presumptive evidence of earnings capacity if the job employs the
employee to full work capacity in terms of hours worked per week, and if the job is in a
field related to the employee's transferable skills. The presumption may be rebutted by
competent evidence from a vocational expert that the employee's actual earnings do
not fairly reflect the employee's earnings capacity in the statewide job pool,
considering the employee's capabilities, education, experience, and skills.