Baldock v. North Dakota Workers Compensation Bureau , 1996 N.D. LEXIS 223 ( 1996 )

NEUMANN, Justice,

concurring.

I agree with the majority’s opinion, which I have joined, but I find it necessary to add a thought regarding access to the courts, and the surrender of that important substantive right in return for the promise of “sure and certain relief ... regardless of questions of fault.” N.D.C.C. § 65-01-01.

As the majority noted, when this claim arose the goal of rehabilitation was “to restore the employee as soon as practical and as nearly as possible to the employee’s average weekly earnings at the time of injury, or to seventy-five percent of the average weekly wage in this state ..., whichever is less.” N.D.C.C. § 65-05.1-01(3) (1998). That goal has since been reduced to “ninety percent of the employee’s average weekly earnings at the time of injury, or to sixty-six and two-thirds percent of the average weekly wage in this state ..., whichever is less.” N.D.C.C. § 65-05.1-01(3), N.D.C.C. (1995). The policy considerations that must be weighed in balancing the many conflicting interests of those affected by workers compensation laws clearly are matters appropriate for legislative, rather than judicial, determination. Nevertheless, as the rights of employees under the workers compensation laws are reduced, the sureness and the certainty of relief afforded to them are being diluted.

The majority opinion, in its fourth footnote, suggests if such dilution continues, at some point the trade-off of access to the courts in return for a diminished version of sure and certain relief may no longer satisfy a rational basis review by this court. But access to the courts is an important substantive right, and restrictions of such rights are subject to a more rigorous level of scrutiny by our court. Hanson v. Williams County, 389 N.W.2d 319 (N.D.1986); Bismarck Pub. School Dist. No. 1 v. State, 511 N.W.2d 247 (N.D.1994). “We are unwilling to view human life and safety as simply a matter of economics.” Hanson, 389 N.W.2d at 325. I would suggest, if the workers compensation benefits given in exchange for the lost important substantive right of access to the courts continue to be reduced, such farther reduction should be measured not by the comparatively relaxed rational basis standard of review, but by the considerably more rigorous intermediate level of judicial scrutiny. When access to an important substantive right has been severely restricted in return for “sure and certain relief regardless of questions of fault,” a heightened level of scrutiny is justified to ensure employees continue to receive the benefit of the bargain imposed on them.

MESCHKE, J., concurs.