Sandberg v. WSI , 2023 ND 76 ( 2023 )

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
APRIL 13, 2023
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2023 ND 76John Sandberg, Appellee and Cross-Appellant
v.
North Dakota Workforce Safety & Insurance, Appellant and Cross-Appellee
and
Park Contruction Company, Respondent
No. 20220354
Appeal from the District Court of Ramsey County, Northeast Judicial District,
the Honorable Lonnie Olson, Judge.
AFFIRMED IN PART, REVERSED IN PART, AND REINSTATED.
Opinion of the Court by Jensen, Chief Justice.
Dean J. Haas, Bismarck, ND, for appellee and cross-appellant.
Jacqueline S. Anderson, Fargo, ND, for appellant and cross-appellee.
Sandberg v. WSI
No. 20220354
Jensen, Chief Justice.
[¶1] Workforce Safety and Insurance (“WSI”) and John Sandberg appeal from
a district court judgment affirming in part and reversing in part an
Administrative Law Judge’s (“ALJ”) decision on remand, entered after our
decision in State by & through Workforce Safety and Insurance v. Sandberg
(“Sandberg II”), 2021 ND 39, 956 N.W.2d 342. The ALJ’s order affirmed WSI’s
order accepting Sandberg’s claim on an aggravation basis and denying
disability benefits. Under our deferential standard of review, we affirm in part
and reverse in part the district court’s judgment, and reinstate the ALJ’s order
affirming WSI’s notice of decision.
I
[¶2] Our decisions in State by & through Workforce Safety and Insurance v.
Sandberg (“Sandberg I”), 2019 ND 198, ¶¶ 2-10, 931 N.W.2d 488, and Sandberg
II, 2021 ND 39, ¶¶ 3-8, set forth the relevant facts and prior proceedings in
this case, which we repeat here only to the extent necessary to decide this
appeal after remand.
[¶3] In July 2016, Sandberg filed a claim with WSI for a cervical neck injury.
He identified his last day of work with Park Construction and the date of the
injury as September 28, 2015. He described how his injury occurred as follows:
[U]nloading and placing rock with excavator with continuous
bouncing, slimming [sic], due to ruff [sic] terrain, with repetitive
movement, arms and head continuous movement over long periods
of time, arms at my side, hands running joysticks, head moving
side to side, up and down, resulting in extreme neck, back and
shoulder pain, with numbing in both arms and hands.
Sandberg I, 2019 ND 198, ¶ 6. WSI issued a notice of decision denying benefits
for his claimed injury. Sandberg requested reconsideration and WSI confirmed
its denial of benefits. A hearing was then held before an independent ALJ and
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the ALJ concluded Sandberg had met his burden of proving he sustained a
compensable injury. The district court affirmed the ALJ’s decision.
[¶4] On appeal, we determined the ALJ had made conflicting and insufficient
findings to support the finding that Sandberg’s claim was compensable and we
were “unable to reconcile the ALJ’s decision with the statutory requirements
for medical evidence supported by objective medical findings for a compensable
injury in N.D.C.C. § 65-01-02(10).” Sandberg I, 2019 ND 198, ¶¶ 25-26. We
reversed and remanded to the ALJ for findings under the statutory
requirements to decide whether Sandberg had sustained a compensable injury.
Id. at ¶ 26. On remand, the ALJ made additional findings and again held
Sandberg met his burden of proving by a preponderance of the evidence that
he had sustained a compensable injury. WSI appealed to the district court and
the court affirmed the ALJ’s order. WSI appealed to this Court.
[¶5] On the second appeal, we affirmed the “judgment affirming the ALJ’s
revised order to the extent the order found Sandberg sustained a compensable
injury; however, we remand[ed] the case to WSI for further proceedings on
whether benefits must be awarded on an aggravation basis under N.D.C.C. §
65-05-15.” Sandberg II, 2021 ND 39, ¶ 35. On remand, WSI reversed its
decision and accepted Sandberg’s claim on an aggravation basis and denied
Sandberg disability benefits. Sandberg requested a rehearing and the ALJ
affirmed the denial of disability benefits. Sandberg appealed to the district
court. The court affirmed WSI’s determination to award benefits on an
aggravation basis and reversed the ALJ’s affirmance of WSI’s denial of
disability benefits concluding WSI exceeded the scope of remand provided in
Sandberg II. WSI and Sandberg appeal the court’s order.
II
[¶6] Courts exercise limited appellate review of a final order by an
administrative agency under the Administrative Agencies Practice Act,
N.D.C.C. ch. 28-32. Sandberg I, 2019 ND 198, ¶ 11. Under N.D.C.C. §§ 28-32-
46 and 28-32-49, the district court and this Court must affirm an
administrative agency’s order unless:
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1. The order is not in accordance with the law.
2. The order is in violation of the constitutional rights of the
appellant.
3. The provisions of this chapter have not been complied with in
the proceedings before the agency.
4. The rules or procedure of the agency have not afforded the
appellant a fair hearing.
5. The findings of fact made by the agency are not supported by a
preponderance of the evidence.
6. The conclusions of law and order of the agency are not
supported by its findings of fact.
7. The findings of fact made by the agency do not sufficiently
address the evidence presented to the agency by the appellant.
8. The conclusions of law and order of the agency do not
sufficiently explain the agency’s rationale for not adopting any
contrary recommendations by a hearing officer or an
administrative law judge.
N.D.C.C. § 28-32-46.
[¶7] In reviewing an agency’s factual findings, a court may not make
independent findings of fact or substitute its judgment for the agency’s
findings; rather, the court must decide only whether a reasoning mind
reasonably could have determined the findings were proven by the weight of
the evidence from the entire record. Sandberg I, 2019 ND 198, ¶ 12
(citing Davenport v. WSI, 2013 ND 118, ¶ 11, 833 N.W.2d 500). Similar
deference is given to the ALJ’s factual findings when reviewing an appeal from
an independent ALJ’s final order “because the ALJ had the opportunity to
observe witnesses and the responsibility to assess the credibility of witnesses
and resolve conflicts in the evidence.” Id. An independent ALJ’s legal
conclusions are fully reviewable on appeal, including interpretation of a
statute. Id.III
[¶8] WSI argues the district court erred in reversing the ALJ’s order
affirming WSI’s denial of disability benefits. The district court reversed the
ALJ’s order, concluding the denial of disability benefits was beyond the scope
3
of remand provided in Sandberg II, 2021 ND 39. In Sandberg II, we remanded
the case to WSI for further proceedings on whether benefits must be awarded
on an aggravation basis under N.D.C.C. § 65-05-15. On remand, WSI
determined Sandberg was entitled to benefits on an aggravation basis and
determined Sandberg was not entitled to disability benefits.
[¶9] WSI generally has statutory authority to exercise continuing jurisdiction
to reopen and review claims under N.D.C.C. § 65-05-04. Carlson v. Workforce
Safety and Ins., 2012 ND 203, ¶ 14, 821 N.W.2d 760. Section 65-05-04,
N.D.C.C., provides WSI “at any time, on its own motion or on application, may
review the award, and in accordance with the facts found on such review, may
end, diminish, or increase the compensation previously awarded, or, if
compensation has been refused or discontinued, may award compensation.”
However, WSI’s continuing jurisdiction is not without limits and may be
constrained by the law-of-the-case doctrine.
[¶10] We have discussed proper application of the law-of-the-case doctrine as
such:
[T]he law of the case is defined as the principle that if an appellate
court has passed on a legal question and remanded the cause to
the court below for further proceedings, the legal question thus
determined by the appellate court will not be differently
determined on a subsequent appeal in the same case where the
facts remain the same. In other words, [t]he law of the case
doctrine applies when an appellate court has decided a legal
question and remanded to the district court for further
proceedings, and [a] party cannot on a second appeal relitigate
issues which were resolved by the Court in the first appeal or
which would have been resolved had they been properly presented
in the first appeal. The mandate rule, a more specific application
of law of the case, requires the trial court to follow pronouncements
of an appellate court on legal issues in subsequent proceedings of
the case and to carry the [appellate court’s] mandate into effect
according to its terms. . . . and we retain the authority to decide
whether the district court scrupulously and fully carried out our
mandate’s terms.
4
Sandberg II, 2021 ND 39, ¶ 19 (quoting Carlson, 2012 ND 203, ¶ 16).
[¶11] In Carlson, we held this Court’s exercise of its continuing jurisdiction on
remand was beyond the scope of remand in the first appeal. 2012 ND 203, ¶¶
17-19. In the first appeal, after deciding a legal question, holding that the
employer failed to file a timely and sufficient request for reconsideration, and
WSI’s notice of decision regarding the claimant’s employment status was final,
we remanded only for further proceedings on calculation of the claimant’s
average weekly wage. Id. at ¶¶ 17-18. On remand, WSI re-adjudicated the
claimant’s employment status. In the second appeal, we held that under the
law-of-the-case doctrine WSI was precluded from exercising continuing
jurisdiction to re-adjudicate the claimant’s employment status. Id. at ¶ 19. This
case is not analogous to Carlson.
[¶12] Here, while the remand in Sandberg II, 2021 ND 39, ¶ 35, directed WSI
to determine whether benefits must be awarded on an aggravation basis, WSI
had not previously adjudicated Sandberg’s entitlement to disability benefits.
In WSI’s original notice of decision WSI denied Sandberg’s claim in total, and
thus, did not reach the issue of disability benefits. This Court has previously
reasoned WSI may determine entitlement of benefits on remand when WSI
initially denied the claimant’s entire claim. In Ziesch v. Workforce Safety and
Ins., 2006 ND 99, ¶ 19, 713 N.W.2d 525, this Court concluded:
If WSI is required to immediately investigate, raise, and decide
issues relating to the specific amounts of benefits a claimant may
be entitled to if WSI’s initial determination of noncompensability
is reversed, the ultimate result in many cases will be a great waste
of WSI’s time and resources, delay of a determination on the
fundamental issue of compensability of the claim, and unnecessary
complication of the proceedings. This is not, as in Cridland and its
progeny, a case where WSI has, in effect, held evidentiary
ammunition on compensability in reserve, to be brought out if its
initial determination denying the claim is reversed. Rather, WSI
has logically attempted to draw a distinction between a claimant’s
entitlement to benefits and the determination of the amount and
duration of benefits if, in fact, any benefits are due.
5
WSI’s denial of disability benefits on remand was a permissible exercise of
continuing jurisdiction and did not violate the law-of-the-case doctrine. The
district court erred in finding WSI had exceeded the scope of the remand and
reversing the ALJ’s order affirming WSI’s denial of disability benefits.
[¶13] Sandberg also argues WSI erred in determining Sandberg was not
entitled to disability benefits. After a review of the record, a reasoning mind
reasonably could have determined the weight of the evidence proved Sandberg
was not entitled to disability benefits.
IV
[¶14] Sandberg argues the ALJ erred in concluding N.D.C.C. § 65-05-15
applies and requires consideration of his injury on an aggravation basis.
Section 65-05-15, N.D.C.C., provides as follows:
When a compensable injury combines with a
noncompensable injury, disease, or other condition, the
organization shall award benefits on an aggravation basis, on the
following terms:
1. In cases of a prior injury, disease, or other condition,
known in advance of the work injury, which has caused
previous work restriction or interference with physical
function the progression of which is substantially
accelerated by, or the severity of which is substantially
worsened by, a compensable injury, the organization shall
pay benefits during the period of acute care in full. The
period of acute care is presumed to be sixty days
immediately following the compensable injury, absent
clear and convincing evidence to the contrary. Following
the period of acute care, the organization shall pay
benefits on an aggravation basis.
2. If the progression of a prior compensable injury is
substantially accelerated by, or the severity of the
compensable injury is substantially worsened by a
noncompensable injury, disease, or other condition, the
organization shall pay benefits on an aggravation basis.
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3. The organization shall pay benefits on an aggravation
basis as a percentage of the benefits to which the injured
worker would otherwise be entitled, equal to the
percentage of cause of the resulting condition that is
attributable to the compensable injury. Benefits payable
on an aggravation basis are presumed to be payable on a
fifty percent basis. The party asserting a percentage other
than the presumed fifty percent may rebut the
presumption with clear and convincing evidence to the
contrary.
4. When an injured worker is entitled to benefits on an
aggravation basis, the organization shall still pay costs of
vocational rehabilitation, burial expenses under section
65-05-26, travel, other personal reimbursement for
seeking and obtaining medical care under section 65-05-
28, and dependency allowance on a one hundred percent
basis.
[¶15] The evidence before the ALJ included testimony by Dr. Johnson and Dr.
Remmick on whether they believed Sandberg had interference with function
prior to the compensable injury. Dr. Johnson testified the degenerative
pathology of the cervical and thoracic spine caused interference with function
prior to the compensable injury. In contrast, Dr. Remmick testified the pre-
existing cervical spine condition did not interfere with physical function.
[¶16] “WSI bears the responsibility of weighing the credibility of medical
evidence presented in a claim for benefits.” Clark v. N.D. Workforce Safety and
Ins. Fund, 2008 ND 192, ¶ 17, 757 N.W.2d 39. When there is conflicting medical
evidence presented in the case, WSI must adequately explain why it
disregarded favorable evidence for the claimant when it reaches a conclusion
that is less favorable to the claimant. Id. The ALJ explained the reason for
adopting Dr. Johnson’s medical opinion instead of Dr. Remmick’s:
Dr. Remmick’s opinion regarding whether the DDD interfered with
function appears in conflict with his 2017 opinion. Dr. Johnson’s
opinion of interference with function is more consistent with the
medical records as a whole. Dr. Remmick’s change in position and
retrospective review and finding of longstanding disability is not
consistent with the record or his prior opinions.
7
...
Dr. Johnson’s opinion is more persuasive on the issue of whether
the DDD impaired function prior to the compensable injury from
soft tissue injuries. Her opinion is more persuasive; it is consistent
with the medical record as a whole.
[¶17] The ALJ had the opportunity to weigh the conflicting evidence. A
reasoning mind could reasonably conclude Sandberg’s degenerative disc
disease caused previous interference with function, the severity of which was
substantially worsened by the compensable injury, and N.D.C.C. § 65-05-15
applies.
V
[¶18] We affirm the district court affirmance of the ALJ’s order awarding
benefits on an aggravation basis under N.D.C.C. § 65-05-15. We reverse the
district court’s judgment and reinstate the ALJ’s order affirming WSI’s denial
of disability benefits.
[¶19] Jon J. Jensen, C.J.
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
Douglas A. Bahr
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