WSI v. Tolman

Filed 10/21/20 by Clerk of Supreme Court
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2020 ND 223State of North Dakota, by and through
Workforce Safety and Insurance, Appellant
v.
Jason E. Tolman, Respondent
No. 20200025
Appeal from the District Court of Dunn County, Southwest Judicial District,
the Honorable Rhonda R. Ehlis, Judge.
AFFIRMED IN PART, REVERSED IN PART, AND REINSTATED.
Opinion of the Court by VandeWalle, Justice.
Jacqueline S. Anderson, Special Assistant Attorney General, Fargo, ND, for
appellant.
Jason E. Tolman, respondent; no appearance.
WSI v. Tolman
No. 20200025
VandeWalle, Justice.
[¶1] Workforce Safety and Insurance (“WSI”) appealed from a district court
judgment affirming an administrative law judge’s (“ALJ”) order that affirmed
WSI’s April 2018 order awarding permanent impairment benefits to Jason
Tolman and that reversed WSI’s July 2018 order denying benefits for his
depression and anxiety conditions. We conclude the ALJ erred in applying
N.D.C.C. § 65-01-02(10)(a)(6) and concluding Tolman established his
depression and anxiety conditions were compensable. We affirm that part of
the ALJ’s order affirming WSI’s April 2018 order; but we reverse that part of
the ALJ’s order reversing WSI’s July 2018 order, and we reinstate WSI’s July
2018 order.
I
[¶2] In September 2014, Tolman was injured when he was driving a tanker
truck and involved in a single vehicle roll-over accident. WSI accepted his claim
for benefits. In April 2018, WSI issued an order awarding Tolman $4,905 in
permanent impairment benefits based on a determination that he had
sustained a 16 percent impairment of the whole body. In July 2018, WSI issued
an order denying benefits in connection with his depression and anxiety,
deciding these conditions were not caused by his physical injury and existed
before the work injury. Tolman requested an administrative hearing on the
orders, and a hearing was held before an independent ALJ in April 2019.
[¶3] In May 2019, the ALJ issued findings of fact, conclusions of law, and an
order. In the order, the ALJ affirmed WSI’s April 2018 order awarding
permanent impairment benefits. The ALJ, however, reversed WSI’s July 2018
order. The ALJ concluded a preponderance of the evidence established that
Tolman’s physical injury was at least 50 percent of the cause of his mental or
psychological condition as compared with all other contributing causes and
established that his depression and anxiety following his work accident are not
“attributable” to depression and anxiety that he had previously experienced.
1
The ALJ held Tolman had proven his depression and anxiety were
compensable psychological conditions under North Dakota workers
compensation laws.
[¶4] WSI requested reconsideration of the ALJ’s May 2019 order, which the
ALJ denied. In July 2019, WSI appealed the ALJ’s decision to the district court.
In November 2019, the court issued a memorandum opinion and order
affirming the ALJ’s order, and judgment was entered.
II
[¶5] Courts exercise limited appellate review of administrative agency
decisions under the Administrative Agencies Practice Act, N.D.C.C. ch. 28-32.
Beam v. N.D. Workforce Safety & Ins. Fund, 2020 ND 168, ¶ 13, 946 N.W.2d
486. Under N.D.C.C. §§ 28-32-46 and 28-32-49, the district court and this Court
must affirm an order of an administrative agency unless:
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. On appeal from a district court order reviewing an ALJ’s
decision, this Court reviews the ALJ’s decision and not that of the district
court. See N.D.C.C. § 28-32-49.
2
[¶6] “When reviewing an appeal from a final order issued by an independent
ALJ, courts apply the same deferential standard of review to the ALJ’s factual
findings as used for agency decisions.” Beam, 2020 ND 168, ¶ 14; see also State
ex rel. Workforce Safety & Ins. v. Questar Energy Servs., Inc., 2017 ND 241, ¶
7, 902 N.W.2d 757. “Recognizing the ALJ had the opportunity to observe
witnesses and the responsibility to assess the credibility of witnesses and
resolve conflicts in the evidence, in reviewing the ALJ’s findings of fact we do
not make independent findings or substitute our judgment for that of the ALJ;
we determine only whether a reasoning mind reasonably could have
determined the findings were proven by the weight of the evidence from the
entire record.” Beam, at ¶ 14 (quoting Bishop v. N.D. Workforce Safety & Ins.,
2012 ND 217, ¶ 6, 823 N.W.2d 257) (internal quotation marks omitted). We do
not give deference to an independent ALJ’s legal conclusions. Id. Questions of
law are fully reviewable on appeal. Id.III
[¶7] No issue has been raised on appeal regarding WSI’s April 2018 order
regarding the permanent impairment award. Tolman did not cross-appeal and
has not filed a brief on appeal. We therefore affirm the ALJ’s order to the extent
it affirmed WSI’s April 2018 order.
[¶8] WSI argues that the ALJ erred in determining that Tolman had
established his depression and anxiety were compensable conditions by failing
to properly apply N.D.C.C. § 65-01-02(10)(a)(6) when those conditions pre-
existed the work injury. WSI further argues the ALJ did not properly analyze
the evidence under the applicable law in determining compensability of
Tolman’s mental and psychological condition.
[¶9] The dispositive issue in this appeal is whether the ALJ misconstrued
N.D.C.C. § 65-01-02(10)(a)(6), which is now codified at N.D.C.C. § 65-01-
02(11)(a)(6). Statutory interpretation presents a question of law. Vail v. S/L
Servs., Inc., 2017 ND 202, ¶ 12, 900 N.W.2d 271; Mosser v. Denbury Res., Inc.,
2017 ND 169, ¶ 13, 898 N.W.2d 406. “The primary objective in interpreting
statutes is to determine legislative intent, and that intent initially must be
sought from the language of the statute.” Vail, at ¶ 12 (citing Mosser, at ¶ 13).
3
Statutory provisions “are to be construed liberally, with a view to
effecting its objects and to promoting justice.” N.D.C.C. § 1-02-01.
Statutory provisions are given their plain, ordinary, and commonly
understood meaning unless a contrary intention plainly appears.
N.D.C.C. § 1-02-02. Words and phrases are construed according to
the context in which they are used and technical words defined by
statute must be construed according to the definition. N.D.C.C. §
1-02-03. Statutes are construed as a whole and harmonized to give
meaning to related provisions. N.D.C.C. § 1-02-07. Statutes are
construed to give effect to all of their provisions so no part of a
statute is rendered inoperative or superfluous. N.D.C.C. § 1-02-
38(2) and (4). “When the wording of a statute is clear and free of
all ambiguity, the letter of it is not to be disregarded under the
pretext of pursuing its spirit.” N.D.C.C. § 1-02-05. If the language
of a statute is ambiguous or of doubtful meaning, however, a court
may resort to extrinsic aids to determine the intention of the
legislation, including the object sought to be obtained, the
circumstances under which the statute was enacted and the
legislative history. N.D.C.C. § 1-02-39. “A statute is ambiguous if
it is susceptible to differing but rational meanings.” Mosser, at
¶ 13.
Vail, at ¶ 12.
[¶10] Section 65-01-02(10), N.D.C.C., defined “compensable injury” for
purposes of awarding benefits, stating in relevant part:
“Compensable injury” means an injury by accident arising out of
and in the course of hazardous employment which must be
established by medical evidence supported by objective medical
findings.
a. The term includes:
....
(6) A mental or psychological condition caused by a physical
injury, but only when the physical injury is determined with
reasonable medical certainty to be at least fifty percent of
the cause of the condition as compared with all other
contributing causes combined, and only when the condition
did not preexist the work injury.
b. The term does not include:
....
4
(7) Injuries attributable to a preexisting injury, disease, or
other condition, including when the employment acts as a
trigger to produce symptoms in the preexisting injury,
disease, or other condition unless the employment
substantially accelerates its progression or substantially
worsens its severity. Pain is a symptom and may be
considered in determining whether there is a substantial
acceleration or substantial worsening of a preexisting injury,
disease, or other condition, but pain alone is not a
substantial acceleration or a substantial worsening.
(Emphasis added.) See Davenport v. Workforce Safety & Ins. Fund, 2013 ND
118, ¶ 17, 833 N.W.2d 500 (discussing when the legislature permits
compensation for mental and psychological conditions).
[¶11] WSI argues the ALJ’s construction and application of N.D.C.C. § 65-01-
02(10)(a)(6) is erroneous and requires reversal. WSI contends there was no
dispute that Tolman had been diagnosed with anxiety and depression before
the work injury. WSI asserts that medical information in the record confirms
this fact and that, even after the work injury, his treating physician
documented that the medication (Cymbalta) he was taking for the last 6 to 7
years was for “mood stabilization.”
[¶12] WSI further argues the ALJ did not properly analyze the evidence under
the applicable law in determining compensability of Tolman’s mental and
psychological condition. WSI contends the evidence unequivocally established
both of his conditions pre-existed the work injury. WSI contends the ALJ did
not reasonably consider the evidence in deciding the compensability of his
mental and psychological condition because the ALJ relied on notations
showing that WSI had previously paid for psychological treatment
encompassed within programs to treat his other compensable medical
conditions.
[¶13] Here, the ALJ found Tolman, in fact, had depression and anxiety that
pre-existed the work injury, but concluded the depression and anxiety
conditions after the work accident were not “attributable” to the pre-existing
depression and anxiety. The ALJ defined “attributable,” pulling that term from
5
N.D.C.C. § 65-01-02(10)(b)(7), and concluded Tolman’s psychological condition
was compensable because the depression and anxiety Tolman was
experiencing were not “attributable” to the anxiety and depression that pre-
existed the work injury.
[¶14] The plain language of N.D.C.C. § 65-01-02(10)(a)(6), however, does not
include the word “attributable.” We agree with WSI’s argument that the ALJ
erred by including the word “attributable” to construe and apply N.D.C.C. §
65-01-02(10)(a)(6). Rather, N.D.C.C. § 65-01-02(10)(a)(6) provides the
circumstances under which a claimant’s mental or psychological condition
“caused by a physical injury” will be “compensable.” By contrast, N.D.C.C. §
65-01-02(10)(b)(7) provides that pre-existing conditions are not compensable
“unless the employment substantially accelerates its progression or
substantially worsens its severity.”
[¶15] By including the word “attributable” in construing N.D.C.C. § 65-01-
02(10)(a)(6), the ALJ has altered the meaning of “compensable injury.” Put
another way, while N.D.C.C. § 65-01-02(10)(a)(6) defines compensability for a
claimant’s mental or psychological condition, N.D.C.C. § 65-01-02(10)(a)(7)
excludes pre-existing conditions subject to an exception for substantial
acceleration or substantial worsening. The ALJ has in effect broadened
compensability by using terminology from a broad exclusion that contains a
narrow exception.
[¶16] Moreover, “[u]nder N.D.C.C. § 1-02-07, ‘[s]pecific provisions control over
general provisions.’” Rocky Mountain Steel Found., Inc. v. Brockett Co., LLC,
2018 ND 96, ¶ 11, 909 N.W.2d 671 (quoting In re Milbrath, 508 N.W.2d 360,
363 (N.D. 1993)). In this case, N.D.C.C. § 65-01-02(10)(a)(6) provides that for
the mental or psychological condition to be compensable, that condition may
not “preexist the work injury.” This definition of what is “compensable,”
therefore, controls over the definition of what is “not compensable” under
N.D.C.C. § 65-01-02(10)(b)(7). In other words, N.D.C.C. § 65-01-02(10)(b)(7)
does not provide compensability for a “mental or psychological condition” that
is not defined as compensable under N.D.C.C. § 65-01-02(10)(a)(6).
6
[¶17] We conclude the ALJ misconstrued N.D.C.C. § 65-01-02(10)(a)(6) to
conclude Tolman’s preexisting mental or psychological conditions were
compensable injuries. Under these facts and circumstances, because the ALJ
erred in applying the law and the ALJ’s findings and evidence in the record
support that Tolman’s mental or psychological condition pre-existed his work
injury, we reverse the ALJ’s order to the extent that it reversed WSI’s July
2018 order. We reinstate WSI’s July 2018 order.
IV
[¶18] We affirm that part of the ALJ’s order affirming WSI’s April 2018 order;
but we reverse that part of the ALJ’s order reversing WSI’s July 2018 order,
and we reinstate WSI’s July 2018 order.
[¶19] Gerald W. VandeWalle
Jerod E. Tufte
Lisa Fair McEvers
Daniel J. Crothers
Jon J. Jensen, C.J.
7