Indus. Contractors, Inc. v. Taylor

• Decision Date: 31 July 2017
• Docket Number: No. 20160322,20160322
• Citation: 899 N.W.2d 680
• Parties: INDUSTRIAL CONTRACTORS, INC., Appellant v. Leonard TAYLOR, Claimant and Appellee and Workforce Safety and Insurance, Respondent
• Court: North Dakota Supreme Court

899 N.W.2d 680

INDUSTRIAL CONTRACTORS, INC., Appellant

v. Leonard TAYLOR, Claimant and AppelleeandWorkforce Safety and Insurance, Respondent

No. 20160322

Supreme Court of North Dakota.

Filed July 31, 2017

Rehearing Denied October 17, 2017

Lawrence E. King, Bismarck, ND, for appellant.

Leonard Taylor (on brief), Roseville, GA.

Amanda J. Brossart, Bismarck, ND, for claimant and appellee.

Jacqueline S. Anderson (on brief), Special Assistant Attorney General, Fargo, ND, for respondent.

Kapsner, Justice.

[¶1] Industrial Contractors, Inc., appeals from a judgment affirming a decision by an independent administrative law judge determining Leonard Taylor's employment with Industrial Contractors was not seasonal employment. Industrial Contractors argues the ALJ misapplied the law for determining seasonal employment. We conclude the ALJ misapplied the law and the ALJ's decision is not supported by a preponderance of the evidence. We reverse and remand.

I

[¶2] Industrial Contractors provides contract construction services for industrial clients and hires employees for its contracted projects by sending referral requests to local unions. Industrial Contractors has a collective bargaining agreement with the western North Dakota IBEW Local Union 714, under which Industrial Contractors may transfer employees hired through the Union from job to job. According to Randy Bartsch, business manager for IBEW Local 714, Industrial Contractors "has frequently moved employees from job to job and is currently moving employees to various projects as needed." According to Tyler Svihovec, the safety and risk manager for Industrial Contractors, its hiring process involves calling the applicable union halls for employees. Svihovec testified the "vast majority" of employees hired in that manner are laid off when a project is completed and it is "somewhat atypical" for Industrial Contractors to transfer an employee to other jobs.

[¶3] Taylor sustained a work-related injury on March 11, 2014, while working for Industrial Contractors through a referral with the IBEW Local Union 714 as a journeyman electrician at a power plant shutdown for scheduled maintenance. According to Taylor, his referral with Industrial Contractors was under a "long call" that could last indefinitely. According to Industrial Contractors, it hired Taylor in March 2014 for a spring power plant shutdown for scheduled maintenance lasting anywhere from six to twelve weeks. Svihovec testified Taylor was hired for a shutdown that was scheduled to end on May 16, 2014, and he was injured on his second day of work. According to Svihovec, Industrial Contractors hired Taylor for work that was not permanent and did not customarily operate throughout the entire year.

[¶4] Workforce Safety and Insurance ("WSI") accepted liability for Taylor's injury and initially decided his job with Industrial Contractors was seasonal employment under N.D.C.C. § 65-01-02(27) because it was subject to layoffs and was temporary, with an estimated completion date of May 16, 2014. Under that classification and N.D.C.C. § 65-01-02(5), WSI calculated Taylor's disability benefits based on an average weekly wage of $2,246 during the first twenty-eight consecutive days of his disability and thereafter on an average weekly wage of $681.

[¶5] After a formal hearing requested by Taylor, the ALJ determined Taylor's employment was not seasonal employment. The ALJ decided electricians hired by Industrial Contractors on regular referrals work an indefinite duration; they do not qualify as "not permanent" employees and they are not seasonal employees. The ALJ decided Industrial Contractors hired Taylor to do electrical work at the power plant under a regular referral and his employment would last until Industrial Contractors no longer needed him. The ALJ denied WSI's petition for reconsideration, which was joined by Industrial Contractors. The district court affirmed the ALJ's decision.

[¶6] Industrial Contractors appealed the decision of the district court. WSI filed a brief in support of and adopting the legal arguments of Industrial Contractors on appeal.

II

[¶7] Under the Administrative Agencies Practice Act, N.D.C.C. ch. 28-32, courts exercise limited appellate review of a final order by an administrative agency. Workforce Safety & Ins. v. Auck , 2010 ND 126, ¶ 8, 785 N.W.2d 186. Under N.D.C.C. §§ 28-32-46 and 28-32-49, the district court and this Court must affirm an administrative agency order 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.

[¶8] In reviewing an ALJ's factual findings, a court may not make independent findings of fact or substitute its judgment for the ALJ's findings; rather, a court must determine only whether a reasoning mind reasonably could have determined the findings were proven by the weight of the evidence from the entire record. Auck , 2010 ND 126, ¶ 9, 785 N.W.2d 186 ; Power Fuels, Inc. v. Elkin , 283 N.W.2d 214, 220 (N.D. 1979). When reviewing an appeal from a final order by an independent ALJ, similar deference is given to the ALJ's factual findings because the ALJ has the opportunity to observe and assess witnesses' credibility and resolve conflicts in the evidence. Auck , at ¶ 9. Similar deference is not given to an independent ALJ's legal conclusions, and a court reviews the independent ALJ's legal conclusions in the same manner as legal conclusions generally. Id. Questions of law, including the interpretation of a statute, are fully reviewable on appeal. Id.

III

[¶9] Industrial Contractors and WSI argue the ALJ misapplied the legal standard for seasonal employment, and should have determined Taylor's job was seasonal employment. Industrial Contractors claims the ALJ clearly was confused with the short and long call distinction used by Taylor's union, which Industrial Contractors argues has nothing to do with its customary approach to hiring temporary employees for scheduled maintenance at power plant shutdowns. Industrial Contractors claims it may have transferred electricians to other jobs, but transfers were not customary, and argues the ALJ failed to focus on Industrial Contractors' customary practice. Industrial Contractors argues the ALJ's decision in this case conflicts with another ALJ's decision on the same issue in an analogous case.

[¶10] Although an unappealed decision in a different case may have some persuasive effect, the issue here involves the interpretation of "seasonal employment" in N.D.C.C. § 65-01-02(27) and the application of that definition to this case.

[¶11] Statutory interpretation is a question of law, fully reviewable on appeal. Auck , 2010 ND 126, ¶ 9, 785 N.W.2d 186. The primary objective in interpreting a statute is to determine the intention of the legislation. In re Estate of Elken , 2007 ND 107, ¶ 7, 735 N.W.2d 842. Words in a statute are given their plain, ordinary and commonly understood meaning, unless defined by statute or unless a contrary intention plainly appears. N.D.C.C. § 1-02-02. Statutes are construed as a whole and are harmonized to give meaning to related provisions. N.D.C.C. § 1-02-07. If the language of a statute is clear and unambiguous, "the letter of [the statute] is not to be disregarded under the pretext of pursuing its spirit." N.D.C.C. § 1-02-05. The language of a statute must be interpreted in context and according to the rules of grammar, giving meaning and effect to every word, phrase and sentence. N.D.C.C. §§ 1-02-03 and 1-02-38(2). We construe statutes to give effect to all of their provisions so that no part of the statute is rendered inoperative or superfluous. N.D.C.C. § 1-02-38(2) and (4). If the language of a statute is ambiguous or of doubtful meaning, 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." Western Gas Res., Inc. v. Heitkamp , 489 N.W.2d 869, 872 (N.D. 1992).

[¶12] An injured claimant's disability benefits are based on the claimant's average weekly wage, and seasonal employment is a classification used for calculating a claimant's average weekly wage. See N.D.C.C. § 65-01-02(5) (defining methodology for calculating average weekly wage). See also 8 Larson's Workers' Compensation Law §§ 93.01[1] and 93.02[3][b] (2014) (discussing calculation of wage basis and benefits involving seasonal employment). In that context for determining a claimant's average weekly wage, we consider the definition of "seasonal employment" in N.D.C.C. § 65-01-02(27),¹ which provides:

" ‘Seasonal employment’ includes occupations that are not permanent or that do not customarily operate throughout the entire year. Seasonal employment is determined by what is customary with respect to the employer at the time of injury."

[¶13] The ordinary meaning of the adjective "seasonal" pertains to or is dependent on the seasons of the year. Merriam-Webster's Collegiate Dictionary , 1120 (11th ed. 2005). The ordinary meaning of "employment" is the state of being employed or an occupation by which a person earns a...