Industrial Contractors v. Wsi.

• Decision Date: 04 September 2009
• Docket Number: No. 20080275.,20080275.
• Citation: 772 N.W.2d 582,2009 ND 157
• Court: North Dakota Supreme Court
• Parties: INDUSTRIAL CONTRACTORS, INC., Respondent and Appellant v. WORKFORCE SAFETY & INSURANCE, Appellee and Francis Rogstad, Claimant and Appellee.

772 N.W.2d 582

2009 ND 157

INDUSTRIAL CONTRACTORS, INC., Respondent and Appellant v. WORKFORCE SAFETY & INSURANCE, Appellee and Francis Rogstad, Claimant and Appellee.

No. 20080275.

Supreme Court of North Dakota.

September 4, 2009.

Monte L. Rogneby (argued) and Leslie Bakken Oliver (appeared), Bismarck, N.D., for respondent and appellant.

Douglas W. Gigler, Special Assistant Attorney General, Fargo, N.D., for appellee, Workforce Safety & Insurance.

Steven L. Latham, Bismarck, N.D., for claimant and appellee, Francis Rogstad.

MARING, Justice.

[¶ 1] Industrial Contractors, Inc. ("Industrial Contractors") appeals from a Workforce Safety & Insurance ("WSI") final order invalidating Industrial Contractors's designated medical provider selection and allowing the claimant, Francis Rogstad, to select his own medical provider for treatment of his compensable work injury. On appeal, Industrial Contractors argues WSI incorrectly interpreted and applied the law governing an employer's selection of a preferred provider in effect on the date of injury. We conclude WSI properly interpreted and applied the relevant statute and, further, a reasoning mind reasonably could have found WSI's findings that Industrial Contractors failed to comply with the notice requirements of N.D.C.C. § 65-05-28.2(5) were proven by the weight of the evidence from the entire record. We affirm.

I

[¶ 2] On April 3, 2006, Rogstad was injured while working as a boilermaker for Industrial Contractors at the Leland Olds power plant near Stanton. WSI subsequently accepted Rogstad's claim for work-related injuries to his bilateral lower arm, left shoulder, right chest, and left elbow. JIn March 2007, WSI issued an order, including an award of benefits for Rogstad's left shoulder injury on a 50 percent aggravation basis beginning June 4, 2006, because of a preexisting left shoulder injury. WSI's order also denied further benefits on or after October 12, 2006, because Rogstad did not seek treatment from Industrial Contractors's designated medical providers and did not obtain a referral from a designated medical provider. Rogstad requested a formal hearing.

[¶ 3] After an administrative hearing, an administrative law judge ("ALJ") issued recommended findings of fact, conclusions of law, and an order, affirming WSI's award of benefits on an aggravation basis for Rogstad's left shoulder. The ALJ found, however, that Industrial Contractors failed to comply with the statutory requirements for displaying notice of its selection and use of designated medical providers and concluded Industrial Contractors's initial selection of a provider was invalid and Rogstad was permitted to select his own provider. The ALJ recommended vacating that part of WSI's order denying Rogstad benefits after October 11, 2006. WSI adopted the ALJ's recommended decision as its final order. The district court affirmed WSI's final order.

II

[¶ 4] Courts exercise limited review in appeals from administrative agency decisions under the Administrative Agencies Practice Act, N.D.C.C. ch. 28-32. Bergum v. North Dakota Workforce Safety & Ins., 2009 ND 52, ¶ 8, 764 N.W.2d 178; Forbes v. Workforce Safety & Ins. Fund, 2006 ND 208, ¶ 10, 722 N.W.2d 536. The district court under N.D.C.C. § 28-32-46, and this Court under N.D.C.C. § 28-32-49, must affirm an administrative agency decision 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.

[¶ 5] This Court exercises restraint in deciding whether WSI's findings of fact are supported by a preponderance of the evidence and does not make independent findings or substitute its judgment for that of WSI. Reopelle v. Workforce Safety & Ins., 2008 ND 98, ¶ 9, 748 N.W.2d 722. We decide only whether a reasoning mind reasonably could have decided that WSI's findings were proven by the weight of the evidence from the entire record. See Roberts v. North Dakota Workmen's Comp. Bur., 326 N.W.2d 702, 704-05 (N.D.1982) (citing Power Fuels, Inc. v. Elkin, 283 N.W.2d 214, 220 (N.D. 1979)).

[¶ 6] "Questions of law, including the interpretation of a statute, are fully reviewable on appeal from an administrative decision." Stein v. Workforce Safety & Ins., 2006 ND 34, ¶ 6, 710 N.W.2d 364. We will give deference to an administrative agency's construction of a statute in administering the law when that interpretation does not contradict clear and unambiguous statutory language. Victor v. Workforce Safety & Ins., 2006 ND 68, ¶ 12, 711 N.W.2d 188 (quoting Houn v. Workforce Safety & Ins., 2005 ND 115, ¶ 4, 698 N.W.2d 271). See People to Save the Sheyenne River, Inc. v. North Dakota Dep't of Health, 2008 ND 34, ¶ 15, 744 N.W.2d 748 ("An administrative agency's reasonable interpretation of a regulation is entitled to deference.").

III

[¶ 7] On appeal, Industrial Contractors argues WSI incorrectly interpreted and applied the law governing an employer's selection of a preferred provider in effect on the date of Rogstad's injury. WSI responds that it properly interpreted Industrial Contractors's notice obligations to its employees regarding the required use of its preferred medical provider. WSI and Rogstad argue the weight of the evidence supports WSI's determination that Industrial Contractors's worksite postings failed to comply with the statutory requirements of N.D.C.C. § 65-05-28.2(5), which at the time of Rogstad's injury provided:

5. An employer shall give written notice to its employees when the employer makes an initial selection of a preferred provider or changes the selection of the preferred provider. An employer shall give written notice identifying the selected preferred provider to every employee hired after the selection was made. An employer who has selected a preferred provider shall display notice of the preferred provider in a conspicuous manner at fixed worksites, and wherever feasible at mobile worksites, and in a sufficient number of places to reasonably inform employees of the preferred provider and of the requirements of this section. Failure to give written notice or to properly post notice as required under this subsection invalidates the selection, allowing the employee to make the initial selection of a medical provider.

(Emphasis added.)

[¶ 8] WSI made several findings of fact and conclusions of law regarding Industrial Contractors's failure to comply with posting requirements:

23. ICI has implemented a plan to designate preferred providers of medical services for its employees pursuant to N.D.C.C. §§ 65-05-28.1 and 65-05-28.2. Charles P. Dahl, M.D., and the Bone and Joint Center is not one of the preferred providers designated by ICI at any time that Rogstad received medical evaluation and treatment by Dr. Dahl or any other medical provider associated with Dr. Dahl and the Bone and Joint Center or who otherwise provided medical services to Rogstad pursuant to the request and direction of Dr. Dahl.

24. Rogstad testified that he did not know that he was required to obtain medical evaluation and treatment of a work injury from any particular medical care provider and to obtain a referral from a preferred provider for a second opinion or further treatment, or to do anything to obtain treatment of the work-related injury of his left shoulder from Dr. Dahl. He acknowledged that over the years that he was employed by ICI for various projects he had completed and signed forms prepared by ICI entitled "Designated Medical Provider Requirements" given to him by employees or agents of ICI upon his employment by ICI; the last on April 1, 2006, two days before his injury at work. But, he testified to explain, the form was just one of many forms which were distributed to him and all of the other union workers employed for a project as part of the start-up of work on the project: "There may be up to 150,200 men.... They hand out packets of paper to everyone and you sign them all and fill out your W-2s and whatever and then go to work. And then they ... assign you to your crews, and then you go to that foreman position." Asked whether he remembered signing the form entitled "Designated Medical Provider Requirements," he responded: "Not specifically that paper. I just signed everything that they gave me and went to work." Rogstad does not contend, however, that the procedure did not allow him to read the various documents he completed and signed: "They give you a whole bunch [of documents] and they tell you to go through the papers and sign them; and read them over if you want, whatever." But, he added, "I mean, I just start signing away and go to work."

Ron Stenberg, employed by ICI as its safety manager, testified for the hearing to confirm the procedure described by Rogstad for the completion of the various documents for the employment of union craftsmen for a project, and acknowledged that there was no advice or instruction provided for the completion and signing of the Designated Medical Provider Requirements form, or the significance of the form, except "if there's questions."

25. Responding to a question whether ICI provided any other information to its employees in addition to the Designated Medical Provider Requirements form, Mr. Stenberg...