Souris River Telephone Mut. Aid Co-op. v. North Dakota Workers Compensation Bureau

• Decision Date: 03 June 1991
• Docket Number: No. 900404,900404
• Citation: 471 N.W.2d 465
• Parties: SOURIS RIVER TELEPHONE MUTUAL AID COOPERATIVE, Appellant, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellee, and Tracy K. Schettler, Respondent. Civ.
• Court: North Dakota Supreme Court

Page 465

471 N.W.2d 465

SOURIS RIVER TELEPHONE MUTUAL AID COOPERATIVE, Appellant, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellee and Tracy K. Schettler, Respondent.

Civ. No. 900404.

Supreme Court of North Dakota.

June 3, 1991.

Jan M. Sebby, Pringle & Herigstad, Minot, for appellant.

Dean J. Haas, Asst. Atty. Gen., North Dakota Workers Compensation Bureau, Bismarck, for appellee.

LEVINE, Justice.

Souris River Telephone Mutual Aid Cooperative [Souris River] appeals from a district court judgment affirming the Workers Compensation Bureau's denial of Tracy K. Schettler's claim for death benefits as the surviving spouse of Thomas A. Schettler, who was killed in a work-related accident in Sioux Falls, South Dakota, while employed by Souris River. We affirm the judgment of the district court.

Souris River is headquartered in Minot and provides telephone service in northwestern North Dakota. Souris River has no offices outside of North Dakota and all of Souris River's employees are based in Minot. Souris River is also engaged in the satellite and cable TV business. Thomas Schettler was employed by Souris River as a technician in this division.

In August 1989, Souris River entered into a contract to install satellite dishes for Hughes Network Systems [Hughes]. The contract was signed by a representative of Souris River on August 9, 1989, and by a representative of Hughes on August 14, 1989. Under the contract, particular installations would be directed by work orders to be issued from time to time by Hughes and it was expected that approximately 10 percent of the installations would occur in South Dakota.

On August 15, 1989, Souris River filed its Employer Report with the Bureau for the payroll period of August 1988 through July 1989. In response to the question on the payroll report form, "Will you have employees working in states other than North Dakota?", the office manager for Souris River checked the "no" box. According to the office manager, he had no knowledge when he completed the report that Souris River employees would be working out of state. Souris River paid its workers compensation premium for the year August 1989 through July 1990 based on this report. Souris River did not inform the Bureau when it became aware that employees would be working out of state.

In September 1989, Hughes issued a work order for installation of a satellite dish at a commercial location in Sioux Falls. The work order was assigned to Schettler along with a second work order for an installation in Aberdeen, South Dakota, which was to be completed upon conclusion of the Sioux Falls installation. A building permit for the first installation was issued by the city of Sioux Falls. A site survey was also completed prior to the installation. The Sioux Falls installation was valued at $1,000 by Souris River and was expected to take approximately two days, including travel time.

On November 14, 1989, while installing the satellite dish on the roof of a six-story building in Sioux Falls, Schettler fell to his death. According to Souris River, the Sioux Falls installation was the only time Schettler had worked outside of North Dakota as a Souris River employee. Approximately 12 hours, including driving time, of Schettler's total of 1,613 work hours in 1989 were spent on the Sioux Falls installation. During 1989, 56 of Souris River's 186,964 total employee work-hours were spent out of state.

After the accident, Souris River contacted the Bureau and applied for extraterritorial workers compensation coverage in South Dakota. South Dakota approved and returned the extraterritorial agreement covering Souris River on November 19, 1989.

Tracy Schettler, as the surviving spouse, thereafter filed an application for death benefits with the Bureau. The Bureau dismissed the claim in December 1989, on the ground that Schettler's injury occurred at an "identifiable out-of-state jobsite" under Sec. 65-08-01(2), N.D.C.C. Tracy Schettler accepted the denial of benefits and sought no further recourse through the Bureau. Souris River petitioned for a hearing, after which the Bureau affirmed its earlier order. Souris River appealed to the district court, which affirmed the Bureau's decision.

Souris River now appeals to this court asserting that Schettler is entitled to workers compensation benefits under our extraterritorial coverage laws.

Section 28-32-19, N.D.C.C., governs the scope of judicial review of the Bureau's decision in both the district court and this court. Wendt v. North Dakota Workers Compensation Bureau, 467 N.W.2d 720, 724 (N.D.1991). We must affirm the Bureau's decision unless its findings of fact are not supported by a preponderance of the evidence, its conclusions of law are not sustained by the findings of fact, its decision is not supported by its conclusions of law or its decision is not in accordance with the law. Jones v. Workers Compensation Bureau, 461 N.W.2d 273, 274 (N.D.1990).

If there is no contract for extraterritorial coverage between an employer and the Bureau, the Bureau's responsibility for compensating injuries occurring outside of North Dakota is limited by the terms of Sec. 65-08-01, N.D.C.C. ¹ :

"65-08-01. Extraterritorial coverage, when and how furnished.

"1. Compensation may be paid on account of injuries occurring outside this state or because of death due to an injury occurring outside of this state only when:

* * * * * *

"b. A North Dakota employee sustains an injury beyond the borders of this state in a service which is incidental to and is referable to the principal employment, the situs of which is within North Dakota.

* * * * * *

"2. If the injury is sustained at an identifiable out-of-state jobsite, the services rendered and injury sustained may not be deemed to be incidental and referable to the North Dakota employment, even if the contractual relationship between employer and employee was entered in North Dakota."

Thus, subsection (1)(b) of the statute allows compensation for injuries occurring outside this state if the employee is engaged in a service which is "incidental to and is referable to the principal employment, the situs of which is within North Dakota." However, subsection 2 of the statute modifies subsection (1)(b) by declaring that services rendered are not incidental and referable to the North Dakota employment, if the injury is sustained at an "identifiable out-of-state jobsite." The meaning of this phrase is the focus of the parties' dispute in this case.

An "identifiable out-of-state jobsite" is not defined by statute. Nor have we interpreted the provision in the past. The Bureau essentially asserts that an "identifiable out-of-state jobsite" should be construed to mean any locatable, physical situs where work is performed, regardless of the duration of the employment or other factors. According to the Bureau, a service is incidental and referable to principal employment, thereby affording extraterritorial coverage under Sec. 65-08-01(1)(b), only when an employee is injured in transit to or from the physical jobsite. Souris River asserts that an "identifiable out-of-state jobsite" should be construed to mean only a jobsite where an employer or employee has a "substantial continuous presence." Under Souris River's totality-of-the-circumstances approach, there should be consideration of additional factors, such as the duration of the particular job and its relation to the employer's business as a whole.

A statute is ambiguous if it is susceptible to differing but rational meanings. State v. Silkman, 317 N.W.2d 124, 125 (N.D.1982). Because this provision is susceptible to differing meanings and because the root of the term "identifiable," which modifies "out-of-state jobsite," can relate to "the origin, nature, or definitive characteristics" of the thing described [The American Heritage Dictionary, at p. 639 (2nd College Ed.1985) ], we conclude that the phrase is ambiguous. Resort to extrinsic aids, such as legislative history, is therefore appropriate in interpreting the provision. E.g., Blackburn, Nickels & Smith, Inc. v. National Farmers Union, 452 N.W.2d 319, 322 (N.D.1990).

The "identifiable out-of-state jobsite" provision was added to Sec. 65-08-01 in 1989 at the request of the Bureau. See 1989 N.D.Sess.Laws Ch. 766, Sec. 13. It is obvious from the legislative history that the purpose of the amendment was to prevent employers from taking advantage of North Dakota's favorable workers compensation rates while having their employees work in another state without obtaining and paying premiums...