State v. Salat

• Decision Date: 12 December 2019
• Docket Number: No. 20190056,20190056
• Citation: 936 N.W.2d 91
• Court: North Dakota Supreme Court
• Parties: STATE of North Dakota, BY AND THROUGH WORKFORCE SAFETY & INSURANCE, Appellee v. Bile SALAT, Appellant and XPO CNW Inc., Respondent

936 N.W.2d 91

STATE of North Dakota, BY AND THROUGH WORKFORCE SAFETY & INSURANCE, Appellee

v. Bile SALAT, AppellantandXPO CNW Inc., Respondent

No. 20190056

Supreme Court of North Dakota.

Filed December 12, 2019

Brian Schmidt (argued) and Mitchell D. Armstrong (on brief), Bismarck, ND, for appellee.

Stephen D. Little, Bismarck, ND, for appellant.

Crothers, Justice.

[¶1] Bile Salat appeals from a district court judgment reversing an administrative law judge’s discontinuation of Salat’s benefits. We reverse.

I

[¶2] On February 22, 2016, Salat slipped and fell at work. On February 23, 2016, Salat saw Dr. Klop for right ankle and low back pain. He was diagnosed with a right ankle sprain

and back strain, and was placed on restricted duty. Dr. Klop instructed him to use crutches and wear an air brace on his right foot. On March 1, 2016, Salat followed-up with Dr. Klop. She noted Salat had pain to palpation at L4-L5 and tenderness in his right ankle. Dr. Klop diagnosed right ankle pain, right foot joint pain, and low back pain. Salat’s work status remained restricted, and he was instructed to start physical therapy for his back. On March 31, 2016, WSI accepted liability for a contusion of the lower back and pelvis and a right ankle sprain.

[¶3] On June 28, 2016, Dr. Klop released Salat to regular duty and instructed him to quit using the walking boot and crutches. Salat’s employer, XPO, was notified of his full duty release the same day. He returned to work on June 29, 2016. He worked a full day on June 29, 2016, and a partial day on June 30, 2016. Salat testified he reported to his supervisor on the first and second day that he continued to experience pain. Salat continued to use his walking boot and crutches outside of work but left his walking boot and crutches in his vehicle because they were not allowed at the worksite. Salat’s last day at the worksite was July 1, 2016.

[¶4] On July 1, 2016, Salat reported at the walk-in clinic he was experiencing low back and right ankle pain. Salat returned to Dr. Klop on July 5, 2016, and reported he could not work due to the pain. Dr. Klop noted Salat currently was off work because XPO was closed the week of July Fourth, and instructed him to attempt normal use of his right foot until he was reevaluated the following week. On July 11, 2016, Salat saw Dr. Hart, the podiatrist, who recommended Salat participate in nonimpact activities and use an Exoform ankle brace. Salat did not return to work on July 11, 12 or 13, and did not call his employer on any of those days to notify them he would not be at work. XPO had a "three-day no call/no show" policy which considered job abandonment after an absence of three consecutive days. Under the policy, XPO sent Salat a termination letter on July 15, 2016. Salat reported to Daniel Carmen, XPO’s human resource generalist, after he received the termination letter. Carmen contacted WSI to see if they had been alerted that Salat was supposed to be off work for the days he was absent. Carmen also called Sanford Occupational Health to see if Salat had been given the week off for medical issues. Carmen testified neither WSI nor Sanford stated Salat should have been off work July 11-13. Salat continued to see medical providers for his right ankle and back pain after his termination.

[¶5] On November 11, 2016, Dr. Cooper performed an independent medical exam (IME) with Salat. Dr. Cooper interviewed Salat to obtain medical history, reviewed medical records and conducted a physical examination which included a neuromusculoskeletal evaluation. Dr. Cooper opined Salat’s right ankle injury

had not healed and was not at pre-injury status, and his low back pain was unrelated to the work-related injury. Dr. Klop reviewed the IME opinion and stated, "I don't have any objective findings on physical exam to challenge or disagree with his medical opinion."

[¶6] On August 5, 2016, WSI issued an order discontinuing Salat’s disability benefits after June 29, 2016. On December 15, 2016, WSI issued a notice of decision denying further benefits of Salat’s lumbar spine after November 11, 2016. Salat requested reconsideration. On January 23, 2017, WSI issued an order discontinuing benefits after November 11, 2016, because Dr. Cooper opined Salat’s lumbar condition returned to pre-injury status within three to six weeks of his injury and Dr. Klop did not disagree with his opinion. Salat appealed. The administrative law judge (ALJ) reversed both WSI orders.

[¶7] After the ALJ denied WSI’s petition for reconsideration, WSI appealed to the district court. The district court reversed the ALJ’s decisions after concluding the ALJ’s findings of fact were not supported by a preponderance of the evidence and the ALJ misapplied the law.

[¶8] Salat appeals the district court judgment, arguing no basis existed to reverse the ALJ’s determination that the greater weight of the evidence showed he was entitled to benefits.

II

[¶9] Courts exercise limited review in appeals from decisions by an administrative agency. Power Fuels, Inc. v. Elkin , 283 N.W.2d 214, 220 (N.D. 1979). Under N.D.C.C. § 28-32-46, a district 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."

[¶10] We review administrative agency decisions in the same manner as the district court. Robinson v. North Dakota Workforce Safety & Ins. , 2019 ND 201, ¶ 6, 931 N.W.2d 692. In reviewing the agency’s findings of fact, "we do not make independent findings of fact or substitute our judgment for that of the agency." Power Fuels, Inc. , 283 N.W.2d 214 at 220. Courts instead decide "whether a reasoning mind reasonably could have determined that the factual conclusions reached were proved by the weight of the evidence from the entire record." Id. Similar deference is given to an independent ALJ’s factual findings. Sloan v. North Dakota Workforce Safety & Ins. , 2011 ND 194, ¶ 5, 804 N.W.2d 184. An ALJ’s legal conclusions are reviewed de novo. Id. "Questions of law, including statutory interpretation, are fully reviewable on appeal." Id.

III

[¶11] WSI argues the disability benefit issue was not preserved for review because Salat’s statement of issues only identifies the low back condition after November 11, 2016. We disagree. Rule 3(c) of the North Dakota State Court Rules, Rules of Appellate Procedure (N.D.R.App.P.) stated:¹

"(c) Content of the Notice of Appeal. The notice of appeal must:

(1) specify the party or parties taking the appeal;

(2) designate the judgment, order, or part thereof being appealed;

(3) name the court to which the appeal is taken; and

(4) in an appeal from a civil case or post-conviction relief proceeding, include a preliminary statement of issues."

The rule requires an appellant in a civil action or post-conviction proceeding to include a preliminary list of the issues on appeal. The explanatory note stated the purpose of the rule is:

"[T]o provide the court information to make a preliminary determination whether oral argument is unnecessary. In this list, the appellant is expected to provide the court notice of the issues of which the appellant is aware at the time the notice of appeal is filed."

This Court has interpreted the word "preliminary" in this context as non-binding. Alerus Financial, N.A. v. Erwin , 2018 ND 119, ¶ 9, 911 N.W.2d 296 ("The failure to include an issue in the notice of appeal does not preclude review of the issue."). Therefore, because non-binding, the failure to identify all appellate questions in the statement of issues does not prevent review.

IV

A

[¶12] Salat argues the district court erred by reversing the ALJ’s finding he is entitled to disability benefits after June 29, 2016. WSI argues the ALJ’s determination that Salat should not have been released to regular duty by Dr. Klop and Dr. Hart is not supported by fact or law. We conclude the ALJ reasonably could have determined Salat still was disabled and should not have been released to regular duty. We reverse the district court because the ALJ’s findings were supported by the weight of the evidence.

[¶13] "It is the burden of the employee to show that the inability to obtain employment or to earn as much as the employee earned at the time of injury is due to physical limitation related to the injury, and that any wage loss claimed is the result of the compensable injury." N.D.C.C. § 65-05-08(6). "An injured employee’s health care provider shall certify the period of disability and the extent of the injured worker’s abilities and restrictions." N.D.C.C. § 65-05-08.1(1).

[¶14] The ALJ found Salat’s physical limitations prevented him from doing his job after June 29, 2016, and he should not have been released to regular duty. The ALJ found Salat’s condition remained unchanged from when Dr. Klop advised him he could not work, and Dr. Klop’s instruction that Salat work without crutches or a walking boot was because Salat could not return to work while using these devices. Although the medical records indicate Dr. Klop’s and Dr. Hart’s plan was for Salat to begin full weight bearing activities with use of a high walking boot and to taper off crutches, no evidence supports finding Salat’s injuries improved by June 20 or 28, 2016, so...