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Industrial Contractors, Inc. v. Workforce Safety & Insurance

September 4, 2009

INDUSTRIAL CONTRACTORS, INC., RESPONDENT AND APPELLANT
v.
WORKFORCE SAFETY & INSURANCE, APPELLEE AND FRANCIS ROGSTAD, CLAIMANT AND APPELLEE



Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Gail H. Hagerty, Judge.

The opinion of the court was delivered by: Maring, Justice

AFFIRMED.

[¶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. In 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 pre-existing 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 ...


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