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Johnson v. North Dakota Workforce Safety & Insurance

October 19, 2010

VERNON JOHNSON, JR., CLAIMANT AND APPELLEE
v.
NORTH DAKOTA WORKFORCE SAFETY & INSURANCE, APPELLANT AND LEE'S CONSTRUCTION, INC. RESPONDENT



Appeal from the District Court of Dickey County, Southeast Judicial District, the Honorable Daniel D. Narum, Judge.

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

REVERSED.

[¶1] Workforce Safety and Insurance ("WSI") appeals from a district court judgment reversing its order denying a reapplication for disability benefits by Vernon Johnson, Jr. Because we conclude the administrative law judge ("ALJ") could reasonably conclude Johnson failed to prove an actual wage loss caused by a significant change in his compensable medical condition, we reverse the judgment and reinstate WSI's order.

I.

[¶2] In July 2003, Johnson submitted a claim to WSI for benefits for a May 2003 injury to his left leg and ankle that occurred while he was working as a heavy equipment operator. WSI accepted Johnson's claim and awarded him medical benefits, but also denied him wage loss benefits because WSI's records indicated he had been off work less than five consecutive days. Johnson requested reconsideration of the denial of wage loss benefits, claiming his injury date was May 1, 2003, and his "return to work date" was July 28, 2003. In October 2003, WSI awarded Johnson wage loss benefits, stating:

WSI will honor your request and pay wage loss benefits from May 2, 2003 through July 28, 2003. A payment from May 2, 2003 to May 29, 2003 will be going out to you based on [your] wages. For WSI to pay the remainder of wage loss through July 28, 2003, it is necessary that you submit tax returns.

[¶3] In November 2003, WSI issued an informal decision granting Johnson temporary total disability benefits as a "seasonal employee" with an average weekly wage of $885 before he was injured. On November 18, 2003, WSI issued a notice of intention to discontinue benefits, because Johnson had returned to work on July 29, 2003. WSI issued an amended informal decision the next day, correcting Johnson's average weekly wage calculation as a "seasonal employee" to $53 on the basis of his tax returns. Johnson requested reconsideration of WSI's average weekly wage calculation, claiming a higher hourly wage. On December 18, 2003, WSI responded, requesting additional documentation supporting a higher wage calculation within 30 days of its original decision or within 10 days of the response, whichever was later. On December 31, 2003, Johnson submitted a check stub ledger to WSI, indicating income he received in February 2003. WSI advised Johnson that his submission was not timely, and the decision about his average weekly wage was final.

[¶4] In March 2004, Johnson received additional medical treatment for his left ankle, and surgery was recommended. In April 2004, he had surgical reconstruction on his left ankle, but did not then reapply for disability benefits. After surgery, Johnson started physical therapy and began to report left hip problems. In June 2004, Johnson reported a sore left hip and left leg from his May 2003 work accident. WSI denied payment for medical treatment of Johnson's hip pain. Johnson wrote to WSI, disagreeing with its previous average weekly wage calculation. WSI responded that Johnson's request for reconsideration of its November 2003 decision on his average weekly wage was not timely and that decision was final.

[¶5] In August 2004, WSI decided Johnson was not entitled to benefits for treatment of his bilateral hip condition or to payment for medical treatment from other medical providers. Johnson requested a hearing. After a November 2005 hearing, an ALJ issued a recommended order, finding that although Johnson's bilateral hip problems were not related to his work injury, the greater weight of the evidence showed Johnson's low back condition, an L4-5 disc protrusion and radiculopathy, was related to his work injury. The ALJ held the symptoms associated with his low back condition were related to his work injury and Johnson was entitled to the payment for medical treatment for his back. WSI adopted the ALJ's decision.

[¶6] In October 2006, Johnson wrote to WSI, demanding wage loss benefits purportedly awarded by the ALJ. WSI responded that the only issue before the ALJ had been medical benefits regarding his low back and that no issue of wage loss benefits had been identified. In November 2006, Johnson requested reconsideration, asserting the November 2003 decision had not addressed disability benefits for his low back condition. WSI responded that Johnson was required to reapply for further wage loss benefits. Almost a year later, on November 9, 2007, Johnson reapplied for wage loss benefits, asserting WSI had never taken action on his low back condition. In March 2008, WSI denied Johnson further disability benefits, and he requested a hearing.

[¶7] After a hearing, an ALJ issued findings of fact, conclusions of law, and an order affirming WSI's March 2008 order, denying Johnson disability benefits in connection with his reapplication for benefits. The ALJ concluded as a matter of law that while Johnson disputed WSI's average weekly wage calculation, he did not dispute the duration of disability benefits ending on July 28, 2003. The ALJ concluded Johnson's disability benefits had been discontinued and a determination whether to reinstate benefits was governed by N.D.C.C. § 65-05-08(1). The ALJ decided Johnson was not entitled to reinstatement of disability benefits under N.D.C.C. § 65-05-08(1), because he had not shown an actual wage loss caused by a significant change in his compensable medical condition.

[¶8] Johnson appealed the ALJ's decision to the district court, which reversed the ALJ's order. The court concluded the ALJ erred in applying N.D.C.C. § 65-05-08, the ALJ could not have reasonably concluded Johnson failed to establish entitlement to disability benefits in connection with his claim, and the ALJ made numerous findings of fact that were not supported by the greater weight of the evidence.

[¶9] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. §§ 27-05-06, 65-10-01, and 28-32-42. WSI's appeal was timely under N.D.R.App.P. 4(a) and N.D.C.C. § 28-32-49. This Court has jurisdiction under N.D. ...


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