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Toni Weeks v. North Dakota Workforce Safety & Insurance

September 15, 2011

TONI WEEKS,
APPELLANT
v.
NORTH DAKOTA WORKFORCE SAFETY & INSURANCE FUND, APPELLEE AND DAKOTA GASIFICATION CO.,
RESPONDENT



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

N.D. Supreme CourtWeeks v. Workforce Safety & Insurance,

2011 ND 188

This opinion is subject to petition for rehearing. [Go to Documents]

[Download as WordPerfect] Concurrence filed.

[¶1] Toni Weeks appeals from a district court judgment affirming a decision by Workforce Safety and Insurance ("WSI") to reduce her disability benefits. Because Weeks has failed to adequately brief her argument that WSI's reduction of her wage loss benefits violates equal protection under the federal and state constitutions, we decline to address her argument and we otherwise affirm the judgment.

I

[¶2] In 1993, Weeks was injured at work after being exposed to anhydrous ammonia while employed by Dakota Gasification Company, in Beulah, North Dakota. Weeks initially received total disability benefits until July 1993. In 1999, Weeks became disabled following a second compensable injury. Following her second injury, Weeks received both workers compensation disability benefits and social security disability benefits. Weeks received WSI temporary total disability benefits from May 1999 until January 2003. WSI offset the social security benefits under N.D.C.C. § 65-05-09.1. She received a vocational rehabilitation allowance from January 2003 through May 2004. Weeks then received temporary total disability benefits from May 2004 through September 2004. In September 2004, Weeks was found permanently and totally disabled and began receiving total disability benefits.

[¶3] In September 2009, WSI received confirmation that on November 1, 2009, Weeks' social security disability benefits would convert to social security retirement benefits. WSI issued a notice of intention to discontinue or reduce benefits, in which Weeks was informed that her permanent total disability benefits would end on October 31, 2009, and she would receive an "additional benefit payable" beginning November 1, 2009. Weeks requested reconsideration. In November 2009, WSI issued an order denying Weeks further disability benefits after October 31, 2009, and awarding her "additional benefit payable" under N.D.C.C. § 65-05-09.4, beginning November 1, 2009. Weeks requested a rehearing. In January 2010, WSI reversed its prior order and determined an alternate calculation under N.D.C.C. § 65-05-09.5 applied. WSI issued a final order in February 2010, awarding Weeks benefits under N.D.C.C. § 65-05-09.5. Weeks again requested rehearing.

[¶4] In May 2010, a hearing was held before an ALJ. The ALJ issued a final order affirming the February 2010 order. The ALJ also ruled that, to the extent that Weeks claimed a statute unconstitutionally violated her right to equal protection under state and federal constitutions, the ALJ lacked authority to decide the issue.

[¶5] Weeks appealed the ALJ's decision to the district court. The district court affirmed the ALJ's decision, concluding the classification under N.D.C.C. § 65-05-09.3 did not violate equal protection because it was rationally related to a legitimate government interest.

II

[¶6] Weeks argues WSI's reduction of her wage loss benefits by 60 percent violates equal protection under the federal and state constitutions. Weeks asserts that the Fourteenth Amendment to the United States Constitution and Article I, Sections 21 and 22 of the North Dakota Constitution mandate equal protection and uniform application of law and that N.D.C.C. § 65-05-09.3(2) is unconstitutionally discriminatory and unfair both as enacted and as applied. Although WSI maintains the classifications in N.D.C.C. §§ 65-05-09.3, 65-05-09.4, and 65-05-09.5 are "rationally related" to legitimate government interests, WSI initially asserts this Court should dismiss the appeal because Weeks failed to put forth the necessary challenge to raise a constitutional issue.

[¶7] Whether a statute is unconstitutional presents a question of law. State v. M.B., 2010 ND 57, ¶ 4, 780 N.W.2d 663; Riemers v. Grand Forks Herald, 2004 ND 192, ¶ 11, 688 N.W.2d 167. "The party challenging the constitutionality of a statute has the burden of proving its constitutional infirmity." City of Fargo v. Salsman, 2009 ND 15, ¶ 23, 760 N.W.2d 123. A party must do more than submit bare assertions to adequately raise constitutional issues. Snyder v. North Dakota Workers Comp. Bur., 2001 ND 38, ¶ 19, 622 N.W.2d 712.

[¶8] We have said that "a party waives an issue by not providing supporting argument and, without supportive reasoning or citations to relevant authorities, an argument is without merit." Grand Forks Herald, 2004 ND 192, ¶ 11, 688 N.W.2d 167 (quotations omitted). "Absent authority and a reasoned analysis to support it, the mere assertion of unconstitutionality is insufficient to adequately raise a constitutional question." Overboe v. Farm Credit Servs., 2001 ND 58, ¶ 13, 623 N.W.2d 372 (emphasis added). "Courts cannot be expected to search though the record and applicable case law to discover deprivations of a constitutional magnitude when the party attempting to claim a constitutional violation has not bothered to do so." Id.; see also Lund v. North Dakota State Highway Dep't, 403 N.W.2d 25, 29 n.6 (N.D. 1987). A party pursuing a constitutional claim must therefore make a strong ...


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