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Zerr v. North Dakota Workforce Safety & Insurance

Supreme Court of North Dakota

July 12, 2017

Arjuna M. Zerr, Plaintiff and Appellant
v.
North Dakota Workforce Safety & Insurance, Defendant and Appellee

         Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Thomas J. Schneider, Judge. AFFIRMED.

          James R. Hoy (argued) and David S. Maring (on brief), Bismarck, N.D., for plaintiff and appellant.

          Mitchell D. Armstrong (argued) and Sarah E. Kuntz (appeared), Bismarck, N.D., for defendant and appellee.

          OPINION

          McEvers, Justice.

         [¶ 1] Arjuna Zerr appeals from a judgment dismissing his action seeking declaratory relief against North Dakota Workforce Safety and Insurance ("WSI"). We conclude the district court did not err in dismissing his complaint based on a lack of subject matter jurisdiction because Zerr did not exhaust his statutory administrative remedies. We affirm.

         I

         [¶ 2] In September 2013, Zerr was severely burned in an explosion and fire at an oil well site in Mountrail County while working for Summit Oilfield Service, Inc. WSI accepted Zerr's claim and began providing him benefits, including temporary total disability benefits and medical treatment benefits.

         [¶ 3] On May 5, 2015, WSI mailed Zerr a Notice of Intention to Discontinue/Reduce Benefits ("NOID") stating that he was noncompliant with vocational services for failing to perform several vocational rehabilitation requirements between November 2014 and April 2015. The NOID informed Zerr his weekly disability benefits would be discontinued on May 26, 2015, but also provided specific steps for him to become compliant with vocational services. The NOID states that if he felt the decision was incorrect, he should write to his claims adjuster within thirty days of the NOID's date to request reconsideration; and, further, that if a request for reconsideration was not received within thirty days, the decision would be final.

         [¶ 4] It is undisputed Zerr received the NOID at his residence in California some time after May 5, 2015, but he alleged he did not immediately open the letter or otherwise respond until more than thirty days after the date of the letter due to his mental conditions. WSI subsequently discontinued Zerr's disability benefits as of May 26, 2015. Some months later, Zerr obtained legal counsel.

         [¶ 5] On December 23, 2015, Zerr's attorney sent a letter to WSI stating that Zerr had been diagnosed with post traumatic stress disorder ("PTSD") and depression and that he avoids opening his mail and communicating with others as it causes flashbacks of the explosion. His attorney requested WSI reopen this matter and restart temporary total disability benefits to Zerr or, in the alternative, issue a second NOID so Zerr could appeal. On January 12, 2016, WSI sent Zerr's counsel a letter rejecting his "request for reconsideration" of its May 2015 decision because it was not received within the thirty-day appeal period under N.D.C.C. § 65-01-16. The January 2016 letter also stated WSI's decision was final.

         [¶ 6] In May 2016, Zerr sued WSI for declaratory relief. He alleged that while he received the NOID sent to him in California by regular mail some time after May 5, 2015, he did not immediately open the NOID, respond to the NOID within thirty days, or seek to come back into compliance due to his mental conditions of PTSD and depression directly related to his work injuries. He alleged that he has a continuing need to receive temporary total disability benefits, that his right to continue receiving the benefits is a property right protected by due process, and that WSI violated his due process rights in terminating the benefits by not allowing him additional time to request reconsideration of the NOID or to come back into compliance. He requested reinstatement of temporary total disability benefits and a lump-sum payment of the benefits he should have received since the termination.

         [¶ 7] In June 2016, WSI moved to dismiss Zerr's complaint under N.D.R.Civ.P. 12(b)(1) and (6), asserting a lack of subject matter jurisdiction and a failure to state a claim upon which relief could be granted. Zerr opposed WSI's motion. The district court granted WSI's motion, concluding as a matter of law that Zerr received proper notice of WSI's intent to terminate his benefits and WSI had not violated his due process rights. The court also concluded Zerr had not exhausted administrative remedies.

         II

         [¶ 8] Zerr argues the district court erred in ruling as a matter of law that his complaint failed to state a claim for relief. He contends the district court had subject matter jurisdiction either because he ...


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