Arjuna M. Zerr, Plaintiff and Appellant
North Dakota Workforce Safety & Insurance, Defendant and Appellee
from the District Court of Burleigh County, South Central
Judicial District, the Honorable Thomas J. Schneider, Judge.
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.
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.
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
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.
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 ...