State of North Dakota, by and through Workforce Safety & Insurance, Appellee
Bile Salat, Appellant and XPO CNW Inc., Respondent
from the District Court of Burleigh County, South Central
Judicial District, the Honorable Bruce B. Haskell, Judge.
Schmidt (argued) and Mitchell D. Armstrong (on brief),
Bismarck, ND, for appellee.
Stephen D. Little, Bismarck, ND, for appellant.
Bile Salat appeals from a district court judgment reversing
an administrative law judge's discontinuation of
Salat's benefits. We reverse.
On February 22, 2016, Salat slipped and fell at work. On
February 23, 2016, Salat saw Dr. Klop for right ankle and low
back pain. He was diagnosed with a right ankle sprain and
back strain, and was placed on restricted duty. Dr. Klop
instructed him to use crutches and wear an air brace on his
right foot. On March 1, 2016, Salat followed-up with Dr.
Klop. She noted Salat had pain to palpation at L4-L5 and
tenderness in his right ankle. Dr. Klop diagnosed right ankle
pain, right foot joint pain, and low back pain. Salat's
work status remained restricted, and he was instructed to
start physical therapy for his back. On March 31, 2016, WSI
accepted liability for a contusion of the lower back and
pelvis and a right ankle sprain.
On June 28, 2016, Dr. Klop released Salat to regular duty and
instructed him to quit using the walking boot and crutches.
Salat's employer, XPO, was notified of his full duty
release the same day. He returned to work on June 29, 2016.
He worked a full day on June 29, 2016, and a partial day on
June 30, 2016. Salat testified he reported to his supervisor
on the first and second day that he continued to experience
pain. Salat continued to use his walking boot and crutches
outside of work but left his walking boot and crutches in his
vehicle because they were not allowed at the worksite.
Salat's last day at the worksite was July 1, 2016.
On July 1, 2016, Salat reported at the walk-in clinic he was
experiencing low back and right ankle pain. Salat returned to
Dr. Klop on July 5, 2016, and reported he could not work due
to the pain. Dr. Klop noted Salat currently was off work
because XPO was closed the week of July Fourth, and
instructed him to attempt normal use of his right foot until
he was reevaluated the following week. On July 11, 2016,
Salat saw Dr. Hart, the podiatrist, who recommended Salat
participate in nonimpact activities and use an Exoform ankle
brace. Salat did not return to work on July 11, 12 or 13, and
did not call his employer on any of those days to notify them
he would not be at work. XPO had a "three-day no call/no
show" policy which considered job abandonment after an
absence of three consecutive days. Under the policy, XPO sent
Salat a termination letter on July 15, 2016. Salat reported
to Daniel Carmen, XPO's human resource generalist, after
he received the termination letter. Carmen contacted WSI to
see if they had been alerted that Salat was supposed to be
off work for the days he was absent. Carmen also called
Sanford Occupational Health to see if Salat had been given
the week off for medical issues. Carmen testified neither WSI
nor Sanford stated Salat should have been off work July
11-13. Salat continued to see medical providers for his right
ankle and back pain after his termination.
On November 11, 2016, Dr. Cooper performed an independent
medical exam (IME) with Salat. Dr. Cooper interviewed Salat
to obtain medical history, reviewed medical records and
conducted a physical examination which included a
neuromusculoskeletal evaluation. Dr. Cooper opined
Salat's right ankle injury had not healed and was not at
pre-injury status, and his low back pain was unrelated to the
work-related injury. Dr. Klop reviewed the IME opinion and
stated, "I don't have any objective findings on
physical exam to challenge or disagree with his medical
On August 5, 2016, WSI issued an order discontinuing
Salat's disability benefits after June 29, 2016. On
December 15, 2016, WSI issued a notice of decision denying
further benefits of Salat's lumbar spine after November
11, 2016. Salat requested reconsideration. On January 23,
2017, WSI issued an order discontinuing benefits after
November 11, 2016, because Dr. Cooper opined Salat's
lumbar condition returned to pre-injury status within three
to six weeks of his injury and Dr. Klop did not disagree with
his opinion. Salat appealed. The administrative law judge
(ALJ) reversed both WSI orders.
After the ALJ denied WSI's petition for reconsideration,
WSI appealed to the district court. The district court
reversed the ALJ's decisions after concluding the
ALJ's findings of fact were not supported by a
preponderance of the evidence and the ALJ misapplied the law.
Salat appeals the district court judgment, arguing no basis
existed to reverse the ALJ's determination that the
greater weight of the evidence showed he was entitled to
Courts exercise limited review in appeals from decisions by
an administrative agency. Power Fuels, Inc. v.
Elkin, 283 N.W.2d 214, 220 (N.D. 1979). Under N.D.C.C.
§ 28-32-46, a district court must affirm an
administrative agency order unless:
"1. The order is not in accordance with the law.
2. The order is in violation of the constitutional rights of
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
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 hearing officer or
an administrative law judge."
We review administrative agency decisions in the same manner
as the district court. Robinson v. North Dakota Workforce
Safety & Ins., 2019 ND 201, ¶ 6, 931 N.W.2d
692. In reviewing the agency's findings of fact, "we
do not make independent findings of fact or substitute our
judgment for that of the agency." Power Fuels,
Inc., 283 N.W.2d 214 at 220. Courts instead decide
"whether a reasoning mind reasonably could have
determined that the factual conclusions reached were proved
by the weight of the evidence from the entire record."
Id. Similar deference is given to an independent
ALJ's factual findings. Sloan v. North Dakota
Workforce Safety & Ins., 2011 ND 194, ¶ 5, 804