Walstad v. Walstad
2012 ND 204
| N.D. | 2012Background
- Carlson was injured in 2005 while hauling freight for GMR and filed a July 2006 workers’ compensation claim with WSI, with GMR recorded as the employer.
- WSI initially found Carlson was GMR’s employee and awarded benefits based on an average weekly wage of $252; GMR later challenged via reconsideration led by out-of-state attorneys.
- WSI reversed in January 2007, denying benefits and ordering Carlson to repay previously paid benefits after determining Carlson was an independent contractor; Carlson challenged via rehearing and appeals.
- This Court’s Carlson I decision (2009) held GMR’s reconsideration by non-resident attorneys was void for unauthorized practice/pro hac vice issues and remanded only for calculation of Carlson’s average weekly wage, not for re-adjudicating employment status.
- On remand, WSI asserted continuing jurisdiction under N.D.C.C. § 65-05-04; in October 2009 WSI concluded Carlson was an independent contractor and addressed potential AWW, ordering no further benefits but suggesting $252 if employee.
- The ALJ’s July 2010 findings again held Carlson was an independent contractor and set AWW at $722 if employee; district court affirmed; this Court reverses and remands to award Carlson benefits based on the ALJ’s $722 calculation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether law-of-the-case/res judicata foreclose WSI reconsideration | Carlson | WSI | Law-of-the-case controls; WSI barred from re-adjudicating status |
| Whether WSI properly exercised continuing jurisdiction under § 65-05-04 on remand | Carlson | WSI | WSI exceeded remand scope; not permitted to re-adjudicate employment status |
| Whether the AWW calculation on remand was properly determined | Carlson | WSI | ALJ’s AWW of $722 was supported under N.D.C.C. § 65-01-02(5) |
| Whether Carlson is entitled to attorney's fees under § 28-32-50 | Carlson | WSI | WSI acted with substantial justification; no award of fees |
| Whether insurer's intervention was properly denied | Carlson | WSI | ALJ did not err in denying intervention |
Key Cases Cited
- Carlson v. Workforce Safety & Ins., 2009 ND 87 (2009) (remanded for AWW calculation; pro hac vice issues and voidable reconsideration)
- Sloan v. North Dakota Workforce Safety & Ins., 2011 ND 194 (2011) (standard for reviewing admin agency findings; defer to weight of evidence)
- Drayton v. Workforce Safety & Ins., 2008 ND 178 (2008) (substantial justification standard for attorney’s fees under §28-32-50)
- Rojas v. Workforce Safety & Ins., 2006 ND 221 (2006) (substantial justification for fees; rare cases require fee shift)
- Cridland v. N.D. Workers Comp. Bur., 1997 ND 223 (1997) (continuing jurisdiction concepts and administrative res judicata)