936 N.W.2d 91
N.D.2019Background:
- On Feb 22, 2016 Salat slipped at work; WSI accepted liability for lower back/pelvis contusion and a right ankle sprain. He was treated, used a walking boot and crutches, and was placed on restrictions.
- Treating physician Dr. Klop released Salat to full duty on June 28, 2016; Salat returned to work June 29–30 but testified he still had pain and used the boot/crutches offsite (not allowed at work).
- Salat missed July 11–13, 2016 without calling (XPO’s three-day no-call/no-show rule led to termination on July 15); medical providers continued treating him after termination.
- WSI obtained an IME by Dr. Cooper (Nov. 11, 2016) who found the ankle had not healed and opined Salat’s low back pain was unrelated to the workplace injury; Dr. Klop said she had no objective findings to contradict Dr. Cooper on the back issue.
- WSI discontinued disability benefits after June 29, 2016 and later denied further lumbar benefits after Nov. 11, 2016; an ALJ reversed WSI, the district court reversed the ALJ, and the Supreme Court reinstated the ALJ’s orders.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Preservation of issues on appeal | Salat: the notice of appeal’s preliminary issues list is non-binding; all issues may be reviewed | WSI: Salat’s statement of issues only named the low back after Nov. 11, 2016, so disability issue is unpreserved | Court: notice-of-appeal list is preliminary/non-binding; review permitted (Alerus precedent) |
| Disability after June 29, 2016 (ankle/ability to work) | Salat: ALJ properly credited the IME and other evidence showing physical limitations (antalgic gait, reduced ROM/strength) so benefits were wrongly discontinued | WSI: treating doctors released Salat to full duty; a full-duty release bars benefits when supported by medical evidence | Court: ALJ reasonably credited Dr. Cooper and the record; a full-duty release was not supported here, so ALJ’s reinstatement of benefits affirmed |
| Scope of IME testimony re: past disability (60‑day rule) | Salat: Dr. Cooper’s IME testimony about fitness-for-work and healing was within IME scope | WSI: statute bars doctors from certifying past disability commencing more than 60 days before their exam | Court: Dr. Cooper did not certify past disability beyond 60 days; he opined he would not have released Salat and that the ankle hadn’t healed—opinion was within IME scope |
| Compensability of low back pain after Nov. 11, 2016 (causation) | Salat: back pain was caused by antalgic gait from the ankle injury and thus compensable after Nov. 11, 2016 | WSI: no evidence the work injury substantially contributed to lumbar condition at/after Oct.–Nov. 2016; ALJ misread medical opinions | Court: record supports that antalgic gait produced ongoing muscular low back pain; a reasonable mind could find the work injury was a substantial contributing factor, so ALJ’s award reinstated |
Key Cases Cited:
- Power Fuels, Inc. v. Elkin, 283 N.W.2d 214 (N.D. 1979) (standard for appellate review of agency factual findings — reasoning mind/preponderance)
- Robinson v. North Dakota Workforce Safety & Ins., 931 N.W.2d 692 (N.D. 2019) (appellate review of agency decisions follows district court standard)
- Sloan v. North Dakota Workforce Safety & Ins., 804 N.W.2d 184 (N.D. 2011) (ALJ legal conclusions reviewed de novo; factual deference applies)
- Alerus Financial, N.A. v. Erwin, 911 N.W.2d 296 (N.D. 2018) (notice-of-appeal preliminary issue list is non-binding)
- Welch v. Workforce Safety & Ins., 900 N.W.2d 822 (N.D. 2017) (full-duty release can bar benefits if supported by medical evidence; ALJ evaluates FCE/medical weight)
- Bergum v. North Dakota Workforce Safety & Ins., 764 N.W.2d 178 (N.D. 2009) (no presumption favoring treating physician’s opinion)
- Swenson v. Workforce Safety & Ins. Fund, 738 N.W.2d 892 (N.D. 2007) (objective medical evidence and physician opinion may establish compensable injury)
- Bjerke v. North Dakota Workers Compensation Bureau, 599 N.W.2d 329 (N.D. 1999) (WSI not obligated to provide benefits after a work-related injury resolves)
- Rush v. North Dakota Workers Compensation Bureau, 649 N.W.2d 207 (N.D. 2002) (claimant must prove causation by more than conjecture)
- Davenport v. Workforce Safety & Ins. Fund, 833 N.W.2d 500 (N.D. 2013) (claimant bears burden to support claim)