Holmgren v. North Dakota Workers Compensation Bureau

Certainly where claims able state, one

may brought in more than file for bene- employee choose to the bene- provides in the state which

fits employee most desirable.

fits the finds not, however, pick and choose

He in each file for

which benefits he will adopted compen- Each state

state. has plan as a To allow

sation whole. highest to file benefits highest and the type

of one one state type in another state

benefit of another to receive

would allow state

greater compensation than either

contemplated.” reasons, foregoing affirm the

For the accordingly, decision affirm

Bureau’s respects. in all district court’s decision

ERICKSTAD, C.J., and WALLE, LEVINE

VANDE

MESCHKE, JJ., concur. HOLMGREN, D. Claimant

Janet Appellant,

NORTH DAKOTA WORKERS BUREAU,

COMPENSATION

Respondent Appellee.

Civ. No. 890307. Dakota.

Supreme Court North

April

201 claim, reau) finding dismissed her that she employee of North was not an State purposes compensa- of workers Dakota Holmgren coverage. appealed tion the dis- court, of her claim the district missal affirmed the Bureau decision. This appeal followed. Clinic, Legal Baker Alan Baker of the Although analy the district court’s appellant.

Fargo, for claimant and Medcenter v.One respect, sis is entitled to Haas, Gen., Atty. Bis- Dean J. Asst. Service, 410 N.W.2d 521 (N.D.1987), Job on marck, appellee. respondent appeal, the decision of the Bu we review reau, rather than that of the district court. LEVINE, Justice. Comp. v. North Dakota Grace Workmen’s Bureau, 395 N.W.2d 576 an of first appeal presents issue This a impression in Dakota: whether North is limited review of administrative decisions eligible for an official juror is 28-32-19. controlled NDCC § compensation We hold benefits.1 Grace, workers supra. One of that re statute’s and remand. that she is and reverse quirements is that determine whether we agency decision is in accordance with summoned to ser- Holmgren was Janet determination, make that the law. To District Court for juror as a for the vice application the law and its look to her County. During the course of Cass Inc. v. E.g., Speedway, Job Service facts. service, stairway the court- fell on a she Dakota, 454 N.W.2d 526 (N.D.1990); a North her ankle. She filed injured house Highway North Dakota State Bickler v. compensation claim for workers (Bu- Comm’r, 423 N.W.2d 146 Bureau Compensation The Workers 195, (1977); compensa- County, 1177 In only 281 Md. 377 A.2d two workers 1. We have found 504, cases, Case, jurisdictions, O’Malley’s which deal Mass. 281 N.E.2d from other re 361 tion juror public (1972); a offi- Saginaw, the issue whether a is v. 363 County 277 Jochen juror public 648, not a (1961); Both held that a is Silagy cial. v. 110 N.W.2d 780 Mich. 364, County, 267 N.C. Hicks v. 507, (1969); official. State, N.J.Super. 253 A.2d 478 105 Guilford (1966); v. Industrial Comm'n S.E.2d 240 52, 148 Bernalillo, County 61 N.M. Seward 134, Rogers, St. 171 N.E. 35 122 Ohio (1966); County, 267 Hicks v. P.2d 625 Guilford cases, Rogers, extended workers these One of compensation Ohio, (1966). Only N.C. 148 S.E.2d other, juror. to a benefits recently, Washington, have awarded com most Hicks, cogent denied benefits with no jurors. pensation Industrial Comm 'n benefits to question. official (1930); Rogers, N.E. 35 122 Ohio St. Rogers, Supreme held Court of Ohio In Kitsap County, Wash.2d Bolin v. juror person in the service of is a that a P.2d 805 appointment county under an the state or case, Kitsap County, recent Bolin v. The more Rogers eligible benefits. The and thus hire argument we heard oral was decided after argued rejected here court Holmgren Relying tradition of lib- case. on a the instant juror It a official. Industrial Insur- of that state’s eral construction the statute construed be noted that should Act, Washington held that Bolin court ance specifically officials Rogers excluded serving county while was coverage, compensation from workers in which he juror the car accident a and that specifically includes officials. our statute injured course of his em- occurred in the was jurisdictions considered the broad- have Other Although differences be- ployment. there are eligible juror for workers a er issue whether Washington’s Act Industrial Insurance tween jurisdictions have compensation benefits. Nine Act, Workers North Dakota’s chiefly ground eligibility on the denied striking We share are also similarities. there there is no juror is not Washington's liberal construction traditional juror relationship between contractual Act is to be law. Our body Board governmental serves. extending liberally with the view "construed Evans, Eagle County Colo. Comm’rs of fairly provisions can to all who its benefit (1936); County Metropolitan Dade P.2d 225 Syverson v. North Dako- brought them.” (Fla.1976); within Glassman, Jeansonne 341 So.2d 995 Bureau, Comp. ta Workmen’s (N.D.1987). Rouge, 354 So.2d East Baton v. Parish of George’s (La.Ct.App.1977); v. Prince Lockerman ex Birdzell v. Jorgenson, The Bureau found that “service State rel. (1913), this responsibility is a rather than an N.D. N.W. Court civic question dealt with the whether members employment.” It concluded as a matter of the State Board of Tax Commissioners employee of law that “was not an case, state officers. we held com- were purposes workers of State for of that the commissioners were state officers during coverage performance pensation 1) positions by elec- hold responsibilities juror.” of her civic 2) appointment, paid tion or are from deci- argues the Bureau funds, 3) perform duties of a continuous the law. She sion is not in accordance with 4) by nature which are defined statute and an official juror appointed asserts that a 5) state related the administration of an under of the state and thus government. Jorgenson, 142 N.W. at compensation statute. She our workers quoting from Parks Commissioners of although public do points out that officials Home, & 43 Soldiers’ Sailors’ Colo. “employ- concept not fit traditional of (1896). P. 542 67 C.J.S. See § Officers ee,” they are, nevertheless, in- specifically employees cluded as under our workers juror ap To determine is an whether compensation law. official, function, pointed analyze 65-01-02(14), NDCC, Section defines authority juror light of duties “employee” include: the tests of office enunciated this Court “every engaged in a person hazardous Jorgenson. shaped by employment any con- appointment, under our tradition of liberal construction of the hire, apprenticeship, express tract of Act. purpose Workers The written, implied, oral or and: compensation protect of workers is to “a. The term includes: employment workers from the hazards of by providing relief for sure certain appointed “1. offi All elective injured in their employment. political cials of this state and its sub See, e.g., NDCC 65-01-01. Cormier divisions, including corpora § municipal Property National Farmers Union & including tions members Casualty, N.W.2d 644 To legislative assembly, all elective and- end, the provisions we construe officials of the several counties this liberally, Title extend view of state, elective officers peace and all ing provisions its benefit to all can who any city.” fairly brought within them. Lawson v. is not in Title word “official” defined Bureau, Comp. 409 N.W.2d Workmen’s examples although of classes included (N.D.1987); ' Syverson v. Workmen’s provided. are NDCC officials Bureau, (N.D. Comp. 406 N.W.2d 688 65-01-02(14)(a)(l). jurors While are not § 1987); Bromley, Claim 304 N.W.2d examples of the of offi- enumerated as one (N.D.1981); Thompson, Morel v. cials, they specifically neither are excluded (N.D.1975); N.W.2d 584 Twin Boettner v. from the definition of the broader term Co., City Construction 65-01-02(14)(b). “employee.” NDCC See § (N.D.1974); Brown North Dakota Thus, if a juror is an “official of this state Bureau, Comp. Workmen’s is, subdivisions,” political juror its [or] law, purposes of workers an Appointment I. NDCC “employee.” 65-01-02(14)(a)(l). Appointed per definition officials Since the are those officials, “employee” appointed designated includes sons to or selected for Peake, the. Holm- when Bureau determined that office. See State ex rel. Poole v. gren was an of the state N.D. N.W. Potential citizenry jury duty, necessarily jurors on deter- are from the drawn large offi- at ses mined that she was an summoned attendance of court. NDCC 27-09.1-05 to during cial that service. sions §§ prospective jury length Members of a service is established statute. 27-09.1-09. NDCC panel pool qualified from the 27-09.1-15. are drawn pro- to the voir subjected dire any person “In two-year period a shall 28-14-03, 28-14-06, cess. 29-17- Id. at required: §§ not be 03, 29-17-05, Upon to 29-17-46. 29-17-33 “1. To serve or attend court for completion process, selection prospective petit as a service swear oath adminis- chosen days, except more than ten court if its tered the court or clerk. NDCC necessary par- in a complete service oaths). 28-14-08, (jurors’ 29-17-12 §§ ticular case....” word, Thus, sense of the in the broadest 27-09.1-15. Peake, jurors adopted ap- sense law, By juror’s service is re- individual they are pointed, as “selected” inasmuch quired until the in which she serves is case pursuant to positions for both rule their completed. Thus, nature the continuous of 24, 47; and NDRCrimP NDRCivP statute. juror’s tenure duties is akin to the and 27-09.1, ch. ch. 29-17. pub- permanence of duties associated with 239; lic office. See 67 C.J.S. 8 at § Officers Griggs Harding County, 68 S.D. Funds II.Public (1942). N.W.2d 485 officials, jurors paid are Like other pro- from funds. Section 27-09.1—14 by Defined Statute IV.Duties paid mileage will as jurors vides that be may by [4] Public be created office The compensation.2 pays well State statute, (securities e.g., NDCC 10-04-03 § jurors of mileage and attend- constitution, commissioner), e.g., N.D. ing at district court.3 NDCC sessions Const, State, (Secretary of art. V 12 At- § compen- current rate 27-09.1-14. The of § General, Treasurer, among others). torney per court sation for district $25 are federal and state constitutions day. Id. Const, U.S. genesis jury juror. and Const, Nature III.Continuous VI; (right art. I amend. N.D. § to all by jury of trial shall be secured and requirement per of tenure and The inviolate). The constitution is the remain that duties means the office manence of paramount law of our State. See North- permanence continuity, itself has some Wentz, 103 western Bell N.W.2d Tel. Co. does. 67 that the incumbent C.J.S. position Because Wargo 240. Officers 8 at v. Indus § constitution, it more by is created Comm’n, trial 58 Ill.2d 317 N.E.2d requirement Jorgenson than fulfills (1974) position county [duties must be created or office are continuous re judges election without defined statute. gard person who particular holds however, are, juror’s defined of the duties By virtue constitutional office]. pre- in the oath by jury, statute and guarantee of trial embodied in -criminal cases although scribed law. Jurors juror can said to be continuous be truly try to must swear or affirm “well an individual service of and true make between the A exist even deliverance short-term. and the defendant a fixed state of North Dakota in the term for the absence give they charge, and to have in particular Alvey Brigham, incumbent. whom according the evidence.” true verdict to Ky. S.W.2d 935 How cases, a In civil similar ever, juror’s or NDCC 29-17-12. in North Dakota “term” § (district ju- court See also NDCC § not re- 29-22-02 2. The Bureau found did "wages pay” retiring but rather shall be “reimburse- deliberation fur- ceive rors after finding, although expenses." of no This ment of importance at state ex- nished "food and other necessaries" decision, contrary our pense). clearly provides 27-09.1-14 "compensation” for paid are attendance as well mileage. reimbursement required. distinguish “employees” NDCC to between oath or affirmation is Op.N.D.Att’y opin- not form an of the 28-14-08. Jurors must “officials” state. Gen. qualities case is ion in the case until the submitted June 1966. To the nor Jorgenson, to them discuss the case others office enumerated attor among to con- ney general “importance, dignity themselves until retire added 28-14-16, independence." sider verdict. NDCC See also C.J.S. §§ Officers 242-44; 29-21-28. 10 at Taylor, Iowa State giveWe re V. Administration of Government spectful attorney general’s attention to Sovereign Power opinions and them when we find follow must An officer’s duties persuasive. Burleigh them Small v. govern be related to the administration of County, Add explained Jorgenson, ment. importance, ing dignity the attributes of are whose con “State officers those duties independence the Jorgenson criteria large general pub or the cern state at comports jurisdic with the law other lic, although lim exercised within defined Crews, E.g., tions. Linden v. Vander its, delegated and whom the exercise (Iowa 1973); N.W.2d 686 Steece v. State portion sovereign powers (La.Ct. Dept. Agriculture, 504 So.2d 984 of 456, quot 142 at Jorgenson, State.” N.W. 78, App.1987); Cody, Meiland v. 359 Mich. Cyc. ing 36 at 852. See 67 C.J.S. Officers Therefore, (1960). 101 N.W.2d 336 we Larson, 237-39; at 1C A. 8 Workmen’s adopt, in relevant factors the determina Compensation Law 56.20 at 9-270 status, importance, of tion officer (1986). govern Administration of state independence dignity and of the office. delegation sovereign pow ment and the of juror’s er are Because a contribution to the sov- interrelated authority portion ereign administering justice of implies exercise some function is sovereign by significant, exe power, enacting, importance dignity of either the of cuting administering seriously ques- the cannot laws. See course, is, Gray 6 “It truism King, State ex rel. v. 395 So.2d tioned. of a (Ala.1981). Thus, sovereign machinery the part one element of are a vital of power justice. justice, is the of the administration of and that administration See 1-01-03(7); 7; outstanding importance.” King, 395 function is of So.2d Report Rogers, Industrial 122 Ohio of the Judicial Conference Commit- Comm’n 134, (1930). Operation Jury System, 35 In context on St. N.E. the tee the trial, Courts, jury judge jury Jury System both be The in the Federal 409, sovereignty, Kranz, in un In said to share however F.R.D. State v. 748, (N.D.1984), empow the we even distribution. Jurors are 353 N.W.2d noted judges questions jury pre- ered as the of fact. trials are the “normal and sole Schwan, (N.D. fact-finding ferred in Erickson 453 N.W.2d 765 mode” criminal said, 1990). fact, jurors partic right As cases. “The finders We to be tried justice ipate peers in the is administration one’s fundamental to the American verdict, system they perform justice; with their the sover of criminal ‘an inestimable eign authoritatively establishing safeguard against corrupt act of the or overzea- prosecutor rights. Rogers, against compl[ia]nt, 171 N.E. at 36. lous the But cf. ” Kranz, judge.’ biased or eccentric Jorgenson criteria of of 751, quoting N.W.2d at Duncan v. Louisi- enlarged upon in repeated fice were 156, ana, 145, 149, 1444, 391 U.S. 88 S.Ct. opinions of the North attor several Dakota 1447, 1451, 20 L.Ed.2d 491 ney general eligibility dealt with However, question membership Employees ju- in the whether the Retirement arises 13, rors, accept System. law Op.N.D.Att’y Gen. June who are bound to as it 1966; court, operate Op.N.D.Att’y given by Mar. with that Gen. independence by a compensa enjoyed pub- a context to workers measure of unrelated tion, superior a attorney general upon was called lic officer. But subordination to necessarily Thus, juror plays integral in render a subordinate role does Op.N.D.Att’y June justice. non-official. See Gen. administration of It is the Larson, at 303. A. See also 1C defers to jury court which those 56.20 at Workmen’s Law § jurors’ discretion, committed to areas compen- In his 9-271. treatise on workers way City not the other around. See law, suggests Larson that the inde- sation Bauer, (N.D. Bismarck v. 409 N.W.2d 90 test, helpful determining pendence 1987). Kelsch, See also Grenz v. official, not be status as “should (N.D.1989) a motion N.W.2d [on any of its given controlling importance trial, pre for new the trial court does points As own.”4 Id. Professor Larson sume to act as thirteenth out, very “there are few officials its own judgment not substitute for that of governmental hierarchy who are not re- Vaaler, jury]; Wastvedt sponsible higher to some official or board.” (N.D.1988) judg a motion [on official, juror, every public Like a Id. verdict, notwithstanding jury’s ment law, given duties are defined whose give must the trial court deference to the law and must it. follow Acknowl- jury’s evaluation of the and its evidence edging perform- that the law controls judgment credibility of witnesses]. perform- controls the ance preserve policy jury is to verdicts. officials, ance of all does not neces- Okken, N.W.2d Okken strip independence either sarily .of end, zealously give To that thought and action. Linden v. See Vander reign jury limiting impeach full 1973). Crews, (Iowa jury preventing ment of verdicts and exam Further, although jurors must follow the processes jury ination of mental involved in apply given by it is the court and law as 606(b). recog NDREv deliberations. We only that law to the as the find facts unbridled the nize that an examination of them, are province, within own threaten jury’s internal deliberations would given power the “[Tjhey autonomous. are jury the effectiveness and function of the permitted and are to deliberate of decision O’Hearn, system. Andrews v. 387 N.W.2d to in secret and announce their verdict jury Our to deference giving it.” ABA Stan without reasons for encourages jury operate the to in verdicts (In Relating 1. by Jury to Trial dards dependently of all the law constraints but 1968). to the Draft Approved troduction independence That level of is one of itself. credibility of wit Jurors alone measure the public a the hallmarks of official. Assocs., nesses, v. Far Inc. Construction Co., Equip. 446 N.W.2d go Water juror Because a fulfills all of the evidence, (N.D.1989), weight the the requirements “im Jorgenson as well as the Schwan, (N.D. v. N.W.2d 765 Erickson test, dignity independence” portance, cases, 1990). In civil determine liabili juror public a official we conclude that is a damages. fault ty, apportion and assess compensation.5 purposes of for workers Lorenzen, Kavadas deep- our decision is consonant with cases, jury (N.D.1989). In the de criminal com extending tradition of workers seated guilt or inno termines ultimate issue fairly pensation benefits to all those who Huber, N.W.2d 236 cence. State coverage. brought scope within denied, 105 can be (N.D.), 471 U.S. cert. Comp. Sy on v. 85 L.Ed.2d 855 rs Workermen’s S.Ct. ve Indeed, suggests juror cannot be a applying the criteria of 5. The dissent that a we note that in case, particular juror facts other be public because as a officer service necessary 27-09.1-16, jurisdictions have it is not held that compelled, NDCC and is therefore § every position meet criterion in order But, township involuntarily undertaken. a offi- qualify as a the holder officer, 44-02-4)2(6), public § cer is a NDCC Crenshaw, E.g., 274 S.C. public 475, State v. officer. compelled notwithstanding that she be also (1980) [policemen sufficient- 266 S.E.2d capacity, NDCC to serve enough public ly criteria of meet of enumerated 54-01-19(7)(d). qualify]. to officer a offi- Bureau, tary, Since the other attributes N.W.2d 688 contract If there no “employees” pur- cial are irrelevant. officials juror, such to compen- between State poses of Dakota’s workers North juror an 65-01-02(14), constitute law, the Bu- sation State, appears to that same omission it me concluding as a matter of law erred in reau attempts to hold analysis dooms during an was not officer, i.e., juror is a that the qualified, jury service. If otherwise her relationship also a contractual officer has eligible compensation she is statute The North Dakota with State. Accordingly, we reverse the the defini- includes a official within court and remand judgment of the district appears that one “employee” tion of so a the Bureau for determination bene- not be a official without also could fits, any, Holmgren. if due being employee. ERICKSTAD, LEVINE, C.J., and engage judicial legislation, If are to MESCHKE, JJ„ concur. GIERKE i.e., generally, simply I declare would do so purposes of worker’s that for Justice, WALLE, dissenting. VANDE juror employee. That at least a is an will compensa- provide North Dakota should the term the tortured avoid injury persons who are called to tion for “public may in the future official” which such as perform responsibility” a “civic distinguish require explain us Legislature jurors. Presumably, if the illogical apply decision or to it with an directly question faced were But, juror I result. believe injured person or not a who is whether “employee,” I included the term within performance of duties cannot even concur in the result. coverage, receive it would should cites, appear majority does not but if a agree with that conclusion for upon, Bolin rely the recent decision of paid well for their efforts need 785 P.2d Kitsap County, Wash.2d 27-09.1-14, per day. See [$25.00 NDCC] decision, (1990), only other than compensat- should be person nevertheless Rogers, 122 Ohio Industrial Comm’n injuries serving as incurred while ed (1930), the rationale of St. N.E. conclusion, juror. Having at that arrived rejected by juris- all has been other which attempt to recast the mold should we now issue, considering to extend dictions this that in public officer to fit of a coverage jurors. to An of Bolin I permit compensation paid? to to be order Washington a con- indicates would reach majority the like the result reached but trary under North Dakota law. decision process I less with the am enthralled opinion, in its As the Bolin court notes the is that result reached. Washington distinguishable from statute Although necessarily disagree I do not jurisdictions which have con- most other in analysis engaged by majori- that, many the matter in unlike sidered suppressed: salient factor is Public ty, one employments or which list define States 01—02(14),NDCC, officials, re- as § coverage, Washington stat- 65— included flects, may be either elected or employments only ute excluded. Ju- lists to at their own voli- but choose serve 65-01- rors were not excluded. Section qualify course, 44-01-04 to does, tion. See 02(14), NDCC, list who is [failure Jurors, vacancy]. on the creates a office al- “employee,” within the term included hand, accept choice but to other have no though provision indicat- also contains by the jury duty unless excused court. ing included within the term. who [obligation specifical- 27-09.1-01 to serve of the limitation both Because §§ [penalties ly for failure within the term juror], listing 27-09.1-06 who is included (cid:127) Surely, of all the is excluded perform jury “employee” as well as who service]. office, term, have from that I do not believe we threshold attributes that term as authority one assumes the broad construe requirement must be that The majority we have. “lib- voluntarily. is not volun- assumes If service any “appointment, recit- ment under contract of principle has been eral construction” hire, Washing- opinions apprenticeship_” in or The many past in our but ed times that, ton court observed of the other States appli- those cases involved most instances matter, only which had considered the New compensation Act to those cation of the Jersey had a not contain statute which did those clearly employees. Few of who were “appointment or hire” lan- contract for statutory concerned the definition decisions guage Jersey but that the New court “felt “employee.” constrained to exclude from cover- principle The of liberal construction has act, Jersey age because the New unlike the in 65-01-01 and the axiom that its roots act, Washington employ- excludes casual promote intended to be secured the ends Bolin, supra, ment.” 785 P.2d at 807. of the Act it must be by the enactment employ- North Dakota also excludes casual liberally construed. Erickson v. North coverage. ment from Section 65-01- Compensation Bu- Dakota Workmen’s 02(14)(b)(l) [employee] “term does not [The (N.D.1963); reau, 123 N.W.2d 292 Bordson (1) Any person employment include: whose Compensa- v. North Dakota Workmen’s is both casual and not the course of the Bureau, 49 N.D. 191 N.W. 839 tion trade, business, profession, occupation wording An of the examination person’s employer.”] and the statement therein 65-01-01 Finally, apparently jury service has here depends in a prosperity “the of the state employment tofore been considered well-being large upon measure of its premiums purpose of assessment of [emphasis leaves wage workers ...” mine] against County payment State. doubt whether it was intended considerable premium by employer is not a type provided by apply of service recovery prerequisite for from the Workers liberally juror. the Act is to be While Fund, Pearce v. North Cf. purpose, the intent construed to effect its Compensation Bu Dakota Workmen’s carried out and the of the Act must be reau, N.D. 279 N.W. 601 ignored. Kipp of the Act cannot be terms nevertheless, we, ought to be cautious But Jalbert, (N.D.1961) judicial requiring coverage by fiat before employed to as- [holding carpenter group persons for whom the Bu for a dismantling of barn is not an sist farmer pay required not heretofore reau has provisions within the of the Act]. endanger premiums lest we ment of discussed the fact Bolin stability expense the Fund at the involuntary and observed that wage day-to-day earners for whom those Washington they implicitly had held that the Act was intended. involuntary employment, service Because, given “employ- the definition of Co., citing Cherry Valley Timber Rector v. statute, I contained in the believe ee” as (1921), because 115 Wash. 196 P. 653 compensation is a of workers’ the issue statute, of oth- Washington unlike that matter, regret- I legislative, judicial not a States, employment as does not define er fully dissent. for hire.1 appointment or contract statute, like that of North Dakota jurors not to be which have held

States mean “employee”

employees, defines employ- person engaged hazardous Inmates, has, employed in in- by specific legislation, some of whom in- 1. North Dakota are, involuntary employees compensation, within the ex- certain industries for cluded coverage stitutional 65-06.2-02, employment the Act. See NDCC is not cept fact that the for the coverage perform- in the specifying for inmates engaged employment voluntary, clearly with- with the mainte- ance of work in connection Nevertheless, , statutory definitions. in the Legislature industry any institution or with nance of the necessary specif- to enact believed any public service therein or with maintained activity. legislation them within cover- to include ic age. authorizes, but Section 65-06.2-03 necessary the inmates be- was If that county city require, any to elect to does not voluntary, it employment was not cause with workers cover its inmates necessary jurors. appear also would

Case Details

Case Name: Holmgren v. North Dakota Workers Compensation Bureau

Court Name: North Dakota Supreme Court

Date Published: Apr 25, 1990

Citation: 455 N.W.2d 200

Docket Number: Civ. 890307

Court Abbreviation: N.D.