*1 412 sufficiency years penitentiary, three “Our review of the
five
in the
with
conditionally
years
suspended for
three
for criminal conviction limit
the evidence
years.
ed,
reweigh
we
the evidence nor
and
do
judge
credibility of witnesses.”
v.
State
appeals, arguing that the trial court
Kevin
Torres,
853,
(N.D.1995);
529
855
see
N.W.2d
jurisdiction
try
stalking
him for
lacked
Carriere,
773,
State v.
545 N.W.2d
776-77
stalking
copy of the
statute was
because a
(N.D.1996). Rather,
July
protection
11
we “must assume that
not attached to the
order.
says:
jury
supports
“When an order is
NDCC 14-07.1-03.1
believed the evidence that
section 14-07.1-02 or 14-07.1-
any contrary
issued under
the verdict and disbelieved
evi
03,
attached
Austin,
the order must include
have
564,
dence.” State v.
520 N.W.2d
copy
12.1-17-07.1.” Kevin
to it
of section
(N.D.1994);
Purdy,
v.
570
see State
491
concedes, however,
present
failed to
that he
402,
only
410
We will
argument to the trial court.
this
if,
viewing
reverse a criminal conviction
after
light
the evidence and
inferences
Generally, a defendant cannot raise an ar
verdict,
most favorable to the
no rational fact
gument
for the first time on
when it
guilty
trial
for
finder could have found the defendant
was not made to the
court
its consid
Woehlhoff,
beyond
eration. See State v.
540 N.W.2d
a reasonable doubt. State v. Zurmil
Hector,
162, 164 (N.D.1995); City Fargo
ler,
139,
(N.D.1996);
v.
v.
State
821,
A narrow Gonderman,
534 N.W.2d
(N.D.1995);
531 N.W.2d
“[ojbvious
exception to this rule allows
errors Austin,
tional circumstances where the defendant has injustice,” serious we have often
suffered ex 164; Woehlhoff,
plained. 540 N.W.2d at see Murphy, State v. 527 N.W.2d 256-57 MAGINN, Kathleen Claimant (N.D.1995). We are not convinced this al Appellant, obvious, leged especially light error is v. opinion Sundquist, our recent in State v. (N.D.1996), N.W.2d 90 where we held the NORTH DAKOTA WORKERS noncompliance with State’s NDCC 14-07.1- BUREAU, COMPENSATION juris deprive 03.1 did not the trial court of Appellee, try Sundquist violating pro diction to Therefore, tection order. we decline to ad argument. Raymond Trucking,
dress this Cossette Inc., Respondent. argues Kevin was insufficient evi- there jury guilty him dence for the to find Civil No. 960005. stalking. Specifically, protection because the Supreme Court of North Dakota. order allowed him to contact Marcia ar- range personal property, the retrieval of his 27, 1996. June prove Kevin asserts the State failed to his “legitimate pur- contact with Marcia lacked a 12.1-17-07.1(l)(c).
pose.” See NDCC We
disagree. *2 Little, Little,
Stephen D. of Dietz Bis- & marck, appellant. for claimant and reported her histo- Special A. At- “dramatizes Dopson, Assistant Lawrence Smith, healthy ry very to be General, Zuger yet appears Kirmis so torney & continual, story Bismarck, robust relates the as she appellee. disabling pain,” and noted that “dem- *3 ... WALLE, very grimacing histrionic facial Justice. onstrated VANDE Chief injury at a low back would not be times when appealed from a district Maginn Kathleen Noting history that the was causing pain.” judgment affirming the Dakota court North Dr. suggestive malingering,” of “strongly Compensation Bureau’s order dis- Workers no evidence Larson concluded there was continuing disability and her impairment disability Maginn of or and that she failed to make a benefits because or could to work without limitations return employment. faith work trial in offered We restrictions. affirm. 1993, to August On Cossette offered Maginn employed was as an over-the-road dispatch- Maginn rehire as a truck driver or by Trucking, Raymond truck driver Cossette truck-driving be position er. The would 17, 1990, July Maginn [Cossette]. Inc. On Maginn would to load or modified so not have loading injured her back while tires onto her truck, as unload could take rest breaks injury diagnosed lum- truck. The was as a them, provided a she and would be needed sprain. accepted Maginris bar The Bureau special get truck which was easier to and paid and claim benefits. equipped special out of and “air-ride” Maginn has returned to work since her not equipment making it her back. easier on continual, injury, claiming she suffers Maginn accept refused to Cossette’s has disabling pain prohibits lower which her back reemployment, relying upon offer of working. years following from In the three doctor, opinion Dr. of her Thomas Williams. injury, Maginn her was examined and tested Dr. response request In to a written by physicians pro- numerous and health care Maginn in the mod- Williams release to work fessionals. Tests conducted have included truck-driving position “provide ified ... scan, studies, scan, spine MRI a CT x- bone objective findings” why un- medical she was EMG, rays, and an all of which show no pro- accept position, able to Dr. Williams Physicians abnormality. of and evidence vided a handwritten note: professionals health care have noted that periods— prolonged “No—unable to sit for Maginn responses exhibited “bizarre” to flex- maneuvers, unable to climb & out of truck —unable “inappropriate ion and extension prolonged to drive for time.” behavior,” exaggeration symp- illness and toms, Maginn perform and that did not hon- Maginn The Bureau notified that her bene- estly during functional assessments. Septem- fits would be discontinued effective investigator hired an Bureau 6,1993, she ber because had failed to make Maginris daily activities. document position offered bending was observed at the waist to lift 65-05.1-04, required by Section N.D.C.C. boxes, climbing motorcycle, on and off her Maginn requested hearing. and received bending pool, play and findings hearing proposed The issued officer pain evidence or discomfort. fact, law, conclusions of and order conclud- arranged ing Maginn not in
In 1993 the Bureau
for an inde-
was
violation
Section
65-05.1-04,
rejected
pendent
Paul
Bureau
medical examination
Dr.
The
(see
hearing
physi-
Larson. The examination revealed no
officer’s recommendations
28-32-13(3), N.D.C.C.),
symptoms,
issued its
Maginris
cal cause
claimed
and
conclusions,
findings,
Dr.
that she
own
order discon-
and
Larson noted
had better
and
mobility
spine
tinuing Maginris
benefits for failure to en-
lumbar
muscular
gage
development
people
age.
her
He
in a
trial.1 The district
than most
Dakota,
conclusions,
findings,
See
v. Job Service
1. The Bureau's
and deci
Carlson
North
explain
(N.D. 1996);
sion are sufficient to
rationale for no
v. North Dakota
N.W.2d 389
Schultz
t following
hearing
officer's recommendations.
order,
Mag-
objec-
court affirmed the Bureau’s
which contained no documentation or
appealed.
findings
support
inn has
tive medical
cursory
his
conclusion that
could not drive a
In an
from a district court
record,
say
truck. On this
canwe
that a
Bureau,
reviewing
judgment
an order of the
reasoning mind
reasonably
could not have
we review the decision of the
rather
physically
determined that
capa-
court,
than that of the district
and we limit
performing
ble of
Cf.
our review to the record before the Bureau.
Naumann,
(a
supra
physician’s unilluminat-
Naumann v. North Dakota Workers Com
ing
questions propounded by
answers to
(N.D.
pensation
alternative “Held misconstrues N.D.C.C. 65-05.1- 01(3) noneompliance by suggesting that failure to estab- with vocational rehabili- certainty lish earn the noncompliance ... In cases of he will tation. bureau, Sveekly wage to the statute’s threshold’ employee, by adminis- order, penny plan. invalidates the rehabilitation trative shall discontinue lost-time employment’ gainful ‘Substantial is defined If, the bureau be- benefits. after order 65-05.1-01(3) § part as in N.D.C.C. final, period noncompliance comes opportuni- bona ‘which fide work an sixty days, continues in- second offers ty employee to restore the as soon as noneompliance stance of occurs without practical nearly possible and as to the cause, the bureau has further no weekly employee’s average earnings at the jurisdiction awarding further tem- injury, seventy-five percent time of or to porary disability, temporary partial total ..., average weekly wage in this state disability, permanent disability, total or vo- added).” (Emphasis whichever is less.’ cational benefits.” ease, proffered employment this employee has the burden previously at the same rate as had proving compliance with the faith work earned, certainly opportu- it offered the Johnson, requirement. supra. Maginn trial *5 nity wage to the under the meet threshold attempt made no to show that she made had statute. Because to make a failed any comply effort to the requirements with good job, argu- in the her Rather, good of the trial. faith work she has enough ment that she could drive miles continued her to return refusal to work wage purely specula- to meet threshold the is We conclude that the It her tive. does not excuse failure to make determining did Mag- Bureau not err trial. faith work comply require inn had failed with to the 65-05.1-04, N.D.C.C., by ments of Section Maginn’s argu- We have considered other refusing to make a trial. ments and find them to be merit.2 judgment affirmed. is challenges appropri also of the truck-driving position ateness modified MESCHKE, NEUMANN, MARING and may ninety it because not rehabilitate her to JJ., concur. wage percent pre-injury of her or two-thirds weekly average wage, of the state’s as re Justice, SANDSTROM, concurring special- 65-05.1-01(3), quired N.D.C.C. ly. may Maginn claims that she not earn as previously much as she had because truck appeal In an from the decision of an ad mile, paid by 28-32-15(4) drivers are and she would agency, § ministrative to take frequent have rest breaks and would requires appealing party “specifi to file therefore than drive fewer miles before her appealing party cations error.” The injury. limited on to those issues identified specifications of error with sufficient plan specificity fairly apprise
A need agency rehabilitation not estab to certainty parties employee particular lish with will other claimed. errors immediately appropriate wage v. Compensa meet Held North Dakota Workers (N.D.1995) 166, 171 threshold. Held v. North Dakota tion 540 N.W.2d Workers (Sandstrom, J., Compensation concurring specially). See Held, Commissioner, supra, Berger Highway 540 N.W.2d at v. State (N.D.1986); we said: v. Wisdom because, proffered position necessary 2. if also asserted the to discuss that issue even dispatcher agreed appropri- Maginn, required with Cossette was not an we she still to option appro- ate because it have make faith work trial in other would required Maginn priate truck-driving posi- option, move from modified her home in Toledo, Fargo, Ohio to North Dakota. It is un- tion. specificity, summarily Dakota Real Estate sufficient I ex rel. North Com would af- State mission, 19, 22 agency. 403 N.W.2d firm the Maginn’s boilerplate “specifications of er- general they apply any
ror” are so could They agency appeal. fail to
administrative identify any any par-
specifically error with
ticularity. Maginn’s specifications Because identify error -with
of error failed