Toso v. Workforce Safety & Insurance

D.J., MARING, reasoning determine whether a mind MARY MUEHLEN KAPSNER, JJ., reasonably have determined that the CAROL RONNING could proved concur. factual conclusions reached were from the weight of the evidence The Honorable ALLAN L. Fuels, entire record.” Power Inc. v. El SCHMALENBERGER, D.J., sitting in kin, (N.D.1979). N.W.2d 214, 220 SANDSTROM, J., place disqualified. Thompson argues

greater weight of the evidence showed

September 2003 incident was substantial in causing spine

factor his cervical condi disagrees, arguing findings

tion. WSI 2006 ND 70 substantially supported by the record. TOSO, Appellant Lanis Claimant and Taking into account the record before us and the standard of review on appeal, we v. agree argument. with WSI’s AND WORKFORCE SAFETY agency INSURANCE,

[¶ 11] The administrative Appellee. responsibility weigh has the and resolve No. 20050143. conflicting opinions. Negaard- Supreme Court of North Dakota. Cooley v. North Dakota Comp. Workers ¶ Bureau, 2000 ND April 2006. Here, 898. own expert, Rehearing May Denied 2006. M.D., Cooper, only physi Robert was the cian fully that was made of Thomp aware history

son’s medical all reviewed pri- Cooper

or records. testified that

symptoms by Thompson prior exhibited September 2003 incident indica were

tive of spine cervical abnormalities. Judge

[¶ 12] The Administrative Law assessment,

adopted Cooper’s noting that

each Thompson’s treating physicians

presented inadequate opinions, advice and ignorant

either failing of or to account for

Thompson’s neck, history extensive

back, and problems. shoulder Upon examination of the entire

record, reasoning we conclude a mind reasonably

could conclude that WSI’s find-

ings supported by weight were

record. We therefore affirm the district judgment

court affirming WSI’s order de-

nying further Thompson. benefits to WALLE,’

[¶ GERALD 14] W. VANDE

C.J., SCHMALENBERGER, L. ALLAN (argued),

Reed K. Mackenzie Mackenzie Dornik, MN, Minneapolis, and Joel F. Ar- Arnason, & (appeared), Rosenquist nason Forks, ND, appel- for claimant and Grand lant. Anderson,

Jacqueline Special Sue Assis- ND, General, Attorney Fargo, ap- tant pellee. WALLE, Justice.

VANDE Chief appealed Lanis Toso from dis- judgment affirming trict court (“WSI”). Safety and Insurance Workforce right affirming issued an order WSI’s WSI and to apply statute allow to collect 50% of the settlement in a ac- award Toso received order to the appealed tion. Toso WSI’s court affirmed district court. The district Court, this appeal order. On right apply had no argues to the settlement subrogation statute the third- award because to Toso’s party action were not related disability expenses and benefits paid by We affirm. WSI.

I 3,1999, Lanis Toso September On filed a claim for workers injury to his in connection with an August occurred left heel which employed as a semi driver. WSI while Toso ben- the claim and awarded accepted benefits, disability Toso received efits. for treat- to an dispute submit the Administrative (“ALJ”). injury. Disability to his ben- Judge ment related Law efits were discontinued when Toso re- ALJ’s recommended decision turned to work. prove found Toso subroga- failed Toso commenced June of § tion interest under N.D.C.C. 65-01-09 third-party against Orthopaedic action improperly applied was to his claim. The Jeffrey Stavenger, al- Associates and damages ALJ found the settlement arose leging negligence in the treatment of out of the work and recommended injury. con- Correspondence Toso’s heel WSI’s order be affirmed. then is- record, in tained in the the form of letters a final adopting sued the ALJ’s rec- exchanged attorney between Toso’s and ommended decision. WSI, third-party notice of the shows given In the third-party WSI. II action, alleged negli- contended the Toso appeal, [¶ 7] On we review the gent not increase his tempo- treatment did WSI, court, decision of not the district rary disability expenses or his medical in- although analysis the district court’s is en injury. curred because of the work-related to respect. titled Zander v. Workforce Toso would contended he have suffered the ¶ Ins., Safety and 2003 ND temporary disability same and medical ex- N.W.2d 668. We review WSI’s decision in

pense damages had the not oc- the same manner as the district court un Rather, alleged only curred. Toso the § der N.D.C.C. 28-32^6. Id. The dis damage alleged negligent trict court must affirm an order of an surgery treatment was was less agency administrative it unless finds might successful than it have been of the following present: that, negligence had occurred and as a result, greater permanent Toso incurred a 1. The order not in accordance with disability negligence. because of the the law. permanent disability

did not Toso ben- 2. The order is in violation of the con- efits. stitutional appellant. [¶ 4] Toso’s action was set- 3. provisions chapter The of this have tled out of court with the defendants not complied proceed- been with in the $82,500. agreeing to pay Toso Because ings agency. before the court, the case settled out of the trial court 4. procedure The rules or agen- made no determination whether the settle- cy appellant have not afforded the a fair damages inju- ment arose out of the work hearing. ry. The record does not contain a settle- findings 5. The of fact made agreement setting ment out what agency supported by are not a prepon- the settling paying defendants were for. derance of the evidence. applied [¶ 5] WSI stat- 6. The conclusions of law and order of ute, § to the entire agency supported by are not settlement award which allowed toWSI findings of fact. collect 50% of the settlement award for money reimbursement for for 7. findings of fact made Toso’s medical disability agency sufficiently do not address the payments. requested After Toso reconsid- presented agency by evidence order, eration of this agreed appellant. and WSI deciding of order of law and order without merits of the 8. The conclusions placed issue before us. sufficiently explain agency do not adopting agency’s rationale for not simple WSI contends this is a by a any contrary recommendations statutory matter of requirement. WSI ar- officer or an administrative law hearing gues application of N.D.C.C. 65-01- judge. 09 is not limited to damages for medi- expense, disability, cal vocational rehabili- N.D.C.C. 28-32-46. tation, or permanent impairment In evaluating WSI’s find have been recovered in a third-party ac- fact, ings independent we do not make Rather, argues tion. 65- findings judgment or substitute our provides subrogated 01-09 that WSI is rather, WSI, that of we determine injured rights of the reasonably its factu whether WSI reached fifty percent extent of of the damages re- weight of the al conclusions evi third-party covered in a regardless Hopfauf dence on the entire record. v. of the damages nature recovered. Bur., N.D. Comp. Workers 1998 ND agree [¶ 12] Even we were to ¶ 8, 575 N.W.2d 436. We affirm WSI’s with position Toso’s that WSI is not subro- findings decision unless its of fact are not gated damages that do not arise out supported by preponderance a of the evi injury, the work we still could not grant dence, sup its conclusions of law are not because, requested Toso’s relief for the fact, by ported findings its decision is case, purposes of this we would look no law, supported by not its conclusions of further than the issue of whether Toso’s in its decision is not accordance with the damages settlement damages were law. Id. injury. arose out of his work The record 9] this case we are asked to de- [¶ provides help little or no evidence to us subroga- cide whether the Paragraph make determination. four tion statute at N.D.C.C. 65-01-09 allows complaint Toso’s ac subrogation apply statute provides consequence tion that as a applied Toso’s settlement award. WSI in negligence, defendants’ Toso sustained subrogation statute to Toso’s settlement juries to his heel which have and will cause award based on its determination that the discomfort, pain, disability, him will damages settlement arose out of the work him to incur in the cause injury. disagreed applica- with that future, impair earning and will his future arguing damages tion the settlement did capacity. The issue of whether Toso’s set injury. not arise out of the work damages tlement arose out of his work argues litigated the district court was never court nor [¶ 10] should not have reached the of does the record contain a settlement merits summarily agreement speaks Toso’s claims but should have which to that issue. position throughout affirmed order because Toso failed Toso has known WSI’s WSI’s specifications required to file a of error as the duration of this case. Toso aware 28-32-42(4). by N.D. apply Vetter v. WSI intended Bur., Although 451 to the settlement award. Comp. Workers statute (N.D.1996). in provides Whether we decide this case statute settlement, specifications by on not be proper based the lack of terest reduced issue, to structure the opportunity of error or based on Toso’s we still Toso had the exactly affirming reach the same decision settlement to indicate what However, DALE record I concur the result. V. damages covered. SANDSTROM. agreement a settlement not contain does information as to gives us no and therefore MEDD, D. The Honorable JOEL the settlement award damages type CROTHERS, J., J., sitting place D. 65-01-09. We covered. N.D.C.C. disqualified. to whether Toso’s set- speculate as left MARING, Justice, dissenting. out of his initial damages arose tlement I There is respectfully dissent. injury. work that, law, question under injured of an em- subrogated to the was on Toso to The burden portion ployee recover damages caused prove that the settlement malprac- him caused sustained third-party negligence did alleged aggravates which physician tice of injury. initial work not out of his arise Landes, injury. work Polucha v. original a claimant § 65-01-09. Once (1930). 60 N.D. 233 N.W. that the claimant is gives notice to WSI presented issue to our Court for the against a pursue an action third- going to subrogation right whether the first time is claimant has the party, we believe the § 65-01-09 is limited to under N.D.C.C. damages to whether the proof burden of as compensation the extent of and benefits arose out of the by third-party caused pay in WSI “has or would otherwise injury because WSI has claimant’s work negligent physician’s future” for the upon receiving no legal obligations certain original injury. of the I am of aggravation third-party action. Id. Once tice of the opinion “subrogation that action, third-party of a WSI receives notice malpractice participate chooses to the action WSI only to of com- the extent [is] any damages under the subro- to recover pensation required pay aggra- it was to for statute, required pay fifty gation WSI is original injury vation of the and not for action, including of percent of the costs pay as a required was attorney’s provided by as part of the fees result of the accident which did not arise required Id. is the statute. WSI negligence Ap- of the physician.” 8B recovery there is no these costs even when pleman, Insurance Law and Practice in the action. Id. (1981). 4959, p. at It important to examine the [¶ 19] we find that find- Because history and record of this case in order to by preponder- ings supported of fact are posture when it heard understand its was evidence, its conclusions of law ance of the by Judge by the Administrative Law and fact, by findings its supported appeal. our Court on by supported decision is its conclusions of law, The record of this case includes and its decision is accordance with hearing exhibits and the briefs of Toso law, we affirm WSI’s order that it hearing. for the administrative and WSI statute to Toso’s apply correspondence Toso’s attor- The between award. settlement ney attorney and reveals that Toso’s WSI Affirmed. notified WSI that Toso had served a sum- complaint Stavenger and on Dr. mons as- MEDD, D.J., D. and serting negligence [¶ 16] JOEL in the treat- KAPSNER, J., injury. CAROL RONNING ment of his work-related Toso provided copies pleadings concur. WSI and Toso paid wage answers to had been loss plaintiffs both defendant’s benefits documents, In these Toso interrogatories. 21, 2001, from August May opinion expert of his provided to WSI $38,886.86 expense and medical benefits witness, Dr. C. Coetzee and de- Johannes $18,505.42 $57,392.28. total of Toso witness, Dr. T. expert fendant’s William $30,016.26 was to remit ordered the sum of attorney Toso’s informed WSI Simonet. requested a hearing WSI. testify that Dr. Coetzee would that Dr. only submitted that WSI could recover Jeffrey Stavenger’s properly failure to by amounts caused medical negligence in- injured Toso’s foot caused an treat it had or that would otherwise be disability crease of the foot and future; payable only that the dam- testimony that expert he had no witness age was negligence resulted in Stavenger’s permanent disability increase in wage solely loss at- paid any Toso’s foot and that had not negligence. was tributable to permanent partial disability. benefits for expert defendant’s witness an- provided Specification April Issue dated interrogatories in which Dr. Si- swers and set forth the ALJ for the Stavenger monet stated Dr. followed the hearing “whether Safety Workforce appropriate standard of care and that pur- and Insurance’s interest problems Toso’s claimed were all the re- injury. attorney proper- of the initial Toso’s suant to N.D.C.C. 65-01-09 was sult proposed paid by to WSI that ly applied Lanny Toso’s settlement of aggra- Dr. Stavenger’s WSI as a result of malpractice his medical claim.” In its Or- original injury were recovera- vation Setting Briefing der Schedule and Oral third-party damages. ble WSI from the Argument April 13, dated the ALJ that, position took the under agreed stated counsel for WSI and Toso 65-01-09, § it N.D.C.C. was entitled to “that no material be facts must determined paid recover all of the benefits it had from to resolve this that an matter and eviden- original injury any the date of the from tiary hearing is therefore not neces- recovery. Toso’s and WSI’s sary. ...” WSI and Toso each submitted positions changed. never brief, a brief. his Toso stated that the Toso settled mal- § issue was: “Under N.D.C.C. $82,500. practice claim for In a December subrogation right is the limited to the WSI 29, 2003, WSI, attorney letter to Toso’s ‘injury’ par- the negligent third position compensa- took the “that since no ty?” brief “Toso and WSI WSI’s stated: tion or to payable respect was with agreed dispute have to submit the concern- party’s liability, the third there should be ing application subrogation claim WSI’s obligation repay any no deduction or to § 65-01-09 to the ALJ under N.D.C.C. portion of the current settlement.” WSI stipulated exhibits and upon based disagreed subrogation and issued a Further, addressing written briefs.” claiming subrogation fifty per- interest not for position Toso’s WSI did $41,250. proceeds cent settlement or expense wage medical or loss caused fol- apportioned The order interest as Stavenger, by the of Dr. lows: brief stated: subrogation $41,250.00 interest Less WSI’s share of fees at 25% $10,312.50 attorney Less WSX’sshare of costs approved respect position WSI no with took (Exclusive fees) at 50% 921.24 attorney $ given interpretation these issues on to em- Reimbursement WSI credit ap- § 65-01-09 is to be how N.D.C.C. $30,016.26 account. ployer’s i.e., recovery, agreed Toso and to submit party to this third plied separation dispute concerning application of WSI’s does not call for the statute § subrogation claim under N.D.C.C. 65- type of benefits and examination upon stipu- 01-09 to the ALJ based party recoverable the third paid and lated exhibits and written briefs.... ultimately judicially action. If it is de- Again, adjudication was made as to interpretation of termined that WSI’s relating factual effect of error, issues § 65-01-09 is N.D.C.C. alleged malpractice on the opportunity permitted must be medical, disability permanent impair- amount of evaluate and determine the ment. The sole issue for the ALJ to to which its claim determine was whether 65- in this applied case. properly applied 01-09 was to the settle- ALJ, Findings in her Recommended proceeds party ment Toso’s third Law, Fact, and Order Conclusions claim. briefs, parties notes that submitted my Based on review of this rec argument, oral testi- presented “[n]o ord, issue before our Court is mony was taken and exhibits 1-20 consist- whether WSI erred as a matter of law stipulated ing pages of 90 were when it concluded it was entitled to reim parties prior hearing and were ad- bursement all benefits had “[t]he mitted.” The ALJ stated issue to original Toso from the date of the Safety be decided is whether Workforce malpractice out of Toso’s medical settle pur- and Insurance’s interest requires interpreta ment. This issue § 65-01-09 proper- suant to N.D.C.C. tion ques of N.D.C.C. 65-01-09 and is a ly applied Lanny Toso’s settlement of fully tion of law reviewable our Court. malpractice his medical claim.” The ALJ Bureau, Comp. Shiek v. N.D. Workers parties and the treated the issue as ¶ 2001 ND 634 N.W.2d 493. “The question involving interpretation of law primary purpose statutory construction of a statute. The ALJ recommended that legislative is to ascertain intent.” Id. properly applied WSI had 65- Legislature’s sought “The intent must be Lanny 01-09 to Toso’s settlement of his initially statutory language.” malpractice claim. adopted County Stutsman v. State Historical Soci the ALJ’s decision. (N.D. N.D., 321, ety 371 N.W.2d 325 of appealed final [¶ 22] WSI’s 1985). on grounds district court that Hospital, In Ness v. St. Aloisius the decision was not accordance with the 781, (N.D.1981), 313 N.W.2d 782-83 our § pursuant law 65-01-09. N.D.C.C. provision regarding Court held the The district court affirmed final WSI’s or- (now Compensation Worker’s Bureau’s der. Toso then appealed to our Court. Safety known as Workforce and Insur- ance), right In ambiguous. appeal, [¶ On Toso framed his is- 23] case, that we said: 65-01-09, § sue: “Under N.D.C.C. does subrogation right WSI’s include all bene- Statutes must be construed avoid employee, fits to an including Legislature absurd results. When representing injuries peculiar and uses a term which has a and law, Party which the Third Defendants is not appropriate meaning in it shall be and In peculiar could not be liable?” WSI’s brief construed to appropri- such Court, on it appeal meaning. right stated: ate is one Bureau’s

319 Bu- In a subrogation only. subsequent construing [¶ of Insofar as the case 27] D. 65-01-09, reau stands the shoes Marva § N.D.C.C. our Court stated capacity, Ness her individual when purpose “we are not certain that subrogee, those are barred to the 65-01-09, N.D.C.C., § is limited to reim- Ness, they Marva D. are also barred to bursing expenditures. the Bureau for its subrogor, the Bureau. It by amending § is clear that (citations omitted). right Id. at 783 N.D.C.C., in 1965 that the in- Legislature § under N.D.C.C. 65-01-09 statutory provision tended this as an in- changed by legislature has been sever centive for pursue the worker to and liti- (1943), § 65-0109 al times. See N.D.R.C. gate legal against culpable claims third (1949); § N.D.R.C. 65-0109 Gimble v. parties.” v. N.D. Lawson Workmen’s Company, Montana-Dakota Utilities 77 Bureau, Compensation 344, (1950); N.D. 44 200-01 N.W.2d (N.D.1987) (citations omitted). 347 Most First, prohibited § it 65-01-09. significantly, purpose we noted “the employee claiming compensation 65, N.D.C.C., intent of Title protect is to bringing any third-party action. N.D.R.C. injured pros- worker and ensure the (1943). Then, § 65-0109 an em allowed perity of the State protecting wage its ployee claiming compensation bring to also Id.; (stat- § workers.” N.D.C.C. 65-01-01 action, a third-party granted but the Bu ing in part relevant that “[t]he state of right percent reau the one-hundred Dakota, North ... pros- declares (1949). recovery. N.D.R.C. 65-0109 perity of the depends large state a currently grants right The statute WSI a upon well-being measure wage fifty percent recovery. workers, and ... sure and certain relief is If 65-01-09. statute is ...)”. hereby provided ambiguous meaning or of doubtful adherence to the strict letter of the statute N.D. Lawson v. Workmen’s result, would lead to an absurd court Bureau, Compensation pre- our Court was may resort to extrinsic aids to determine sented with the correctness of calcu- Shiek, legislature. the intent of the 2001 lation of costs under N.D.C.C. 65-01-09. ¶ ND 634 N.W.2d 493. language creating We concluded that the In Blaskowski v. ND Workmen’s statutory formula for costs was some- Bureau, Compensation we held “[t]he ambiguous, “any ambiguity what and that purpose subrogation rights of the Bureau’s worker, interpreted must favor of the fund, is to reimburse the to the extent Lawson, pursuit legislative and in at possible, expense persons at intent, providing greater incentive to the (N.D.1986) fault.” 380 N.W.2d injured prosecute third-party worker to (citations omitted). pointed We also out Lawson, claims.” at 347. N.W.2d legislature that in 1965 reduced the analysis, Based on our we held that WSI right subrogation third-par- Bureau’s to fifty percent had to of the pay costs of the ty percent recoveries from one-hundred to in third-party despite fifty percent. (citing Id. 1965 N.D. Sess. prorat- the statute that the costs should be 452). Laws ch. We concluded “[t]his adjusted percentage ed and based on the change apparently made to induce total interest recovered employees bring against to actions third recovery. at to the total Id. 347. parties (citing who were at fault.” Id. to Laws, I am opinion [¶ 29] Minutes of SB 1981 N.D. Sess 641). § ch. a when read as third-party malprac- injury to or death for which applied When whole payable provi- under ambiguous. legisla- compensation The tice recoveries is encourage to sions of this title shall have been sus- appears intent to be tive creating ac- circumstances in injured bring third-party to tained under workers designed apply person organization to to some other than the The statute is tions. legal liability pay damages the work-related a to in re- factual situations where thereto, injured employee, or spect tortious conduct oc- injury and Therefore, may claim simultaneously. employee’s dependents in the usu- cur loss, situation, expenses, compensation pro- medical under this title and wage al damages against all at time of ceed at law to recover losses will arise and other organization is injury. person. such other The original injured subrogated However, involving in a case employee employee’s dependents or the period is a negligence, medical there fifty percent the extent injury original from the to the occur time up recovered to a maximum of negligence. There is rence of the total amount it has or would that, today, question compensa- otherwise in the future in costly pursue and difficult to cases are injured employ- tion and benefits for and basic math tell prove. Common sense organization ee. The also has lien to injured will be no incentive for an us there fifty percent the extent of of the dam- average neg pursue worker to ages a maximum up recovered ligence case if N.D.C.C. 65-01-09 is con total amount it has proposed by strued in the manner WSI. and benefits. changes

In all the light of added). I legislature, (Emphasis § 65-01-09 made am Toso’s work- When sustained, encourage place injury convinced the intent has been to was first Dr. Sta- injured bring third-party venger legal liability pay any workers to ac had no tions, I damages. injury and construe statute with both The was sustained be- fact that pipe, belonging employer, that intent and the WSI’s 'con cause a to Toso’s against employer’s struction “militates desired crushed Toso’s ankle at his 1-02-39; end” mind. See N.D.C.C. worksite. Comp.

Lawson v. N.D. Workmen’s Bu cannot [¶ 33] Our statute reau, 409 at 347. N.W.2d apply Stavenger’s until Dr. even said Only alleged malpractice occurred. at that opinion I also am of the that to point had an sustained “under been interpret only provision one of N.D.C.C. creating person circumstances some “All inappropriate. 65-01-09 is sections organization legal liability other than the of a statute must be construed to have pay damages respect thereto.” See law meaning because the neither does nor id. short, guided we are requires idle acts. principle the common-sense that a stat- problem position with WSI’s give

ute is to be read to effect to each of is addressed Larson’s Worker’s Com- provisions, fairly possible.” whenever Law: pensation County Stutsman v. State Historical Soc. An point up problem: illustration will (N.D.1985). N.D., suppose that suffers sim- injury, I turn now to the ple for which he or she would statute, at ordinarily compensation found N.D.C.C. receive $2,000. § 65-01-09: aggra- amount of The is

321 plaintiff on-the-job injury that the actual suffered an by physician, so to vated employer for which compensation his back. Id. The Illinois Industrial Com- $5,000. compen- liable is The becomes mission determined plaintiff was enti- cost, speak, aggrava- to sation so $6,067.47 to in temporary tled total disabil- $3,000. suppose, tion is Now under the ity. Id. Plaintiff later learned that an rule, employer, having paid majority surgery October 1983 back arising out of $5,000 compensation, and on-the-job injury had worsened his subrogated employ- to the having been petition condition. Id. Plaintiff filed a with action, $5,000 malpractice ee’s recovers in January the commission 1985 seeking aggravation for the alone from temporary disability additional total pay- physician. reading a literal Under 1, relating ments back to June 1981. Id. statutes, presum- of most subsequently Plaintiff was awarded keep can the entire ably employer $73,899. 1985, April Id. In plaintiff filed a $5,000 repay compensa- itself for its medical malpractice against the doc- outlay, presumably tion there is no tor performed surgery. who the back Id. employ- over to the “excess” be at 182-83. This case was settled with the unfair, obviously since the ee. This is $350,000. doctor 1989 for Id. at 183. $5,000 damages repay should be used to employer’s Plaintiffs insurer intervened $3,000 only outlay attributable to the requesting and filed a motion that plain- $2,000 should malpractice, and the other tiffs settlement “impressed” be with a lien go employee. inequity to the be- $79,966.47, in the amount of the total glaring you comes more when realize amount paid plaintiff. the insurer had Id. original uncomplicated injury Plaintiff argued the insurer’s lien could not actually might indeed have been caused $6,067.47 in include the employer’s negligence, so that him prior surgery to the nor could it claim money actually employee’s is used to $73,899.00 the entire amount of subse- employer reimburse the for its own quently paid him a portion because wrong. period those benefits were for a before Compensation Larson’s Worker’s Law surgery during plaintiff which could not 112.02(5)(a). case, In it appears this Appeals, work. Id. The Illinois Court of only has reimbursed Toso for dam- own, interpreting a statute similar to our ages arising original injury. out of the agreed stating plaintiff, with the its conclu- provided does not claim to have jurisdictions sion was in line with other any compensation aggravation for the al- who have ruled: legedly Stavenger. caused Toso’s employer’s lien should extend [T]he recovery Stavenger only from Dr. can those attributable been for the said have aggravation injury; i.e. aggravation original injury the amount of the lien should be negligence.' employer limited to amount that the jurisdictions have ad- [¶ 35] Other required because of the mal- Larson’s dressed the issue before us. See practice. Compensation Laiv Worker’s (noting holdings Id. at similar in: (b). 184 112.02(5)(a) In Robinson v. Stellar, 496, P.2d Dodds v. 30 Cal.2d 183 Co., Liberty Mutual Ins. the Illinois Court Kerlan, (1947); 27 658 Heaton v. Cal.2d very with a similar situa- Appeals dealt (1946); 443,165 P.2d 857 Industrial 222 166 Ill.App.3d tion. Ill.Dec. (1991). Co., February the Comm’n v. Standard Insurance N.E.2d 182 322 156, (Co.1962); legal liability pay a dam 587, organization 158 370 P.2d

Colo. Palace, 79, ages respect clearly thereto” does not 102 Nev. 715 v. Breen Caesars right with a to recover for provide WSI (1986); York Drypolcher v. New P.2d 1070 original injury for from paid benefits it 895, Co., 446 85 A.D.2d Telephone damages subsequent recovered for (N.Y.App.Div.1981); and cit- 728 N.Y.S.2d Damages occurring after the malpractice. Larson, 2A A. The Law Workmen’s ing malpractice may may not arise from the 72.65(b) (1952)). Compensation injury by negligent of the aggravation injury “plaintiffs original held court physician. original The seriousness of the creating caused under circumstances not injury and the seriousness of the medical liability of a third legal part party.” on the will negligence affect the determination. that “to hold otherwise The court noted subrogation is entitled to a [¶ 37] WSI employee receiving in the would result § 65-01-09 in this right under N.D.C.C. injuries.” compensation pre-malpractice for view, however, I am of the that our omitted). case. 184(citation Id. at requires that statute Court, Supreme The Colorado arising right paid be limited to benefits out concluding physician person third aggravation original inju- of Toso’s subject under its statute and to common- not, statute, ry. does under our re- WSI liability, law held: right any ceive a to reimbursement for phy- determined that the Since we have compensation paid inju- for WSI a third and that the em- party sician is alleged malpractice ries not related to the compensation for for the ployer is liable injuries aggravation because those were by physician’s negli- injuries not sustained under circumstances gence, express it follows creating Stavenger legal liability Dr. provisions employer [the statute] pay damages respect thereto. In subrogat- and insurer entitled be to be entitled to reimbursement in his ed to the recovery, from Toso’s settlement WSI malpractice against negligent must establish what benefits it However, physician. employee’s through May solely were caused bifurcated, claim, being he can recover negligence. must es- only damages from as the doctor such it compelled payments tablish was to make Ac- negligence. flow from the doctor’s negligence of benefits because only cordingly, subrogated the insurer is establish, If Stavenger. it can so WSI is he is extent then entitled to reimbursement to the ex- required pay aggravation for negli- tent of those benefits due to the Moreover, original injury by the doctor. gence Stavenger. of Dr. If there is no subrogated the insurer is not for com- any compensation paid evidence pensation required pay he is as a to Toso was for Toso suf- result of the accident which did not arise negligence, fered because of the medical physician. then is entitled to a credit in the Industrial Comm’n v. Standard Insurance $30,016.26 amount of (Co. Co., 149 P.2d Colo. 158 obligated to the future (citations omitted). 1962) my opinion, negli- which are a result of the medical in N.D.C.C. lim gence Stavenger. of Dr. Breitwieser See State, (N.D.1954) iting right those v. injuries (holding dependent “sustained under circumstances that a must refund out creating third-party recovery anything paid, than of her person some other nothing if has been there is but to the fund and the amount

reimbursement

can be claimed as a credit toward future her).

compensation due I would reverse and remand this evidentiary hearing

case for an on whether to Toso is aggravation origi-

attributable to the and,

nal Stavenger

so, the amount. Mary Maring Muehlen

2006 ND 71 BERNABUCCI, Paul Berna

Geraldine

bucci, Mary Bernabucci MacGrath

and John R. Bernabucci and Geral Bernabucci,

dine as Trustees of the

John R. and Bernabucci Geraldine Trust, Remainder

Charitable Co

rey Nyhus, Appellants Plaintiffs and

v.

Harvey Odin, HUBER Jan Appellees.

Defendants and

No. 20050275.

Supreme Court of North Dakota.

April 2006.

Case Details

Case Name: Toso v. Workforce Safety & Insurance

Court Name: North Dakota Supreme Court

Date Published: Apr 3, 2006

Citation: 712 N.W.2d 312

Docket Number: 20050143

Court Abbreviation: N.D.