Provins v. WSI

                                                                               FILED
                                                                       IN THE OFFICE OF THE
                                                                    CLERK OF SUPREME COURT
                                                                         DECEMBER 8, 2022
                                                                     STATE OF NORTH DAKOTA




                  IN THE SUPREME COURT
                  STATE OF NORTH DAKOTA

                                

Cliff Provins,                                                    Appellant
   v.
Workforce Safety and Insurance Fund,                               Appellee
   and
Environmental LLC/Center Coal Co.,                              Respondent

                                No. 20220060

Appeal from the District Court of Stark County, Southwest Judicial District,
the Honorable William A. Herauf, Judge.

AFFIRMED.

Opinion of the Court by Jensen, Chief Justice.

Dean J. Haas, Bismarck, ND, for appellant.

Mitchell D. Armstrong, Bismarck, ND, for appellee.
                               Provins v. WSI
                                No. 20220060

Jensen, Chief Justice.

[¶1] Cliff Provins appeals from a district court judgment affirming an
administrative law judge’s (“ALJ”) decision that affirmed a Workforce Safety
and Insurance (“WSI”) order denying liability for his post-traumatic stress
disorder (“PTSD”) and ending disability benefits in November 2019. We
conclude the ALJ did not err in concluding Provins’s PTSD was not
compensable and a reasoning mind could reasonably conclude his physical
injuries did not cause his PTSD. We affirm.

                                       I

[¶2] In May 2019 Provins sustained injuries to his ribs and chest at work
when a trailer fell on him while he was working underneath it. WSI accepted
his claim for benefits for physical injuries to the scalp, chest and ribs, and
internal organs (liver contusion). Provins was treated for those injuries and
was subsequently diagnosed with PTSD. In August 2020 WSI issued an order
denying benefits in connection with his PTSD and discontinuing disability
benefits as of November 5, 2019. Provins requested an administrative hearing.

[¶3] In April 2021 an ALJ held an evidentiary hearing on the issues of
whether Provins’s PTSD was compensable and whether he was entitled to
disability benefits. In July 2021 the ALJ issued findings of fact, conclusions of
law, and an order affirming WSI’s order. The ALJ determined Provins’s PTSD
was not a compensable injury and discontinued disability benefits after
November 5, 2019.

[¶4] Provins petitioned for reconsideration. In August 2021 the ALJ issued
an order on reconsideration, amending the prior decision to address disability
benefits in the event his PTSD was determined to be compensable on appeal.
The ALJ concluded Provins was not entitled to disability benefits after
November 15, 2019, based on his termination from employment after he had
returned to work following his injury. Provins appealed to the district court,
which affirmed the ALJ’s decision.

                                       1
                                       II

[¶5] “Courts exercise limited appellate review of administrative agency
decisions under the Administrative Agencies Practice Act, N.D.C.C. ch. 28-32.”
State by & through Workforce Safety & Ins. v. Tolman, 

, 

. In an appeal, a reviewing court must affirm an order of an
administrative agency unless:

      1. The order is not in accordance with the law.
      2. The order is in violation of the constitutional rights of the
         appellant.
      3. The provisions of this chapter have not been complied with in
         the proceedings before the agency.
      4. The rules or procedure of the agency have not afforded the
         appellant a fair hearing.
      5. The findings of fact made by the agency are not supported by a
         preponderance of the evidence.
      6. The conclusions of law and order of the agency are not
         supported by its findings of fact.
      7. The findings of fact made by the agency do not sufficiently
         address the evidence presented to the agency by the appellant.
      8. The conclusions of law and order of the agency do not
         sufficiently explain the agency’s rationale for not adopting any
         contrary recommendations by a hearing officer or an
         administrative law judge.

N.D.C.C. § 28-32-46. On appeal from a district court order reviewing an ALJ’s
decision, this Court reviews the ALJ’s decision and not that of the district
court. N.D.C.C. § 28-32-49.

[¶6] “When reviewing an appeal from a final order issued by an independent
ALJ, courts apply the same deferential standard of review to the ALJ’s factual
findings as used for agency decisions.” Tolman, 

 (quoting
Beam v. N.D. Workforce Safety & Ins. Fund, 

, 

); see also State ex rel. Workforce Safety & Ins. v. Questar Energy Servs.,
Inc., 

, 

.

      Recognizing the ALJ had the opportunity to observe witnesses and
      the responsibility to assess the credibility of witnesses and resolve


                                       2
      conflicts in the evidence, in reviewing the ALJ’s findings of fact we
      do not make independent findings or substitute our judgment for
      that of the ALJ; we determine only whether a reasoning mind
      reasonably could have determined the findings were proven by the
      weight of the evidence from the entire record.

Tolman, at ¶ 6 (quoting Beam, at ¶ 14). We do not give deference to an
independent ALJ’s legal conclusions, and questions of law are fully reviewable
on appeal. 

                                      III

[¶7] Provins argues that the physical injuries he suffered when he was
crushed under a trailer are at least 50 percent of the “proximate cause” of his
PTSD, and the PTSD is therefore a “compensable injury” under N.D.C.C. § 65-
01-02(11)(a)(6), formerly codified at N.D.C.C. § 65-01-02(10)(a)(6).

[¶8] A claimant has the burden to prove by a preponderance of evidence that
the claimant has sustained a “compensable injury” and is entitled to workers’
compensation benefits. N.D.C.C. § 65-01-11; State ex rel. Workforce Safety &
Ins. v. Sandberg, 

, 

; Davenport v. Workforce
Safety & Ins. Fund, 

, 

. A claimant must prove
the medical condition for which benefits are sought is causally related to a work
injury. Davenport, at ¶ 13; Bergum v. N.D. Workforce Safety & Ins., 

, 

. To establish this “causal connection,” a claimant must
demonstrate the claimant’s employment was a “substantial contributing
factor” to the disease or injury and need not show the employment was the sole
cause of the injury. Davenport, at ¶ 13; Bruder v. N.D. Workforce Safety & Ins.
Fund, 

, 

.

[¶9] Regarding whether a “compensable injury” includes a “mental or
psychological condition,” N.D.C.C. § 65-01-02(10), at the relevant time,
provided in part:

      “Compensable injury” means an injury by accident arising out of
      and in the course of hazardous employment which must be
      established by medical evidence supported by objective medical
      findings.

                                       3
            a. The term includes:
                  ....
                  (6) A mental or psychological condition caused by a
                  physical injury, but only when the physical injury is
                  determined with reasonable medical certainty to be at
                  least fifty percent of the cause of the condition as
                  compared with all other contributing causes combined,
                  and only when the condition did not pre-exist the work
                  injury.
                  ....
            b. The term does not include:
                  ....
                  (10) A mental injury arising from mental stimulus.

(Emphasis added.)

[¶10] In Davenport, 

, this Court construed N.D.C.C. § 65-01-
02(10)(a)(6) and N.D.C.C. § 65-01-02(10)(b)(10) and explained that the “causal
connection” necessary in this context to establish when a mental or
psychological condition is compensable under the statutory scheme:

             The legislature permits compensation for mental or
      psychological conditions “only when the physical injury is
      determined with reasonable medical certainty to be at least fifty
      percent of the cause of the condition as compared with all other
      contributing causes combined.” N.D.C.C. § 65-01-02(10)(a)(6). A
      compensable injury does not include a “mental injury arising from
      mental stimulus.” N.D.C.C. § 65-01-02(10)(b)(10). The plain
      language of those provisions requires a physical injury to be at
      least 50 percent of the cause of a mental or psychological condition
      and contemplates a comparative assessment of other causes
      contributing to a mental or psychological condition. That language
      authorizes benefits only when at least a 50 percent causal
      connection exists between the claimant’s physical injury and mental
      or psychological condition and does not permit benefits for an
      indeterminate relationship between a claimant’s work situation
      and the claimant’s mental or psychological condition.

(Emphasis added.)




                                       4
[¶11] Under N.D.C.C. § 65-02-08, the legislature authorized WSI to
promulgate and enforce administrative rules necessary to carry out Title 65,
N.D.C.C. WSI has adopted N.D. Admin. Code § 92-01-02-02.5, further
clarifying the requisite “causal connection” under N.D.C.C. § 65-01-02(10)(a)(6)
for when a physical injury is at least 50 percent of the cause of the mental or
psychological condition and defining what the phrase “other contributing
causes” includes. At the time relevant here, N.D. Admin. Code § 92-01-02-02.5
(2018), which WSI adopted to implement N.D.C.C. § 65-01-02, provided:

      As used in subparagraph 6 of subdivision a of subsection 10 of
      North Dakota Century Code section 65-01-02:
           1. “A mental or psychological condition” must be directly
              caused by a physical injury. To be directly caused it must
              be shown with objective medical evidence that the mental
              or psychological condition is the physiological product of
              the physical injury.
           2. “Other     contributing     causes”     include   emotional
              circumstances that generally accompany work-related
              injuries, such as the loss of function, loss of self-esteem,
              loss of financial independence, divorce, loss of career or
              employment position, disruption to lifestyle or family
              units, anxiousness, uncertainty, or compromised ability to
              participate in lifestyles, hobbies, or pastimes.

(Emphasis added.)

                                       A

[¶12] Properly promulgated administrative rules have the force and effect of
law. N.D.C.C. § 28-32-06. An administrative rule that exceeds or supersedes
an agency’s statutory authority or conflicts with the statute it implements,
however, is void or invalid. Sloan v. N.D. Workforce Safety & Ins., 

, 

 (citing N.D. Dep’t of Human Servs. v. Ryan, 

, 

; Little v. Tracy, 

 (N.D. 1993);
Moore v. N.D. Workmen’s Comp. Bureau, 

 (N.D. 1985); Steele
v. N.D. Workmen’s Comp. Bureau, 

 (N.D. 1978)). “Whether
an administrative agency has acted within its statutory authority presents a
question of law, which is fully reviewable on appeal.” Sloan, at ¶ 10.


                                       5
[¶13] An administrative agency is bound by its own duly issued regulations
and has a reasonable range of informed discretion. Martin v. Stutsman Cnty.
Soc. Servs., 

, 

. Administrative regulations,
as derivatives of statutes, are construed under well-established principles for
statutory construction. Sloan, 

. Statutory construction
requires related provisions to be interpreted together, when possible, to
harmonize and give meaning to each provision. See id.; Martin, at ¶ 13.

[¶14] While not identified as a separate issue on appeal, Provins appears to
suggest the phrase “directly caused by” a physical injury in N.D. Admin. Code
§ 92-01-02-02.5 is at odds or inconsistent with the language of N.D.C.C. § 65-
01-02(10)(a)(6), providing compensability for mental or psychological
conditions when the physical injury is at least 50 percent of “the cause of the
condition.” Provins contends WSI’s promulgation of N.D. Admin. Code § 92-01-
02-02.5, requiring proof the “mental or psychological condition is the
physiological product of the physical injury,” alters and grafts additional
language onto the statutory non-compensability subsection, N.D.C.C. § 65-01-
02(10)(b)(10), which only denies mental injury claims arising from mental
stimulus. Provins contends WSI’s rule is inconsistent with the coverage for
mental injuries under N.D.C.C. § 65-01-02(10)(a)(6) and argues the rule’s
wholesale denial of “all” mental injury claims cannot be the legislature’s intent.

[¶15] The plain language of N.D.C.C. § 65-01-02(10)(a)(6) necessarily
contemplates limited compensability for a mental or psychological condition
because “the physical injury” must be determined with reasonable medical
certainty to be at least 50 percent of the “cause of the condition.” As explained
in Davenport, 

, for a mental or psychological condition to be
compensable, N.D.C.C. § 65-01-02(10)(a)(6) “requires a physical injury to be at
least 50 percent of the cause of a mental or psychological condition,”
“contemplates a comparative assessment of other causes contributing to a
mental or psychological condition,” and “authorizes benefits only when at least
a 50 percent causal connection exists between the claimant’s physical injury
and mental or psychological condition.” (Emphasis added.)




                                        6
[¶16] In determining the requisite “50 percent causal connection” for
compensability, WSI’s administrative rule provides the claimant’s physical
injury must “directly cause” the mental or psychological condition. See N.D.
Admin. Code § 92-01-02-02.5(1); see also Davenport, 

. WSI’s
rule clarifies the “at least 50 percent causal connection” required under
N.D.C.C. § 65-01-02(10)(a)(6) does not include indirect or indeterminate causes
of a mental or psychological condition; but rather, to be “directly caused by,”
the “objective medical evidence” must show “the mental or psychological
condition is the physiological product of the physical injury.” N.D. Admin. Code
§ 92-01-02-02.5(1) (emphasis added). Under N.D.C.C. § 65-01-02(10)(a)(6),
therefore, the requisite “50 percent causal connection” that a claimant must
prove focuses on the claimant’s physical injury as the direct cause of the
claimed mental or psychological condition, as opposed to other indirect or
indeterminate causes of the condition.

[¶17] On the basis of our review, and consistent with our Davenport decision,
we conclude the phrase “directly caused by,” as used in N.D. Admin. Code § 92-
01-02-02.5, is not at odds or inconsistent with the “cause of the condition”
language in N.D.C.C. § 65-01-02(10)(a)(6), for purposes of determining
compensability.

                                       B

[¶18] Provins argues that his PTSD is a compensable mental injury arising
from his physical injury, rather than a noncompensable mental injury arising
from mental stimulus.

[¶19] Provins asserts that he did not experience a mere mental stimulus
unconnected to a physical injury and that N.D.C.C. § 65-01-02(10)(a)(6)
provides coverage for mental injury “caused by a physical injury.” He argues
that, when read together and harmonized, the clear meaning of the statutes is
to exclude coverage “only when there is no underlying physical injury” that is
the proximate cause of the mental injury. He asserts that this interpretation is
consistent with the WSI’s expert’s “initial” opinion and that his PTSD was
triggered by an ensuing “cortisol rush” when he was crushed and pinned



                                       7
underneath a heavy trailer. He asserts the crush injury is the “proximate
cause” of the nightmares and episodic flashbacks that is PTSD.

[¶20] Provins further argues that he and the doctors have not identified any
separate mental stressors severable from his physical injury that contributed
to his PTSD and that WSI’s re-focusing on the injuries “in and of themselves”
is not a valid legal theory. He asserts that the evidence shows his physical
crush injury is not simply incidental and that he would not have developed
PTSD apart from the crush injury. He contends that the question is whether
the physical injury is the “proximate cause” of the mental injury and that his
PTSD is compensable because the physical injury caused him to suffer the
nightmares and episodic flashbacks.

[¶21] WSI responds, however, that Provins’s position would result in
compensability of mental or psychological conditions whenever there is a “non-
incidental physical injury” and the mental or psychological condition is at least
50 percent caused by the mere fact a work event occurred. WSI asserts that
there is no dispute Provins’s claimed physical injuries have resolved and he no
longer claims entitlement to any benefits, except in relation to PTSD; in other
words, there no longer remains any physical injury.

[¶22] Here, the ALJ found there was no dispute that Provins suffers from
PTSD or that his PTSD was caused by the work incident. The ALJ correctly
observed, however, that the issue is whether his PTSD was caused by his
physical injuries. In resolving this issue, the ALJ addressed the two specific
arguments presented by Provins: 1) that his PTSD was caused by the physical
injuries because it is impossible to separate the physical injuries from the
PTSD; and 2) that PTSD is a physical injury to the brain because it alters the
pathways between the amygdala, cingulate cortex, and hippocampus. The ALJ
ultimately found that Provins’s physical injuries did not cause his PTSD,
explaining as follows:

             Absent finding PTSD a physical injury, the physical injuries
      suffered by Provins include a scalp contusion, contusion and strain
      of the thorax, rib injuries, and a contusion of the liver. While
      differing on the phraseology, the doctors providing opinions in this


                                       8
      case all agreed PTSD is caused by exposure to a life-threatening
      incident. There is no dispute that the life-threatening event which
      triggered the PTSD and the physical injuries such as broken ribs
      and liver contusion stem from work incident—Provins being
      caught under a 2,000 pound trailer. However, the greater weight
      of the evidence does not show that the PTSD was caused by the
      actual physical injuries. In other words, Provins would likely still
      have PTSD even if he did not suffer broken ribs and contusion of
      the liver.
             Regarding Provins[’s] second argument, neither statute, nor
      WSI’s rules, define the term “physical injury.” According to
      [Provins’s expert Dr.] Swenson, the “physical injury” would be
      damage to the amygdala, cingulate cortex, and hippocampus and
      the pathways between those parts of the brain. The evidence of
      this damage are the symptoms Provins suffers. When applying the
      definition of a compensable injury to this case, it’s clear the
      “mental or psychological condition” is PTSD. Interpreting the
      damage to the brain as the statutorily required “physical injury”
      would mean PTSD is always compensable. . . . If the legislature
      intended to consider PTSD, or similar mental and psychological
      conditions, a physical injury, there would be no need for N.D.C.C.
      §§ 65-01-[02](11)(a)(6) and 65-01-[02](11)(b)(10) [formerly N.D.C.C.
      §§ 65-01-02(10)(a)(6) and 65-01-02(10)(b)(10)]. Clarity could be
      provided to the statute by defining the term “physical injury.”
      However, the legislature chose to use two terms and for each term
      to have meaning, the terms must mean something different.
      “Physical injury” must refer to an injury other than the “mental or
      psychological condition.”

The ALJ held Provins’s PTSD was not compensable because the ALJ found his
physical injuries—i.e., scalp contusion, broken ribs, and liver contusion—did
not cause his PTSD. The ALJ concluded the law requires a link to the physical
injury and not merely the work incident. The ALJ found Provins failed to
establish with sufficient medical evidence that his physical injuries caused his
PTSD.

[¶23] Although Provins claims on appeal that his physical injuries need only
be a “proximate cause” of his PTSD, the requisite “causal connection” under
N.D.C.C. § 65-01-02(10)(a)(6) requires his physical injuries to be at least 50
percent of the cause of his PTSD, contemplating a comparative assessment of

                                       9
other causes contributing to his PTSD. See Davenport, 

. In
establishing “at least a 50 percent causal connection,” N.D. Admin. Code § 92-
01-02-02.5 provides his physical injuries must “directly cause” his PTSD,
meaning “objective medical evidence” must show his PTSD is the physiological
product of his physical injuries.

[¶24] Provins essentially asks this Court to reweigh the evidence about the
“causal connection” between his physical injuries and his PTSD. On this record
and under our deferential standard of review, we conclude a reasoning mind
reasonably could conclude Provins failed to establish the requisite causal
connection between his physical injuries and his PTSD, as compared with all
other contributing causes. We conclude the ALJ’s findings are supported by a
preponderance of the evidence and support the ALJ’s conclusion denying his
claim for benefits for his PTSD. We affirm WSI’s denial of Provins’s claim for
benefits for his PTSD.

                                      IV

[¶25] Provins argues that he is entitled to disability benefits because he was
terminated at a time he was not medically released for work and for pretextual
reasons. Section 65-05-08, N.D.C.C. (2018), addresses disability benefits,
providing in relevant part:

      6. It is the burden of the employee to show that the inability to
         obtain employment or to earn as much as the employee earned
         at the time of injury is due to physical limitation related to the
         injury, and that any wage loss claimed is the result of the
         compensable injury.
      7. If the employee voluntarily limits income or refuses to accept
         employment suitable to the employee’s capacity, offered to or
         procured for the employee, the employee is not entitled to
         disability or vocational rehabilitation benefits during the
         limitation of income or refusal to accept employment unless the
         organization determines the limitation or refusal is justified.

[¶26] Provins argues WSI’s order is conclusory and offers little explanation of
the actual grounds used to deny disability benefits. He rejects that his
disability is caused by a noncompensable PTSD, contending that if his PTSD

                                       10
is compensable, he is entitled to disability because his doctor had taken him
off work in October 2019 because of his PTSD. Provins further contends he was
not terminated from his employment for cause and was terminated for
pretextual reasons. He asserts his termination in November 2019 occurred
before he had been medically released for work and his employer had confirmed
it had no work for him. He asserts his termination in the midst of total
disability from PTSD is a “subterfuge defense” to nonpayment of disability to
which he is entitled.

[¶27] Here, because the ALJ initially concluded Provins’s PTSD was not
compensable, the ALJ did not address whether he was entitled to benefits after
November 2019 due to his termination from employment. In the ALJ’s
subsequent order on reconsideration, the ALJ reiterated that this issue is moot
but may be relevant if his PTSD is held to be compensable on appeal. The ALJ
found the greater weight of the evidence establishes Provins voluntarily
limited his income and his termination for cause in November 2019 “was not
related to his work injury or work restrictions.” The ALJ found the termination
was because of his ongoing issues with his previous supervisor.

[¶28] Because we affirm the ALJ’s conclusion that Provins’s PTSD is not
compensable, we therefore agree with the ALJ’s determination that this issue
is moot.

                                      V

[¶29] We have considered Provins’s remaining arguments and conclude they
are either without merit or unnecessary to our decision. The judgment is
affirmed.

[¶30] Jon J. Jensen, C.J.
      Gerald W. VandeWalle
      Daniel J. Crothers
      Lisa Fair McEvers
      Jerod E. Tufte




                                      11