FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
AUGUST 4, 2022
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2022 ND 159
Robert Procive, Appellant
v.
North Dakota Workforce Safety and Insurance Fund, Appellee
No. 20220067
Appeal from the District Court of Stutsman County, Southeast Judicial
District, the Honorable Cherie L. Clark, Judge.
AFFIRMED.
Opinion of the Court by VandeWalle, Justice.
Stephen D. Little, Bismarck, ND, for appellant.
Mitchell D. Armstrong (argued) and Jon C. Lengowski (on brief), Special
Assistant Attorneys General, Bismarck, ND, for appellee.
Procive v. WSI
No. 20220067
VandeWalle, Justice.
[¶1] Robert Procive appealed from a district court judgment dismissing his
appeal from an Administrative Law Judge’s (“ALJ”) order affirming a
Workforce Safety and Insurance (“WSI”) decision denying his claim for benefits
and the ALJ’s order denying his request for reconsideration. Procive argues the
district court erred by dismissing his appeal. We affirm, concluding the district
court did not have jurisdiction.
I
[¶2] In April 2020, Procive submitted a first report of injury to WSI, claiming
he suffered from carpal tunnel syndrome (“CTS”). He alleged the injuries were
repetitive work injuries to both wrists, elbows, and shoulders resulting from
repetitive digging, hammering, and driving stakes, steel posts, and iron rods
into frozen ground, pavement, packed gravel, and regular ground. He
referenced three prior worker’s compensation claims. He alleged the date of
injury was March 8, 2000, the accident happened in Belfield, and he notified
his employer on March 10, 2000.
[¶3] In May 2020, Procive submitted another first report of injury and then a
revised first report of injury, claiming he suffered from CTS, pain, numbness,
and loss of strength in his wrists, hands, elbows, shoulders, and back. He
alleged the date of injury was “2000 & prior,” and the injury happened when
hammering stakes and iron rods into the ground and pavement. He claimed
that the injury occurred in western North Dakota and that he notified his
employer of the injury in November 2004 and October 2016.
[¶4] In October 2020, WSI accepted liability for Procive’s right CTS. WSI
denied liability for Procive’s left CTS claim, determining the claim was not
timely filed or, alternatively, Procive failed to establish his left CTS was a
compensable injury. Procive requested an administrative hearing on WSI’s
decision denying liability for his left CTS.
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[¶5] In March 2021, WSI issued an order reversing its acceptance of liability
for Procive’s right CTS and denying the claim, determining Procive willfully
made false statements about whether he had prior injuries or treatment. WSI
ordered Procive to repay past benefits he received. WSI later amended the
order to modify the amount it ordered Procive to repay. Procive requested an
administrative hearing, arguing he is entitled to benefits for his bilateral CTS
and he did not willfully and intentionally make false statements about his
CTS.
[¶6] After a hearing, the ALJ affirmed WSI’s decisions denying coverage for
Procive’s right and left CTS and ordering repayment of benefits. Procive
petitioned for reconsideration, and the ALJ denied his petition.
[¶7] Procive appealed to the district court in Stutsman County. WSI moved to
dismiss the appeal, arguing the district court lacked subject matter jurisdiction
because Procive was required to file his appeal in the county where the injury
occurred or the county where he resides. Procive opposed WSI’s motion,
arguing his injury was a progressive injury occurring over the course of his
career and he worked throughout the state during his career, including
Stutsman County. He also filed an affidavit stating he performed work during
his career in numerous counties in North Dakota, including Stutsman County.
The district court granted WSI’s motion and dismissed the appeal, concluding
it did not have jurisdiction.
II
[¶8] Procive argues the district court erred by dismissing his appeal. He
contends the court had jurisdiction because N.D.C.C. § 65-10-01 requires an
appeal to be filed in the county where the injury was inflicted, CTS is a
progressive injury caused by everyday work activities, and he has worked in at
least 37 different counties in the state, including Stutsman County.
[¶9] An appeal from an administrative agency to the district court is governed
by statute. Ouradnik v. Henke, 2020 ND 39, ¶ 14,
938 N.W.2d 392. The
appellant must meet the statutory requirements for perfecting an appeal for
the district court to obtain subject matter jurisdiction over the appeal.
Id.
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Whether the district court had subject matter jurisdiction is a question of law
when jurisdictional facts are not in dispute. Decker v. Workforce Safety and
Ins., 2021 ND 117, ¶ 14,
962 N.W.2d 388. However, when jurisdictional facts
are disputed, the district court’s decision involves findings of fact and
conclusions of law, which is a mixed question of law and fact. Lavallie v. Jay,
2020 ND 147, ¶ 5,
945 N.W.2d 288. When there is a mixed question of law and
fact, we review the questions of law de novo on appeal and the findings of fact
under the clearly erroneous standard of review.
Id. A finding is clearly
erroneous when there is no evidence to support it, it is induced by an erroneous
view of the law, or if, upon review of the entire record, this Court believes a
mistake has been made. Gustafson v. Poitra,
2018 ND 202, ¶ 6,
916 N.W.2d
804.
[¶10] Section 65-10-01, N.D.C.C., authorizes appeals from certain WSI
decisions and designates the district court in which the appeal may be brought,
stating the claimant “may appeal to the district court of the county wherein
the injury was inflicted or of the county in which the claimant resides.” The
claimant has the burden to show the district court has jurisdiction when
appealing, and the claimant can do that by proof of the location of his residence
or by proof of where the injury occurred. Boyko v. N.D. Workmen’s Comp.
Bureau,
409 N.W.2d 638, 640 (N.D. 1987).
[¶11] Procive had the burden to show he either resides or the injury was
inflicted in Stutsman County for the district court to have subject matter
jurisdiction. It is undisputed that Procive does not reside in Stutsman County.
However, the issue of whether the injury was inflicted in Stutsman County is
disputed, and therefore the issue is a mixed question of law and fact.
[¶12] The district court found Procive resides in Stark County, Procive
indicated in the first reports of injury that he lives in Belfield and the injury
occurred in “western ND,” the evidence presented at the administrative
hearing did not indicate the injury occurred in Stutsman County, and all the
claim file information and other evidence referred to work performed and
medical treatment received somewhere other than Stutsman County. The court
also found Procive’s affidavit indicated he performed work in Stutsman County
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during his career, but he did not explain how much work or what type of work
or how often he performed work in Stutsman County, he did not identify any
evidence in the record indicating any work performed in Stutsman County
resulted in the injury, and his affidavit does not establish the injury was
inflicted in Stutsman County. The court said Procive asserted through his
claim forms where the injury occurred, and it was inconsistent for him to now
claim the injury occurred in Stutsman County.
[¶13] The evidence supports the district court’s findings. None of Procive’s first
reports of injury for any of the claims he submitted related to this case or prior
claims list Stutsman County as the location where the injury occurred. Procive
alleged in the first reports of injury for the current claims that the injuries
occurred in Belfield and western North Dakota. It is inconsistent to now claim
the injury was inflicted in Stutsman County. See Boyko, 409 N.W.2d at 641 n.4
(stating it was inconsistent for the claimant to claim he did not know where he
was injured when he asserted in his first claim form that the injury occurred
in Trotters and in his second claim form that the injury occurred near Devils
Lake).
[¶14] Although Procive alleged in response to WSI’s motion to dismiss that he
worked in numerous counties, including Stutsman County, and he filed an
affidavit in support; he failed to present sufficient evidence to establish the
injury was inflicted in Stutsman County. Procive claimed in his affidavit that
he performed work in various counties during his career as a professional land
surveyor, including Stutsman County, and that his work consisted of keyboard
use and using heavy hammers and bars to pound markers into frozen ground,
gravel, and pavement. Procive stated that he listed his Belfield address as the
location of the injury in his April 18, 2020 first report of injury because his
office was located there and he was unsure where or when the progressive
injury took place. He also asserted that he filed another first report of injury
for the progressive injury on May 7, 2020, stating the injury occurred in North
Dakota.
[¶15] However, these claims were not sufficient to establish his injury was
inflicted in Stutsman County. Procive did not claim the injury occurred in
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Stutsman County until after WSI moved to dismiss his appeal. Even then, he
claimed he performed work at some point during his career in Stutsman
County among numerous other places. He provided very little information
about his work in Stutsman County other than his general assertion that he
performed work there during his career. The evidence supports the district
court’s finding that Procive failed to establish the injury was inflicted in
Stutsman County.
[¶16] Procive had the burden to show the district court had jurisdiction, and
he failed to present evidence showing the injury was inflicted in Stutsman
County. The appeal was not filed in the county in which Procive resides or in
which the injury was inflicted. We therefore conclude the district court did not
have jurisdiction and did not err in dismissing the appeal.
[¶17] We recognize that Procive alleges his claim was for a progressive injury
and that it may be difficult to identify the county in which a progressive injury
was inflicted. N.D.C.C. § 65-10-01. It is for the legislature to modify statutes to
resolve the problems that arise when specific injuries do not fit within the
current statutory requirements. See, e.g., N.D.C.C. § 65-01-02(11)(a)(3) (stating
the term compensable injury includes injuries due to a heart attack when
caused by the employee’s employment and unusual stress); see also Grace v.
N.D. Workmen’s Comp. Bureau, 395 N.W.2d 576, 579-80 (N.D. 1986)
(explaining the legislature modified the statute to clarify when heart attacks
are a compensable injury); Satrom v. N.D. Workmen’s Comp. Bureau,
328
N.W.2d 824, 828 (N.D. 1982) (explaining the legislature modified the statute
and specifically limited its amendment to cases of heart attack and stroke).
However, if there is a problem identifying the county where the injury was
inflicted, an appeal may be brought in the county in which the claimant
resides. In this case, Procive could have filed his appeal in the district court in
the county in which he resides.
III
[¶18] Because the district court did not err in dismissing Procive’s appeal, we
will not consider the remaining issues he raised on appeal. We affirm the
judgment.
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[¶19] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Lisa Fair McEvers
Jerod E. Tufte
I concur in the result.
Daniel J. Crothers
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