Industrial Contractors, Inc. v. Workforce Safety & Insurance, 2009 ND 157

Summary

The Supreme Court of North Dakota affirmed a district court judgment upholding Workforce Safety & Insurance's determination that Industrial Contractors failed to comply with statutory notice and posting requirements for its designated medical providers. The court held that N.D.C.C. § 65-05-28.2(5) required both written notice to employees and proper workplace posting, and that failure to satisfy either requirement invalidated the employer's provider selection. As a result, the claimant was permitted to select his own medical provider for treatment of his compensable work injury.

Holdings

1. N.D.C.C. § 65-05-28.2(5) requires an employer to provide written notice to employees and to properly post notice of its designated medical provider selection in a conspicuous manner and in a sufficient number of places to reasonably inform employees of the provider and the statutory treatment requirements. Failure to comply with either notice requirement invalidates the employer's provider selection and permits the employee to make the initial provider selection.
2. WSI did not err by determining that Industrial Contractors' participation or approval under the broader risk-management program did not excuse subsequent noncompliance with the specific notice requirements of N.D.C.C. § 65-05-28.2(5).
3. A reasoning mind reasonably could have found, based on the weight of the evidence in the entire record, that Industrial Contractors failed to comply with the specific notice requirements of N.D.C.C. § 65-05-28.2(5).
4. The Court would not consider Industrial Contractors' arguments concerning compliance with the entire risk-management program, related regulations, or an allegedly incorporated publication because those arguments were not presented in the administrative proceedings and the publication was not part of the record.

Questions Presented

1. Whether N.D.C.C. § 65-05-28.2(5) required Industrial Contractors to provide both written notice to employees and properly displayed workplace notice of its preferred medical provider selection and the requirements for using that provider.
2. Whether WSI properly interpreted and applied N.D.C.C. § 65-05-28.2(5) notwithstanding Industrial Contractors' participation in WSI's broader risk-management program and related regulations.
3. Whether the agency's finding that Industrial Contractors failed to comply with the statutory notice requirements was supported by a preponderance of the evidence.
4. Whether Industrial Contractors' arguments concerning the entire risk-management program and related regulations were preserved for appellate review.

Disposition

affirmed