Beam v. N. Dakota Workforce Safety & Ins. Fund

946 N.W.2d 486

Gregory BEAM, Appellee

v. NORTH DAKOTA WORKFORCE SAFETY AND INSURANCE FUND, AppellantandGagnon, Inc., Respondent

No. 20200067

Supreme Court of North Dakota.

Filed July 22, 2020

Rehearing Denied August 27, 2020

Stephen D. Little, Bismarck, ND, for appellee.

Jacqueline S. Anderson, Special Assistant Attorney General, Fargo, ND, for appellant.

VandeWalle, Justice.

[¶ 1] North Dakota Workforce Safety and Insurance (WSI) appealed from a district court judgment reversing an administrative law judge's (ALJ) decision terminating Gregory Beam's benefits. We reverse the district court judgment and reinstate the ALJ's decision.

I

[¶ 2] Beam was injured in 2016 while working for his employer, Gagnon, Inc. (Gagnon), installing sheets of metal. Beam applied for workers compensation benefits with WSI, and WSI accepted Beam's claim. At the time Beam applied for workers compensation benefits, Gagnon submitted a job description for machinist as Beam's position with the company at the time of his injuries.

[¶ 3] In 2018, Beam completed a "Functional Capacity Evaluation." The evaluation identified Beam could occasionally climb ladders and kneel, but was unable to crouch or crawl. After completion of the evaluation, WSI identified Beam's transferable skills and physical capabilities. WSI determined Beam's pre-injury occupation was that of a sheet metal worker, not a machinist as submitted by Gagnon. WSI forwarded a list of job descriptions to Beam's treating physician, Dr. Kelly, for approval. The descriptions sent to Dr. Kelly were from the Dictionary of Occupational Titles (DOT). Included in the list of jobs were machinist and sheet metal worker. The machinist description read:

Set up and operate a variety of machine tools to produce precision parts and instruments. Includes precision instrument makers who fabricate, modify, or repair mechanical instruments. May also fabricate and modify parts to make or repair machine tools or maintain industrial machines, applying knowledge of mechanics, shop mathematics, metal properties, layout, and machining procedures.

The description also stated the position required "[o]ccasional stooping, kneeling and crouching." The job description of a sheet metal worker as provided in the DOT read:

Fabricate, assemble, install, and repair sheet metal products and equipment, such as ducts, control boxes, drainpipes, and furnace casings. Work may involve any of the following: setting up and operating fabricating machines to cut, bend, and straighten sheet metal; shaping metal over anvils, blocks, or forms using hammer; operating soldering and welding equipment to join sheet metal parts; or inspecting, assembling, and smoothing seams and joints of burred surfaces. Includes sheet metal duct installers who install prefabricated sheet metal ducts used for heating, air conditioning, or other purposes.

The description stated the physical requirements of a sheet metal worker were "[f]requent stooping, handling and reaching & occasional fingering." Dr. Kelly did not approve Beam returning to work as a machinist, stating, "I don't think the knee will tolerate the potential kneeling." Dr. Kelly did approve Beam returning to work as a sheet metal worker. Based on Dr. Kelly's approval for Beam to return to work as a sheet metal worker, WSI determined Beam could return to work in the same occupation, any employer, and discontinued Beam's benefits.

[¶ 4] After a hearing was held, an ALJ issued findings of fact and conclusions of law affirming WSI's termination of Beam's benefits. In finding of fact thirteen, the ALJ found the job description of a machinist as stated in the DOT did not match Beam's pre-injury profession. Rather, the ALJ found the preponderance of the evidence established Beam's "occupation was that of ‘sheet metal worker’, as defined in the DOT." The ALJ also found the occupation of sheet metal worker did not require kneeling or climbing ladders, and Beam possessed the necessary skills to perform the occupation of sheet metal worker. The ALJ found the preponderance of the evidence established Beam could return to the occupation of sheet metal worker, but could not return to his pre-injury position with Gagnon. The ALJ concluded WSI met its burden of proving Beam could return to the same occupation as a sheet metal worker with any employer.

[¶ 5] Beam appealed the ALJ's decision to the district court. On appeal to the district court, Beam argued the ALJ erred in relying on the DOT description of sheet metal worker contending the description did not include an accurate list of physical requirements of a sheet metal worker and the description had not been updated since 1988. In his specification of error, Beam did not list the ALJ's finding of fact thirteen that Beam was a sheet metal worker and not a machinist as error. The district court determined the ALJ's findings of fact were not supported by a preponderance of the evidence and reversed the ALJ's decision.

[¶ 6] On appeal, WSI argues the district court erred in reversing the ALJ's findings of fact and conclusions of law because the ALJ could reasonably conclude Beam could return to work as a sheet metal worker in a position other than his pre-injury position with Gagnon. WSI also argues the district court erred by considering the ALJ's finding of fact thirteen when the finding was not listed in Beam's specification of error.

II

[¶ 7] The Administrative Agencies Practice Act requires a party who appeals from an administrative hearing officer's decision to file a notice of appeal and specifications of error. N.D.C.C. § 28-32-42(4). A party appealing a hearing officer's decision must file "reasonably specific" specifications of error detailing which matters are at issue, so as to alert the agency, other parties, and the court of the particular errors claimed. Midthun v. N.D. Workforce Safety & Ins. , 2009 ND 22, ¶ 7, 761 N.W.2d 572. Boilerplate specifications of error which are general enough to apply to any administrative agency appeal are not tolerated by this Court, and are ripe for dismissal. Id. When a party does not enumerate an issue in their specifications of error, we will not consider the issue on appeal. Id.

[¶ 8] WSI argues that because Beam did not specify the ALJ's finding of fact thirteen as error, he could not challenge the DOT description of a sheet metal worker. A careful reading of finding of fact thirteen does not support WSI's argument.

[¶ 9] In finding of fact thirteen, the ALJ found:

The job description for "machinist" provided by Gagnon, Inc. does not match what Mr. Beam said that he has done all of his career, including when working for Gagnon. Nor does the DOT description provided to Dr. Kelly by WSI. There is no evidence in the record that Mr. Beam was ever involved in producing precision parts and instruments. The preponderance of the evidence establishes that Mr. Beam's occupation was that of "sheet metal worker", as defined in the DOT.

[¶ 10] Finding thirteen does not discuss the physical requirements of either a machinist or sheet metal worker. The finding merely references the duties performed by a machinist and a sheet metal worker and states that the work duties Beam performed with Gagnon aligned more with those of a sheet metal worker than those of a machinist. This is best evidenced by the ALJ's statement that "[t]here is no evidence in the record that Mr. Beam was ever involved in producing precision parts and instruments." Finding thirteen simply concludes Beam's occupation was that of a sheet metal worker, based on the described job duties in the DOT, and not a machinist.

[¶ 11] On appeal, Beam has stated he was not a machinist with Gagnon, and agrees with finding of fact thirteen. Beam does not challenge the DOT description of the duties of a sheet metal worker. Beam does, however, challenge the physical requirements of a sheet metal worker as listed in the DOT. Yet, WSI argues that because Beam did not specify finding of fact thirteen in his specification of error, he cannot challenge the DOT description in any manner on appeal. Beam agrees with the job duties of a sheet metal worker as described in the DOT but disagrees with the physical requirements of a sheet metal worker as described in the DOT. WSI has offered no compelling argument why Beam cannot challenge the physical requirements of a sheet metal worker as listed in the DOT without challenging the entire DOT description.

[¶ 12] Furthermore, the district court did not rely on finding thirteen in reversing the ALJ's decision or conclude finding thirteen was not supported by the evidence. The district court referred to Beam as a sheet metal worker throughout its order. The court's reversal of the ALJ's decision was based on its belief that the physical requirements of a sheet metal worker as described in the DOT were not supported by the evidence, not that Beam was not a sheet metal worker or the job duties of a sheet metal worker as described in the DOT were not supported by the evidence. By deciding not to challenge finding of fact thirteen—referencing the job duties of a machinist and sheet metal worker—in his specification of error, Beam did not waive his arguments challenging the ALJ's findings relating to the physical requirements of a sheet metal worker.

III

[¶ 13] Courts exercise limited appellate review of decisions of an administrative agency under the Administrative Agencies Practice Act, N.D.C.C. ch. 28-32. Bishop v. N.D. Workforce Safety & Ins. , 2012 ND 217, ¶ 5, 823 N.W.2d 257. Under N.D.C.C. §§ 28-32-46 and 28-32-49, the district court and this 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

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