Filed 3/19/20 by Clerk of Supreme Court


### IN THE SUPREME COURT STATE OF NORTH DAKOT A

2020 ND 61

SAEJ Enterprises, LLC, Appellant

v. State of North Dakota, by and through
Wo rkforce Safety and Insurance, Appellee

No. 20190370

Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Gail Hagerty , Judge.

AFFIRMED

. Per Curiam

. Jacqueline S. Anderson, Fargo, ND , for appellee; submitted on brief.

Dean J. Haas, Bismarck, ND , for appellant; sub mitted on brief.2 SAEJ Enterprises v. WSI No. 20190370

Per Curiam

. [¶1] SAEJ Enterprises appeals a district court judgment affirming an administrative law judge (“ALJ”) decision that affirmed a Workforce Safety and Insurance (“WSI”) order determining SAEJ is an employer and liable for workers ’ compensation premium. SAEJ argues the ALJ did not reasonably determine the workers serving as fill

- in (relief) pumpers were SAEJ’s employees, rather than independent contractors.
[¶2] “Whether a w orker is an independent contractor or an employee is a mixed question of fact and law.” Workforce Safety & Ins. v. Larry’s On Site Welding , 2014 ND 81, ¶ 14, 845 N.W.2d 310 (quoting Matter of BKU Enters., Inc. , 513 N.W.2d 382, 387 (N.D.1994)). “In review ing a mixed question of fact and law, the underlying predicate facts are treated as findings of fact, and the conclusion whether those facts meet the legal standard is a question of law.” Larry’s On Site Welding , at ¶ 14. “Whether an employer has retaine d the right to direct and control the services performed by workers is a finding of fact.” Id. (quoting BKU Enters., at 387) ; see also Workforce Safety & Ins. v. Questar Energy Servs., Inc. , 2017 ND 241, ¶ 9 , 902 N.W.2d 757

. Here, t he ALJ made speci fic f indings on the predicate facts and considered the common

- law test and twenty factors under N.D. Ad min. Code § 92

- 01

- 02

- 49(1) to determine whether a person is an independent contractor or an employee. See N .D.C.C. § 65

- 01

- 03(1).
[¶3] On this record , the ALJ’s findings of fact are supported by a preponde rance of the evidence, in that a reasoning mind reasonably could have determined the findings were proven by the weight of the evidence from the entire record; and t he ALJ’s conclusions of law and decis ion are supported by its findings of fact

. See N.D.C.C. §§ 28

- 32

- 46(5), (6), and 28

- 32

- 49 ; Power Fuels, Inc. v. Elkin , 283 N.W.2d 214, 220 (N.D. 1979). We summarily affir m under N.D.R.App.P. 35.1(a)(5) and (7) ; see Larry’s On Site Welding , 2014 ND 81, ¶ ¶ 1, 21

- 23 , 845 N.W.2d 310 ( affirming ALJ’s order finding welders were independent contractors when its findings of fact we re supported by a3 preponderance of the evidence and its conclusions of law we re supported by the facts) ; see also Questar Energy Servs

. , 2017 ND 241, ¶¶ 1 , 10, 16

- 18, 902 N.W.2d 757 (affirming ALJ’s decision reclassifying employees when its underlying factual conclusions we re supported by a preponderance of the evidence and its legal conclusion of t he employees’ classification wa s supported by its factual findings).
[¶4] Jon J. Jensen , C.J. Jerod E. Tufte Daniel J. Crothers Lisa Fair McEvers Gerald W. VandeWalle