Filed 10/21/20 by Clerk of Supreme Court

IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2020 ND 223

State of North Dakota, by and through 

Workforce Safety and Insurance, Appellant

v.

Jason E. Tolman, Respondent

No. 20200025

Appeal from the District Court of Dunn County, Southwest Judicial District, 

the Honorable Rhonda R. Ehlis, Judge.

AFFIRMED IN PART, REVERSED IN PART, AND REINSTATED.

Opinion of the Court by VandeWalle, Justice.

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

appellant.

Jason E. Tolman, respondent; no appearance.
1

WSI v. Tolman

No. 20200025

VandeWalle, Justice.

[¶1] Workforce Safety and Insurance (“WSI”) appealed from a district court 

judgment affirming an administrative law judge’s (“ALJ”) order that affirmed

WSI’s April 2018 order awarding permanent impairment benefits to Jason 

Tolman and that reversed WSI’s July 2018 order denying benefits for his 

depression and anxiety conditions. We conclude the ALJ erred in applying 

N.D.C.C. § 65-01-02(10)(a)(6) and concluding Tolman established his 

depression and anxiety conditions were compensable. We affirm that part of 

the ALJ’s order affirming WSI’s April 2018 order; but we reverse that part of 

the ALJ’s order reversing WSI’s July 2018 order, and we reinstate WSI’s July 

2018 order.

I

[¶2] In September 2014, Tolman was injured when he was driving a tanker 

truck and involved in a single vehicle roll-over accident. WSI accepted his claim 

for benefits. In April 2018, WSI issued an order awarding Tolman $4,905 in 

permanent impairment benefits based on a determination that he had 

sustained a 16 percent impairment of the whole body. In July 2018, WSI issued 

an order denying benefits in connection with his depression and anxiety,

deciding these conditions were not caused by his physical injury and existed 

before the work injury. Tolman requested an administrative hearing on the 

orders, and a hearing was held before an independent ALJ in April 2019. 

[¶3] In May 2019, the ALJ issued findings of fact, conclusions of law, and an 

order. In the order, the ALJ affirmed WSI’s April 2018 order awarding 

permanent impairment benefits. The ALJ, however, reversed WSI’s July 2018 

order. The ALJ concluded a preponderance of the evidence established that

Tolman’s physical injury was at least 50 percent of the cause of his mental or 

psychological condition as compared with all other contributing causes and 

established that his depression and anxiety following his work accident are not 

“attributable” to depression and anxiety that he had previously experienced.
2

The ALJ held Tolman had proven his depression and anxiety were

compensable psychological conditions under North Dakota workers 

compensation laws.

[¶4] WSI requested reconsideration of the ALJ’s May 2019 order, which the 

ALJ denied. In July 2019, WSI appealed the ALJ’s decision to the district court. 

In November 2019, the court issued a memorandum opinion and order 

affirming the ALJ’s order, and judgment was entered.

II

[¶5] Courts exercise limited appellate review of administrative agency 

decisions under the Administrative Agencies Practice Act, N.D.C.C. ch. 28-32. 

Beam v. N.D. Workforce Safety & Ins. Fund, 2020 ND 168, ¶ 13, 946 N.W.2d 

486. 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 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. See N.D.C.C. § 28-32-49.
3

[¶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.” Beam, 2020 ND 168, ¶ 14; see also State 

ex rel. Workforce Safety & Ins. v. Questar Energy Servs., Inc., 2017 ND 241, ¶ 

7, 902 N.W.2d 757. “Recognizing the ALJ had the opportunity to observe 

witnesses and the responsibility to assess the credibility of witnesses and 

resolve 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.” Beam, at ¶ 14 (quoting Bishop v. N.D. Workforce Safety & Ins., 

2012 ND 217, ¶ 6, 823 N.W.2d 257) (internal quotation marks omitted). We do 

not give deference to an independent ALJ’s legal conclusions. Id. Questions of 

law are fully reviewable on appeal. Id.

III

[¶7] No issue has been raised on appeal regarding WSI’s April 2018 order 

regarding the permanent impairment award. Tolman did not cross-appeal and 

has not filed a brief on appeal. We therefore affirm the ALJ’s order to the extent 

it affirmed WSI’s April 2018 order. 

[¶8] WSI argues that the ALJ erred in determining that Tolman had 

established his depression and anxiety were compensable conditions by failing 

to properly apply N.D.C.C. § 65-01-02(10)(a)(6) when those conditions preexisted the work injury. WSI further argues the ALJ did not properly analyze 

the evidence under the applicable law in determining compensability of 

Tolman’s mental and psychological condition. 

[¶9] The dispositive issue in this appeal is whether the ALJ misconstrued 

N.D.C.C. § 65-01-02(10)(a)(6), which is now codified at N.D.C.C. § 65-01-

02(11)(a)(6). Statutory interpretation presents a question of law. Vail v. S/L 

Servs., Inc., 2017 ND 202, ¶ 12, 900 N.W.2d 271; Mosser v. Denbury Res., Inc., 

2017 ND 169, ¶ 13, 898 N.W.2d 406. “The primary objective in interpreting 

statutes is to determine legislative intent, and that intent initially must be 

sought from the language of the statute.” Vail, at ¶ 12 (citing Mosser, at ¶ 13). 
4

Statutory provisions “are to be construed liberally, with a view to 

effecting its objects and to promoting justice.” N.D.C.C. § 1-02-01. 

Statutory provisions are given their plain, ordinary, and commonly 

understood meaning unless a contrary intention plainly appears. 

N.D.C.C. § 1-02-02. Words and phrases are construed according to 

the context in which they are used and technical words defined by 

statute must be construed according to the definition. N.D.C.C. § 

1-02-03. Statutes are construed as a whole and harmonized to give 

meaning to related provisions. N.D.C.C. § 1-02-07. Statutes are 

construed to give effect to all of their provisions so no part of a 

statute is rendered inoperative or superfluous. N.D.C.C. § 1-02-

38(2) and (4). “When the wording of a statute is clear and free of 

all ambiguity, the letter of it is not to be disregarded under the 

pretext of pursuing its spirit.” N.D.C.C. § 1-02-05. If the language 

of a statute is ambiguous or of doubtful meaning, however, a court 

may resort to extrinsic aids to determine the intention of the 

legislation, including the object sought to be obtained, the 

circumstances under which the statute was enacted and the 

legislative history. N.D.C.C. § 1-02-39. “A statute is ambiguous if 

it is susceptible to differing but rational meanings.” Mosser, at 

¶ 13.

Vail, at ¶ 12. 

[¶10] Section 65-01-02(10), N.D.C.C., defined “compensable injury” for 

purposes of awarding benefits, stating in relevant 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.

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 preexist the work injury.

b. The term does not include:

. . . .
5

(7) Injuries attributable to a preexisting injury, disease, or 

other condition, including when the employment acts as a 

trigger to produce symptoms in the preexisting injury, 

disease, or other condition unless the employment 

substantially accelerates its progression or substantially 

worsens its severity. Pain is a symptom and may be 

considered in determining whether there is a substantial 

acceleration or substantial worsening of a preexisting injury, 

disease, or other condition, but pain alone is not a 

substantial acceleration or a substantial worsening.

(Emphasis added.) See Davenport v. Workforce Safety & Ins. Fund, 2013 ND 

118, ¶ 17, 833 N.W.2d 500 (discussing when the legislature permits 

compensation for mental and psychological conditions).

[¶11] WSI argues the ALJ’s construction and application of N.D.C.C. § 65-01-

02(10)(a)(6) is erroneous and requires reversal. WSI contends there was no 

dispute that Tolman had been diagnosed with anxiety and depression before 

the work injury. WSI asserts that medical information in the record confirms 

this fact and that, even after the work injury, his treating physician 

documented that the medication (Cymbalta) he was taking for the last 6 to 7 

years was for “mood stabilization.” 

[¶12] WSI further argues the ALJ did not properly analyze the evidence under 

the applicable law in determining compensability of Tolman’s mental and 

psychological condition. WSI contends the evidence unequivocally established 

both of his conditions pre-existed the work injury. WSI contends the ALJ did 

not reasonably consider the evidence in deciding the compensability of his 

mental and psychological condition because the ALJ relied on notations 

showing that WSI had previously paid for psychological treatment 

encompassed within programs to treat his other compensable medical 

conditions.

[¶13] Here, the ALJ found Tolman, in fact, had depression and anxiety that 

pre-existed the work injury, but concluded the depression and anxiety 

conditions after the work accident were not “attributable” to the pre-existing 

depression and anxiety. The ALJ defined “attributable,” pulling that term from 
6

N.D.C.C. § 65-01-02(10)(b)(7), and concluded Tolman’s psychological condition 

was compensable because the depression and anxiety Tolman was 

experiencing were not “attributable” to the anxiety and depression that preexisted the work injury. 

[¶14] The plain language of N.D.C.C. § 65-01-02(10)(a)(6), however, does not 

include the word “attributable.” We agree with WSI’s argument that the ALJ 

erred by including the word “attributable” to construe and apply N.D.C.C. § 

65-01-02(10)(a)(6). Rather, N.D.C.C. § 65-01-02(10)(a)(6) provides the 

circumstances under which a claimant’s mental or psychological condition 

“caused by a physical injury” will be “compensable.” By contrast, N.D.C.C. § 

65-01-02(10)(b)(7) provides that pre-existing conditions are not compensable 

“unless the employment substantially accelerates its progression or 

substantially worsens its severity.” 

[¶15] By including the word “attributable” in construing N.D.C.C. § 65-01-

02(10)(a)(6), the ALJ has altered the meaning of “compensable injury.” Put

another way, while N.D.C.C. § 65-01-02(10)(a)(6) defines compensability for a 

claimant’s mental or psychological condition, N.D.C.C. § 65-01-02(10)(a)(7) 

excludes pre-existing conditions subject to an exception for substantial 

acceleration or substantial worsening. The ALJ has in effect broadened

compensability by using terminology from a broad exclusion that contains a 

narrow exception. 

[¶16] Moreover, “[u]nder N.D.C.C. § 1-02-07, ‘[s]pecific provisions control over 

general provisions.’” Rocky Mountain Steel Found., Inc. v. Brockett Co., LLC, 

2018 ND 96, ¶ 11, 909 N.W.2d 671 (quoting In re Milbrath, 508 N.W.2d 360, 

363 (N.D. 1993)). In this case, N.D.C.C. § 65-01-02(10)(a)(6) provides that for 

the mental or psychological condition to be compensable, that condition may 

not “preexist the work injury.” This definition of what is “compensable,”

therefore, controls over the definition of what is “not compensable” under 

N.D.C.C. § 65-01-02(10)(b)(7). In other words, N.D.C.C. § 65-01-02(10)(b)(7)

does not provide compensability for a “mental or psychological condition” that 

is not defined as compensable under N.D.C.C. § 65-01-02(10)(a)(6). 
7

[¶17] We conclude the ALJ misconstrued N.D.C.C. § 65-01-02(10)(a)(6) to

conclude Tolman’s preexisting mental or psychological conditions were 

compensable injuries. Under these facts and circumstances, because the ALJ 

erred in applying the law and the ALJ’s findings and evidence in the record 

support that Tolman’s mental or psychological condition pre-existed his work 

injury, we reverse the ALJ’s order to the extent that it reversed WSI’s July 

2018 order. We reinstate WSI’s July 2018 order. 

IV

[¶18] We affirm that part of the ALJ’s order affirming WSI’s April 2018 order;

but we reverse that part of the ALJ’s order reversing WSI’s July 2018 order, 

and we reinstate WSI’s July 2018 order.

[¶19] Gerald W. VandeWalle

Jerod E. Tufte 

Lisa Fair McEvers 

Daniel J. Crothers 

Jon J. Jensen, C.J.