Vogel v. Workforce Safety & Insurance

2005 ND 43, 693 N.W.2d 8, 2005 N.D. LEXIS 46, 2005 WL 415997
CourtNorth Dakota Supreme Court
DecidedFebruary 23, 2005
Docket20040173
StatusPublished
Cited by4 cases

This text of 2005 ND 43 (Vogel v. Workforce Safety & Insurance) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Vogel v. Workforce Safety & Insurance, 2005 ND 43, 693 N.W.2d 8, 2005 N.D. LEXIS 46, 2005 WL 415997 (N.D. 2005).

Opinions

NEUMANN, Justice.

[¶ 1] Sharon Vogel appealed a district court judgment, order for judgment, and order affirming a Workforce Safety and Insurance (“WSI”) order adopting a temporary administrative law judge’s recommended findings of fact, conclusions of law, and order affirming a WSI order denying disability benefits. We affirm.

I

[¶ 2] While employed as a Burleigh County Sheriffs Department detention supervisor earning $2,613 per month, Vogel poked her finger with a lancet on July 12, 2001, while helping a diabetic inmate check his blood sugar. Vogel sought workers compensation benefits and after a denial of disability benefits received a hearing before a temporary administrative law judge (“TALJ”). The TALJ recommended findings of fact stating, among other things: (1) After Vogel was diagnosed with hepatitis C, her job duties were changed to eliminate almost all contact with inmates; (2) Vogel’s salary was reduced upon modification of her job duties, but, in January 2002, she received back pay for the difference in salary between her former detention supervisor salary and the salary for her modified position; (3) Vogel suffered no wage loss through January 2002; (4) “Vogel was extremely frustrated and unhappy in her modified detention center position;” (5) Vogel “decided to apply for another position, feeling it would be the best thing for her and for Burleigh County;” (6) Vogel inquired about a Public Ser[10]*10vice Technician III (“PST III”) position involving the same duties as her modified position; (7) “The detention supervisor position Vogel held at the time of her work injury on July 12, 2001, was a grade 7, the detention officer position was a grade 6, and the PST III position was a grade 4;” (8) “Although Vogel looked at the lower level position because she thought it would be best for everyone if she were not in the detention center, she did not believe any change would include a salary reduction;” (9) ‘Vogel had no salary reduction in her modified detention center position;” (10) “If Vogel had not accepted the PST III position on January 23, 2002, Burleigh County would have continued employing Vogel in the modified detention center position;” and (11) Vogel received her first paycheck as a PST III at the end of February 2002, at a salary of $2,200 per month. The TALJ also recommended the following findings of fact:

35. Although Vogel was undeniably aware of her actual PST III salary by the end of February 2002, she did nothing to try and get her old job back on the grounds she had mistakenly assumed the new job carried no reduction in salary. Schatz-Jennings [Burleigh County’s human resources officer] was unaware Vogel had any pay or position concerns until October or November of 2002....
36. Vogel’s failure to raise any concerns about the lower pay directly with Schatz-Jennings and her failure to even inquire about the possibility of getting her modified job back because she would not have accepted the lower position had she known her salary would be reduced is not reasonable....
40. The greater weight of the evidence indicates that Vogel voluntarily limited her income when she accepted and remained in the PST III position .... Vogel’s subjective feelings that she was unfairly ostracized and underutilized do not amount to her being constructively forced out of the modified detention center position when she also testified she thought it was in the best interests of both herself and her employer that she get out of the detention center. Assuming Vogel’s initial acceptance of the PST III position could be considered voluntary only if her stated assumption that she would incur no salary reduction was in fact true, that “conditional” voluntary acceptance was valid only until she knew her assumption was not correct. The actual income limitation became voluntary when Vogel admittedly did nothing to see if she could get her old job back or to let anyone in her employment setting other than Sheriff Harvey know she was upset and concerned about the lower pay.

[¶ 3] The TALJ recommended the following conclusions of law, among others:

2. Under the provisions of N.D.C.C. § 65-05-08(7), if an employee voluntarily limits income or refuses to accept employment suitable to the employee’s capacity, the employee is entitled to disability benefits' during the time the employee limits income or refuses to accept suitable employment only if WSI determines the limitation or refusal is justified.
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6. The claimant has not met her burden of proving that her loss of earning capacity effective February 1, 2002, was not a voluntary limitation of income.
7. The claimant has not met her burden of proving that her voluntary limitation of income was justified.
8. The claimant has not met her burden of proving she is entitled to disability benefits in connection with this claim.

[11]*11[¶ 4] The TALJ recommended an order affirming WSI’s January 15, 2003, order denying disability benefits. On November 4, 2003, WSI adopted the TALJ’s recommended findings, conclusions, and order. Vogel appealed to the district court, which affirmed WSI’s order. Vogel appealed to this Court, raising the following issue: “Did Sharon Vogel unreasonably and voluntarily limit her income, thus losing her entitlement to partial disability benefits under N.D.C.C., Section 65-05-08?”

II

[¶ 5] Vogel has challenged only findings of fact 36 and 40, and conclusions of law 6, 7, and 8. This Court has a limited role in appeals from administrative agency decisions:

We exercise a limited review in appeals involving WSI decisions. Rush v. N.D. Workers Comp. Bureau, 2002 ND 129, ¶ 5, 649 N.W.2d 207. Under N.D.C.C. §§ 28-32-46 and 28-32-49, the district court, and this Court on further appeal, must affirm an administrative agency decision unless one of the following is present:
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.
We exercise restraint in deciding whether an agency’s findings of fact are supported by a preponderance of the evidence, and we do not make independent findings or substitute our judgment for that of the agency. Barnes v. Workforce Safety and Ins., 2003 ND 141, ¶ 9, 668 N.W.2d 290.

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Bluebook (online)
2005 ND 43, 693 N.W.2d 8, 2005 N.D. LEXIS 46, 2005 WL 415997, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vogel-v-workforce-safety-insurance-nd-2005.