MOOS v. NORTH DAKOTA WORKFORCE SAFETY AND INSURANCE (2026)

[¶1] Donald Moos appeals from a district court judgment affirming an administrative law judge's (ALJ) decision affirming Workforce Safety & Insurance's (WSI) subrogation order and granting WSI's motion for payment of costs of the certified record. On appeal, Moos argues that judicial estoppel bars WSI's subrogation claim; that N.D.C.C. § 28-32-44, as applied to his circumstances, is unconstitutional under both the United States Constitution and the North Dakota Constitution; and that he is a “low-income person” under N.D.C.C. § 28-32-44(3) and therefore should be permitted to apply to the district court for waiver of the requirement that he pay the costs of preparation and filing of the administrative record on appeal. We affirm.

I

[¶2] In August 2018, Moos was injured in a work-related incident where an aircraft sprayed him with toxic herbicide. He filed a workers’ compensation claim and a notice with WSI identifying the herbicide applicator as a potentially liable third party.

[¶3] In September 2018, WSI issued notice to Moos of its decision to accept his claim and award benefits for ocular pain and chemical exposure. In January 2019, an attorney for Moos filed a notice of intent to bring a third-party action on Moos's behalf. On September 25, 2019, WSI issued notice to Moos of its decision to terminate benefits, concluding the incident was not a substantial cause of his current condition; WSI was “unable to determine the relationship, if any, of [his] left hand tremor and paresthesia of the left arm to [the] work incident”; and Moos was no longer entitled to benefits after September 25, 2019. Moos requested reconsideration. On March 10, 2020, WSI issued an order denying further benefits after September 25, 2019. The order relied on an independent medical review which concluded the chemical exposure temporarily affected Moos's eyes and skin but did not cause his ongoing tremors or paresthesia. Moos did not appeal this order. WSI paid a total of $10,628.18 on Moos's claim, including $2,077.00 for the independent medical review.

[¶4] Moos filed a third-party personal injury action against the herbicide applicator in case no. 08-2020-CV-02213. In August 2020, WSI began inquiring into the status of the third-party action and learned attorney David Thompson had taken over Moos's representation. WSI repeatedly requested Thompson complete a third-party notice of legal representation form. Thompson never returned the form as drafted, stating he was not agreeable to its terms. Throughout 2021, 2022, and 2023, WSI continued to request status updates on the third-party action. In August 2022, Thompson informed WSI that the case had not settled and he knew of his obligation to inform WSI of any settlement.

[¶5] On February 14, 2024, a stipulation for dismissal with prejudice was filed in the third-party action, and the district court entered judgment. Thompson did not notify WSI of the settlement. In March 2024, WSI discovered the third-party action settled for $100,000. WSI contacted Thompson about WSI's subrogation interest arising from the settlement and notified him that the full extent of damages could be recovered if WSI's subrogation lien was not paid within 30 days. The lien was not satisfied within 30 days. Thompson informed WSI no funds would be paid absent a declaratory judgment.

[¶6] On April 9, 2024, WSI issued an order declaring a subrogation lien of $8,551.18. The amount reflected the total of $10,628.18 WSI paid in benefits less the $2,077.00 independent medical review cost. The order held Moos, Thompson, and the third-party defendant's insurer liable for the lien. Moos filed a written request for hearing, arguing WSI paid for adverse medical opinions which were later used in the third-party action to “devalue and diminish” his claim, rendering it inequitable for WSI to receive a dollar-for-dollar subrogation recovery.

[¶7] An ALJ held an administrative hearing to address the subrogation dispute. The ALJ issued a prehearing order concluding judicial estoppel was inapplicable to WSI's subrogation claim.

[¶8] On November 22, 2024, the ALJ issued its findings of fact, conclusions of law, and order affirming WSI's April 9, 2024 subrogation order. The ALJ concluded that because Moos had not paid the subrogation lien within 30 days, WSI was entitled to $8,551.18 in subrogation. The ALJ maintained its prehearing conclusion that judicial estoppel did not apply. Additionally, the ALJ found that, even if judicial estoppel were applicable in subrogation claims, the evidence did not support its application here.

[¶9] Moos appealed the ALJ's decision to the district court. On July 10, 2025, WSI filed a motion for Moos to pay record preparation and filing costs. On October 8, 2025, the court entered orders affirming the ALJ's subrogation order and granting the motion for record costs. The court entered judgment, and Moos timely appealed.

II

[¶10] “This Court reviews the decision of WSI rather than the district court.” Across Big Sky Flow Testing, LLC v. Workforce Safety & Ins., 2014 ND 236, ¶ 5, 857 N.W.2d 380. This Court exercises a limited review of an administrative agency's final order under the Administrative Agencies Practice Act and must affirm 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.

Sandberg v. N.D. Workforce Safety & Ins., 2023 ND 76, ¶ 6, 989 N.W.2d 460; N.D.C.C. §§ 28-32-46, 28-32-49.

[¶11] We review the factual findings of an ALJ's final order under the same deferential standard used in reviewing agency decisions. State ex rel. Workforce Safety & Ins. v. Kringlie, 2024 ND 26, ¶ 8, 2 N.W.3d 709. We do not make independent findings of fact or substitute our judgment for that of the ALJ. Id. “[W]e determine only whether a reasoning mind reasonably could have determined the findings were proven by the weight of the evidence from the entire record.” Id. This Court does not give deference to an ALJ's legal conclusions. Provins v. Workforce Safety & Ins. Fund, 2022 ND 213, ¶ 6, 982 N.W.2d 559. Questions of law are fully reviewable on appeal. Id.

A

[¶12] Moos argues judicial estoppel bars WSI's subrogation claim. WSI argues equitable principles are inapplicable to subrogation claims brought under N.D.C.C. § 65-01-09.

[¶13] WSI has a statutory subrogation interest when an injured employee recovers damages from a third party:

1. The organization is subrogated to the rights of the injured employee or the injured employee's dependents to the extent of fifty percent of the damages recovered up to a maximum of the total amount the organization has paid or would otherwise pay in the future in compensation and benefits for the injured employee․

․

5. The organization's lien is created upon first payment of benefits. The lien attaches to all claims, demands, settlement proceeds, judgment awards, or insurance payable by reason of a legal liability of a third person. If the organization does not receive payment of its lien amount within thirty days of the payment of any recovery and if the organization has served, by regular mail, written notice of its lien upon the injured employee or the injured employee's dependents and upon the third person, the insurer of the third person, the injured employee or injured employee's dependents, and the attorney of the injured employee or injured employee's dependents are liable to the organization for the lien amount․

N.D.C.C. § 65-01-09(1), (5). WSI's subrogation interest exists to “reimburse the fund, to the extent possible, at the expense of the persons at fault.” Blaskowski v. N.D. Workmen's Comp. Bureau, 380 N.W.2d 333, 335 (N.D. 1986).

[¶14] Judicial estoppel is an equitable doctrine that precludes parties from taking inconsistent or contradictory legal positions in the same or successive litigation. Great Plains Royalty Corp. v. Earl Schwartz Co., 2021 ND 62, ¶ 13, 958 N.W.2d 128; In re Est. of Harms, 2012 ND 62, ¶ 10, 814 N.W.2d 783. Judicial estoppel “applies only where a party's subsequent position is totally inconsistent with its original position, and does not apply where distinct or different issues or facts are involved.” Krenz v. XTO Energy, Inc., 2017 ND 19, ¶ 33, 890 N.W.2d 222. This Court has previously assumed, without deciding, the doctrine of judicial estoppel applies in North Dakota. E.g., Dunn v. N.D. Dep't of Transp., 2010 ND 41, ¶ 10, 779 N.W.2d 628; DeMers v. DeMers, 2006 ND 142, ¶ 19, 717 N.W.2d 545; Ingebretson v. Ingebretson, 2005 ND 41, ¶ 18, 693 N.W.2d 1; Meide v. Stenehjem ex rel. State of N.D., 2002 ND 128, ¶ 15, 649 N.W.2d 532; BTA Oil Producers v. MDU Res. Grp., Inc., 2002 ND 55, ¶ 15, 642 N.W.2d 873.

[¶15] Moos asserts that WSI initially denied benefits for his left arm neurological injuries but subsequently sought subrogation from settlement of the third-party action, where Moos asserts those injuries were compensable. Moos argues WSI took an inconsistent position by pursuing subrogation and should be barred by judicial estoppel. In response, WSI relies on State ex rel. Workmen's Compensation Bureau v. Clary, 389 N.W.2d 347 (N.D. 1986), to argue equitable doctrines such as judicial estoppel do not apply to WSI's statutory subrogation interest.

[¶16] In Clary, an injured employee contested a subrogation computation. 389 N.W.2d at 347-48. The employee argued that because subrogation is an equitable doctrine, principles of equity should be applied in construing the term “subrogation” as used in N.D.C.C. § 65-01-09, the statute authorizing subrogation recovery “to the extent of fifty percent of the damages recovered.” Clary, at 348, 351. The injured employee contended recovery should have been reduced by the percentage of negligence assigned to him under equitable principles. Id. This Court concluded recovery could not be reduced for employee negligence under equitable concepts and subrogation rights are available to the extent allowed under § 65-01-09. Id. at 351. The rationale explained subrogation is an equitable doctrine; however, the bureau's subrogation rights under § 65-01-09 are statutory and thus not controlled by equitable concepts. Id. (“As common law encompasses equity, and as there is no common law in any case where the law is declared by the code, equity does not apply where the law is declared by statute.” (cleaned up) (citing N.D.C.C. § 1-01-06)).

[¶17] Because WSI's subrogation interests are statutory, under Clary, equitable concepts including judicial estoppel do not control subrogation interests. Based upon Clary and N.D.C.C. § 65-01-09—the statute authorizing subrogation—we conclude the equitable doctrine of judicial estoppel does not apply to subrogation claims arising out of workers’ compensation proceedings. We need not decide whether the doctrine of judicial estoppel may apply in other proceedings.

B

[¶18] Moos argues N.D.C.C. § 28-32-44, governing the duty of administrative agencies to maintain official record proceedings and requiring appellants to pay the costs of preparing and filing the record on appeal, is unconstitutional as applied in this case. He argues application here violates the due process and equal protection clauses of the United States and North Dakota Constitutions and the open courts provision of the North Dakota Constitution. Moos further argues the district court should have allowed him to apply for a waiver of record preparation and filing costs.

[¶19] Whether a statute is unconstitutional as-applied is a question of law fully reviewable on appeal. Sorum v. State, 2020 ND 175, ¶ 19, 947 N.W.2d 382; D.A.H. v. D.A.D., 2025 ND 208, ¶ 18, 29 N.W.3d 590. “The party challenging the constitutionality of a statute has the burden of proving its constitutional infirmity.” Weeks v. N.D. Workforce Safety & Ins. Fund, 2011 ND 188, ¶ 7, 803 N.W.2d 601. A party cannot merely submit bare assertions to adequately raise constitutional issues. Snyder v. N.D. Workers Comp. Bureau, 2001 ND 38, ¶ 19, 622 N.W.2d 712.

[¶20] Moos characterizes N.D.C.C. § 28-32-44 as a “pay to play” provision, which, as applied to him, is unconstitutional. Section 28-32-44(2), N.D.C.C., provides, in relevant part:

Within thirty days ․ after an appeal has been taken to the district court as provided in this chapter, and after payment by the appellant of the estimated cost of preparation and filing of the entire record of the proceedings before the agency, the administrative agency concerned shall prepare and file ․ the original or a certified copy of the entire record of proceedings before the agency.

[¶21] Moos alleges the administrative record was compiled by those required to do so by their employment positions and “WSI picks and chooses arbitrarily and capriciously when [and] as to which claimants from whom it will seek administrative cost recovery.” He offers no factual support or citation to the record for these conclusory allegations. In addition, Moos provides no constitutional authority supporting his claims. The cases he relies on do not hold that statutes which require an appellant to pay the costs of an appeal of an administrative agency proceeding violate the due process or equal protection clauses. For example, Moos relies on M.L.B. v. S.L.J., 519 U.S. 102, 117 S.Ct. 555, 136 L.Ed.2d 473 (1996), to support his constitutional claims. However, the M.L.B. court recognized only a narrow category of civil cases requiring the State to provide access to its judicial processes without regard to a party's ability to pay court fees. Id. at 113, 117 S.Ct. 555. The court also clarified that a constitutional requirement to waive court fees is the exception, not the general rule. Id. at 114, 117 S.Ct. 555. “Absent authority and a reasoned analysis to support it, the mere assertion of unconstitutionality is insufficient to adequately raise a constitutional question.” Overboe v. Farm Credit Servs. of Fargo, 2001 ND 58, ¶ 13, 623 N.W.2d 372 (emphasis added). In addition, as noted by the district court, the statute itself undermines Moos's argument because “[b]y having an avenue to waive the costs, the statute specifically negates any argument that it is ‘pay-to-play’ as Moos alleges.” Because the statute contains a waiver provision, any party unable to afford the costs has an established avenue for relief. See N.D.C.C. § 28-32-44(3). We conclude that Moos has not shown N.D.C.C. § 28-32-44, as applied to him, violates either the United States or North Dakota Constitution.

C

[¶22] Moos argues he is a “low-income person” under N.D.C.C. § 28-32-44(3) and therefore should be permitted to apply to the district court for waiver of the requirement that he pay the costs of preparation and filing of the administrative record on appeal. In response, WSI contends Moos's argument was already made and rejected in the district court.

[¶23] Section 28-32-44(3), N.D.C.C., provides, in relevant part: “The cost of preparation and filing of the record may be waived by the district court upon application by an appellant, showing that the appellant is a low-income person unable to afford these costs.” See Int. of C.A.R., 2020 ND 209, ¶ 9, 950 N.W.2d 186 (“When used in a statute, the word ‘may’ is ordinarily understood as permissive rather than mandatory and operates to confer discretion.”). A district court's decision on waiver of costs is reviewed for abuse of discretion. See Koenig v. Schuh, 2016 ND 252, ¶ 6, 888 N.W.2d 385 (discussing petition to waive a transcript fee and reviewing a district court's decision on a civil litigant's request to proceed in forma pauperis for abuse of discretion). A court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner, or when its decision is not the product of a rational mental process leading to a reasoned determination. Id.

[¶24] In response to WSI's motion for record costs, Moos argued to the district court he was low-income, on social security, and should be permitted to apply for a waiver of costs. The court granted WSI's motion, concluding that nothing in the statute required Moos to request judicial leave before applying for a waiver and reasoning that Moos did not file an application in the ten months since WSI began pursuing payment.

[¶25] Moos's brief in opposition to WSI's motion for record costs provided general statements relating to his income and requested permission to apply for a waiver; however, Moos provided no evidence of his financial status. While N.D.C.C. § 28-32-44 does not provide any specific timeline to apply for a waiver, Moos made no showing that he is a “low-income person.”

[¶26] Because Moos failed to make an evidentiary showing that he qualifies as a “low-income person,” the district court did not abuse its discretion in ordering Moos to pay filing and preparation costs for the record on appeal.

III

[¶27] We have considered Moos's remaining arguments and determine they are either unnecessary for our decision or are without merit. The judgment is affirmed.

Fair McEvers, Chief Justice.

[¶28] Lisa Fair McEvers, C.J. Jerod E. Tufte Jon J. Jensen Douglas A. Bahr Mark A. Friese