Toso v. Workforce Safety & Insurance

20050143 Lanis Toso, Claimant and Appellant
v.
Workforce Safety
and Insurance, Appellee

Appeal from: District Court, East Central Judicial District, Cass County
Judge John Charles Irby
Nature of Action: Workers Compensation
Counsel:
Appellant: Lawyer not licensed in N.D.
Appellant: Rosenquist & Arnason, PLLP
Appellee: Jacqueline Sue Anderson , Spec. Asst. Atty. Gen.
Term: 10/2005   Argument: 10/31/2005  11:00am
ND cite: 2006 ND 70
NW cite: 712 N.W.2d 312

Listen to recording of oral argument in MP3 format

Issues: Appellant's Statement of the Issues:
Under N.D.C.C.  65-01-09, does WSI's subrogation right include all benefits paid to an employee, including benefits representing injuries and damages for which the Third Party Defendant is not and could not be liable?
WSI held that all benefits paid, including benefits/damages for which the Third Party could not be liable, should be used in allocating the third party settlement proceeds.
Employee Lanis Toso asserts on this appeal that WSI's right of subrogation is limited to damages for which the third party defendant is or may be held liable. Specifically, Toso asserts that:
1. Finding of Fact 3 (A.4) is not supported by a preponderance of the evidence; and
2. Conclusions of Law 1, 4, 5 and 6 (A.5-7) are not in accordance with the law.

Appellee's Statement of the Issues:
1. Whether the District Court should have summarily affirmed the decision of Workforce Safety and Insurance because Appellant failed to file the required Specifications of Error with the District Court.
2. Whether WSI's subrogation statute, N.D.C.C.  65-01-09, applies to Appellant's settlement in his third party medical malpractice claim.

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Docket entries:
104/27/2005 NOTICE OF APPEAL: 04/25/2005
205/16/2005 Affidavit of Reed Mackenzie pursuant to Rule 3, Admission to Practice Rule (authorized)
305/27/2005 RECORD ON APPEAL (with separate 5(admin record including transcript dated June 28, 2004))
405/27/2005 (not received--entry 15 (tape))
506/06/2005 DISK - TRA dated 6-28-04
606/03/2005 APPELLANT BRIEF
706/03/2005 APPELLANT APPENDIX
806/06/2005 AT's Request for Oral Argument
906/09/2005 DISK of ATB
1006/09/2005 Affidavit of Service for ATB
1107/06/2005 APPELLEE BRIEF
1207/07/2005 DISK - aeb
1307/13/2005 REPLY BRIEF of Appellant
1407/14/2005 DISK - ryb
1507/18/2005 ANNOUNCED DISQUALIFICATION: Crothers, Daniel John
1609/07/2005 SITTING WITH THE COURT: Medd, Joel D.
1710/31/2005 APPEARANCES: Reed K. Mackenzie, Joel F. Arnason; Jacqueline Sue Anderson
1810/31/2005 ARGUED: Mackenzie; Anderson
1910/31/2005 ORAL ARGUMENT WEBCAST
2004/03/2006 DISPOSITION: AFFIRMED
2104/03/2006 SPLIT OPINION: VandeWalle, Gerald W.
2204/03/2006 (Concur in the Result): Sandstrom, Dale V.: CON/RES
2304/03/2006 (Dissenting): Maring, Mary Muehlen: DISSENT
2404/03/2006 Costs to be taxed under N.D.C.C.65-10-03
2504/04/2006 Judgment Mailed to Parties
2604/17/2006 PETITION FOR REHEARING
2704/18/2006 DISK - per
2805/17/2006 ACTION BY SUPREME COURT (PER). Denied
2905/25/2006 MANDATE
3005/30/2006 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE

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