dissenting.
I join in the Chief Justice’s dissent, and write separately to highlight flawed analysis in the majority opinion.
The majority writes:
“The Bureau contends Anderson bears the burden of proving she is entitled to workers compensation benefits. However, a defense based on the statute of limitations in a civil proceeding is an affirmative defense. E.g., In Interest of K.B., 490 N.W.2d 715, 717 (N.D.1992). As McCarter v. Pomeroy, 466 N.W.2d 562, 566 (N.D.1991) (citing 54 C.J.S., Limitations of Actions § 294 (1987)), points out: ‘Generally, a party relying on a statute of limitations has the burden of proving that the action is barred.’ ”
The flaws in the majority opinion are that this is an appeal of an administrative proceeding, not a civil action, and there is a specific statute which controls.
Unlike In Interest of K.B., this is not a civil lawsuit. The Rules of Civil Procedure “govern the procedure in the district courts in all suits of a civil nature....” N.D.R.Civ.P. 1. “A civil action is commenced by the service of a summons.” N.D.R.Civ.P. 3. That is not the case here.
The general rule for claims for workers compensation benefits is:
“It has been said that whether a written claim was filed in time under the statute is primarily a question of fact. The burden of proof on this issue is on the claimant.”
82 Am.Jur.2d Workers’ Compensation § 530 (1992) (footnotes omitted).
North Dakota’s specific statute places the burden of establishing entitlement to benefits on the claimant:
“Any claimant against the fund, however, has the burden of proving by a preponderance of the evidence that the claimant is entitled to participate in the same.”
N.D.C.C. § 65-01-11. The only circumstances in which the burden of proof is placed on the Bureau are specified in the same statute:
“If the bureau or an employer claims that an employee is not entitled to the benefits of the North Dakota Workers’ Compensation Law by reason of the fact that the employee’s injury was caused by the employee’s willful intention to injure himself, or to injure another, or by reason of the voluntary impairment caused by use of alcohol or illegal use of a controlled substance by the employee, the burden of proving such exemption or forfeiture is upon the bureau or upon the person alleging the same....”
N.D.C.C. § 65-01-11.
North Dakota’s specific statute controls over general case law. N.D.C.C. § 1-01-06 (“In this state there is no common law in any ease where the law is declared by the code.”) The burden of proving entitlement to benefits is on the claimant. The legislature’s enumeration of the Bureau having the burden in specified cases excludes it from having the burden in other cases, including the statute of limitations. As this Court said in another case involving the Bureau, “ ‘[t]here exists a principle of statutory interpretation that the mention of one thing implies the exclusion of another.’ ” Little v. Tracy, 497 N.W.2d 700, 705 (N.D.1993) (citing In re Township 143 North, Range 55 West, Cass County, 183 N.W.2d 520, 529 (N.D.1971)). “It is a general principle of statutory interpretation that mention of one thing implies exclusion of another.” In re Township (citing Dixon v. Kaufman, 79 N.D. 633, 58 N.W.2d 797 (1953); 50 Am.Jur. Statutes, Section 244; 82 C.J.S. Statutes § 333; Nome State Bank v. Brendmoen, 70 N.D. 391, 295 N.W. 82 (1940)).
I would reverse the district court and affirm the Bureau.