Feist v. North Dakota Workers Compensation Bureau

• Citation: 1997 ND 177,569 N.W.2d 1
• Decision Date: 08 September 1997
• Docket Number: No. 960382,960382
• Parties: Joseph FEIST, Claimant and Appellant, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellee, and Northern Bottling Company, Respondent. Civil
• Court: United States State Supreme Court of North Dakota

Page 1

569 N.W.2d 1

1997 ND 177

Joseph FEIST, Claimant and Appellant, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellee, and Northern Bottling Company, Respondent.

Civil No. 960382.

Supreme Court of North Dakota.

Sept. 8, 1997.

Rehearing Denied Oct. 21, 1997.

Mark G. Schneider (argued), of Schneider, Schneider & Schneider, Fargo, for claimant and appellant. Appearance by Daniel Phillips.

Brent J. Edison (argued), Special Assistant Attorney General, Bismarck, for appellee.

NEUMANN, Justice.

¶1 Joseph Feist appealed from a December 5, 1996, district court judgment affirming a May 29, 1996, Workers Compensation Bureau decision in which the Bureau determined Feist was not entitled to a higher permanent partial impairment award than he had earlier received, determined Feist was not entitled to a chronic pain evaluation, and affirmed its March 5, 1993, order awarding Feist permanent partial impairment benefits of $3,220. We affirm.

I

¶2 Feist injured his lumbar spine in 1969 and received a 15 percent whole-body permanent partial impairment award. Feist injured his cervical spine in 1977 and received a 16.5 percent whole-body permanent partial impairment award. Feist injured his lumbar spine again in 1986. On March 5, 1993, the Bureau awarded Feist 28 weeks of compensation for permanent partial impairment. In calculating the award, the Bureau used the American Medical Association's "Guides to the Evaluation of Permanent Impairment " [AMA Guides ] (3rd ed. rev.) ¹ and combined the previous impairment ratings with the rating for the 1986 injury and subtracted the weeks of compensation previously awarded for the 1969 lumbar injury.

¶3 At the Bureau's request, Dr. Melissa Ray conducted a permanent partial impairment evaluation of Feist on March 28, 1994. Ray reported, in part:

"I do note on physical examination today that the patient demonstrates increased rigidity in the muscular [sic] about the lower thoracic and upper lumbar spinal regions. There is pain with palpation over the cicatrix area today as well. Lateral flexion and extension films of the lumbar spine show significant degenerative osteoarthritic changes to the lower lumbar vertebrae and first sacral vertebra. The anterior osteophytes are quite marked over L4-5 and S1. The patient demonstrates no loss of motion segment integrity in review of the lateral flexion and extension films.

"Utilizing the 'Guides to the Evaluation of Permanent Impairment'--Fourth Edition, the patient falls into DRE lumbosacral category 3 radiculopathy and is given a ten percent whole person impairment for the injury he sustained to the lumbosacral spinal region. (Although I do not have any medical records prior to 1992, the physical therapy notes do reflect that the patient did relay right lower extremity radicular symptoms to Karen Rasmusson, PT, on 7/22/92 prior to his first PPI). It is my opinion that Mr. Feist has reached maximal medical improvement pertaining to his low back."

¶4 On April 8, 1994, the Bureau issued an order denying additional permanent partial impairment benefits. The Bureau found, based on Dr. Ray's evaluation and the Bureau's review:

"The greater weight of the evidence does not indicate that claimant is entitled to an additional permanent partial impairment award.

                      "10%  Whole Body For Lumbar    50 weeks
                            Less Prior Awards      -103 weeks
                            Under This Claim                #
                            and 69 199787 T
                            Now Due                  0 weeks"
                

Feist petitioned for reconsideration under NDCC 28-32-14.

¶5 A formal hearing was held before an independent hearing officer on March 15, 1996. The hearing officer recommended:

"By the greater weight of the evidence, Claimant's cervical impairment and lumbar impairment was appropriately considered and calculated within the context of the March 5, 1993 PPI award and Claimant is not entitled to an upward adjustment of 4% or a 16.5%."

The hearing officer recommended the following on Feist's claim for an additional award for peripheral spine nerve injury:

"By the greater weight of the evidence, the Claimant is not entitled to a remand with instructions to the Bureau to evaluate an additional impairment rating for peripheral spine nerve injury."

On Feist's claim for chronic pain, the hearing officer recommended:

"The Claimant is correct in asserting that he is entitled to a Chronic Pain Assessment under Chapter 15, of the AMA Guides, in order to assess a further impairment based upon the Claimant's chronic pain."

The hearing officer recommended an order affirming the Bureau's order of March 5, 1993, and remanding the Bureau's order of April 8, 1994, for a chronic pain evaluation under Chapter 15 of the Fourth Edition, which is the newest edition of the AMA Guides.

¶6 In its order of May 29, 1996, the Bureau adopted the hearing officer's recommendations, except with regard to Feist's claim for chronic pain. On that issue, the Bureau concluded:

"9. The administrative law judge was mistaken, as a matter of law, in recommending a remand to the Bureau for an evaluation and impairment rating under Chapter 15 of the AMA 'Guides,' fourth edition. Dr. Ray testified that the claimant's pain is the type of pain incorporated into DRE Lumbosacral Category III, which indeed requires radicular pain.

"10. Claimant is not entitled to an additional permanent partial impairment award.

"11. Claimant is not entitled to a multidisciplinary evaluation and impairment rating under Chapter 15 of the AMA 'Guides,' fourth edition."

¶7 The district court affirmed the Bureau's decision and Feist appealed to this court.

II

¶8 In an appeal involving a Bureau decision, we review the decision of the Bureau, rather than that of the district court, although the district court's analysis is entitled to respect if its reasoning is sound, Effertz v. North Dakota Workers Comp. Bureau, 481 N.W.2d 218, 220 (N.D.1992), and "because the legislatively mandated review by the district court cannot be ineffectual," Medcenter One, Inc. v. Job Service North Dakota, 410 N.W.2d 521, 524 (N.D.1987). Under NDCC 28-32-19 and 28-32-21, we affirm an agency's decision unless its findings of fact are not supported by a preponderance of the evidence, its conclusions of law are not supported by its findings of fact, its decision is not supported by its conclusions of law, or the decision is not in accordance with the law. Frohlich v. North Dakota Workers Comp. Bureau, 556 N.W.2d 297, 300 (N.D.1996). Our review of an administrative agency's findings of fact is limited to determining if a reasoning mind reasonably could have determined the findings were proven by the weight of the evidence from the entire record. Gale v. North Dakota Bd. of Podiatric Medicine, 1997 ND 83, p 10, 562 N.W.2d 878. The interpretation of a statute is a question of law fully reviewable on appeal. Jensen v. N.D. Workers Comp. Bureau, 1997 ND 107, p 9, 563 N.W.2d 112. Although we have construed workers compensation laws liberally in favor of injured workers, ² e.g., Tooley v. Alm, 515 N.W.2d 137, 141 (N.D.1994); Kallhoff v. North Dakota Workers' Comp. Bureau, 484 N.W.2d 510, 513 (N.D.1992), a claimant has the burden of proving he or she is entitled to participate in the workers compensation fund. Frohlich, 556 N.W.2d at 301; NDCC 65-01-11.

¶9 Feist contends the independent hearing officer's decision should be deemed the Bureau's final decision, because the Bureau lacks authority to request, and the Office of Administrative Hearings lacks authority to issue, recommended decisions. We recently addressed this issue in Blanchard v. North Dakota Workers Comp. Bureau, 1997 ND 118, 565 N.W.2d 485. Under NDCC 54-57-03(2) and (5), the Bureau may request the Office of Administrative Hearings to designate an administrative law judge [ALJ] to preside over a Bureau proceeding. Id. at p 13. We held "NDCC 28-32-13 differentiates between final orders and recommended ones based on whether the person presiding was 'authorized by the agency head or by law' to issue a final order." Id. at p 14. We held "an ALJ's decision is a final order when the Legislature has authorized the ALJ to issue a final order, or when the requesting agency has authorized the ALJ to issue a final order." Id. at p 14. We held the ALJ's decision was a recommendation and not a final order because NDCC 65-02-12 "does not expressly authorize an ALJ to issue a final order for the Bureau," id. at p 15, and because the Bureau had authorized the ALJ to issue only a recommended order. The ALJ presiding over the hearing in this case stated in his decision:

"The Bureau requested the designation of a hearing officer from the Office of Administrative Hearings to conduct a hearing and to issue recommended findings of fact and conclusions of law in regard to this matter."

That statement "satisfactorily demonstrate[s] the Bureau authorized the ALJ to issue a recommended order." Id. at p 17. We conclude the ALJ's decision in this case was a recommendation and was not a final order.

III

¶10 Feist contends the Bureau's failure to promulgate regulations outlining procedures for its review of recommended decisions by administrative law judges and its failure to allow Feist to participate in the Bureau's review of the ALJ's recommended decision violated his due process rights. The claimant in Blanchard advanced a similar argument. We held "NDCC 28-32-13(3) authorizes, but does not require, the Bureau to adopt rules for review of a hearing officer's recommendation." Id. at p 20. If, however, an administrative agency rejects a hearing officer's recommendation, it must explain its rationale for not following the recommendation. Id. at p 21. The requirement that an administrative agency explain its rationale for not following a hearing officer's recommendation, combined with the opportunity for judicial review, which "provides the ultimate due process protection to those aggrieved by agency decisions," Municipal Servs....