569 N.W.2d 1 (N.D. 1997), 960382, Feist v. North Dakota Workers Compensation Bureau

Docket Nº:Civil No. 960382.
Citation:569 N.W.2d 1, 1997 ND 177
Opinion Judge:NEUMANN
Party Name:Joseph FEIST, Claimant and Appellant, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellee, and Northern Bottling Company, Respondent.
Attorney: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.
Case Date:September 08, 1997
Court:Supreme Court of North Dakota
 
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569 N.W.2d 1 (N.D. 1997)

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.

September 8, 1997

Rehearing Denied Oct. 21, 1997.

Page 2

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

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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...

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