Baier v. North Dakota Workers Comp. Bureau

• Decision Date: 25 April 2000
• Docket Number: No. 990310.,990310.
• Parties: Harold BAIER, Claimant and Appellant, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellee, and Interstate Brands Corporation, Respondent
• Court: North Dakota Supreme Court

609 N.W.2d 722

2000 ND 78

Harold BAIER, Claimant and Appellant, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellee, and Interstate Brands Corporation, Respondent

No. 990310.

Supreme Court of North Dakota.

April 25, 2000.

Kathryn L. Dietz, Dietz, Little & Haas, Bismarck, N.D., for claimant and appellant. Brent J. Edison, Special Assistant Attorney General, Bismarck, N.D., for appellee.

NEUMANN, Justice.

[¶ 1] Harold Baier appeals from a district court judgment affirming a Workers Compensation Bureau order denying his reapplication for benefits. Concluding the doctrine of administrative res judicata barred the Bureau from relying upon Baier's termination from employment to deny wage loss benefits, we reverse and remand.

I

[¶ 2] While working for Interstate Brands Corporation ("Interstate") as a dough mixer, Baier suffered work-related injuries to his right shoulder and his back in 1993 and 1995, respectively. The Bureau accepted claims and paid benefits for those injuries. After the second injury, Baier returned to work at Interstate as a sanitation worker in a modified position with restrictions.

[¶ 3] On August 13, 1996, Baier suffered a work-related injury to his left shoulder while lifting a dough-filled pipe. The injury was originally diagnosed as a muscle strain or tear, and Baier was released to return to work on August 19, 1996. Baier filed a claim for benefits with the Bureau on August 21, 1996.

[¶ 4] Baier continued to have pain in the shoulder, and an MRI performed in late September 1996 revealed a torn rotator cuff. Baier's doctor determined surgery was necessary, and advised the Bureau by letter dated October 7, 1996, Baier was to be off work as of October 4, 1996, the last day Baier had worked. Baier ultimately had surgery to repair the shoulder on November 19, 1996.

[¶ 5] Interstate alleged Baier performed work beyond his restrictions on October 4 and was therefore fired for misconduct on that date. The parties dispute whether misconduct occurred and whether Baier was advised on October 4 he was fired. On October 16, 1996, Interstate sent Baier a letter advising him he was terminated effective October 4.

[¶ 6] The Bureau ultimately denied Baier's application for benefits, and Baier requested a formal hearing. The Bureau's specification of issues for the hearing limited the issues to:

1) Whether claimant sustained a compensable work injury;

2) whether claimant performed work duties that exceeded his physical restrictions;

3) whether claimant complied with the requirements regarding an employer's designated medical provider; and

4) whether claimant sustained willfully self-inflicted injury.

[¶ 7] The hearing was held before an administrative law judge ("ALJ") on June 5, 1997. The Bureau introduced evidence, over Baier's objection, about Baier's disciplinary history at Interstate leading to his discharge. Baier's counsel objected to that evidence as irrelevant to the issues which had been raised in the specification of issues, and referred to a separate grievance which had been filed with the union over Baier's firing:

MS. DIETZ: Well, we have no objection to the bureau's exhibits on any foundational basis. I do need to note, though, an objection in terms of B7 through B12 in terms of relevance. B7 through 12 are employer generated materials which reflect apparently safety violations of one sort or another, write-ups, if you will, that the employer apparently put in some sort of file with respect to Mr. Baier.

....

So my position is this is sort of a smoke blowing thing. I understand that there is—there are proceedings between the employer and Mr. Baier, the union is involved, and so on in terms of whether or not he should have been discharged, I want to make clear that none of that has any place in this proceeding. And to the extent, you know, that that goes on in some, you know, ancillary proceeding, that's fine and good, and surely those matters are relevant in that.

In closing argument, Baier's counsel reiterated the position that "whether or not he should have been let go because of his safety practices" was irrelevant to the issues raised. The Bureau made no attempt to amend the specification of issues or to otherwise reserve the issue of Baier's termination at the hearing.

[¶ 8] The ALJ issued a recommended decision finding in favor of Baier on the issues raised in the specification of issues. The ALJ went on, however, to conclude Baier had been justifiably discharged from employment and he therefore was not entitled to wage loss benefits. Baier's counsel contacted the Bureau and opposing counsel, urging rejection of the findings and conclusions addressing Baier's termination from employment. On September 4, 1997, the Bureau issued its order adopting the ALJ's recommended findings and conclusions on the four specified issues, but rejecting the findings and conclusions addressing Baier's termination because they were "beyond the scope of the issues before the ALJ."

[¶ 9] Although the Bureau's September 4 order specifically found in Baier's favor on the issues which had been specified for hearing, the Bureau did not thereafter pay disability wage loss benefits to Baier. Rather, a Bureau claims analyst advised Baier's counsel the Bureau was now taking the position Baier was not entitled to disability benefits because he could not show loss of earnings due to his termination from employment. When the Bureau continued its refusal to pay benefits, Baier filed a reapplication for benefits. The Bureau denied the reapplication, determining Baier had not sustained loss of earnings due to his injury, and Baier requested a hearing.

[¶ 10] A second hearing was held before the ALJ on May 28, 1998. Baier argued the prior order was res judicata on the issue of Baier's termination because the Bureau could have raised the issue at the prior hearing but did not. The ALJ issued a recommended decision, finding Baier had been terminated for just cause. The ALJ thus concluded that, except for a twelve-week period commencing on the date of his surgery, Baier had failed to demonstrate wage loss attributable to his work injury. The Bureau accepted the ALJ's findings and conclusions that Baier was terminated for cause, but rejected the ALJ's conclusion that Baier was entitled to twelve weeks of disability wage loss benefits for the time immediately following his surgery. The Bureau therefore denied all wage loss benefits for Baier's injury by an order dated February 24, 1998. Baier appealed to the district court, which affirmed the Bureau's order.

II

[¶ 11] We must initially address the procedural posture of this case. After the Bureau refused to pay benefits despite the original order in Baier's favor, Baier filed a reapplication for benefits. Reapplication is governed by N.D.C.C. § 65-05-08(1):

When disability benefits are discontinued, the bureau may not begin payment again unless the injured employee files a reapplication for disability benefits on a form supplied by the bureau. In case of reapplication, the award may commence no more than thirty days before the date of reapplication. Disability benefits must be reinstated upon proof by the injured employee that:

a. The employee has sustained a significant change in the compensable medical condition;

b. The employee has sustained an actual wage loss caused by the significant change in the compensable medical condition; and c. The employee has not retired or voluntarily withdrawn from the job market as defined in section 65-05-09.3.

[¶ 12] By its terms, the statute applies only when a claimant has received disability benefits, those benefits have been discontinued, and the claimant then sustains a significant change in medical condition which causes further wage loss. Under those circumstances, the claimant may reapply to "begin payment again."

[¶ 13] In his brief on appeal, Baier concedes he does not fit under the statute:

In the instant case, Baier never received disability benefits for the claim which had been discontinued; therefore, he did not really have to file a reapplication and prove a significant change in his medical condition as a precondition to eligibility for disability benefits.

Baier nevertheless asserts he was in "administrative limbo," being denied benefits but without an order from which to appeal, and argues he should be allowed to file a reapplication which doesn't fit the statutory requirements.

[¶ 14] Baier cites no authority for this unique assertion. We recognize that Baier was caught in a procedural quagmire, with no adverse order to appeal from but nevertheless being denied disability wage loss benefits. There was, however, an appropriate available remedy. Baier could have sought a writ of mandamus in district court directing the Bureau to pay benefits in accordance with its original September 4, 1997, order. See Frank v. Traynor, 1999 ND 183, ¶ 9, 600 N.W.2d 516

; Lende v. North Dakota Workers' Compensation Bureau, 1997 ND 178, ¶ 25, 568 N.W.2d 755; Tooley v. Alm, 515 N.W.2d 137, 139-40 (N.D.1994); Schiff v. North Dakota Workers Compensation Bureau, 480 N.W.2d 732, 733 (N.D.1992). Where an appeal is not authorized from the Bureau's adverse decision, mandamus is available if the claimant has a clear legal right to performance of the act and there is no other plain, speedy, and adequate remedy in the ordinary course of law. Frank, at ¶ 9; Tooley, 515 N.W.2d at 139-40.

[¶ 15] Although we would ordinarily at this point require the claimant to start the process over, seeking the appropriate remedy in the district court, we are concerned in this case with the lengthy delay which has already occurred due to the Bureau's continued refusal to comply with the mandates of administrative res judicata. Baier's injury, surgery, and resulting wage loss occurred in 1996. Now, nearly four years later, he is still seeking wage loss benefits for that injury. We have previously noted the difficulties resulting from...