Bjerklie v. WORKFORCE SAFETY AND INSURANCE

• Decision Date: 18 October 2005
• Docket Number: No. 20050111.,20050111.
• Citation: 704 N.W.2d 818,2005 ND 178
• Parties: Donna BJERKLIE, Claimant and Appellant v. WORKFORCE SAFETY AND INSURANCE, Appellee.
• Court: North Dakota Supreme Court

704 N.W.2d 818

2005 ND 178

Donna BJERKLIE, Claimant and Appellant v. WORKFORCE SAFETY AND INSURANCE, Appellee.

No. 20050111.

Supreme Court of North Dakota.

October 18, 2005.

Steven L. Latham, Wheeler Wolf, Bismarck, N.D., for claimant and appellant.

Lawrence A. Dopson, Special Assistant Attorney General, Bismarck, N.D., for appellee.

SANDSTROM, Justice.

[¶ 1] Donna Bjerklie appeals a district court judgment affirming Workforce Safety and Insurance's ("WSI") order discontinuing her disability and rehabilitation benefits after an alleged second instance of noncompliance with vocational rehabilitation requirements. We affirm, concluding that a claimant has not shown good cause for failure to attend a scheduled medical assessment when the claimant has a reasonable opportunity to inform WSI why she cannot or will not attend and fails to do so.

I

[¶ 2] Bjerklie injured her right arm on the job in 1991 while employed by North Dakota State University. WSI accepted her claim and began paying her disability benefits. Bjerklie's injury lead to "reflex sympathetic dystrophy," also known as "complex regional pain syndrome." As part of Bjerklie's treatment, her physician had prescribed several medications, some of which allegedly affect her ability to drive safely. Bjerklie first failed to comply with vocational rehabilitation requirements in 2002 when she refused to sign a WSI release allowing WSI to obtain her college transcripts. She ultimately signed the release, and her benefits were reinstated.

[¶ 3] On December 9 and 10, 2003, WSI notified Bjerklie she was to attend an independent medical examination ("IME") on January 12, 2004, in Fargo. Attending the IME would have required Bjerklie to travel from Bismarck to Fargo. On December 26, she wrote to WSI, stating, "I am unable to go to Fargo for IME scheduled for Jan[uary] 12, 2004." WSI replied on January 6, 2004, asking her why she could not attend and warning her that if she did not have good cause to miss the IME, her benefits would be discontinued. She replied by letter on January 9, 2004, citing an inability to travel to Fargo because of her physical condition and medication. Her letter was received by WSI on January 12. She did not attend the IME, and WSI notified her that her benefits were being discontinued. Bjerklie requested a hearing.

[¶ 4] After a hearing, the Administrative Law Judge ("ALJ") concluded she did not have good cause for failing to cooperate with WSI or appear at the IME and recommended her benefits be discontinued. WSI adopted the ALJ's recommended findings of fact and conclusions of law. Bjerklie appealed to the district court, which affirmed WSI's order.

[¶ 5] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. §§ 27-05-06, 65-10-01, and 28-32-42. Bjerklie's appeal was timely under N.D.R.App.P. 4(a) and N.D.C.C. § 28-32-49. This Court has jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. § 28-32-49.

II

[¶ 6] Bjerklie raises three issues on appeal: did WSI act outside its authority by requiring Bjerklie to attend the IME; did WSI act outside its authority by requiring her to travel to Fargo; and did she have good cause to not attend the IME? We decline to address the first two issues because they were not presented at the administrative level. This Court has repeatedly said it will not review an issue that was not properly raised by a party at the administrative level. Unser v. N.D. Workers Comp. Bureau, 1999 ND 129, ¶ 8, 598 N.W.2d 89; see also Alerus Financial, N.A. v. Lamb, 2003 ND 158, ¶ 17, 670 N.W.2d 351

("`We have repeatedly held that issues not raised in the trial court cannot be raised for the first time on appeal.'") (quoting Questa Res., Inc. v. Stott, 2003 ND 51, ¶ 6, 658 N.W.2d 756).

[¶ 7] Bjerklie argued at oral argument that her Specifications of Error filed with the district court preserved the issues for appeal. The Administrative Agencies Practice Act requires that alleged errors from the administrative level be specifically enumerated for the district court. N.D.C.C. § 28-32-42(4). This Court will summarily affirm the agency's decision if the appellant "`fail[s] to specifically identify any error with any particularity.'" Vetter v. N.D. Workers Comp. Bureau, 554 N.W.2d 451, 454 (N.D.1996) (quoting Maginn v. N.D. Workers Comp. Bureau, 550 N.W.2d 412, 417 (N.D.1996) (Sandstrom, J., concurring specially); Held v. N.D. Workers Comp. Bureau, 540 N.W.2d 166, 171 (N.D.1995) (Sandstrom, J., concurring specially)). None of Bjerklie's Specifications of Error enumerate as issues whether WSI acted outside its authority by requiring Bjerklie to attend the IME and by requiring her to travel to Fargo. The errors that are enumerated are all related to Bjerklie's third issue: did Bjerklie have good cause to not attend the IME? Therefore, that is the only issue we will address.

III

[¶ 8] The decision of an administrative agency is reviewed as provided in the Administrative Agencies Practice Act, N.D.C.C. § 28-32-46, which provides, in part:

A judge of the district court must review an appeal from the determination of an administrative agency based only on the record filed with the court. After a hearing, the filing of briefs, or other disposition of the matter as the judge may reasonably require, the court must affirm the order of the agency unless it finds that any of the following are present:

1. The order is not in accordance with the law.

. . . .

5. The findings of fact made by the agency are not supported by a preponderance of the evidence.

6. The conclusions of law and order of the agency are not supported by its findings of fact.

. . . .

[¶ 9] On appeal, we review the agency decision in the same manner as the district court. N.D.C.C. § 28-32-49. This court does not "make independent findings of fact or substitute our judgment for that of the agency. We determine only whether a reasoning mind reasonably could have determined that the factual conclusions reached were proved by the weight of the evidence from the entire record." Power Fuels, Inc. v. Elkin, 283 N.W.2d 214, 220 (N.D.1979). "Questions of law, including the interpretation of a statute, are fully reviewable on appeal from an administrative decision." Barnes v. Workforce Safety and Ins., 2003 ND 141, ¶ 9, 668 N.W.2d 290. WSI is responsible for weighing the credibility of witnesses and resolving conflicts in the evidence. Grotte v. N.D. Workers' Comp. Bureau, 489 N.W.2d 875, 878 (N.D.1992).

[¶ 10] Bjerklie argues she had good cause for failing to attend the IME because no person in her physical condition would attempt to travel from Bismarck to Fargo. WSI argues that because she did not timely notify WSI why she could not attend, she did not have good cause.

[¶ 11] WSI may require a claimant to undergo an IME at any time for a review of the claimant's diagnosis, prognosis, treatment, or fees. N.D.C.C. § 65-05-28(3). Section 65-05.1-04(6), N.D.C.C., provides, in part:

If, without good cause, the injured employee fails to attend a scheduled medical or vocational assessment, fails to communicate or cooperate with the vocational consultant, or fails to attend a specific qualified rehabilitation program within ten days from the date the rehabilitation program commences, the employee is in noncompliance with vocational rehabilitation.

Thus, under this section, a claimant is in noncompliance if she fails to attend a medical or vocational assessment or fails to communicate or cooperate with WSI. If a claimant engages in two instances of noncompliance without good cause, the claimant's benefits are permanently discontinued. N.D.C.C. § 65-05.1-04(6).

[¶ 12] Under this Court's caselaw, a claimant has good cause for not attending an IME if the claimant has a reason that would cause a reasonably prudent person to refuse to attend the IME under the same or similar circumstances. See Fuhrman v. N.D. Workers Comp. Bureau, 1997 ND 191, ¶ 9, 569 N.W.2d 269

("A claimant has good cause for failing to attend a rehabilitation program if the claimant has a reason that would cause a reasonably prudent person to refuse to attend the rehabilitation program under the same or similar circumstances.").

[¶ 13] The ALJ's Recommended Findings of Fact, which WSI adopted, state:

11. The record does not show that Ms. Bjerklie contacted WSI regarding the IME or her need for accommodations at any time prior to the scheduled IME. Ms. Bjerklie's testimony at the hearing that she did have conversations with WSI is not credible. The only documentation of her contact with WSI is her letter of December 26, 2003, which offered no explanation for her decision not to attend the IME and requested no modifications; and her letter of January 9, 2004, which WSI received on the day of the scheduled IME, and again stated only that she couldn't drive and any IME should be done in Bismarck. She had no intention of attending the IME and waited until the last possible moment to say so.

12. The greater weight of the evidence does not show that Ms. Bjerklie had good cause for her failure to attend the IME with Dr. Cooper. Ms. Bjerklie says she can't drive and she has no reliable vehicle. She also says that in 1994 and 1996, nearly ten years ago, WSI paid for and arranged her transportation to medical evaluations and accordingly, it should have known that she needed transportation this time too. First, the evidence does not show that Ms. Bjerklie was physically incapable of getting to Fargo. She admitted at the hearing that she could have tolerated the drive to Fargo, if a friend had driven her. Second, the evidence shows that she did have access to reliable vehicles. In any event, even assuming that Ms. Bjerklie could not drive to Fargo herself; that does not explain why she did not attend the IME. She was specifically advised that if she needed special accommodations she was to contact WSI immediately. She did not. The record shows that had she done so, WSI would

...