Blanchard v. North Dakota Workers Compensation Bureau

• Decision Date: 24 June 1997
• Docket Number: No. 970013,970013
• Citation: 565 N.W.2d 485,1997 ND 118
• Parties: Kenneth BLANCHARD, Claimant and Appellant, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellee, and Hanson-Runsvold Funeral Home, Respondent. Civil
• Court: North Dakota Supreme Court

Page 485

565 N.W.2d 485

1997 ND 118

Kenneth BLANCHARD, Claimant and Appellant, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellee and Hanson-Runsvold Funeral Home, Respondent.

Civil No. 970013.

Supreme Court of North Dakota.

June 24, 1997.

Daniel E. Phillips (argued), of Schneider, Schneider & Schneider, Fargo, for appellant.

Leo F.J. Wilking (argued), Special Assistant Attorney General, Fargo, for appellee.

MESCHKE, Justice.

¶1 Kenneth Blanchard appealed a judgment affirming a Workers Compensation Bureau order denying his reapplication for benefits. We hold the Bureau failed to adequately explain its reasons for rejecting a recommendation by an Administrative Law Judge (ALJ) and for disregarding medical evidence favorable to Blanchard. We reverse and remand to the Bureau to adequately explain its decision.

¶2 Blanchard began working as a funeral director at Hanson-Runsvold Funeral Home in July 1994. According to Hanson-Runsvold's manager, Blanchard lacked interpersonal skills for that position, and Hanson-Runsvold limited his work primarily to embalming with some night on-call duties. Blanchard's work included some lifting and prolonged standing.

¶3 On November 28, 1994, in the course of his employment, Blanchard slipped on ice in his employer's parking lot and broke his right ankle. The Bureau accepted Blanchard's claim for benefits and paid him associated medical and disability benefits. The Bureau also began vocational rehabilitation services for Blanchard.

¶4 On January 27 1995, Blanchard's treating physician, Dr. Howard Berglund, reported Blanchard could "begin work at reduced capacity (4-6 hours/day, no prolonged standing or driving, etc.) on 2/1/95" with "provisions made for him at work so as to allow him to gradually get back into his activities as he can tolerate." Blanchard returned to part-time work on February 1. A February 2 assessment by Blanchard's rehabilitation consultant, Sara Jane Florence, reported Blanchard complained about pain, swelling and fatigue in his right leg, and that he could not stand or walk for prolonged periods of time. A February 6 report by Hanson-Runsvold's manager said Blanchard had complained "his foot was blowing up like a balloon" when he embalmed.

¶5 On February 24, 1995, Dr. Berglund reported Blanchard had "limited range of motion" with "decreased swelling" and recommended physical therapy. In a job-analysis form, Dr. Berglund indicated Blanchard "can perform" the requirements for his job, but should maintain his "modified status" for another two to three weeks and then "wean into regular duties."

¶6 On March 1, 1995, Blanchard began working regular hours at Hanson-Runsvold. On March 6, Dr. Berglund signed a work release that said Blanchard would be able to perform his regular duties within two to four weeks and that anticipated Blanchard would reach maximum medical improvement in "? 8 weeks." On March 14, Blanchard told his employer he was feeling "great" and wanted to resume all of his pre-injury duties. On March 14, Blanchard also told Florence his foot would get "puffy," and he was "not doing great, but doing pretty good." On March 15, Blanchard resumed his preinjury duties, including on-call work, and he received no disability benefits after March 16. On March 29, Florence reported Blanchard's most appropriate rehabilitation option under NDCC 65-05.1-01(4)(a) was return to work at the same position with the same employer. In an "outpatient final note" in April 1995, Blanchard's physical therapist indicated that "[a]t last treatment session, [Blanchard] reports that he continues to have significant edema depending on the amount of activity," but that "[a]ll treatment goals were met."

¶7 On April 14, 1995, Hanson-Runsvold terminated Blanchard's employment for "failing to wear personal protective equipment in the preparation room, lying to fellow employees, sleeping during company time and poor work ethic." The termination notice said Blanchard had been cited twice before for other infractions. ¹

¶8 On April 22, 1995, Blanchard reapplied for workers compensation benefits, claiming he was unable to perform his pre-injury duties. On April 27, the Bureau informally denied Blanchard's reapplication, concluding his first appropriate rehabilitation option under NDCC 65-05.1-01(4) was to return to his pre-injury work. The Bureau concluded Blanchard's injury did not diminish his earning capacity beyond March 16, 1995 and, absent a significant change in his medical condition, he was not eligible for any further disability or vocational benefits. Blanchard petitioned for reconsideration.

¶9 On May 5, 1995, Dr. Berglund reported Blanchard continued to have some difficulties with his ankle and had not reached maximum medical improvement. On May 19, Dr. Berglund informed the Bureau that Blanchard had not achieved maximum medical improvement and was having significant difficulties with his ankle from lifting and prolonged standing. On July 6, 1995, Dr. Berglund reported Blanchard still was having difficulty with his ankle and foot, but he had reached maximum medical improvement. On October 6, 1995, Dr. Berglund again reported Blanchard was having difficulties with his ankle and set work limitations on prolonged standing or lifting more than thirty pounds.

¶10 After a formal hearing in January 1996, an ALJ found Blanchard was unable to return to his pre-injury employment. The ALJ recommended reversing the Bureau's order and reinstating disability and vocational benefits from April 15, 1995, until Blanchard was rehabilitated. The Bureau rejected the ALJ's conclusion that Blanchard was incapable of returning to his pre-injury employment, ruling the evidence established Blanchard was able to return to his pre-injury employment and did return to that job for more than four weeks before he was terminated for general incompetence. The district court affirmed the Bureau's decision, and Blanchard appealed.

¶11 On appeal from a district court's review of a decision by the Bureau, we review the Bureau's decision. Siewert v. North Dakota Workers Comp. Bur., 554 N.W.2d 465, 466 (N.D.1996). We affirm the Bureau'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 its decision is not in accordance with the law. Id.; see NDCC 28-32-19; 28-32-21. In determining whether the Bureau's findings of fact are supported by a preponderance of the evidence, we exercise restraint and do not make independent findings of fact, or substitute our judgment for that of the Bureau. Siewert, 554 N.W.2d at 467. Rather, as we also said in Siewert, we decide only whether the Bureau's findings adequately explain its decision and are reasonably supported by the greater weight of the evidence.

¶12 Blanchard argues the Bureau did not have authority to request a recommended decision by the ALJ. He contends the ALJ's decision was a final order.

¶13 The Bureau is an administrative agency. NDCC 28-32-01(1); Foss v. North Dakota Workmen's Comp. Bur., 214 N.W.2d 519, 521 (N.D.1974). Under NDCC 54-57-03(1), "all hearings of administrative agencies under chapter 28-32, except hearings conducted by ... the workers compensation bureau ... must be conducted by the office of administrative hearings in accordance with the administrative hearings provisions of chapter 28-32." As an agency exempt from the requirement to use the office of administrative hearings in all cases, the Bureau may make a written request to that office to designate an ALJ to preside over a Bureau's administrative proceeding. NDCC 54-57-03(2) and (5). Under NDCC 54-57-04, a designated ALJ must comply with NDCC 28-32-08.5(4) and (6) that require hearing officers to "issue a recommended order, when appropriate," and to "issue a final order, if required by statute or requested by an agency." NDCC 28-32-13 directs 2. If the agency head, or another person authorized by the agency head or by law to issue a final order, is presiding, the order issued is the final order.

3. If the agency head, or another person authorized by the agency head or by law to issue a final order, is not presiding, then the person presiding shall issue a recommended order which becomes final unless specifically amended or rejected by the agency head. The agency head may adopt a recommended order as the final order. The agency may allow petitions for review of a recommended order and may allow oral argument pending issuance of a final order. An administrative agency may adopt rules regarding the review of recommended orders and other procedures for issuance of a final order by the agency.

Thus, whether an order is final or recommended depends on the designated status of the person presiding at the proceeding.

¶14 We construe related statutes as a whole to give meaning to each word and phrase, if possible. Frohlich v. North Dakota Workers Comp. Bur., 556 N.W.2d 297, 302 (N.D.1996). NDCC 28-32-08.5 requires hearing officers to issue "a recommended order, when appropriate" and "a final order, if required by statute or requested by an agency." 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. When read as a whole, the statutory scheme for decisions by an ALJ manifests a legislative intent that 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.

¶15 Blanchard asserts the ALJ was authorized by law to issue a final decision under NDCC 65-02-12 that, after dropping language he thinks superfluous, says "[a]ny ... decision ... is deemed to be the order or decision of the bureau." In its entirety, though, NDCC 65-02-12 says "[a]ny investigation, inquiry,...