Drayton v. Workforce Safety and Ins., 20070281.

CourtUnited States State Supreme Court of North Dakota
Writing for the CourtSandstrom
Citation2008 ND 178,756 N.W.2d 320
PartiesJody DRAYTON, Claimant and Appellee v. WORKFORCE SAFETY AND INSURANCE, Appellant and WW Wallwork, Inc., Respondent.
Docket NumberNo. 20070281.,20070281.
Decision Date25 September 2008
756 N.W.2d 320
2008 ND 178
Jody DRAYTON, Claimant and Appellee
WW Wallwork, Inc., Respondent.
No. 20070281.
Supreme Court of North Dakota.
September 25, 2008.

[756 N.W.2d 322]

David A. Garaas, Garaas Law Firm, Fargo, N.D., for claimant and appellee.

Jacqueline Sue Anderson, Special Assistant Attorney General, Fargo, N.D., for appellant.


[¶ 1] Workforce Safety and Insurance ("WSI") appeals from a district court judgment reversing a WSI order reinstating Jody Drayton's disability benefits to the date of their termination and awarding her attorney's fees. We conclude that WSI appropriately exercised its continuing jurisdiction to assess Drayton's vocational rehabilitation; that Drayton was properly found in noncompliance with vocational rehabilitation; and that a reasoning mind could reasonably find Drayton intentionally manipulated the results of a functional capacity assessment and engaged in "a first instance of noncompliance" with vocational rehabilitation without good cause. We also conclude the district court erred in awarding Drayton attorney's fees under N.D.C.C. § 28-32-50. We therefore reverse the district court judgment and reinstate WSI's order discontinuing Drayton's temporary disability benefits.


[¶ 2] In August 1993, Drayton was injured in a motor vehicle accident while employed by W.W. Wallwork, Inc. Drayton filed a claim for workers compensation benefits, which was accepted. Drayton was subsequently unable to continue in her employment. In August 1997, Drayton was offered a modified job at Wallwork as a delivery coordinator based upon 1997 work restrictions from her chiropractor. Drayton refused this position. In November 1997, WSI suspended her partial disability benefits after she failed to return to work and did not accept a modified position. In November 1997, Drayton obtained employment with Jim Drayton Insurance, her husband's insurance agency, and WSI then began paying her temporary partial disability benefits based upon her earning capacity at that time.

[¶ 3] In December 2005, WSI began an internal review of her claim, gathering information on her current diagnosis and work release status. In January 2006, WSI received a letter from her chiropractor, Dr. Vincent Rokke, providing her present diagnosis included continuing neck and back pain, and specifically stating "cervical, thoracic and lumbar segmental dysfunctions resulting in myofascial pain in each region, left cervicobrachial syndrome and intermittent sciatica." Dr. Rokke said her treatment was unlikely to change from a palliative nature, or just easing her pain symptoms, requiring periodic chiropractic adjustments for pain management. Dr. Rokke stated that he did not believe a work-conditioning program would be effective in increasing Drayton's workday tolerance.

[¶ 4] In April 2006, WSI told Drayton to attend a functional capacity assessment ("FCA") at MeritCare Occupational Health. In May 2006, occupational therapist Bryce Nelson conducted an FCA and concluded in part that the result was invalid as a manipulated effort. On June 23, 2006, WSI issued an order suspending disability benefits and establishing a "first instance of noncompliance" with vocational rehabilitation, under N.D.C.C. § 65-05.1-04, permitting WSI to discontinue benefits if noncompliance continues. Drayton requested a hearing from that order. In July 2006, another FCA was scheduled at

756 N.W.2d 323

MeritCare Occupational Health. Occupational therapist Dianne Nechiporenko conducted this FCA, concluding that the FCA was invalid on portions that Drayton had completed and that Drayton did not complete all of the FCA's portions.

[¶ 5] An evidentiary hearing was held in February 2007. After the hearing, the administrative law judge ("ALJ") recommended affirming WSI's June 2006 order suspending Drayton's disability benefits, which had found Drayton had engaged in a first instance of noncompliance without good cause:

11. ... On April 14, 2006, Dr. Rokke approved of Ms. Drayton's participation in the FCA.

12. WSI directed Ms. Drayton to attend an FCA at MeritCare in Fargo on May 12, 2006. The FCA was conducted by Bryce Nelson. Mr. Nelson determined Ms. Drayton had a spinal injury based upon his review of her medical records and because he asked her and she reported her injury involved her low back, neck, tailbone, and left arm as well as a closed head injury. He concluded the FCA Ms. Drayton participated in on May 12, 2006, was invalid and represented a manipulated effort based upon the protocols for determining validity of the test.

13. Mr. Nelson is a licensed occupational therapist with a bachelor of science degree from the University of North Dakota. He has been working at MeritCare for 16 years. He received initial training and has attended annual conferences in administering the Key Functional Assessment protocol (KFA). Mr. Nelson receives referrals to perform the KFA from WSI as well as from attorneys, chiropractors, physicians, and self-referrals for SSDI applications. He has done approximately 2500 FCAs using the KFA protocol. When he receives a referral he looks at the medical records to determine the area of injury, the diagnosis and medications being taken. Medications are considered in part because some medications affect heart rate and the KFA uses increase in heart rate as one of the indicators to determine consistency. He instructs each participant to pay attention to what they are doing and stop before they hurt themselves. He also tells them that he does not want them to overwork or under work themselves. He tells each of the assessment participants to let him know "what is going on," "when it is going on" and "when they need to stop." Testimony of Bryce Nelson.

. . . .

16. The May 12, 2006, FCA results in Ms. Drayton's case revealed many inconsistencies. She demonstrated an ability to stand for only one minute, but was able to walk for several minutes during a break immediately before the standing test. Her grip dynometer measurements were inconsistent with expected measurements, specifically the mid-grip measurement not being the largest. Ms. Drayton's heart rate never increased the expected 20 beats when lifting or 40 beats when climbing stairs. She only performed 2 repetitions of the foot pedal, but was able to walk up and down seven steps, which was more physically demanding. She could only do a half squat when asked to squat, but was able to do a full squat when lifting something from the floor with a container. When asked to walk she could only walk ten feet before she had to stop, yet on her breaks she walked more than a 100 feet. Moreover walking from station to station during the evaluation involved more than ten feet of walking. Mr. Nelson noted that during the squat Ms. Drayton said she might need to quit, so

756 N.W.2d 324

he gave her the first break at which point she walked out the door and walked down the street to a point where he could no longer see her. With regard to pain reports, Mr. Nelson noted that she was able to spontaneously rotate her neck and flip her hair back. She reported pain when lifting 30 inches to 18 inches, but did not report pain lifting above her shoulders, a task that requires greater effort. Mr. Nelson also noted inconsistency when comparing how she moved as though limited during the test but walked freely during the breaks. He observed her sitting for 21 minutes while answering questions during the assessment. (Footnotes omitted.)

17. Bryce Nelson approved Ms. Drayton for receptionist and information clerk, customer service representative, and telemarketers positions if her sitting tolerances and workday tolerances were followed. The basis for Mr. Nelson's approval of these positions was the May 12, 2006, FCA results. Mr. Nelson felt she could do these jobs based upon the May 12, 2006, FCA even though it did not represent a true measure of her capabilities, because she demonstrated the ability to sit for 20 minutes, and she demonstrated that she could stand, walk, and sit during the three hours it took for the FCA. Mr. Nelson did not approve office clerk because this was in the light level of work. Mr. Nelson did not believe that Ms. Drayton could do an office clerk's job based upon the FCA because it requires her to lift more than she demonstrated. He acknowledged that Dr. Rokke says she could lift 30 pounds, but disputes the validity of this claim because it was not based upon any testing.

. . . .

19. On May 12, 2006, after the FCA, Ms. Drayton went to Dr. Rokke because she was having pain in her low back, mid-back and lower cervical spine. Dr. Rokke's notes reflect that she told him she had been having increasing symptoms since May 7, 2006, but that she attended an FCA that day and "pushed herself slightly." Pg. 519. Ms. Drayton reported to WSI that she could not drive home for a couple of hours after the FCA, but that May 12, 2006, was otherwise not different from any other day.

20. On May 23, 2006, WSI issued an order terminating Ms. Drayton's benefits for failure to comply with vocational rehabilitation without good cause. When Ms. Drayton requested a reconsideration, she stated she had been having pain before the FCA and she was not feeling well on the day of the FCA. She asked to repeat the FCA but requested a different evaluator.

21. Dianne Nechiporenko performed the second FCA on July 18, 2006, because she is the back up and a different therapist was requested. Additionally, Ms. Nechiporenko performed the FCA because when there is an invalid result, MeritCare has a policy to have the second assessment performed by another therapist who can bring a fresh view to the assessment. Ms. Nechiporenko instructed Ms. Drayton to tell her what was going on, when it was going on, when she thought she needed to stop and why she needed to stop.

22. Ms. Nechiporenko is an occupational therapist. She has been...

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