Flink v. North Dakota Workers Compensation Bureau

• Decision Date: 20 January 1998
• Docket Number: No. 970162,970162
• Citation: 1998 ND 11,574 N.W.2d 784
• Parties: David FLINK, Claimant and Appellant, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellee, and Fargo Trailer Center, Inc., Respondent. Civil
• Court: North Dakota Supreme Court

Page 784

574 N.W.2d 784

1998 ND 11

David FLINK, Claimant and Appellant, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellee, and Fargo Trailer Center, Inc., Respondent.

Civil No. 970162.

Supreme Court of North Dakota.

Jan. 20, 1998.

Rehearing Denied and Opinion Corrected

Feb. 12, 1998.

Mark G. Schneider of Schneider, Schneider & Schneider, Fargo, for claimant and appellant.

Andrew L.B. Noah, Special Assistant Attorney General, Fargo, for appellee.

SANDSTROM, Justice.

¶1 David Flink appeals from a district court judgment affirming the North Dakota Workers Compensation Bureau's order he was not entitled to temporary total disability benefits after May 5, 1993. We conclude the administrative law judge's conclusion Flink was released to return to work on October 16, 1991, is not supported by a preponderance of the evidence. We also conclude the Bureau's notice discontinuing temporary total disability benefits was insufficient and resulted in an unfair hearing. We reverse and remand and direct the Bureau to reinstate, retroactive to May 5, 1993, Flink's temporary total disability benefits, and to continue them until the Bureau properly addresses Flink's priority options and provides him with proper notice of its intent to discontinue or reduce his benefits.

I

¶2 David Flink suffered a work-related injury to his lower back on April 30, 1990. He filed a claim with the North Dakota Workers Compensation Bureau, and the Bureau issued an order awarding benefits. He was also diagnosed as suffering from a pre-existing, non-work-related "[s]ocial phobia."

¶3 In January 1991, the Bureau assigned Bob Schmidt, a vocational consultant, to work with Flink. In June 1992, Schmidt issued a "Vocational Consultant's Report Assessment/Plan" calling for Flink to attend formal retraining in the area of "parts management" at the North Dakota State College of Science. The Bureau approved the plan, but the plan failed when Flink began to develop panic attacks, leaving him unable to function in a classroom setting, and he dropped out of the program. In December 1992, Schmidt completed a "Vocational Consultant's Report Assessment/Plan Amendment" and recommended a so-called "option i" ¹ rehabilitation priority under N.D.C.C. § 65-05.1-01(5). The Bureau approved the amended plan on February 16, 1993.

¶4 On April 14, 1993, the Bureau informed Flink it intended to discontinue temporary total disability benefits. The Bureau issued its "Order Denying Further Disability Rehabilitation Benefits" on June 11, 1993. Flink requested a hearing, arguing Schmidt and the Bureau did not follow the priority options in recommending an "option i" rehabilitation priority.

¶5 Flink and Schmidt were the only witnesses at the hearing. Schmidt testified he eliminated option e, on-the-job training, from consideration because no on-the-job training employer could be secured, although Schmidt admitted he did not recall having contacted any specific employers. The administrative law judge (ALJ) concluded:

"with regard to on-the-job training, the greater weight of the evidence shows that the vocational consultant's report did not address, through adequate findings, the viability of that option, and whether it would or would not return Mr. Flink to substantial gainful employment."

The ALJ also concluded Schmidt failed to address why option h, self-employment, was not viable, but then went on to determine self-employment was not " 'reasonably attainable.' "

¶6 Neither Dr. Wolff, Flink's treating physician, nor Dr. Christianson, Flink's psychiatrist testified at the hearing. The ALJ concluded, however:

"While I can find no certification of maximum medical improvement relative to his work-sustained back injury in Mr. Flink's file, the file does document that on October 16, 1991 Terry Wolff, M.D., his treating physician, released him to return to work with the restrictions detailed in a modified functional capacity assessment performed on September 25, 1991, i.e., generally, medium work. The Bureau's notice of April 14, 1993 of its intention to terminate temporary total disability benefits and to begin paying partial disability benefits, insofar as the effective date of termination might be changed to May 5, 1993, is, then, found to be consistent with the import of NDCC § 65-05-08.1 relating to termination of temporary total disability benefits following a release to work, and therefore valid, despite the recommended findings, above, that the viability of on-the-job training be reassessed."

The Bureau adopted the ALJ's recommendations, and the district court affirmed the Bureau's decision.

¶7 Flink appeals from the March 31, 1997, judgment of the Cass County District Court. The district court had jurisdiction under N.D. Const. Art. VI, § 8, and N.D.C.C. §§ 27-05-06, 28-32-15, and 65-10-01. Flink's appeal to this Court was timely under N.D.R.App.P. 4(a) and N.D.C.C. § 28-32-21. This Court has jurisdiction under N.D. Const. Art. VI, §§ 2 and 6, and N.D.C.C. §§ 28-27-01 and 28-32-21.

II

¶8 "On appeal, we review the decision of the Bureau, rather than that of the district court, and we limit our review to the record before the Bureau." Fuhrman v. North Dakota Workers Compensation Bureau, 1997 ND 191, p 6, 569 N.W.2d 269. "Under NDCC 28-32-19 and 28-32-21, we affirm an agency'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 the decision is not in accordance with the law." Feist v. North Dakota Workers Compensation Bureau, 1997 ND 177, p 8, 569 N.W.2d 1. We also affirm under N.D.C.C. § 28-32-19, unless the agency's order violates the constitutional rights of the appellant or the agency's rules or procedures deprived the appellant of a fair hearing.

¶9 "Our review of an administrative agency's findings of fact is limited to determining if a reasoning mind reasonably could have determined the findings were proven by the weight of the evidence from the entire record." Feist at p 8; see Power Fuels, Inc. v. Elkin, 283 N.W.2d 214, 220 (N.D.1979). "The interpretation of a statute is a question of law fully reviewable on appeal. Although we have construed workers compensation laws liberally in favor of injured workers, a claimant has the burden of proving he or she is entitled to participate in the workers compensation fund." Feist at p 8 (citations and footnote omitted). "If the Bureau terminates benefits after accepting a claim, the claimant still has the burden of proving the right to continued benefits." Frohlich v. North Dakota Workers Compensation Bureau, 556 N.W.2d 297, 301 (N.D.1996). However, "the Bureau must not place itself in a position fully adversary to the claimant," and "due process requires the Bureau to give a claimant prior notice of termination of disability benefits, a summary of the medical evidence supporting termination, and an opportunity to respond." Frohlich at 301.

III

¶10 Flink asserts the Bureau failed to properly address the priority options and, as such, the Bureau is required to pay temporary total disability benefits until the priority options are properly addressed. On appeal, the Bureau does not dispute the conclusion the vocational consultant failed to adequately address the rehabilitation priority options; rather, the Bureau argues discontinuation of Flink's temporary total disability benefits was proper, based upon Flink having "reached maximum medical recovery" and been "released to return to work."

¶11 We reverse and remand because the ALJ's conclusion Flink was released to return to work on October 16, 1991, ignores and fails to explain medical evidence to the contrary, and because the Bureau's April 14 1993, notice of intent to discontinue Flink's temporary total disability benefits was insufficient to provide Flink a fair hearing on the issue of being released to return to work.

A

¶12 The ALJ stated in his decision: "While I can find no certification of maximum medical improvement relative to his work-sustained back injury in Mr. Flink's file, the file does document that on October 16, 1991 Terry Wolff, M.D., his treating physician, released him to return to work...." While a claimant has the burden of proving his or her claim, "[t]he adversarial concept has only limited application in a worker's compensation claim [and][t]he Bureau must consider the entire medical record and adequately explain its reason for disregarding medical evidence favorable to the claimant." McDaniel v. North Dakota Workers Compensation Bureau, 1997 ND 154, p 17, 567 N.W.2d 833 (citations omitted).

¶13 Nowhere in Dr. Wolff's October 16, 1991, notes does he state he released Flink to return to work. Dr. Wolff does note, however, "the patient is not at MMI [Maximum Medical Improvement]." The June and December 1992 vocational consultant's plans do state Dr. Wolff released Flink to return to work on October 16, 1991, "pending release by Davis's psychologist...." The Bureau's appellate brief acknowledges, however, this did not occur until January 12, 1993. While the Bureau has discretion to weigh the evidence before it, this Court has previously stated "discretion is not freedom to pick and choose in an unreasonable manner." Weber v. North Dakota Workmen's Compensation Bureau, 377 N.W.2d 571, 572 (N.D.1985). It appears the ALJ merely picked a date from the mass of medical records without explaining contrary medical records, or he overlooked evidence to the contrary. ² Based on Dr. Wolff's October 16, 1991, notes and the ALJ's failure to consider Flink's entire medical record and explain why contrary evidence was ignored, the ALJ's decision is not supported by a preponderance of the evidence. Compare Wherry v. North Dakota State Hosp., 498 N.W.2d 136, 140-41 (N.D.1993) (affirming Bureau's decision based upon adequate explanation).

B

¶14 It appears the absolute lack of medical...