Frohlich v. North Dakota Workers Compensation Bureau, 960158

• Decision Date: 10 December 1996
• Docket Number: No. 960158,960158
• Parties: Donald FROHLICH, Claimant and Appellant, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU and Saks News, Inc., Appellees. Civil
• Court: North Dakota Supreme Court

Page 297

556 N.W.2d 297

Donald FROHLICH, Claimant and Appellant, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU and Saks News Inc., Appellees.

Civil No. 960158.

Supreme Court of North Dakota.

Dec. 10, 1996.

Stephen D. Little (argued), of Dietz & Little, Bismarck, for claimant and appellant.

Jacqueline S. Anderson (argued), Special Assistant Attorney General, of Nilles, Hansen & Davies, Ltd., Fargo, for appellee North Dakota Workers Compensation Bureau.

Steven L. Latham (appearance), of Wheeler Wolf, Bismarck, for appellee Saks News, Inc.

MESCHKE, Justice.

Donald R. Frohlich appealed from a judgment affirming a Workers Compensation Bureau order denying him temporary total disability benefits after May 25, 1991. We hold that the Bureau's failure to request doctor certification of the period of Frohlich's temporary total disability violated NDCC 65-05-08.1. We reverse the judgment and direct the Bureau to award Frohlich temporary total disability benefits through June 14, 1994.

Frohlich worked for Saks News, Inc. for 34 years at various jobs that required overhead lifting of bundles of magazines and books. In February 1980, Dr. Ray Miller surgically repaired Frohlich's right rotator cuff for a non-work related injury.

In 1988, Frohlich began experiencing pain in his left shoulder, and on November 10, 1989, Dr. Miller surgically repaired Frohlich's left rotator cuff. On May 2, 1990, Dr. Miller reported that Frohlich had regained a full range of motion with his left shoulder, but that it needed further strengthening. Dr. Miller also reported that Frohlich was now experiencing similar symptoms in his right shoulder and "suggested that [Frohlich] is going to be disabled for at least a year and maybe longer, pending the type of surgery and outcome of surgery on his right shoulder."

On May 23, 1990, Frohlich filed for workers compensation benefits, claiming a "progressive" injury to his left and right shoulders. On May 25, 1990, Saks News and Frohlich executed a "separation agreement and general release" outlining the terms of Frohlich's "transition from full employment to retirement." They agreed Frohlich was unable to physically perform the continued requirements of his job, and Frohlich's last day of work at Saks News was November 9, 1989, the day before he underwent left rotator cuff surgery.

On October 29, 1990, the Bureau informally dismissed Frohlich's claim for benefits on the ground that he had failed to show an injury from his employment. Frohlich requested a rehearing, and on April 10, 1991, the Bureau held a formal hearing to consider whether his shoulder problems were related to his employment. The hearing was postponed to March 20, 1992, and the issues were expanded to include whether Frohlich had timely filed for benefits and whether he had voluntarily retired from his job.

By order dated March 30, 1993, hearing officer Schneider concluded that Frohlich's shoulder problems were related to his employment. Schneider found, however, that Frohlich knew his work had been adversely affecting his left shoulder more than a year before he filed his claim for benefits on May 23, 1990, and that, under NDCC 65-05-01, his left shoulder claim was not timely. Schneider also found that Frohlich's claim for benefits for his right shoulder was timely and awarded him temporary total disability benefits for that shoulder starting May 25, 1990.

On April 26, 1993, Saks News asked the Bureau's executive director to reconsider Schneider's decision. On September 2, 1993, the executive director reversed Schneider's decision, ruling that Frohlich had failed to prove his right shoulder condition was causally related to his employment and that he had failed to file a timely claim for his right shoulder under NDCC 65-05-01. In January 1994, the district court reversed the executive director's decision and reinstated Schneider's decision, holding that the Bureau had not disposed of the employer's request for reconsideration within 30 days under NDCC 28-32-14(4), and, therefore, that request was deemed denied. Saks News appealed the court's decision but, in May 1994, the Bureau, Frohlich, and Saks News stipulated to dismiss that appeal.

While these administrative and judicial proceedings were pending, Frohlich apparently did not seek further treatment for his right shoulder, did not pursue rehabilitation services, nor look for other employment. On March 28, 1994, the Bureau awarded Frohlich temporary total disability benefits for his right shoulder from May 25, 1990 through May 25, 1991, but the Bureau concluded that, absent a significant change in his medical condition, he was not entitled to further disability benefits. Frohlich requested a hearing regarding the duration of his disability benefits.

Before that hearing, Dr. Michael Martire examined Frohlich on May 2, 1994, and concluded "it is obvious that [he] would still be unable to do any type of duties which require any repetitive lifting, especially with overhead activities. He would not be able to return to his prior job because this would require lifting above shoulder height." Dr. Martire reported a "slight recent aggravation of the right shoulder pain," and recommended a cortisone injection. Dr. Martire also suggested that, after Frohlich's pain subsided, he would be at maximum medical improvement and then an evaluation for permanent partial impairment could be done.

The Bureau referred Frohlich for an independent medical examination by Spokane Panel Evaluations, who reported:

With regard to Mr. Frohlich's present diagnoses as enumerated above with respect to the right shoulder, there is at this time a problem. It is related to both his 1980 injury and surgical repair, and by fair wear & tear associated with his employment. Apportionment cannot be scientifically done, but the examiners feel that probably 50% of his current problems in the right shoulder can be attributed to or are secondary to the injury and surgery of 1980, and the remaining 50% is associated with this man's employment and is work related.

With respect to disability, we do not feel that Mr. Frohlich is totally disabled for work with regard to his overall physical condition. The right shoulder tends to pose some limitation in his level of activity, and this impairment would be shared equally by the injury and surgery in 1980 and his employment.

An examining physician at the Spokane Panel, Dr. William Nerud, concluded that Frohlich was unable to return to the "warehouse type [of] heavy work" that he had previously done, but that he was not totally disabled and would need to avoid jobs with overhead lifting.

On June 14, 1994, Dr. Martire reported Frohlich was at "maximum medical improvement" and recommended a permanent partial impairment evaluation. On September 8, 1994, Dr. Martire evaluated Frohlich for permanent partial impairment and reported he had a 7 percent impairment of his right upper extremity. The Bureau nevertheless informally awarded Frohlich benefits for a 3.55 percent permanent partial impairment. Saks News and Frohlich both requested a hearing on the Bureau's permanent partial impairment award.

The parties agreed to combine the issues of the duration of Frohlich's disability and the extent of his permanent partial impairment into a single hearing on the existing record and with the deposition testimony of Dr. Nerud. Hearing officer Brady concluded that hearing officer Schneider's March 30, 1993 decision was res judicata on whether Frohlich's right shoulder condition was a compensable injury and whether Frohlich had voluntarily retired from the work force; that the Bureau's apportionment of permanent partial impairment benefits was supported by a preponderance of the evidence; that Frohlich had failed to establish he was entitled to temporary total disability benefits after May 25, 1991; that the extent of any partial disability after May 25, 1991, could not be ascertained because the Bureau had not evaluated Frohlich's earning capacity and he had offered no evidence on the subject; and that Frohlich had voluntarily withdrawn from the labor force. The Bureau adopted Brady's recommendations, and Frohlich appealed to the district court. ¹

In the district court, the Bureau agreed Frohlich had a 7.1 percent permanent partial impairment, and the court directed the Bureau to award him benefits for that degree of impairment. The court, however, affirmed the Bureau's decision to deny Frohlich disability benefits beyond those awarded for the interval between May 25, 1990 and May 25, 1991. Frohlich appealed to this court, contending the Bureau erred in denying him temporary total disability benefits after May 25, 1991.

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. Bureau, 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 said in Siewert at 467, we decide only whether the Bureau's findings adequately explain its decision and were reasonably supported by the greater weight of the evidence.

The claimant has the burden of proving by a preponderance of the evidence that he is entitled to receive benefits from the fund. NDCC 65-01-11; Nemec v. North Dakota Workers Comp. Bureau, 543 N.W.2d 233, 237 (N.D.1996). If the Bureau terminates benefits after accepting a claim, the claimant still has the burden of proving the right to...