Gramling v. North Dakota Workmen's Compensation Bureau

• Decision Date: 12 March 1981
• Docket Number: No. 9838,9838
• Citation: 303 N.W.2d 323
• Parties: Gerald GRAMLING, Appellant, v. NORTH DAKOTA WORKMEN'S COMPENSATION BUREAU, Appellee. Civ.
• Court: North Dakota Supreme Court

Page 323

303 N.W.2d 323

Gerald GRAMLING, Appellant, v. NORTH DAKOTA WORKMEN'S COMPENSATION BUREAU, Appellee.

Civ. No. 9838.

Supreme Court of North Dakota.

March 12, 1981.

Fintan L. Dooley, Bismarck, for appellant; argued by Dooley.

Richard J. Gross, Sp. Asst. Atty. Gen., Bismarck, North Dakota Workmen's Compensation Bureau, for appellee; argued by Gross.

Vogel, Brantner, Kelly, Knutson, Weir & Bye, Fargo, for employer Melroe Division of Clark Equipment Co.

ERICKSTAD, Chief Justice.

The appellant, Gerald Gramling, appeals from the order and judgment entered in the District Court of Burleigh County affirming a decision of the North Dakota Workmen's Compensation Bureau which denied further wage loss benefits to him.

Gerald Gramling injured his back on April 22, 1977, in the course of his employment with Clark Equipment, Melroe Division, in Bismarck, North Dakota. The North Dakota Workmen's Compensation Bureau accepted liability for the claim and paid disability benefits from May 4, 1977, through May 31, 1979. The Bureau also paid for all medical treatment related to Gramling's back injury during this period of time.

After his injury, Gramling had surgery on his back three times, the first on July 14, 1977, the second August 29, 1977, and the third July 11, 1978. Gramling still had a great deal of pain which was not alleviated by the surgeries. The Bureau arranged for Gramling to go to a pain clinic in Minnesota. Dr. David Florence of the pain clinic believed that Gramling had substantially improved after treatment, but Gramling and his doctor, Dr. R. F. Kennedy, were critical of the treatment he received. The Bureau paid the hospital and medical expenses with the three laminectomies and the expenses incurred in attending the pain clinic.

Subsequently, the Bureau awarded Gramling a $4,000 lump-sum payment for permanent bodily impairment due to his back injury. The Bureau encouraged Gramling to become employed again. Dr. Kennedy also encouraged him to return to work and even Gramling expressed a desire to return to work. Discussions were held with Gramling concerning possible employment opportunities. Gramling wanted to become a minister, and commenced such a study, but, because he could not sit for long periods of time, he discontinued that effort. Possibilities in electronics and a whiteware business were also considered to no avail. The Bureau continued to offer to pay for any retraining or rehabilitation Gramling thought he needed to secure employment in a field which would not require him to sit or stand for long periods of time, or require him to lift items or twist his back.

Gramling was evaluated at the Mandan Evaluation Center to determine interest, aptitude, ability, and attitude as they relate to work. Shortly thereafter, employment with his former employer, Melroe, was arranged. He began work June 1, 1979. He was to work as a night expediter. This required keeping track of parts supplies on the assembly line and making certain the parts were available as needed. The job description indicated no lifting was necessary, but that he would need to walk a maximum of two miles per shift. Gramling testified that the job required him to lift and shift parts in order to be able to count them and that he walked from five to fifteen miles in a shift. When he returned to work, his wage loss benefits from the Bureau were terminated and, subsequently, on June 20, 1979, Gramling was notified that his social security disability benefits were going to be terminated.

Gramling left the job on June 26, 1979, and complained to Dr. Kennedy of severe pain in his back and legs. Dr. R. J. Smith administered nerve blocks from which Gramling received varying relief. Thereafter, he refused to return to work stating that he was physically unable to do the job and was terminated by Melroe effective July 13, 1979.

On July 31, 1979, the Bureau terminated all benefits to Gramling concluding that he had failed to prove he remained disabled from his job-related injury. A rehearing was granted and was held November 26, 1979. An amended order of the Bureau dated February 14, 1980, denied Gramling any further wage loss benefits after June 1, 1979. The Bureau, however, revoked part of its previous order of July 31, and allowed any and all additional medical expenses related to his back injury to be paid, and also allowed an additional permanent, partial disability award should future medical evidence indicate that Gramling was entitled to such an award. Gramling appealed and the District Court of Burleigh County affirmed the Bureau's decision and order. Gramling now appeals on the basis of the following issues:

"A. The Due Process or Fairness Issue : Did Bureau resort to extra-record physician's letter in Claimant's file but not made part of hearing record deny Claimant opportunity to meet all material considered?

"B. Substantial Evidence Issue : Did Claimant provide sufficient evidence to show he was, by reason of his permanent disability, unsuited for work as expediter and, therefore, entitled to restoration of temporary disability benefits and rehabilitation?

"C. Malingering: The Affirmative Defense Issue : Did Melroe and the Bureau show by clear and convincing evidence that the Claimant was not credible, but was play-acting or malingering?

"D. The Odd Lot Doctrine or Public Policy Issue : Did the Bureau violate public policy by inattention to danger of reinjuring Claimant by coercing him to attempt and to continue the reemployment in a similar job?"

I. Scope of Review

On appeal, the decision of the Bureau is reviewed, not the decision of the district court. Balliet v. North Dakota Work. Comp. Bureau, 297 N.W.2d 791, 793 (N.D.1980). This court is bound to affirm the decision of the Bureau unless:

"1. The decision or determination is not in accordance with the law.

"2. The decision is in violation of the constitutional rights of the appellant.

"3. Provisions of this chapter have not been complied with in the proceedings before the agency.

"4. The rules or procedure of the agency have not afforded the appellant a fair hearing.

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

"6. The conclusions and decision of the agency are not supported by its findings of fact." § 28-32-19, N.D.C.C.

A claimant has the burden of proving his right to participate in benefits available from the Bureau. Steele v. North Dakota Workmen's Comp. Bur., 273 N.W.2d 692, 698 (N.D.1979).

Gramling's issues shall be considered pursuant to the foregoing standards.

II. Violation of Due Process

Gramling asserts that the Bureau violated his constitutional right to due process by considering what he contends is extra-record material. The material he believes is outside the record is a Minnesota Multiphasic Personality Inventory (MMPI) administered while Gramling was at the pain clinic. This MMPI is not in the files; the files only contain letters from Drs. Kennedy and Florence interpreting the MMPI.

Dr. Florence's letter, addressed to Dr. Kennedy, was in response to criticism of the pain clinic. In this letter, Dr. Florence indicated that Gramling had a "significantly abnormal personality" and "demonstrated a very manipulative personality."

Another letter concerning the MMPI was written to Gramling's attorney by Dr. Kennedy. This letter quoting from the MMPI said "he is 'a worrisome and anxious person as to his state of health and is pre-occupied by body symptoms in a near hypochondriacal way. He is somewhat depressed, apt to deny psychological problems and could well have some sexual difficulties. Even if he has positive organic findings he is handling his circumstances through neurotic mechanisms.' " Dr. Kennedy concluded, however, by saying:

"Even with his history of some neurotic tendencies and what seems to be anxiety intermixed with depressive symptoms at times, he does have enough back difficulty following three laminectomies to warrant restricted activity.

"I feel that he does have pain although he does not handle it well."

Gramling's attorney sent this letter in to the Bureau to be placed in Gramling's file, and now Gramling complains that the Bureau improperly relied upon the interpretations of the MMPI without having the MMPI in the file.

Gramling clearly had notice that an MMPI had been given him and, also, clearly had indications that this MMPI was adverse to him. He could have submitted the MMPI himself to the Bureau to show that the interpretations in the letters were incorrect or malicious; he chose not to do so. Gramling also could have objected to the letters interpreting the MMPI at the formal hearing, but he did not do so. In the absence of obvious error, a prerequisite to review of a trial court decision is that the matter has been appropriately raised in the trial court so that the trial court may intelligently rule on it. Dobervitch v. Cent. Cass Pub. Sch. Dist. No. 17, 283 N.W.2d 187 (N.D.1979); State v. Rindy, 299 N.W.2d 783, 785 (N.D.1980). While this rule has been stated in conjunction with hearings before a trial court, we believe the rationale of the rule is equally applicable to formal hearings before the Bureau as Section 28-32-06, N.D.C.C., provides that the admissibility of evidence shall be determined in accordance with the practice in the district court. ¹ See also Allied Chemical Corp. v. Workmen's Comp. App. Bd., 17 Pa.Cmwlth. 277, 330 A.2d 550, 551 (1975) (Failure to object to procedure before compensation board referees did not properly present the question to the appellate court on review.).

In failing to object to the letters containing interpretations of the MMPI at the administrative level, Gramling has failed to properly bring the question before us.

As a matter of practice, it appears that the Bureau produces for the formal hearing the claimant's entire file, which contains all claims, correspondence, and medical records filed with the...