Gregory v. North Dakota Workmen's Compensation Bureau, 10851

• Decision Date: 10 June 1985
• Docket Number: No. 10851,10851
• Citation: 369 N.W.2d 119
• Parties: Laverne GREGORY, Appellee, v. NORTH DAKOTA WORKMEN'S COMPENSATION BUREAU, Appellant. Civ.
• Court: North Dakota Supreme Court

Page 119

369 N.W.2d 119

Laverne GREGORY, Appellee, v.NORTH DAKOTA WORKMEN'S COMPENSATION BUREAU, Appellant.

Civ. No. 10851.

Supreme Court of North Dakota.

June 10, 1985.

Schneider, Schneider & Schneider, Fargo, for appellee; argued by Mark G. Schneider, appearance by John T. Schneider, Fargo.

Clare Hochhalter and Joseph F. Larson, II, Asst. Attys.Gen., Workmen's Compensation Bureau, Bismarck, for appellant; argued by Clare Hochhalter, Bismarck.

MESCHKE, Justice.

The North Dakota Workmen's Compensation Bureau appeals a district court judgment holding that the rate of payment for permanent impairments under Sec. 65-05-12, N.D.C.C., is the statutory rate in effect at the time the impairment is determined rather than the statutory rate in effect on the date of the injury.We uphold the district court's judgment which reversed the Bureau's decision.

The facts are not disputed.Laverne Gregory was severely injured in the course of his employment in 1958.The Bureau paid disability and medical expense benefits in connection with that injury.Following a lengthy convalescence, Gregory continued to work until February 26, 1981, when the cumulative effects of the 1958 injury forced him to quit.

In March 1983, Gregory requested a permanent partial impairment award.On March 28, 1983, the Bureau made a twenty percent whole body impairment award with a lump sum payment based on the rate in effect in 1958, $31.50 per week.Gregory argued that he was entitled to receive $40 per week, the rate in effect at the time his permanent partial impairment was actually determined.Gregory appealed the Bureau's formal order to the Cass County District Court, which reversed the Bureau's decision on this issue, holding that "the permanent partial impairment award in this case must be based upon the statutory rate in effect at the time the impairment was determined by the Bureau."

Our review of cases appealed under chapter 28-32 N.D.C.C.(the Administrative Agencies Practice Act) is a review of the agency's decision and not a review of the district court's decision.The scope of our review is subject to the same standards as the district court's review of the agency's decision;Sec. 28-32-21, N.D.C.C.The agency's decision must be affirmed unless any one of the six factors specified in Sec. 28-32-19, N.D.C.C., is present.This appeal involves only whether the agency's "decision or determination is not in accordance with the law."

The sole issue is whether the rate of payment for a permanent partial impairment award under Sec. 65-05-12, N.D.C.C., is the statutory rate in effect at the time the impairment is determined or the statutory rate in effect on the date the compensable injury occurred.Statutory interpretation is a question of law, fully reviewable by this Court.Ladish Malting Co. v. Stutsman County, 351 N.W.2d 712, 718(N.D.1984).

The Bureau argues that the general rule in a majority of jurisdictions is that all rights to recover benefits vest on the date of injury and, accordingly, the rate in effect at the time of injury controls.Gregory, on the other hand, contends that the language of the applicable statute¹ clearly states that the Bureau is required to pay compensation only when an impairment determination is made and therefore, logic dictates that the date of determination of impairment controls when the right to compensation arises and the amount of payment.The district court concluded that Gregory's position was correct.We agree.

The Bureau relies on caselaw from other jurisdictions to support its position that the "general rule" is also the law in North Dakota.We find the Bureau's argument unpersuasive.To the contrary, the North Dakota legislature has clearly indicated that, for disability purposes, the rate in effect at the time a disability is determined controls and that time may or may not be the date of injury.Section 65-05-09, N.D.C.C., explicitly states (in pertinent part):

"... If an employee is disabled due to an injury, that employee's benefits will be based upon the wage at the time of the commencement of the first disability.However, if an employee suffers disability but is able to return to employment for a period of twelve months or more, that employee's benefits will be based upon the wage in effect at the time of the recurrence of the disability or upon the wage that employee received prior to the injury, whichever is higher; and the benefits shall be those in effect at the time of that recurrence...."(Emphasis supplied.)

Although the Bureau concedes that disability benefits are computed at the time the disability commences or is determined, it asserts that because the disability almost always commences "in close proximity with the injury, the effect is to pay disability benefits at the rate in effect at the time of injury."That assertion ignores the plain provision that when an employee has returned to work for a period of twelve months or more and the employee suffers a recurrence of the disability, the rate of compensation is determined at the time of recurrence.

The Bureau further argues that there is a clear distinction between "disability" and "permanent impairment,"...