Gregory v. North Dakota Workers Compensation Bureau

• Decision Date: 28 April 1998
• Docket Number: No. 970243,970243
• Citation: 1998 ND 94,578 N.W.2d 101
• Parties: Laverne GREGORY, Claimant and Appellee, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellant, and Midwest Motor Express, Inc., Respondent Civil
• Court: North Dakota Supreme Court

Page 101

578 N.W.2d 101

1998 ND 94

Laverne GREGORY, Claimant and Appellee, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellant, and Midwest Motor Express, Inc., Respondent

Civil No. 970243.

Supreme Court of North Dakota.

April 28, 1998.

Rehearing Denied May 20, 1998.

Mark G. Schneider (argued), of Schneider, Schneider & Schneider, Fargo, for claimant and appellee.

Brent J. Edison (argued), and Tracy L. Vigness Kolb (appearance), Special Assistant Attorneys General, Bismarck, for appellant.

MESCHKE, Justice.

¶1 The Workers Compensation Bureau appealed a district court judgment reversing the Bureau's order canceling Laverne Gregory's disability benefits when he began receiving social security retirement benefits. We hold the district court had jurisdiction, Gregory's appeal was not moot, and the Bureau erred when it terminated a valid obligation to pay Gregory disability "as long as [he] remain[ed] totally disabled." We affirm the judgment.

I. FACTS

¶2 Gregory was seriously injured at work in 1958. The Bureau paid medical and disability benefits. Gregory returned to work until February 1981, when the cumulative effects of his 1958 injury prevented him from working. Then the Bureau began paying him disability benefits. ¹ In 1985 the Bureau ordered payment of permanent total disability benefits to Gregory for "as long as you remain totally disabled."

¶3 In July 1996, the Bureau notified Gregory of its intention to discontinue disability benefits under a 1995 enactment of N.D.C.C. § 65-05-09.3 creating a rebuttable presumption that a disability recipient who begins receiving social security retirement benefits is considered retired and ineligible for disability benefits. On August 2, 1996, the Bureau ordered cancellation of Gregory's disability benefits effective August 13, 1996, when he turned 65.

¶4 As directed by N.D.C.C. § 65-02-27, Gregory requested assistance from the Bureau's Workers' Adviser Program on August 29, 1996. The Bureau responded his request could not be processed due to turnover in the staff of the Program. The Bureau therefore issued him a certificate of completion of the Program on September 23, 1996.

¶5 On October 7, 1996, Gregory appealed to the district court. On April 8, 1997, the court ruled the Bureau had erred in terminating Gregory's disability benefits, and ordered the Bureau to reinstate them. The Bureau moved to vacate the court's decision, arguing that Gregory's appeal had become moot because, on March 26, 1997, the Bureau vacated its August 2, 1996 order and awarded additional benefits under 1997 legislative amendments. The district court denied the motion and entered judgment on May 27, 1997. The Bureau appealed to this court.

II. JURISDICTION

¶6 The Bureau argues its August 2, 1996 order was an informal order under N.D.C.C. § 65-01-14(4), and thus was not appealable under McArthur v. North Dakota Workers Compensation Bureau, 1997 ND 105, 564 N.W.2d 655. The Bureau argues the district court thus had no jurisdiction to hear Gregory's appeal and the judgment reversing the Bureau's order is void.

¶7 An appeal from an administrative agency to the district court invokes appellate jurisdiction that is conferred by statute. Lende v. North Dakota Workers' Compensation Bureau, 1997 ND 178, p 10, 568 N.W.2d 755; McArthur, 1997 ND 105, p 9, 564 N.W.2d 655. As we explained in Lende at p 10, and in McArthur at p 9, the right to appeal is jurisdictional.

¶8 At the time of this appeal, the pertinent parts of N.D.C.C. § 65-01-14(4) directed: ²

The bureau shall make its informal decision on the claim after filing of the claim and the physician's certificate.... Any party may, within thirty days of the date of mailing of notice of initial award, request reconsideration by filing a written request for reconsideration.... If a timely request for reconsideration is not filed, the decision of the bureau is final, subject only to reopening of the claim under section 65-05-04. The provisions of section 65-10-01, relating to appeals from decision of the bureau, apply only when the bureau issues an order following a timely request for reconsideration.

¶9 In McArthur, 1997 ND 105, p 10, 564 N.W.2d 655, we held an informal order, made from the claim form and medical records and without a formal evidentiary hearing, was not appealable:

N.D.C.C. § 65-10-01, which authorizes an appeal of the Bureau's final action denying a claimant's right to participate in the fund, does not apply to an informal decision, but applies only to "an order following a timely request for reconsideration." N.D.C.C. § 65-01-14(4). The specific provision in N.D.C.C. § 65-01-14(4) making a request for reconsideration necessary before an appeal may be taken in workers compensation cases prevails over the general provision in N.D.C.C. § 28-32-14, which states filing a petition for reconsideration is not a prerequisite for seeking judicial review of a final order of an administrative agency. The general statute on appeals from administrative agency decisions, N.D.C.C. § 28-32-15, does not authorize McArthur's appeal from the Bureau's informal decision. N.D.C.C. § 28-32-15(1) authorizes a party to appeal an administrative agency order, "except in cases where the order of the administrative agency is declared final by any other statute." That exception is met by N.D.C.C. § 65-01-14(4), which provides, absent a request for reconsideration, an informal decision of the Bureau "is final, subject only to reopening of the claim under section 65-05-04." Because McArthur did not file a request for reconsideration, the informal decision became final, subject only to reopening under N.D.C.C. § 65-05-04. We conclude the Bureau's informal decision was not appealable.

See also Freezon v. North Dakota Workers Compensation Bureau, 1998 ND 23, pp 9-10, 574 N.W.2d 577; McCarty v. North Dakota Workers Compensation Bureau, 1998 ND 9, p 9, 574 N.W.2d 556. Still, because McArthur's effort to appeal documented a need for further consideration, we directed the Bureau to treat it as a request for reconsideration and remanded for a hearing.

¶10 We considered a related problem in Lende, 1997 ND 178, 568 N.W.2d 755. In Lende, the Bureau issued an order denying permanent partial impairment benefits. Lende petitioned for reconsideration and a formal hearing. When the Bureau failed to schedule a hearing after months of delay, Lende appealed to the district court. The Bureau argued his petition for reconsideration was still pending, and thus no final order existed for an appeal.

¶11 We concluded the order was final because, under the relevant statutes, Lende's petition for reconsideration was deemed to have been denied when the Bureau failed to act upon it in a timely manner. Lende, 1997 ND 178, pp 16-22, 568 N.W.2d 755. We applied N.D.C.C. §§ 28-32-14(4) and 28-32-15(1) that direct, when an agency fails to act on a petition for reconsideration within thirty days of its filing, the petition is deemed to have been denied by a final determination and authorize an appeal to be taken.

¶12 Interpreting those statutes, we held, in Lende at pp 20, 22 (emphasis in original), the Bureau's decision became a final, appealable order thirty days after the petition for reconsideration and a hearing had been filed:

The Administrative Agencies Practice Act provides that within thirty days after the filing of the petition the agency must "dispose of" the petition or it will be deemed to have been denied and a "final determination" will be deemed to have been made. N.D.C.C. § 28-32-14(3) clearly provides a claimant may petition for a reconsideration based on documentary evidence or based on a further formal evidentiary hearing.... The question is what action, if any, is the Bureau required to take in the thirty days following the filing of the petition.... If the petition for reconsideration requests a formal hearing, the statutory requirement that the Bureau "dispose of" the petition means in its ordinary sense, at a minimum, the Bureau must take some affirmative action toward the arrangement of the formal hearing within thirty days of the filing of the petition....

[I]t is undisputed the Bureau took no action within thirty days of the filing of the petition for reconsideration with regard to the claimant's request for a formal hearing. The Bureau has failed to point out any evidence in the record of any action taken within the thirty day deadline. There was not even an acknowledgment of Lende's request for a formal hearing until the October 30, 1995, letter from the Bureau's outside counsel to Lende's counsel stating he will "take the necessary steps to have the matter set for hearing." The next action the Bureau took was to serve a notice to take deposition dated January 11, 1996, the very day Lende served her notice of appeal to the district court. We conclude the Bureau's order of May 2, 1995, became a final, appealable order thirty days after the petition was filed under N.D.C.C. §§ 28-32-14(4) and 28-32-15(1).

The distinction between McArthur and Lende can be seen in what the claimant did after the original order.

¶13 If a claimant fails to petition for reconsideration or request a hearing, but instead immediately appeals an informal order, McArthur holds the order is not then reviewable. If, however, the claimant petitions for reconsideration or requests a hearing, and the Bureau fails to act on that request within thirty days, Lende holds the request is deemed denied, the order becomes final, and the claimant can appeal.

¶14 An additional procedure affects this case. Under the statutes in place when Gregory appealed to the district court in 1996, a dissatisfied worker could seek the assistance of the Workers' Adviser Program. See N.D.C.C. § 65-02-27. ³ Indeed, seeking assistance from the Program was a prerequisite for the worker to obtain attorney fees for any subsequent litigation with the Bureau. Id.

¶15 Gregory timely requested assistance from...