Hoffman v. ND WORKERS COMPENSATION BUREAU

• Decision Date: 22 August 2002
• Docket Number: No. 20010310.,20010310.
• Parties: Mark HOFFMAN, Claimant and Appellant v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellee and Mor-Gran-Sou Electric Coop., Respondent.
• Court: North Dakota Supreme Court

651 N.W.2d 601

2002 ND 138

Mark HOFFMAN, Claimant and Appellant v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellee and Mor-Gran-Sou Electric Coop., Respondent.

No. 20010310.

Supreme Court of North Dakota.

August 22, 2002.

Kathryn L. Dietz, Dietz & Little Lawyers, Bismarck, N.D., for claimant and appellant.

Lawrence A. Dopson, Special Assistant Attorney General, Zuger Kirmis & Smith, Bismarck, N.D., for appellee.

NEUMANN, Justice.

[¶ 1] Mark Hoffman appealed from a district court judgment affirming a Workers Compensation Bureau order terminating his disability and vocational rehabilitation benefits. Because the Bureau failed to address uncontradicted medical evidence and other evidence favorable to Hoffman, we reverse the judgment and remand the case to the Bureau for further proceedings.

I

[¶ 2] In November 1993, Hoffman injured his low back while employed as a lineman with Mor-Gran-Sou Electric Cooperative in Flasher. The Bureau accepted liability and paid associated medical expenses and disability benefits. Hoffman returned to work in a different capacity at Mor-Gran-Sou for a while, but in 1996 the Bureau began vocational rehabilitation efforts. On April 29, 1999, the Bureau issued an order awarding Hoffman a vocational training program as a computer support specialist at Bismarck State College ("BSC"). The program was scheduled to begin June 5, 1999 and continue through May 8, 2001, or until completion of the required course work, whichever first occurred. Hoffman's medical limitations restricted him to "light level work," and his physician, Dr. Carol Krause, approved the training program. Hoffman did not appeal the Bureau's order.

[¶ 3] After Hoffman failed to register for classes, the Bureau issued an order suspending his disability benefits because he was in noncompliance with the rehabilitation program. Because Hoffman was not allowed to register at BSC until his 1970 probation from North Dakota State University ("NDSU") had been lifted, the Bureau found good cause for his not registering and reinstated Hoffman's benefits effective July 1, 1999, after the NDSU probation had been lifted. The Bureau also ordered that Hoffman's training program would begin August 24, 1999 and continue through May 11, 2001. Hoffman was allowed to take his classes over the Internet from his home in Flasher. Hoffman did not appeal this order.

[¶ 4] On February 11, 2000, the Bureau issued an order suspending Hoffman's disability and vocational rehabilitation benefits effective January 18, 2000, because he had failed to submit school assignments and had received a failing grade in all four of his courses. The Bureau found this constituted a first instance of noncompliance with his rehabilitation plan and advised Hoffman that if the noncompliance continued for 30 days or there was a second instance of noncompliance without good cause, the Bureau would terminate vocational and disability benefits. This order was not appealed. On March 23, 2000, the Bureau reinstated benefits because Hoffman had come back into compliance by registering for courses in the spring 2000 semester and by acquiring a cumulative 2.0 grade point average in his courses by midterm.

[¶ 5] Hoffman visited Dr. Krause on April 20, 2000. Hoffman complained that he had difficulty working at his computer because he was unable to sit for long periods of time. Dr. Krause explained in her psychiatry follow-up notes:

We reviewed his functional capacity assessment done in August, 1998. It put him in the light category of work. Some how [sic] they stated he could do sitting on a frequent basis. He has consistently told me that he has trouble sitting on a frequent basis. I have never seen him sit in my office at all. Rather, he stands and paces. He has been trying to do his school work. [I]t seems the sitting is his major complaint. He states he is getting behind and concerned about failing. My recommendation at this time would therefore be to have him cut down his course work to 2 classes per semester to see if he can succeed at this. My second recommendation would be to have a physical therapist visit his home and look at his computer set up to make recommendations about how it could be set up more comfortably for him. Perhaps on an elevated table so he could stand and work at the computer.

[¶ 6] Hoffman's rehabilitation consultant asked Dr. Krause for clarification. Dr. Krause told the rehabilitation consultant that Hoffman could not continue with his four classes for the remaining two weeks of the semester because "[h]e is not tolerating it!!" Hoffman failed all four spring semester courses and was placed on academic suspension. However, because Dr. Krause had placed on Hoffman a medical restriction of two courses, BSC allowed Hoffman a medical extension to complete two of the four courses after the spring semester ended. The Bureau further required that Hoffman register and enroll in an additional class during summer school. The vocational consultant contacted Hoffman and informed him a tutor had been approved once per week and the Bureau would pay his travel expenses to meet with the tutor, but Hoffman said it was too difficult for him to drive to Bismarck. Although Hoffman's home work station was evaluated and improvements were suggested, Hoffman testified he had already tried the improvements suggested to no avail.

[¶ 7] In June 2000, Dr. Krause recommended that Hoffman undergo another functional capacity evaluation ("FCE"), which was conducted in July. The physical therapist reported that the FCE was not a "reliable test effort" because Hoffman "did not give maximum, consistent effort" during the test. The physical therapist reported Hoffman was either "unable or unwilling to fully participate," and "[s]ignificant pain behaviors were an interfering factor with the testing." Following the FCE, Hoffman again visited Dr. Krause, whose impression of Hoffman upon examination was "[c]hronic low back pain recently flared up by his FCE." Dr. Krause reported:

He did have his FC[E] done on Wednesday and Thursday of this week. States part way through his first day, the pain got so bad that he was unable to tolerate continuing things. States things locked up really bad. He tried to get in to see me yesterday but my schedule was full. States that last night shifting around he felt something pop and things to day [sic] aren't quite as bad as they were yesterday but he's still more sore than usual. We did get the report from the FC[E] and it was an inconsistent test. He was unable to complete enough of it for it to be an accurate test.

[¶ 8] Hoffman received a "B" in each of the two spring semester courses he was allowed to complete during the summer, but he failed the summer school course he had taken, resulting in his cumulative grade point average dropping below 2.0. On September 27, 2000, the Bureau issued an order terminating disability and vocational rehabilitation benefits because Hoffman had failed to comply with the vocational rehabilitation plan without good cause under N.D.C.C. § 65-05.1-04. The Bureau ruled Hoffman did not comply because he failed the summer school course he had taken, which constituted a second act of noncompliance, and he did not fully cooperate in the FCE. Hoffman requested a formal hearing.

[¶ 9] Before the evidentiary hearing, Hoffman's attorney asked Dr. Krause her opinions about Hoffman's medical condition and his capabilities. Dr. Krause responded:

Your first question asked whether "Mr. Hoffman's behavior during FC[E] of July 21, 2000 and March 30, 2001 GATB testing is more likely than not causally related to chronic [pain] which he experiences?" To this I would reply yes. in regards to your questions about whether he can sit and concentrate at a computer terminal more than 10 or 15 minutes at a time? My answer to this would be no. He is [sic] consistently complained of an inability to sit still. And in the years that I've known him; I've never seen him sit in my office. He usually stands and paces.

In answer to your final question; I do not believe Mr. Hoffman is consciously malingering or exaggerating his pain. I think his pain does keep him from participating in many usual daily activities.

[¶ 10] At the evidentiary hearing, Hoffman presented evidence from the chairman of the computer office technology department at BSC, who testified that because of the compressed summer school schedule the on-line summer course in which Hoffman had enrolled would be the equivalent of two regular semester courses. The chairman also testified a lack of basic keyboarding skills would add more time to the 20 to 25 hours per week required to successfully complete the course. Hoffman had not successfully completed the basic keyboarding course.

[¶ 11] The administrative law judge (ALJ) recommended upholding the Bureau's decision to terminate benefits. The ALJ concluded Hoffman had engaged in a second instance of noncompliance with vocational rehabilitation services without good cause:

The greater weight of the evidence reveals that the claimant, Mark Hoffman, was noncompliant with his vocational training program at Bismarck State College. Hoffman received a failing grade in his Database class during the summer 2000 session at BSC without good cause. The greater weight of the evidence has also revealed that the North Dakota Workers Compensation Bureau and its vocational consultant(s) undertook extensive efforts to work with Hoffman, and to closely monitor his condition and his course work while he was enrolled in the computer support specialist program. The greater weight of the evidence reveals that Hoffman was capable of completing the work assignments and passing the required courses at BSC. However, he was admittedly "too burned out" with college and computers were not an area of interest for him.

[¶ 12] The Bureau adopted the ALJ's recommendations, and the district court affirmed the Bureau's decision. Hoffman appealed.

II

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