Houn v. WORKFORCE SAFETY AND INSURANCE

Citation698 NW 2d 271,2005 ND 115
Decision Date22 June 2005
Docket NumberNo. 20050013,20050013
PartiesTimothy Houn, Claimant and Appellant, v. Workforce Safety and Insurance, Appellee and Bismarck Lumber Company, Respondent.
CourtUnited States State Supreme Court of North Dakota
Opinion of the Court by Maring, Justice.

Maring, Justice.

[¶1] Timothy Houn appealed from a district court judgment affirming a decision by Workforce Safety and Insurance ("WSI") which denied him disability benefits. We conclude WSI erred in applying N.D.C.C. § 65-05-08(1) to Houn's application for disability benefits, and we reverse and remand for WSI to treat Houn's claim as an original application for disability benefits.

I

[¶2] In August 2001, Houn was unloading a truck while employed by Bismarck Lumber. A pallet he was standing on broke, and he fell four feet to a concrete floor, injuring his right shoulder and lower back. WSI accepted Houn's claim and paid the medical expenses related to his injury. Houn did not miss five or more consecutive days of work at the time of his injury, and he therefore did not receive disability benefits for his injury. See N.D.C.C. § 65-05-08. Houn terminated his employment at Bismarck Lumber, effective September 25, 2001, and he has not worked since that date. In January 2002, Houn filed a claim with WSI for disability benefits. WSI ultimately denied Houn's claim for disability benefits, finding Bismarck Lumber had been accommodating Houn's light duty restrictions, Houn had voluntarily limited his income by quitting his job at Bismarck Lumber, and any loss of earnings resulted from Houn voluntarily quitting his job at Bismarck Lumber and not from his work injury. Houn did not appeal that denial of his claim for disability benefits.

[¶3] In September 2002, Houn submitted a second claim to WSI for disability benefits, stating he was unable to work because of soreness and pain in his lower back and leg, and he was entitled to disability benefits. Houn requested and received an evidentiary hearing on his claim. There was evidence presented at the hearing that Houn's condition had worsened, he had been advised not to return to work due to his work-related injury, and it was unlikely he would be able to return to his previous type of employment. There was also some evidence that Houn had unsuccessfully attempted to procure employment from November 2002 to the fall of 2003. An administrative law judge ("ALJ") said WSI had not had an opportunity to determine whether Houn's limitation of income after September 5, 2002, was justified. The ALJ determined Houn's compensable work injury had worsened, he would have permanent functional limitations as a result of that change in his medical condition, and he would not be able to work at jobs suitable to his skills, education, and work experience. The ALJ recommended remanding the case to WSI to determine whether Houn was entitled to disability benefits under its continuing jurisdiction provided for in N.D.C.C. § 65-05-04. WSI rejected the ALJ's recommendation and decided Houn was not entitled to disability benefits because, under the procedure and criteria for reapplications for disability benefits when disability benefits have been discontinued, he had not shown an actual wage loss due to a significant change in his compensable physical condition. See N.D.C.C. § 65-05-08(1). WSI decided Houn had not incurred an actual wage loss, because he had voluntarily left his job with Bismarck Lumber. The district court affirmed WSI's decision.

II

[¶4] Under N.D.C.C. §§ 28-32-46 and 28-32-49, we affirm an administrative agency's order unless:

1. The order is not in accordance with the law.
2. The order is in violation of the constitutional rights of the appellant.
3. The 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 of law and order of the agency are not supported by its findings of fact.
7. The findings of fact made by the agency do not sufficiently address the evidence presented to the agency by the appellant.
8. The conclusions of law and order of the agency do not sufficiently explain the agency's rationale for not adopting any contrary recommendations by a hearing officer or an administrative law judge.

We exercise restraint in deciding whether an agency's findings of fact are supported by a preponderance of the evidence, and we do not make independent findings or substitute our judgment for that of the agency. Wanner v. North Dakota Workers Comp. Bureau, 2002 ND 201, ¶ 8, 654 N.W.2d 760. Rather, we decide whether a reasoning mind reasonably could have decided the agency's findings were proven by the weight of the evidence from the entire record. Id. Although an administrative construction of a statute by the agency administering the law is ordinarily entitled to some deference if that interpretation does not contradict clear and unambiguous statutory language, questions of law, including the interpretation of a statute, are fully reviewable on appeal from an administrative decision. Zander v. Workforce Safety & Ins., 2003 ND 194, ¶ 6, 672 N.W.2d 668.

III

[¶5] Houn argues WSI did not provide him with a fair post-hearing adjudication. He claims WSI improperly rejected the ALJ's recommended decision without reviewing a transcript of the hearing and after improperly communicating with its attorney.

[¶6] A similar claim about the timing of the preparation of a transcript was made in Schultz v. North Dakota Dep't of Human Servs., 372 N.W.2d 888, 891-93 (N.D. 1985). In Schultz, at 891, a transcript of an administrative hearing had not been prepared, but an electronic recording of the hearing was available when an administrative decision-maker rejected a hearing examiner's recommendation. This Court said an administrative decision-maker need not actually hear the witnesses testify or hear oral argument, but the decision-maker must consider and appraise the evidence before reaching a decision. Id. at 892. This Court concluded the record reflected the decision-maker stated he had considered and appraised the hearing officer's findings and conclusions, and this Court said review was limited to a review of the decision-maker's decision under the appropriate standard of review with the caveat that the decision should be sufficient to explain the decision-maker's rationale for not following the hearing examiner's recommendation. Id. See N.D.C.C. § 28-32-46(8) (stating "conclusions of law and order of the agency [must] sufficiently explain the agency's rationale for not adopting any contrary recommendations by a hearing officer or an administrative law judge").

[¶7] Here, WSI's decision states the ALJ's recommended decision had been reviewed, and the ALJ's legal analysis was rejected. WSI's decision was based on a disagreement about legal issues, and we reject Houn's argument about the lack of a transcript.

[¶8] Houn also claims WSI's outside counsel had improper communications with WSI in violation of our decision in Miller v. Workforce Safety & Ins., 2004 ND 155, 684 N.W.2d 641. In Miller, at ¶ 3, WSI's outside litigation counsel communicated with an attorney with WSI about an ALJ's recommended decision. We concluded the communications to someone other than the decision-maker raised concerns about how, or whether, information was passed on to the decision-maker, and we suggested a better approach would be to send the letter directly to the decision-maker with a copy to opposing counsel. Id. at ¶ 10. We remanded to WSI for an evidentiary hearing to ascertain whether there were any improper ex parte communications and, if so, to place them in the record. Id. at ¶ 12.

[¶9] Here, WSI's outside litigation counsel's letter to WSI's decision-maker complied with our suggestion in Miller. Houn nevertheless asks us to take judicial notice of WSI's post-hearing procedures as shown in the evidentiary hearing on the remand in Miller. Houn has not provided this Court with any information to establish those procedures, and we conclude he has not shown any improper communications to WSI's decision-maker. We therefore reject Houn's arguments that WSI failed to provide him with a fair post-hearing adjudication.

IV

[¶10] Houn argues he is unable to work at the type of job he had at Bismarck Lumber because of his work-related injury, and he is entitled to an assessment of his right to disability benefits under N.D.C.C. § 65-05-04. Houn argues this Court's decision in Wendt v. North Dakota Workers Comp. Bureau, 467 N.W.2d 720 (N.D. 1991), applies, because he has never received disability benefits and his "reapplication" for benefits does not fit within the terms of N.D.C.C. § 65-05-08(1), which applies to reapplications "[w]hen disability benefits are discontinued" and requires an actual wage loss caused by a significant change in the compensable medical condition. Houn seeks a remand to WSI under N.D.C.C. § 65-05-04. WSI responds, asserting N.D.C.C. § 65-05-08(1) applies to Houn's reapplication for benefits. WSI argues that because Houn quit his job with Bismarck Lumber, he failed to show an actual wage loss caused by a significant change in his compensable medical condition. He, therefore, was not entitled to disability benefits under our cases dealing with reapplications for disability benefits after benefits have been discontinued.

[¶11] Under N.D.C.C. § 65-01-11, a claimant seeking workers compensation benefits has the burden of proving by a preponderance of the evidence that he is entitled to receive benefits. Claimants thus must...

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  • Drayton v. Workforce Safety and Ins., 20070281.
    • United States
    • United States State Supreme Court of North Dakota
    • September 25, 2008
    ...or increase compensation previously awarded or, if compensation has been refused or discontinued, may award compensation." Houn v. Workforce Safety & Ins., 2005 ND 115, ¶ 12, 698 N.W.2d 271 (citing N.D.C.C. § 65-05-04). Under N.D.C.C. § 65-05-04, WSI's decision whether or not to reopen a ma......
  • Industrial Contractors v. Wsi., 20080275.
    • United States
    • United States State Supreme Court of North Dakota
    • September 4, 2009
    ...clear and unambiguous statutory language. Victor v. Workforce Safety & Ins., 2006 ND 68, ¶ 12, 711 N.W.2d 188 (quoting Houn v. Workforce Safety & Ins., 2005 ND 115, ¶ 4, 698 N.W.2d 271). See People to Save the Sheyenne River, Inc. v. North Dakota Dep't of Health, 2008 ND 34, ¶ 15, 744 N.W.2......
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    • United States
    • United States State Supreme Court of North Dakota
    • April 11, 2019
    ...of the findings, conclusions, and decision of the agency under the appropriate standard of review." Id. at 892. See also Houn v. Workforce Safety and Ins. , 2005 ND 115, ¶¶ 5-7, 698 N.W.2d 271 ; Speedway, Inc. v. Job Serv. N.D. , 454 N.W.2d 526, 527-28 (N.D. 1990). Here, the separation of p......
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    • United States
    • United States State Supreme Court of North Dakota
    • June 21, 2011
    ...on the presence of new medical evidence. See N.D.C.C. § 65–05–04; see also Drayton v. WSI, 2008 ND 178, ¶ 18, 756 N.W.2d 320 (citing Houn v. WSI, 2005 ND 115, ¶ 12, 698 N.W.2d 271) (holding the district court incorrectly found that “WSI must first determine if there is new evidence ... befo......
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