Huwe v. Workforce Safety and Ins.

• Decision Date: 20 March 2008
• Docket Number: No. 20070067.,20070067.
• Court: North Dakota Supreme Court
• Parties: Gaylen HUWE, Claimant and Appellant v. WORKFORCE SAFETY AND INSURANCE, Appellee and G.L. Trucking & Rental, Respondent.

746 N.W.2d 158

2008 ND 47

Gaylen HUWE, Claimant and Appellant v. WORKFORCE SAFETY AND INSURANCE, Appellee and G.L. Trucking & Rental, Respondent.

No. 20070067.

Supreme Court of North Dakota.

March 20, 2008.

Kevin J. Chapman, Chapman Law Office, Williston, N.D., for claimant and appellant.

Lawrence E. King, Special Assistant Attorney General, Bismarck, N.D., for appellee.

VANDE WALLE, Chief Justice.

[¶ 1] Gaylen Huwe appeals from a district court judgment affirming an order of Workforce Safety and Insurance ("WSI") denying his reapplication for disability benefits. We reverse and remand to WSI for further consideration.

I

[¶ 2] Huwe suffered a serious work-related injury to his head, neck, back, jaw, and teeth while employed as a truck driver in December 1992. WSI accepted his claim and paid medical and disability benefits. In January 1995, Huwe accepted a position with the State of North Dakota as a motor carrier inspector, and his disability benefits were terminated.

[¶ 3] Huwe contends that he began experiencing increased headaches and back and neck pain in 2003. In September 2003, Huwe had back surgery to fuse discs at the C4-C7 levels. There is conflicting evidence in the record regarding the relative success of this surgery. Huwe contends he continued to, suffer debilitating pain and migraine headaches after the surgery, as evidenced by his frequent doctor and emergency room visits after the surgery. Contemporaneous medical records indicate Huwe reported in November 2003, two months after the surgery, that he was doing "very well" and the headaches were "completely gone," but that he continued to suffer "some vague neck pain." At his three month follow-up visit in December 2003, Huwe stated he was "feeling better" and had returned to work, and he was advised he could return to his "normal daily activities."

[¶ 4] In February 2004, Huwe entered a residential treatment program for alcoholism and substance abuse. Huwe never returned to his job with the State after that date. Huwe eventually tendered his resignation from his position with the State effective July 31, 2004, contending he was no longer physically capable of performing the duties of the job.

[¶ 5] While still in treatment for alcoholism and substance abuse, Huwe reapplied for disability benefits on June 9, 2004, alleging that his medical condition had significantly worsened in September 2003 and he was no longer able to work as a motor carrier inspector. WSI denied Huwe's reapplication, noting that the medical evidence did not indicate Huwe had sustained a significant change in his compensable medical condition, that the medical records indicated he was physically able to return to work in light to medium positions, and that Huwe had been taken off work by his doctors because of addiction and medical conditions unrelated to the work injury,

[¶ 6] Huwe requested a formal hearing before an administrative law judge ("ALJ"). The ALJ issued recommended findings of fact, conclusions of law, and order, finding that Huwe had not sustained a significant change in his compensable medical condition at the time of reapplication for disability benefits and had not sustained an actual wage loss attributable to a significant change in his medical condition. WSI adopted the findings, conclusions, and order of the ALJ as its final order and denied Huwe's reapplication for disability benefits.

[¶ 7] Huwe appealed to the district court, which affirmed WSI's order. Huwe has appealed from the district court judgment affirming WSI's order, contending the greater weight of the evidence proved he had sustained a significant change in his compensable medical condition and had shown an actual wage loss attributable to the change in his medical condition.

II

[¶ 8] Courts exercise only a limited review in appeals from administrative agency decisions under the Administrative Agencies Practice Act, N.D.C.C. ch. 28-32. Fettig v. Workforce Safety & Ins., 2007 ND 23, ¶ 9, 728 N.W.2d 301; Tverberg v. Workforce Safety & Ins., 2006 ND 229, ¶ 7, 723 N.W.2d 676. Under N.D.C.C. § 28-32-46, the district court must affirm an administrative agency 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.

[¶ 9] On appeal from the district court's decision in an administrative appeal, we review the agency order in the same manner. Tverberg, 2006 ND 229, ¶ 8, 723 N.W.2d 676. We exercise restraint in deciding whether the 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. Fettig, 2007 ND 23, ¶ 10, 728 N.W.2d 301; Tverberg, at ¶ 8. In reviewing an agency's findings of fact, we determine only whether a reasoning mind reasonably could have determined that the factual conclusions reached were proved by the weight of the evidence from the entire record. Power Fuels, Inc. v. Elkin, 283 N.W.2d 214, 220 (N.D.1979); Fettig, at ¶ 10; Tverberg, at ¶ 8. However, an agency's decision on questions of law are fully reviewable. Opp v. Ward County Social Services Bd., 2002 ND 45, ¶ 8, 640 N.W.2d 704.

[¶ 10] WSI has the responsibility to weigh the credibility of medical evidence and resolve conflicting medical opinions. Thompson v. Workforce Safety & Ins., 2006 ND 69, ¶ 11, 712 N.W.2d 309; Barnes v. Workforce Safety & Ins., 2003 ND 141, ¶ 20, 668 N.W.2d 290; Negaard-Cooley v. North Dakota Workers Comp. Bureau, 2000 ND 122, ¶ 18, 611 N.W.2d 898. When confronted with a classic "battle of the experts," a fact-finder may rely upon either party's expert witness. Elshaug v. Workforce Safety & Ins., 2003 ND 177, ¶ 11, 671 N.W.2d 784. Although WSI may resolve conflicts between medical opinions, the authority to reject medical evidence selectively does not permit WSI to pick and choose in an unreasoned manner. Id.; Negaard-Cooley, at ¶ 19. WSI must consider the entire record, clarify inconsistencies, and adequately explain its reasons for disregarding medical evidence favorable to the claimant. Barnes, at ¶ 20; Negaard-Cooley, at ¶ 18.

III

[¶ 11] A claimant seeking benefits from the workers compensation fund has the burden of proving by a preponderance of the evidence that he is entitled to benefits. N.D.C.C. § 65-01-11; Aga v. Workforce Safety & Ins., 2006 ND 254, ¶ 13, 725 N.W.2d 204; Bachmeier v. North Dakota Workers Comp. Bureau, 2003 ND 63, ¶ 11, 660 N.W.2d 217. When a claimant's disability benefits have been discontinued and the claimant subsequently sustains a significant change in medical condition that causes an additional wage loss, the claimant may file a reapplication seeking further disability benefits. Ago, at ¶ 13; Bachmeier, at ¶ 11. Reapplication for disability benefits is governed by N.D.C.C. § 65-05-08(1):

When disability benefits are discontinued, the organization may not begin payment again unless the injured employee files a reapplication for disability benefits on a form supplied by the organization. In case of reapplication, the award may commence no more than thirty days before the date of reapplication. Disability benefits must be reinstated upon proof by the injured employee that:

a. The employee has sustained a significant change in the compensable medical condition;

b. The employee has sustained an actual wage loss caused by the significant change in the compensable medical condition; and

c. The employee has not retired or voluntarily withdrawn from the job market as defined in section 65-05-09.3.

A claimant reapplying for disability benefits under N.D.C.C. § 65-05-08(1) bears the burden of showing a significant change in his compensable medical condition and an actual wage loss caused by the significant change in his compensable medical condition. Ago, at ¶ 13; Sorlie v. Workforce Safety & Ins., 2005 ND 83, ¶ 15, 695 N.W.2d 453.

IV

[¶ 12] The parties agree that this is a complex case with "voluminous" medical records. Huwe has psychological and addiction problems, some predating his work injury in 1992, that factor into his current disability status. Huwe has not argued that his psychological and addiction problems stem from his work injury, and has disavowed any reliance upon these psychological components. Rather, Huwe argues that there is "overwhelming" medical proof that he suffered a significant change in his physical medical condition warranting reinstatement of disability benefits under N.D.C.C. § 65-05-08(1).

[¶ 13] In support of its conclusion that Huwe failed to prove he had suffered a significant change in his compensable medical condition or an actual wage loss attributable to the change, WSI relies primarily upon the testimony of Dr. Cooper, WSI's medical director. Dr. Cooper testified at the administrative hearing that, in his opinion, Huwe had not suffered a significant change in his compensable medical condition and any inability to work was caused by other non-work related factors. Dr. Cooper described some of Huwe's preexisting conditions that were unrelated to the 1992 work injury:

Q. Okay. Can you describe to me your understanding of — of the — what I'll generally categorize as nonwork-related conditions, and can you describe those for me?

A. Yes....