In re Beckler, 20040130.

• Citation: 2005 ND 33,692 N.W.2d 483
• Decision Date: 16 February 2005
• Docket Number: No. 20040130.,20040130.
• Parties: In the Matter of the Claim of Troy BECKLER for compensation from the North Dakota Workforce Safety and Insurance Fund. Troy Beckler, Claimant and Appellant v. Workforce Safety and Insurance, Appellee.
• Court: North Dakota Supreme Court

692 N.W.2d 483

2005 ND 33

In the Matter of the Claim of Troy BECKLER for compensation from the North Dakota Workforce Safety and Insurance Fund.

Troy Beckler, Claimant and Appellant v. Workforce Safety and Insurance, Appellee.

No. 20040130.

Supreme Court of North Dakota.

February 16, 2005.

Steven L. Latham, Wheeler Wolf, Bismarck, ND, for claimant and appellant.

Lawrence A. Dopson, Special Assistant Attorney General, Bismarck, ND, for appellee.

NEUMANN, Justice.

[¶ 1] Troy Beckler has appealed from a district court judgment affirming the order of Workforce Safety and Insurance ("WSI") denying his reapplication for disability benefits. We affirm, concluding that the district court did not abuse its discretion when it denied Beckler's motion to supplement the record and that WSI's finding that Beckler had not sustained an actual wage loss caused by a significant change in his medical condition was supported by a preponderance of the evidence.

I

[¶ 2] Beckler suffered a work-related injury to his right wrist in 1983. The injury has resulted in continuing medical problems for Beckler, including numerous surgeries to his right arm and wrist. In addition, Beckler alleges he developed problems with his left arm resulting from his need to compensate for the injured right arm, necessitating surgery on his left arm.

[¶ 3] At the time of his injury in 1983, Beckler applied for and received workers compensation benefits, including disability benefits. In 1991, Beckler was released to return to work and his disability benefits were terminated after he completed a vocational training program in hotel/motel management. Since 1991, Beckler has held a variety of jobs, each time ending the employment when pain from repetitive arm, wrist, and hand movements became too severe to continue working. At various times through the intervening years Beckler has received additional temporary disability benefits.

[¶ 4] Beckler's last employment was as a telemarketer from October 2001 to January 2002. Beckler initially worked full-time, but after a few days went to part-time. Beckler contends that the repetitive motion requirements of the job were causing excessive pain in his arms, and he quit his employment in January 2002.

[¶ 5] Beckler filed a reapplication for disability benefits on June 6, 2002. WSI initially denied Beckler's reapplication, and he requested a hearing before an administrative law judge ("ALJ"). Following the hearing, the ALJ issued her recommended findings of fact, conclusions of law, and order. The ALJ found Beckler had failed to prove that he had suffered a significant change in his medical condition or that he had incurred an actual wage loss caused by a change in his medical condition, and recommended WSI's order denying benefits be affirmed. WSI accepted the ALJ's recommendations and issued a final order denying the reapplication.

[¶ 6] Beckler appealed to the district court, and moved to supplement the record in the district court with additional medical records from an earlier administrative hearing on a prior reapplication for benefits. The district court denied the motion to supplement the record, noting there was no justifiable reason for Beckler's failure to provide the additional medical records to the ALJ in this case. The court further concluded Beckler had failed to establish an actual wage loss caused by a significant change in his medical condition and therefore affirmed WSI's final order denying Beckler's reapplication.

II

[¶ 7] Under N.D.C.C. § 28-32-46, the district court must affirm an order of an administrative agency unless it finds any of the following are present:

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.

On an appeal from the district court's ruling on an administrative appeal, this Court reviews the agency order in the same manner. N.D.C.C. § 28-32-49; Miller v. Workforce Safety and Ins., 2004 ND 155, ¶ 6, 684 N.W.2d 641; Zander v. Workforce Safety and Ins., 2003 ND 194, ¶ 6, 672 N.W.2d 668.

[¶ 8] We have clarified our scope of review in appeals from decisions of administrative agencies:

We review the decision of the administrative agency, rather than that of the district court, although the district court's analysis is entitled to respect. 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. We decide only whether a reasoning mind reasonably could have decided the agency's findings were proven by the weight of the evidence from the entire record. Questions of law, including the interpretation of a statute, are fully reviewable on appeal from an administrative decision.

Paul v. Workforce Safety and Ins., 2003 ND 188, ¶ 11, 671 N.W.2d 795 (citations omitted).

III

[¶ 9] A claimant seeking workers compensation benefits has the burden of proving by a preponderance of the evidence that he is entitled to benefits. N.D.C.C. § 65-01-11; Barnes v. Workforce Safety and Ins., 2003 ND 141, ¶ 20, 668 N.W.2d 290; Bachmeier v. North Dakota Workers Comp. Bureau, 2003 ND 63, ¶ 11, 660 N.W.2d 217; Lesmeister v. North Dakota Workers Comp. Bureau, 2003 ND 60, ¶ 22, 659 N.W.2d 350; Gronfur v. North Dakota Workers Comp. Fund, 2003 ND 42, ¶ 6, 658 N.W.2d 337. When a claimant's disability benefits have been discontinued and he subsequently sustains a significant change in his medical condition that causes further wage loss, the claimant may file a reapplication under N.D.C.C. § 65-05-08(1) seeking further disability benefits. Bachmeier, at ¶ 11; Lesmeister, at ¶ 22; Gronfur, at ¶ 6. Section 65-05-08(1) provides:

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.

Claimants reapplying for disability benefits under N.D.C.C. § 65-05-08(1) must show both a significant change in their compensable medical condition and an actual wage loss caused by the significant change in medical condition. Lesmeister, at ¶ 22.

[¶ 10] In Bachmeier and Gronfur, a majority of this Court held that the term "actual wage loss" in N.D.C.C. § 65-05-08(1)(b) is clear and unambiguous, and in order to show an actual loss of wages as a result of a change in his compensable medical condition the claimant must demonstrate that he was earning wages from employment when the significant change in his medical condition occurred and that the change caused at least a partial loss of those wages. Bachmeier, 2003 ND 63, ¶ 13, 660 N.W.2d 217; Gronfur, 2003 ND 42, ¶¶ 11-12, 658 N.W.2d 337; see also Lesmeister, 2003 ND 60, ¶ 22, 659 N.W.2d 350. The majority in Bachmeier and Gronfur noted the distinction between actual wage loss and loss of earning capacity:

Although the legislature has not defined the term "actual wage loss," the term wages is defined under N.D.C.C. § 65-01-02(31):

"Wages" means an employee's remuneration from all employment reportable to the internal revenue service as earned income for federal income tax purposes.

Using that definition of wages in the context of "actual wage loss" under N.D.C.C. § 65-05-08(1)(b), the claimant must prove that he has sustained an actual loss of remuneration from employment which would be reportable to the internal revenue service as earned income for federal income tax purposes. The requirement is clear. To demonstrate an actual loss of wages or remuneration as a result of a change in the claimant's compensable medical condition, the claimant must necessarily first demonstrate that he was earning wages from employment when the change in his medical condition occurred and must then show that the change caused at least a partial loss of those wages.

Gronfur's attempt to equate actual wages with earning capacity is misplaced. The distinction between those terms is clearly recognized in workers compensation law....

We conclude the Bureau interpreted and applied N.D.C.C. § 65-05-08(1) in accordance with the law. Gronfur, by choosing not to seek employment and by not earning employment wages when he sustained a change in his compensable medical condition, failed to incur an actual wage loss as a result of the change in his medical condition. Gronfur was unable, therefore, to prove the actual wage loss which is a prerequisite to reinstating discontinued disability benefits under the statute.

Bachmeier, at ¶ 13 (quoting Gronfur, at ¶¶ 12-15). Under Bachmeier and Gronfur, the claimant is required to show that he suffered a significant change in compensable medical condition at the time he was employed and earning...