Kopp v. North Dakota Workers Compensation Bureau

• Decision Date: 31 October 1990
• Docket Number: No. 900125,900125
• Citation: 462 N.W.2d 132
• Parties: Victor KOPP, Appellant, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU and State Director of Institutions, Appellees. Civ.
• Court: North Dakota Supreme Court

Page 132

462 N.W.2d 132

Victor KOPP, Appellant, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU and State Director of Institutions, Appellees.

Civ. No. 900125.

Supreme Court of North Dakota.

Oct. 31, 1990.

Dietz & Little, Bismarck, for appellant; Janell M. Knutson (argued).

Dean J. Haas (argued), Asst. Atty. Gen., North Dakota Workers Compensation Bureau, Bismarck, for appellees.

ERICKSTAD, Chief Justice.

Victor Kopp appeals from a judgment of the District Court for Morton County issued January 25, 1990, affirming the North Dakota Workers Compensation Bureau's order of July 26, 1989, affirming its order of March 22, 1988, denying further benefits. We affirm.

In November of 1985 Kopp filed a claim for Workers Compensation benefits in connection with an injury which occurred in May of 1985. Kopp subsequently underwent surgery to repair a rotator cuff tear in his shoulder and the Bureau assumed liability for related medical and disability benefits. The Bureau continued to provide payments to Kopp until February of 1987, when it determined Kopp was no longer disabled. The Bureau issued its order denying further benefits on March 5, 1987. Thereafter, Kopp filed a timely request for rehearing dated April 3, 1987. The Bureau granted Kopp a formal hearing which was held on January 6, 1988. Prior to the hearing the Bureau deposed Doctors Ray Miller, Russell O. Saxvik, and Albert F. Samuelson. After the formal hearing the Bureau issued its order on March 22, 1988, affirming the order denying benefits.

In October of 1988, the district court ordered the Bureau to reconsider this matter in light of evidence provided by Dr. Craig DeGree. Thereafter, the parties agreed to obtain an independent psychiatric examination of Kopp. After reviewing evidence provided by Doctors Craig DeGree and Scott McNairy, the Bureau issued its order of July 26, 1989, affirming its order of March 22, 1988, affirming order denying further benefits. The matter was then appealed to the district court for decision. The district court determined that Kopp was entitled to recover disability benefits from February 4, 1987, through March 10, 1988, because of the Bureau's failure to provide pretermination due process, but it affirmed the decision of the Bureau to terminate the claimants benefits. This appeal followed.

Kopp asserts that the Bureau's findings cannot be supported by a preponderance of the evidence for the following two reasons: (1) the Bureau has incorrectly placed upon Kopp the burden of showing that he remains disabled and is entitled to disability benefits; and (2) the Bureau failed to resolve inconsistencies in the medical evidence.

I.

Kopp's first assertion is that the Bureau improperly placed upon Kopp the burden of showing that he remains disabled. Kopp contends that his "property interest" in the continued receipt of benefits creates a presumption of an entitlement which must be rebutted by the Bureau before termination of benefits. In support of this argument he urges us to rely upon this Court's prior recognition of property interests in cases concerning procedural due process, and upon case law stemming from statutory provisions of other jurisdictions.

It should be noted that this argument does not concern the trial court's determination that Kopp was entitled to recovery of benefits from February 3, 1987, through March 10, 1988, because the Bureau failed to provide notice and hearing prior to the termination of benefits. Instead, Kopp directs this argument toward the issue of whether or not he must carry the burden of proof during the termination hearing.

Kopp relies upon our prior decisions recognizing that the payment of Workers Compensation benefits give rise to a protectable property interest. Beckler v. North Dakota Workers Compensation Bureau, 418 N.W.2d 770 (N.D.1988). However, in Beckler, this Court was concerned with issues of procedural due process upon the termination of benefits. Id. at 772-74. We held in Beckler, that the Bureau's failure to provide adequate notice and hearing to the claimant before the termination of benefits deprived the claimant due process under the Fourteenth Amendment of the United States Constitution and Article I, Sec. 12 of the North Dakota Constitution. Id. at 775. We do not find those principles to be in question here in the matter concerning who must carry the burden of proof during the termination hearing. ¹ Therefore we find that the principles established in Beckler have little application in determining whether or not the Bureau properly placed the burden of showing that he was currently disabled upon Kopp.

Kopp also seeks to support his property interest assertion by referring to a number of cases from other jurisdictions. See C.D. Burnes Co. v. Guilbault, 559 A.2d 637 (R.I.1989) (a discussion of R.I.Gen.Laws Sec. 28-35-45 (1956)); Williams v. W.C.A.B. (Montgomery Ward), 127 Pa.Cmwlth. 587, 562 A.2d 437 (1989) (holding 77 Pa.Const.Stat.Ann. Sec. 732 (1989) places the burden of proof on the party seeking modification); Kachinski v. W.C.A.B. (Vepco Const. Co.), 516 Pa. 240, 532 A.2d 374 (1987) (same); Norton v. SAIF Corp., 86 Or.App. 447, 739 P.2d 1058 (1987) (an interpretation of Oregon worker's compensation law); Pavel v. Hughes Bros, Inc., 167 Neb. 727, 94 N.W.2d 492 (1959) (holding the burden of proof is on the party seeking modification); Oham v. Aaron Corp., 222 Neb. 28, 382 N.W.2d 12 (1986) (an interpretation of Neb.Rev.Stat. Sec. 48-141 (1989)); Smith v. Van's Equip. Co., 158 Ga.App. 460, 280 S.E.2d 870 (1981) (an application of Georgia law to the modification of worker's compensation awards); Rourks v. Commercial Union Ins. Co., 497 So.2d 35 (La.App.1986) (an interpretation of LA Rev.Stat.Ann. Sec. 23.1331 (1989)); Smith v. Dexter Oil Co., 432 A.2d 438 (Me.1981) (an interpretation of Maine worker's compensation law); Violette v. Midwest Printing-Webb Pub., 415 N.W.2d 318 (Minn.1987) (the 1983 addition to Minnesota law is a response to the burden which is placed upon the claimant when benefits were terminated by filing of a notice). These cases place the burden of showing that the claimant was no longer eligible for benefits upon the Bureau. This Court has long recognized that the rights of both employers and employees are purely statutory. Waith v. Workmen's Compensation Bureau, 409 N.W.2d 94, 97 (N.D.1987) (citing Breitwieser v. State, 62 N.W.2d 900 (N.D.1954)). In Waith, we said:

"But the foregoing rationale of the Montana Supreme Court is simply inapplicable to this case, because the North Dakota Constitution has no counterpart to the construed Montana provision. Furthermore, the Montana subrogation statute, Section 39-71-414, of the Montana Code Annotated, does not include language similar to Section 65-01-09, N.D.C.C., which provides that the Bureau's subrogation rights apply 'to the extent of fifty percent of the damages recovered.' That language constitutes a legislative decision in this State to limit the Bureau's subrogation interest to a maximum of one-half of the amount actually recovered by a benefit recipient against a third-party tortfeasor. Montana law does not provide the same limitation."

Waith, 409 N.W.2d at 98. Kopp is relying upon decisions from jurisdictions that have enacted statutes which specifically provide, or have been interpreted to provide, that the burden of proof is on the Bureau to show that an employee is no longer entitled to benefits after having been previously determined to be entitled to benefits.

Our law does not so provide nor have we interpreted it to so provide. Hayden v. Workers Compensation Bureau, 447 N.W.2d 489, 496 (N.D.1989) (holding that the claimant must show that he/she is still disabled upon Bureau's termination of benefits). In Waith, we said the rights conferred on employers and employees under Worker's Compensation statutes are purely statutory and that the rationale of other courts in construing provisions of their workers compensation statutes is inapplicable when our laws do not contain a counterpart provision. Id. at 97, 98. Because our legislature has not enacted a provision shifting the burden of proof to the Bureau, we decline to adopt a rationale used by courts whose statutes more specifically justify such a result, or are not similarly constructed to our laws. Compare section 65-05-04, N.D.C.C. with Neb.Rev.Stat. Sec. 48-141.

As we have previously indicated herein, where the Bureau decides to terminate benefits after initially granting compensation, the burden will be upon the claimant to establish that he or she has a continuing right to receive the benefits. Hayden v. Workers Compensation Bureau, 447 N.W.2d at 496; Gramling v. North Dakota Workmen's Comp. Bureau, 303 N.W.2d 323 (N.D.1981). In Gramling, as in the case at hand, the claimant asserted that the burden was on the Bureau to prove that the claimant was malingering. Gramling, 303 N.W.2d at 325. We rejected that claim stating:

"Gramling next contends that the burden was upon the Bureau to prove that he was a malingerer. The Bureau does not have a burden of proving that the claimant is not entitled to benefits. Rather, the burden is upon the claimant to prove that he is entitled to benefits."

Id. at 329. Applying similar thinking to this case, we conclude the burden was upon Kopp to establish that he was still entitled to benefits upon the Bureau's determination that the benefits should be terminated.

II.

Kopp's second contention is that the Bureau engaged in the selective consideration of evidence by failing to resolve inconsistencies in the medical evidence provided in the record. Because of this failure, Kopp asserts the Bureau's findings of fact are not supported by a preponderance of the evidence. Primarily, Kopp contends that the Bureau ignored evidence explaining the claimant's lack of muscle atrophy and testimony which established the presence of a conversion disorder rather than malingering. When reviewing the Bureau's...