Lende v. North Dakota Workers' Compensation Bureau

• Decision Date: 10 September 1997
• Docket Number: No. 960149,960149
• Citation: 568 N.W.2d 755,1997 ND 178
• Parties: Sharon LENDE, Claimant and Appellant, v. NORTH DAKOTA WORKERS' COMPENSATION BUREAU, Appellee, and Good Samaritan Center, Respondent. Civil
• Court: North Dakota Supreme Court

Page 755

568 N.W.2d 755

1997 ND 178

Sharon LENDE, Claimant and Appellant, v. NORTH DAKOTA WORKERS' COMPENSATION BUREAU, Appellee, and Good Samaritan Center, Respondent.

Civil No. 960149.

Supreme Court of North Dakota.

Sept. 10, 1997.

Mark G. Schneider (argued), of Schneider, Schneider & Schneider, Fargo, for claimant and appellant.

Jacqueline S. Anderson (argued), Special Assistant Attorney General, of Nilles, Hansen & Davies, Fargo, for appellee.

MARING, Justice.

¶1 Sharon Lende appeals from the district court's judgment of May 2, 1996, dismissing her appeal from the Workers' Compensation Bureau's Order dated May 2, 1995. We reverse the dismissal, and remand to the district court for a hearing on the merits of Lende's appeal.

¶2 Sharon Lende suffered a work-related injury to her low back on October 2, 1988, while employed as a nurse's aide at the Evangelical Lutheran Good Samaritan Society. The Workers' Compensation Bureau (the Bureau) accepted liability and paid Lende the appropriate benefits. Lende's treatment included pain medication and physical therapy, and Lende was eventually released to work in a modified position with her former employer. As time passed, Lende's pain became significantly greater, and it was eventually determined that Lende was permanently partially disabled and unable to return to work at any level. On September 28, 1994, Lende's physician, Dr. Richard Lenzmeier, wrote to the Bureau stating, "As the AMA Guides states (sic) and you quote, it is difficult to arrive at a precise percentage, but I can say with reasonable confidence, that she is about 60% impaired because of the pain that she chronically suffers from and is unlikely to change in the future." Accompanying this letter was a letter from Lende's attorney requesting the Bureau issue the appropriate permanent partial impairment award (PPI) based on Lenzmeier's evaluation.

¶3 The Bureau and Lende continued to work together to resolve other issues, but as of March 16, 1995, the Bureau still had not issued the requested PPI order and Lende's attorney wrote to the Bureau reminding it Lende was still awaiting action on the PPI issue. On March 30, 1995, Lende's attorney again wrote to the Bureau requesting the Bureau issue the PPI order. The Bureau took no further action.

¶4 On April 28, 1995, Lende's attorney applied to the district court for a Writ of Mandamus directing the Bureau to issue the PPI order. On May 2, 1995, after the Bureau was served with notice of this action, but before the hearing date, the Bureau issued an order denying Lende permanent partial impairment benefits based on chronic pain.

¶5 The next day, May 3, 1995, Lende's attorney petitioned for reconsideration by letter stating, "Please take this letter as a petition for reconsideration (formal hearing requested) within the meaning of § 28-32-14, N.D.C.C." ¹

¶6 In a May 9, 1995, letter to Lende's counsel, the Assistant Attorney General wrote, "[s]ince the Bureau disputes the calculation provided by Dr. Lenzmeier, it appears this case is appropriate for evaluation under N.D.C.C. Section 65-05-12.1, and I will refer the file to Cindy Gabel to initiate the process. I will appreciate any suggestions you have for a doctor qualified to evaluate impairment for chronic pain syndrome." The Bureau and Lende were unable to agree on a suitable physician to perform the evaluation. In a letter to Lende's counsel dated August 31, 1995, the Bureau asked, "[h]ow do you suggest we resolve the PPI dispute in this case?" Lende's counsel responded by letter on September 1, 1995, stating, "I suggest that you accept the opinion of the treating physician on this matter and issue the award accordingly."

¶7 Lende's attorney wrote to the Bureau on September 25, 1995, inquiring as to whether the Bureau would issue the order granting Lende's PPI based on a 60% impairment as recommended by her treating physician. At some point between the Bureau's August 31 letter and October 30, 1995, the Bureau transferred Lende's case to outside counsel. On October 30, 1995, the Bureau's outside counsel wrote to Lende's counsel advising that his law firm would handle any further matters concerning the PPI issue. The Bureau's counsel wrote, "It appears that you have made a request for formal hearing in response to the Bureau's Order Denying Permanent Partial Impairment for Chronic Pain dated May 2, 1995. I will take the necessary steps to have the matter set for hearing."

¶8 On November 13, 1995, Lende's counsel wrote to the Bureau's counsel requesting the Bureau set a hearing date on Lende's PPI denial. On December 4, 1995, Lende's counsel wrote a second time to the Bureau's outside counsel requesting a formal hearing date be set. On December 26, 1995, Lende's counsel wrote directly to the Bureau's in-house counsel requesting the Bureau set a hearing date. Lende's counsel wrote, "I will have no choice but to proceed on a petition for a writ of mandamus on this matter if the Bureau does not request an ALJ to be appointed in the immediate future."

¶9 Still hearing nothing from the Bureau's outside counsel, the Bureau, or the Bureau's in-house counsel, Lende filed an appeal in Burleigh County District Court on January 11, 1996. The Bureau subsequently filed a motion to dismiss, claiming Lende had not yet exhausted her administrative remedies, and thus, the issue was not yet ripe for appeal. A telephonic hearing was held on April 29, 1996, and the trial court dismissed Lende's appeal for lack of jurisdiction. Lende timely appeals the May 2, 1996, judgment of dismissal to this Court.

¶10 The issue before this Court is whether the district court has jurisdiction to hear an appeal from the May 2, 1995, order of the Bureau. An appeal from an administrative agency to a district court invokes that court's appellate jurisdiction, not its original jurisdiction. See, e.g., Transystems Services v. North Dakota Workers Compensation Bureau, 550 N.W.2d 66 (N.D.1996). A district court's appellate jurisdiction over administrative agency orders is granted by statute. See N.D.C.C. § 28-32-15(3)(a). "The right to appeal is a jurisdictional matter which we may consider sua sponte." In re J.K.M., 557 N.W.2d 229, 230 (N.D.1996)(quoting Johnson v. King, 325 N.W.2d 254, 256 (N.D.1982)).

¶11 In order to answer the question presented, this Court must construe N.D.C.C. §§ 28-32-14(4) and 28-32-15(1) and determine their relationship and applicability to the finality and appealability of orders issued under the Workers' Compensation statutes. See N.D.C.C. ch. 65-05 and ch. 65-10; N.D.C.C. § 65-01-14. Questions of statutory construction are questions of law and fully reviewable by this Court. Bland v. Commission on Medical Competency, 557 N.W.2d 379, 382-83 (N.D.1996).

¶12 "The primary objective of statutory construction is to ascertain the intent of the legislature. The legislative intent in enacting a statute must first be sought from the language of the statute itself." Effertz v. N.D. Workers' Compensation Bureau, 481 N.W.2d 218, 220 (N.D.1992) (citations omitted). Generally, we construe statutory language "so that an ordinary person reading it would get from it the usual, accepted meaning." Lucier v. N.D. Workers Compensation Bureau, 556 N.W.2d 56, 60 (N.D.1996)(quoting Wills v. Schroeder Aviation, Inc., 390 N.W.2d 544, 546 (N.D.1986)). We will normally defer to a reasonable interpretation of a statute by the agency enforcing it, especially when that interpretation does not contradict clear and unambiguous statutory language. Koch Oil Co. v. Hanson, 536 N.W.2d 702, 706 (N.D.1995)(citing Schaefer v. Job Service North Dakota, 463 N.W.2d 665 (N.D.1990)).

¶13 As stated, N.D.C.C. § 28-32-14 and N.D.C.C. § 28-32-15, as well as N.D.C.C. § 65-10-01 are applicable to the resolution of this case. This Court held in Westman v. North Dakota Workers Compensation Bureau, 459 N.W.2d 540 (N.D.1990) that N.D.C.C. § 65-10-01 is not the exclusive source of a claimant's right to appeal, and sections 65-10-01 and 28-32-15 must be read together. The Workers' Compensation Bureau is an administrative agency and the Administrative Agencies Practice Act chapter 28-32 of the N.D.C.C. is applicable to appeals of decisions of the Workers' Compensation Bureau. Foss v. North Dakota Workmen's Compensation Bureau, 214 N.W.2d 519, 521 (N.D.1974); Manikowske v. North Dakota Workmen's Compensation Bureau, 373 N.W.2d 884, 886-87 n. 2 (N.D.1985).

¶14 The order issued by the Bureau on May 2, 1995, was a formal decision. The record indicates a "notice" of rights accompanied the order when it was served on Lende and indicated Lende could petition for reconsideration pursuant to section 28-32-14 of the North Dakota Century Code or could elect to appeal to the proper district court pursuant to sections 28-32-15 and 65-10-01 of the North Dakota Century Code.

¶15 On May 3, 1995, Lende timely filed a petition for reconsideration and requested a formal hearing under N.D.C.C. § 28-32-14.

¶16 The relevant language of N.D.C.C. § 28-32-14 is:

...

4. The administrative agency may deny the petition for reconsideration or may grant the petition on such terms as it may prescribe. If a rehearing is granted, the agency may allow a new hearing or limit the hearing as appropriate. The agency may dissolve or amend the final order and set the matter for further hearing. The petition is deemed to have been denied if the agency does not dispose of it within thirty days after the filing of the petition....

(Emphasis ours.) Similar language is found in N.D.C.C. § 28-32-15(1):

1.... If an agency does not dispose of a petition for reconsideration within thirty days after the filing of the petition, the agency is deemed to have made a final determination upon which an appeal may be taken.

(Emphasis ours.)

¶17 Lende argues because the Bureau did not "dispose of" her petition for rehearing within thirty days after it was filed, her petition was in effect denied under ...