Maginn v. North Dakota Workers Compensation Bureau, 960005

• Decision Date: 27 June 1996
• Docket Number: No. 960005,960005
• Citation: 550 N.W.2d 412
• Parties: Kathleen MAGINN, Claimant and Appellant, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellee, and Raymond Cossette Trucking, Inc., Respondent. Civil
• Court: North Dakota Supreme Court

Page 412

550 N.W.2d 412

Kathleen MAGINN, Claimant and Appellant, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellee, and Raymond Cossette Trucking, Inc., Respondent.

Civil No. 960005.

Supreme Court of North Dakota.

June 27, 1996.

Stephen D. Little, of Dietz & Little, Bismarck, for claimant and appellant.

Lawrence A. Dopson, Special Assistant Attorney General, of Zuger Kirmis & Smith, Bismarck, for appellee.

VANDE WALLE, Chief Justice.

Kathleen Maginn appealed from a district court judgment affirming the North Dakota Workers Compensation Bureau's order discontinuing her disability and rehabilitation benefits because she failed to make a good faith work trial in offered employment. We affirm.

Maginn was employed as an over-the-road truck driver by Raymond Cossette Trucking, Inc. [Cossette]. On July 17, 1990, Maginn injured her back while loading tires onto her truck. The injury was diagnosed as a lumbar sprain. The Bureau accepted Maginn's claim and paid benefits.

Maginn has not returned to work since her 1990 injury, claiming she suffers continual, disabling lower back pain which prohibits her from working. In the three years following her injury, Maginn was examined and tested by numerous physicians and health care professionals. Tests conducted have included a bone scan, MRI studies, a CT scan, spine x-rays, and an EMG, all of which show no evidence of abnormality. Physicians and health care professionals have noted that Maginn exhibited "bizarre" responses to flexion and extension maneuvers, "inappropriate illness behavior," and exaggeration of symptoms, and that Maginn did not perform honestly during functional assessments. In 1992, the Bureau hired an investigator to document Maginn's daily activities. Maginn was observed bending at the waist to lift boxes, climbing on and off her motorcycle, and bending to play pool, all without any evidence of pain or discomfort.

In 1993 the Bureau arranged for an independent medical examination by Dr. Paul Larson. The examination revealed no physical cause for Maginn's claimed symptoms, and Dr. Larson noted that she had better mobility of the lumbar spine and muscular development than most people her age. He reported that Maginn "dramatizes her history and yet appears to be so very healthy and robust as she relates the story of continual, disabling pain," and noted that Maginn "demonstrated very histrionic facial grimacing ... at times when a low back injury would not be causing pain." Noting that the history was "strongly suggestive of malingering," Dr. Larson concluded that there was no evidence of impairment or disability and that Maginn could return to work without limitations or restrictions.

On August 6, 1993, Cossette offered to rehire Maginn as a truck driver or dispatcher. The truck-driving position would be modified so Maginn would not have to load or unload the truck, could take rest breaks as she needed them, and would be provided a special truck which was easier to get in and out of and equipped with special "air-ride" equipment making it easier on her back.

Maginn has refused to accept Cossette's offer of reemployment, relying upon the opinion of her doctor, Dr. Thomas Williams. In response to a written request that Dr. Williams release Maginn to work in the modified truck-driving position or "provide ... objective medical findings" why she was unable to accept the position, Dr. Williams provided a handwritten note:

"No--unable to sit for prolonged periods--unable to climb in & out of truck--unable to drive for prolonged time."

The Bureau notified Maginn that her benefits would be discontinued effective September 6, 1993, because she had failed to make a good faith work trial in the offered position as required by Section 65-05.1-04, N.D.C.C. Maginn requested and received a hearing. The hearing officer issued proposed findings of fact, conclusions of law, and order concluding Maginn was not in violation of Section 65-05.1-04, N.D.C.C. The Bureau rejected the hearing officer's recommendations (see Section 28-32-13(3), N.D.C.C.), and issued its own findings, conclusions, and order discontinuing Maginn's benefits for failure to engage in a good faith work trial. ¹ The district court affirmed the Bureau's order, and Maginn has appealed.

In an appeal from a district court judgment reviewing an order of the Bureau, we review the decision of the Bureau, rather than that of the district court, and we limit our review to the record before the Bureau. Naumann v. North Dakota Workers Compensation Bureau, 545 N.W.2d 184 (N.D.1996). We affirm the Bureau's decision unless its findings of fact are not supported by a preponderance of the evidence, its conclusions of law are not supported by its findings of fact, its decision is not supported by its conclusions of law, or its decision is not in accordance with the law. Vickery v. North Dakota Workers Compensation Bureau, 545 N.W.2d 781 (N.D.1996). In determining if the Bureau's findings of fact are supported by a preponderance of the evidence, we determine if a reasoning mind reasonably could have determined that the Bureau's factual conclusions were supported by the evidence. Naumann, supra.

Maginn asserts the Bureau erred in determining she was not in compliance with Section 65-05.1-04, N.D.C.C., for failing to make a good faith work trial in the modified truck-driving position. Under Section 65-05.1-04(1), N.D.C.C., an injured employee is required to seek "substantial employment." One option for such reemployment is a modified position with the same employer. Section 65-05.1-01(4)(c), N.D.C.C.

Maginn asserts the modified truck-driving position was not the "first appropriate option" under Section 65-05.1-01(4), because her doctor had not approved the modified position as within her limitations. The Bureau found that Maginn is physically capable of performing the modified position, and concluded return to work as a driver for Cossette is the first appropriate rehabilitation option. There was substantial medical evidence which indicates Maginn is physically capable of performing the job, and Dr. Larson specifically concluded the modified position is within Maginn's physical abilities. In challenging the Bureau's finding, Maginn relies upon Dr. Williams's handwritten note, which contained no documentation or objective medical findings to support his cursory conclusion that Maginn could not drive a truck. On this record, we can not say that a reasoning mind could not have reasonably determined that Maginn was physically capable of performing the modified position. Cf. Naumann, supra (a physician's unilluminating answers to questions propounded by the Bureau did not provide sufficient basis to disregard other medical evidence). The Bureau's finding that Maginn is capable of performing the modified job is supported by a preponderance of the evidence.

Having been offered a return to a modified position with her former employer, Maginn was required to make a good faith work trial in the position. Johnson v. North Dakota Workers' Compensation Bureau, 539 N.W.2d 295 (N.D.1995). Section 65-05.1-04(4), N.D.C.C.,...