Manikowske v. North Dakota Workmen's Compensation Bureau, 10403

• Decision Date: 03 October 1983
• Docket Number: No. 10403,10403
• Citation: 338 N.W.2d 823
• Parties: Joseph P. MANIKOWSKE, Claimant and Appellant, v. NORTH DAKOTA WORKMEN'S COMPENSATION BUREAU, Respondent and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 823

338 N.W.2d 823

Joseph P. MANIKOWSKE, Claimant and Appellant, v. NORTH DAKOTA WORKMEN'S COMPENSATION BUREAU, Respondent and Appellee.

Civ. No. 10403.

Supreme Court of North Dakota.

Oct. 3, 1983.

Garaas Law Firm, Fargo, for claimant and appellant; argued by David A. Garaas, Fargo.

Joseph F. Larson II, Asst. Atty. Gen., North Dakota Workmen's Compensation Bureau, Bismarck, for respondent and appellee; argued by Joseph F. Larson II, Asst. Atty. Gen., Bismarck.

ERICKSTAD, Chief Justice.

This is an appeal by Joseph P. Manikowske from a district court judgment dismissing his appeal from a decision of the North Dakota Workmen's Compensation Bureau denying a request to reopen his claim. We affirm.

On April 23, 1979, Manikowske filed with the Bureau a claim for compensation relating to an injury he allegedly sustained at work.

After an informal hearing, ¹ the Bureau concluded that Manikowske had failed to prove that he was entitled to benefits and issued findings of fact, conclusions of law, and order for dismissal on August 1, 1979. No appeal was taken. Manikowske served a petition for rehearing upon the Bureau. Additional correspondence and medical evidence was exchanged and the Bureau, on December 27, 1979, issued findings of fact, conclusions of law, and decision and order affirming its August 1 dismissal. No appeal was taken.

By letter of July 29, 1980, Manikowske's attorney requested a reopening of the claim. The request was denied. Manikowske again requested a reopening on December 19, 1980, and submitted additional medical evidence. On December 29, the Bureau informed Manikowske that it would not reopen the claim. Manikowske appealed that decision to the district court, which dismissed the appeal on April 14, 1981, pursuant to stipulation. With the stipulation for dismissal, Manikowske again requested a reopening. The request was denied.

On April 23, 1982, Manikowske filed with the Bureau an application for review requesting that the claim be reopened and that a formal evidentiary hearing be held. By letter of May 25, the Bureau's counsel informed Manikowske's attorney that the commissioners had considered the request and would not reopen the claim.

Although the record filed with this Court does not disclose that a formal order denying the request to reopen was issued by the Bureau, Manikowske appealed the May 25, 1982, decision to the district court. Concluding that it lacked jurisdiction, the district court dismissed the appeal. Judgment was entered on January 28, 1983, and Manikowske lodged this appeal.

The Bureau asserts that this Court does not have jurisdiction to hear this appeal. Section 65-05-04, N.D.C.C., provides:

"65-05-04. Bureau has continuing jurisdiction over claims properly filed. If the original claim for compensation has been made within the time specified in section 65-05-01, the bureau at any time, on its own motion or on application, may review the award, and in accordance with the facts found on such review, may end, diminish, or increase the compensation previously awarded, or, if compensation has been refused or discontinued, may award compensation. There is no appeal from a bureau decision not to reopen a claim after the bureau's order on the claim has become final."

The last sentence of the statute was added by an amendment adopted by the Legislature in 1981 at the request of the Bureau. S.L.1981, Ch. 643, Sec. 3.

Manikowske argues that application of the amendment to him would deprive him of his substantive right of access to the courts of this state. A right of appeal, however, is not a matter of right and exists only if authorized by statute. Jones v. North Dakota Workmen's Compensation Bureau, 334 N.W.2d 188, 190 (N.D.1983).

In Jones v. North Dakota Workmen's Compensation Bureau, supra, at 191, we said:

"[T]he meaning of Sec. 65-05-04, N.D.C.C., is clear and unambiguous.... After the Bureau's order on [a] claim has become final, the claimant is always entitled to submit additional evidence and request that the Bureau reopen his claim. The Bureau's decision regarding whether or not to reopen the original claim, however, is discretionary and the claimant has no right to appeal from that decision....

"The language of Sec. 65-05-04, N.D.C.C., does not permit us to read into it the right of a claimant to appeal from the Bureau's decision not to reopen a claim...."

"The justice, wisdom, necessity, utility and expediency of legislation are questions for legislative, and not for judicial determination." Syllabus p 11, Asbury Hospital v. Cass County, 72 N.D. 359, 7 N.W.2d 438 (1943). Thus, whether a claimant ought to have a right of judicial review of a Bureau decision not to reopen a claim is a question for legislative determination. If greater safeguards are needed to protect a claimant's ability to obtain Bureau reopening and review of a claim upon the presentation of new or additional evidence "after the bureau's order on the claim has become final" (Sec. 65-05-04, N.D.C.C.), "it is within the province of the legislature, and not the judiciary, to provide such protection." Jones v. North Dakota Workmen's Compensation Bureau, ...