Nemec v. North Dakota Workers Compensation Bureau, 950208

• Decision Date: 30 January 1996
• Docket Number: No. 950208,950208
• Citation: 543 N.W.2d 233
• Parties: Carol J. NEMEC, Claimant and Appellant, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellee, and Ellendale Nursing Center, Respondent and Appellee. Civil
• Court: North Dakota Supreme Court

Page 233

543 N.W.2d 233

Carol J. NEMEC, Claimant and Appellant, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellee and Ellendale Nursing Center, Respondent and Appellee.

Civil No. 950208.

Supreme Court of North Dakota.

Jan. 30, 1996.

Alan Baker of Baker Legal Clinic, Fargo, for claimant and appellant.

Adele Hedley Page, Special Assistant Attorney General, Fargo, for appellee.

Steven L. Latham of Wheeler Wolf, Bismarck, for respondent and appellee.

SANDSTROM, Justice.

Carol Nemec appeals from a district court judgment affirming the order of the North Dakota Workers Compensation Bureau determining Nemec was not entitled to disability benefits after March 17, 1992, and denying benefits for chiropractic care after July 17, 1992. We affirm.

I

In 1986, Nemec sustained a work-related injury in Minnesota to her neck, head, left arm, and left shoulder. Nemec received Minnesota workers compensation benefits and had certain work limitations as a result of her 1986 injuries.

Nemec moved to North Dakota and, in January 1992, was hired as a cook for 32 hours per week at the Ellendale Nursing Center (the Center). Nemec could not tolerate this employment because of difficulties related to her 1986 injury, so the Center transferred her to a dietary aide position at 26 hours per week. Nemec was still unable to perform the work, and the Center again accommodated Nemec by modifying her duties and dropping her work schedule to 6 to 9 hours per week. On March 12, 1992, while working this limited schedule, Nemec slipped on a wet floor at the Center and injured her right knee, hip, and elbow, her head, and her lower back.

Nemec was taken to the local emergency room and was held for observation for four hours. The report of the emergency room physician, Dr. McCracken, indicated Nemec would miss 5 to 7 days of work due to the injury.

Nemec filed a claim for benefits with the Bureau on March 17, 1992. On March 18, she kept a previously scheduled appointment with Dr. Koller, a neurologist who was treating Nemec for her 1986 injuries. Dr. Koller's report, and subsequent clarifications to the Bureau, expressed his opinion that Nemec could return to work with certain restrictions on lifting and flexing her neck.

Nemec had a lengthy history of chiropractic treatment, dating back to 1980. At the time of her injury, Nemec was receiving continuing chiropractic care from Dr. Kendall, her chiropractor in Ellendale. At Nemec's request, the Bureau approved Dr. Kendall as Nemec's treating doctor for her March 12 injury.

On May 19, 1992, the Bureau issued its order awarding Nemec disability benefits for the March 12 injury. Simultaneously, the Bureau issued a notice of intention to discontinue benefits, informing Nemec that her disability benefits were terminated effective March 17, 1992, because, based upon the opinions of Dr. McCracken and Dr. Koller, she was able to return to work on March 18.

In a June 10, 1992 letter to the Bureau, Dr. Kendall stated Nemec remained totally disabled and was unable to return to work. The Bureau then contacted Beth Muehlberg, a rehabilitation specialist, to perform a job analysis. Nemec also underwent a work tolerance assessment with a physical therapist and an occupational therapist. While Muehlberg's report indicated Nemec was capable of returning to her prior position, the therapists opined Nemec did not have the ability to return to work.

Nemec's treatment was being monitored by the Bureau's managed care vendor, Workers Compensation Casualty Services (WCCS). In July 1992, Dr. Jensen, a chiropractor with WCCS who had been monitoring Dr. Kendall's treatment of Nemec, advised the Bureau Nemec was not responding to the chiropractic care. He recommended Nemec be referred to Dr. Becker, a neurosurgeon who had examined her previously, and that no further chiropractic care be authorized. The Bureau accordingly advised Nemec and Dr. Kendall no payments for further chiropractic care would be available. After an examination, Dr. Becker expressed no opinion on Nemec's ability to return to work.

In November 1992, the Bureau scheduled an independent medical exam for Nemec with Dr. Litman, an orthopedic surgeon in Minneapolis. Dr. Litman was provided the results of the prior job analysis and work tolerance assessment. Based upon his examination and the records provided, Dr. Litman reported Nemec was able to perform her pre-injury job duties, and no further chiropractic treatment was warranted for her injuries. Dr. Litman suggested the appropriate treatment for Nemec would be weight loss, exercise, and muscle stretching, requiring no supervision.

On January 28, 1993, the Bureau issued an Order Denying Further Disability Benefits. An amended order was issued on March 30, 1993, clarifying aggravation issues. On June 7, 1993, the Bureau issued an Order Denying Specific Benefits, confirming its decision to terminate payment of chiropractic treatment after July 17, 1992. Nemec appealed each of the three orders and requested a rehearing. A hearing was held on November 3, 1993. On May 26, 1994, the Bureau issued its findings of fact, conclusions of law, and order determining Nemec was not entitled to disability benefits after March 17, 1992, or payment for chiropractic care after July 17, 1992. Nemec appealed to the district court, which affirmed the Bureau's order by judgment dated June 2, 1995. Nemec appealed to this Court.

The district court had jurisdiction under Art. VI, Sec. 8, N.D. Const., and N.D.C.C. Secs. 27-05-06, 28-32-15, and 65-10-01. This Court has jurisdiction under Art. VI, Secs. 2 and 6, N.D. Const., and N.D.C.C. Sec. 28-32-21. The appeal was timely under N.D.R.App.P. 4(a), and N.D.C.C. Sec. 28-32-21.

II

In an appeal from a judgment of the district court involving the decision of an administrative agency, we review the decision of the agency and not the decision of the district court. Ollom v. North Dakota Workers Compensation Bureau, 529 N.W.2d 876, 878 (N.D.1995); Meyer v. North Dakota Workers Compensation Bureau, 512 N.W.2d 680, 681 (N.D.1994). Under N.D.C.C. Secs. 28-32-19 and 28-32-21, we must 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. Otto v. North Dakota Workers Compensation Bureau, 533 N.W.2d 703, 706 (N.D.1995). In determining whether the Bureau's findings of fact are supported by a preponderance of the evidence, we exercise restraint and do not make independent findings or substitute our judgment for that of the Bureau, but determine only whether a reasoning mind reasonably could have determined the findings were proven by the weight of the evidence from the entire record. Otto at 706; Ollom at 878.

The claimant bears the burden of proving by a preponderance of the evidence she is entitled to receive benefits from the fund. Otto at 706; Ollom at 878. In reconciling the claimant's burden of proof with our standard of review of a decision based upon conflicting medical evidence, the Bureau must clarify inconsistencies and adequately explain its rationale for disregarding medical evidence favorable to the claimant. Otto at 706; Ollom at 878.

III

Nemec asserts she had a due process right to pretermination notice and an opportunity to be heard before the Bureau retroactively terminated benefits effective March 17, 1992.

Nemec relies exclusively upon Beckler v. North Dakota Workers Compensation Bureau, 418 N.W.2d 770 (N.D.1988), to support her due process argument. In Beckler, the claimant was injured in 1983 and subsequently developed carpal tunnel syndrome. Following surgery, Beckler received regular disability benefits from August 1985 through February 1986. The Bureau informed Beckler on February 12, 1986, that he was capable of returning to work on February 5, and therefore his disability benefits were being terminated retroactively to that date. Beckler was not afforded a pretermination hearing or opportunity to be heard.

Beckler appealed, asserting he had a due process right to be heard before ongoing benefits were terminated. This Court held the right to continuing disability benefits by a claimant already receiving them was a property right giving rise to due process protection. Beckler at 772-773. The Court stressed its holding applied only to termination of continuing benefits, and distinguished a claimant's rights upon an initial determination of a claim. ¹ See Beckler at 772, 774. This Court concluded the Bureau must provide pretermination notice and a limited opportunity to respond before retroactively terminating ongoing disability benefits. See Beckler at 775.

Beckler is clearly distinguishable from this case. Nemec was not receiving benefits on a continuing basis when she was notified her benefits were terminated. The procedure employed here, with the Bureau simultaneously notifying Nemec that she was entitled to disability benefits for a closed five-day period and that benefits would be terminated effective March 18, 1992, was effectively an award of a single lump-sum disability payment for a five-day period. The claimant has a right to rely upon continuing, regular, ongoing payments which triggers the due process protections under Beckler. Those same protections do not apply to a one time lump-sum award of disability benefits for a short, closed period of time.

Nemec also contends she was entitled to pretermination notice, and benefits could not be terminated until 21 days after such notice, under N.D.C.C. Sec. 65-05-08.1(6):

"Upon receipt of a report or other evidence indicating a claimant who is receiving temporary total disability benefits has been or will be released to return to work, the bureau shall issue and mail to the claimant a notice of intention to discontinue benefits. Such benefits may thereafter be...