Otto v. North Dakota Workers Compensation Bureau

• Decision Date: 27 June 1995
• Docket Number: No. 940403,940403
• Citation: 533 N.W.2d 703
• Parties: Donna OTTO, Claimant and Appellant, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellee, and The Anne Carlsen School, Respondent. Civ.
• Court: North Dakota Supreme Court

Page 703

533 N.W.2d 703

Donna OTTO, Claimant and Appellant, v.NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellee and The Anne Carlsen School, Respondent.

Civ. No. 940403.

Supreme Court of North Dakota.

June 27, 1995.

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

Ken R. Sorenson, Asst. Atty. Gen., North Dakota Workers Compensation Bureau, Bismarck, for appellee.

SANDSTROM, Justice.

Donna Otto appeals from a district court judgment affirming an order by the North Dakota Workers Compensation Bureau denying her reapplication for benefits.We hold the bureau's finding Otto failed to prove her current condition was related to a prior work injury is supported by a preponderance of the evidence.We therefore affirm.

I

On April 6, 1983, Otto suffered a lower back injury while lifting a resident during the course of her employment as a child care attendant at the Anne Carlsen School.Otto's treating physician, Dr. Ard Mardirosian, diagnosed a back sprain and estimated Otto would be disabled for two weeks.The bureau accepted liability for her injury, paid her related medical expenses, and awarded her disability benefits.Otto returned to work on April 22, 1983.According to Otto, on April 26, 1983, she began working at the school as a housekeeper, because that job did not require lifting.

On April 26, 1983, Otto went to a chiropractor, Dr. G.J. Harbaugh, for treatment.In May 1983, Dr. Harbaugh reported Otto's recovery was not complete, but she suffered no permanent impairment and was progressing well with slight back and no leg pain.In July 1983, Dr. Harbaugh reported Otto was to return for treatment in one month if she had any further back problems.Otto did not return to Dr. Harbaugh for treatment until September 1985.Dr. Harbaugh's office notes indicate he treated Otto nine times in 1985, seven times in 1986, five times in 1989, eight times in 1990, three times in 1991, five times in 1992, and two times in 1993.Dr. Harbaugh's notes do not indicate the reason for the treatments and do not refer to Otto's 1983 work injury.According to Otto, she sought chiropractic care when her back became symptomatic from housekeeping and yardwork.

Otto testified she left her job as a housekeeper at the Anne Carlsen School in 1988 or 1989, because of a respiratory ailment, and in July 1990, she began working as a part-time housekeeper at a nursing home, but she quit that job after six months because it required lifting.

In August 1993, Otto reapplied for workers compensation benefits, asserting her medical condition had changed in July 1990.The bureau referred Otto to Dr. Paul Larsen, who examined Otto and reported

"her current complaints of back pain are clearly not related to her 1983 injury.She clearly did not have any permanent impairment arising from the 1983 injury.Based on the information in Mrs. Otto's file and from the history she herself has provided, I can state with reasonable medical certainty that she recovered from her injury of April 6, 1983, most likely within one month of the injury."

Meanwhile, Dr. Harbaugh referred Otto to Dr. Michael P. Martire, who reported:

"Chronic low back pain status post work related injury.Based on the medical records, the patient's history, and examination today, the patient had an initial musculoligamentous injury.There is definite evidence of sacroiliac joint dysfunction and pain at this time along with some myofascial pain and dysfunction of the right quadratus lumborum and upper gluteus medius muscle."

Dr. Martire concluded Otto's complaints of back pain were related to her 1983 work injury.

On April 28, 1994, the bureau held a formal hearing on Otto's reapplication for benefits.Otto testified at the hearing, and on May 9, 1994, Dr. Larsen testified by telephone deposition which was received into evidence.On August 8, 1994, the bureau issued its order, finding Dr. Larsen's opinion more credible than Dr. Martire's opinion.The bureau concluded Otto's present condition was unrelated to her 1983 work injury and denied her reapplication for benefits.The district court affirmed the bureau's decision, and Otto appealed.

The district court had jurisdiction under Art. VI, Sec. 8, N.D. Const.,N.D.C.C. Secs. 27-05-06,28-32-15, and65-10-01.This Court has jurisdiction under Art. VI, Secs. 2,6, N.D. Const., andN.D.C.C. Sec. 28-32-21.The appeal was timely under Rule 4(a), N.D.R.App.P., andN.D.C.C. Sec. 28-32-21.

II

While her appeal was pending in the district court, Otto applied for leave to offer additional evidence and submitted a letter from Dr. Martire, dated September 6, 1994.The letter was not part of the record before the bureau, seeN.D.C.C. Secs. 28-32-17,28-32-19, and, although included in Otto's appendix to the appellate briefs, the letter is not part of the record on appeal.SeeN.D.R.App.P. 10, 30.According to Otto, Dr. Martire's letter was a "clarification of issues raised" by the bureau's decision and included Dr. Martire's comments about Dr. Larsen's evaluation and the bureau's decision.The district court denied Otto's application, concluding Otto had failed to show reasonable grounds for her failure to offer the evidence in the administrative hearing.

Under N.D.C.C. Sec. 28-32-18a party may apply to the court in which an appeal is pending for leave to offer additional evidence.If the court finds the additional evidence is material and there were reasonable grounds for the failure to adduce the evidence at the administrative hearing, the court may order the additional evidence be taken, heard and considered on terms and conditions as it deems proper.N.D.C.C. Sec. 28-32-18;Insurance Services Office v. Knutson, 283 N.W.2d 395, 400(N.D.1979);Nohr v. North Dakota Workers Comp. Bureau, 419 N.W.2d 545, 546-47(N.D.Ct.App.1988).The court's review of a bureau decision is based on the record made before the bureau, and the district court and this Court may not consider evidence which has not been presented to the bureau.Knutson v. North Dakota Workmen's Compensation Bureau, 120 N.W.2d 880, 882-83(N.D.1963).

The record indicates Otto had the opportunity to solicit the letter from Dr. Martire before an appeal was taken to the district court and to offer it, or comparable evidence, in the proceedings before the bureau.Otto made no showing of reasonable grounds for her failure to procure the additional evidence and to make it part of the record before the bureau.We affirm the district court's denial of Otto's application, and we do not consider Dr. Martire's post-appeal letter.

III

Under N.D.C.C. Sec. 28-32-21, our review of the bureau's decision is governed by N.D.C.C. Sec. 28-32-19.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.Fischer v. North Dakota Workers Compensation Bureau, 530 N.W.2d 344, 346(N.D.1995).In considering whether the bureau's findings of fact are supported by a preponderance of the evidence, we exercise restraint and do not make independent findings of fact or substitute our judgment for the bureau's determination.Wherry v. North Dakota State Hospital, 498 N.W.2d 136, 139(N.D.1993).Our review of the bureau's findings of fact is limited to whether a reasoning mind could have reasonably determined that its findings were proven by the weight of the evidence from the entire record.Wherryat 139.

To participate in the workers compensation fund, a claimant must prove a compensable injury by a preponderance of the evidence.N.D.C.C. Sec. 65-01-11;Wherryat 139.In reconciling the claimant's burden of proof with our standard of review of a decision based upon conflicting medical evidence, we require the bureau...