Robertson v. ND WORKERS COMPENSATION BUREAU

• Citation: 2000 ND 167,616 N.W.2d 844
• Decision Date: 05 September 2000
• Docket Number: No. 20000088.,20000088.
• Parties: Delmar ROBERTSON, Claimant and Appellant, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellee, and City of New England, Respondent.
• Court: United States State Supreme Court of North Dakota

616 N.W.2d 844

2000 ND 167

Delmar ROBERTSON, Claimant and Appellant, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellee, and City of New England, Respondent.

No. 20000088.

Supreme Court of North Dakota.

September 5, 2000.

Kathryn L. Dietz, Dietz, Little & Haas, Bismarck, for claimant and appellant.

Brent J. Edison, Special Assistant Attorney General, Bismarck, for appellee.

MARING, Justice.

[¶ 1] Delmar Robertson appeals from a judgment affirming a decision by the Workers Compensation Bureau denying him benefits related to a January 1997 heart attack. We hold Robertson was entitled to the presumption that a law enforcement officer's heart disease occurred in the line of duty, and the Bureau failed to rebut the presumption. We reverse and remand with directions to award Robertson benefits.

I

[¶ 2] Robertson filed a claim for benefits with the Bureau following a January 1997 heart attack and bypass surgery. When Robertson had the heart attack, he had been chief of police of the city of New England since August 1993. Robertson also had worked as a law enforcement officer from March 1982 through March 1986 and from December 1986 through February 1993. Robertson did not work as a law enforcement officer for eight months from March 1986 to December 1986 and for five months from February 1993 to August 1993.

[¶ 3] When Robertson had the heart attack in January 1997, N.D.C.C. § 65-01-02(18)(d) (1995), provided a presumption that any condition or impairment of health of a law enforcement officer caused by heart disease was suffered in the line of duty; however, law enforcement officers were not eligible for the presumption unless they had completed five years of continuous service and successfully passed a physical examination which failed to reveal any evidence of the condition.¹ [¶ 4] The Bureau informally rejected Robertson's claim for benefits associated with his heart attack, concluding he was not entitled to the law enforcement presumption because he had not worked as a law enforcement officer for five continuous years at the time of his heart attack and he had not successfully passed a physical examination which failed to reveal any evidence of the condition. After a formal administrative hearing, the Bureau adopted a recommendation by an administrative law judge (ALJ) that Robertson was not entitled to the law enforcement presumption, because he had not completed five years of continuous law enforcement service and he had not successfully passed a physical examination which failed to reveal any evidence of his heart condition. The Bureau adopted the ALJ's recommendation that, without the presumption, Robertson had not established his heart disease was work related.

[¶ 5] On appeal, the district court concluded the 1995 version of the presumption applied, see fn.1, and that nothing in that version of the statute required the five years of continuous law enforcement service be completed at Robertson's last employment. The court decided Robertson had worked continuously as a law enforcement officer for five years from December 1986 through February 1993 and remanded to the Bureau for findings about whether Robertson had successfully passed a physical examination before 1986 and whether the Bureau had rebutted the presumption.

[¶ 6] On remand, the Bureau issued additional findings in which it decided the law enforcement presumption did not apply, because, before 1986, Robertson had not successfully passed a physical examination which failed to reveal any evidence of his heart condition. The Bureau alternatively found the presumption had been rebutted by evidence Robertson's employment was not a substantial contributing factor to his heart disease. Robertson again appealed to the district court.

[¶ 7] The district court decided Robertson had not exhausted his administrative remedies, because he appealed the Bureau's decision and did not request a second administrative hearing. The court also concluded the Bureau's findings were supported by a preponderance of the evidence, its conclusions were supported by its findings, and its decision was in accordance with the law. Robertson appealed.

II

[¶ 8] On appeal, we review the Bureau's decision under N.D.C.C. §§ 28-32-19 and 28-32-21. 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, its decision is not in accordance with the law, or its decision violates the claimant's constitutional rights or deprives the claimant of a fair hearing. E.g., Vernon v. North Dakota Workers Comp. Bureau, 1999 ND 153, ¶ 8, 598 N.W.2d 139. Our review of the Bureau's findings of fact is limited to deciding whether a reasoning mind reasonably could have determined the findings were proven by the weight of the evidence from the entire record. Id. Questions of law, including the interpretation of a statute, are fully reviewable on appeal from a decision by the Bureau. Lee v. North Dakota Workers Comp. Bureau, 1998 ND 218, ¶ 5, 587 N.W.2d 423.

III

[¶ 9] Robertson argues, after the district court remanded the case, the Bureau should have referred it back to the ALJ for additional findings of fact and conclusions of law. He argues the Bureau's procedure denied him a fair hearing and due process.

[¶ 10] Although the Bureau may request appointment of an ALJ to hear a case, the ALJ's decision is ordinarily a recommendation. See Blanchard v. North Dakota Workers Comp. Bureau, 1997 ND 118, ¶¶ 13-17, 565 N.W.2d 485

. The Bureau is ultimately responsible for rendering a decision in workers compensation matters, and although the Bureau could have again referred the matter to the ALJ for additional findings and a recommendation, it was not required to do so.

[¶ 11] On remand, the Bureau's outside litigation counsel submitted proposed additional findings to the Bureau and provided Robertson's counsel with a copy of those proposed findings. After Robertson's counsel responded, the Bureau adopted the proposed additional findings as its findings and decision. In Scott v. North Dakota Workers Comp. Bureau, 1998 ND 221, ¶¶ 9-18, 587 N.W.2d 153, we concluded ex parte contacts between the Bureau's outside litigation counsel and the Bureau while the ALJ's recommendation was pending violated N.D.C.C. ch. 28-32. The Bureau's procedure in this case did not violate Scott, and we conclude it afforded Robertson reasonable notice and an adequate opportunity to be heard.

IV

[¶ 12] Robertson argues the district court erred in deciding he failed to exhaust his administrative remedies by not requesting another administrative hearing, and, instead, directly appealing the Bureau's decision on remand.

[¶ 13] Ordinarily, a party must exhaust available administrative remedies before seeking declaratory or injunctive relief. See Frank v. Traynor, 1999 ND 183, ¶ 13, 600 N.W.2d 516

; Johnson v. Traynor, 1998 ND 115, ¶ 12, 579 N.W.2d 184; Tooley v. Alm, 515 N.W.2d 137, 140 (N.D.1994). Robertson is not seeking declaratory or injunctive relief. Instead, he is appealing a Bureau order, and the issue is whether the appeal is from a final appealable order under N.D.C.C. § 65-10-01.

[¶ 14] In McCarty v. North Dakota Workers Comp. Bureau, 1998 ND 9, ¶¶ 6-7, 574 N.W.2d 556, the Bureau initially resolved an issue against itself after a formal evidentiary hearing. The Bureau then issued a second order denying benefits on a different theory, but based upon the same evidence introduced at the earlier formal evidentiary hearing. Id. We concluded we had jurisdiction to hear an appeal from the second order, because a formal evidentiary hearing had been held on the initial order and the second order was based upon the same evidence introduced in the earlier hearing. Id. at ¶ 9. We concluded the Bureau's second order was a formal decision after an evidentiary hearing and was a final appealable order. Id. at ¶ 10. Cf., Freezon v. North Dakota Workers Comp. Bureau, 1998 ND 23, ¶ 11, 574 N.W.2d 577

(holding Bureau's informal decision without evidentiary hearing was not appealable order); Lende v. North Dakota Workers' Comp. Bureau, 1997 ND 178, ¶ 24, 568 N.W.2d 755 (holding party need not file petition for reconsideration before appealing formal decision).

[¶ 15] Here, the Bureau did not rely upon any new evidence in its second order and all its additional findings and conclusions in that decision were based upon evidence introduced at the formal evidentiary hearing. Under these circumstances, we conclude the Bureau's decision is a final appealable order, and the district court erred in deciding Robertson failed to exhaust his administrative remedies.

V

[¶ 16] Although the district court erred in deciding Robertson failed to exhaust his administrative remedies, the court alternatively affirmed the Bureau's decision on the merits, and we therefore consider whether Robertson was entitled to the presumption that his heart attack was suffered in the line of duty.

A

[¶ 17] Robertson argues the 1995 version of the statute, which requires five years of continuous law enforcement work and successful completion of a physical examination which fails to reveal any evidence of the condition, does not apply to him, because he began working in law enforcement in 1982 when the applicable law required two years of continuous law enforcement work. See fn.1. The Bureau says, in Robertson's first appeal, the district court decided the 1995 version of the statute applied and remanded for further findings on whether Robertson had successfully passed a physical examination before 1986 and whether the Bureau had rebutted the presumption. The Bureau thus argues, because Robertson did not appeal the first district court decision to this Court, the application of the 1995 version of the statute became the law of the case and cannot be challenged in this appeal.

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