Rodenbiker v. Workforce Safety and Ins.

• Decision Date: 29 October 2007
• Docket Number: No. 20070114.,20070114.
• Citation: 740 N.W.2d 831,2007 ND 169
• Parties: Doralee RODENBIKER, Claimant and Appellant v. WORKFORCE SAFETY AND INSURANCE, Appellee and Stage Stop Liquors, Inc., Respondent.
• Court: North Dakota Supreme Court

740 N.W.2d 831

2007 ND 169

Doralee RODENBIKER, Claimant and Appellant v. WORKFORCE SAFETY AND INSURANCE, Appellee and Stage Stop Liquors, Inc., Respondent.

No. 20070114.

Supreme Court of North Dakota.

October 29, 2007.

Steven L. Latham, Larson, Latham, and Huettl, LLP, Bismarck, N.D. for claimant and appellant.

Jacqueline Sue Anderson, Special Assistant Attorney General, Fargo, N.D., for appellee.

MARING, Justice.

[¶ 1] Doralee Rodenbiker appeals from a district court judgment affirming a final order of Workforce Safety and Insurance ("WSI"). The final order reduced Rodenbiker's WSI benefits from temporary total disability benefits to partial disability benefits. Rodenbiker cannot be returned to substantial gainful employment as defined under N.D.C.C. § 65-05.1-01(3), and she does not have a retained earnings capacity to meet the income test of N.D.C.C. § 65-05.1-01(6)(a)(3). We reverse the district court judgment affirming the order of WSI and remand for reinstatement of Rodenbiker's temporary total disability benefits.

I

[¶ 2] In March 2000, Doralee Rodenbiker injured her lower back when she was moving tables while employed as a cocktail waitress at Stage Stop Liquors, Inc., in Mandan. Rodenbiker submitted a claim for WSI benefits.¹ WSI accepted her claim and awarded her temporary total disability benefits.

[¶ 3] On April 25, 2005, WSI issued an order terminating Rodenbiker's temporary total disability benefits and awarding her partial disability benefits. WSI found Rodenbiker's first appropriate rehabilitation option was to return to an occupation in the statewide job pool. The order stated that Rodenbiker's medical limitations restricted her to sedentary work four hours per day, twenty hours per week, based on 2002 and 2003 functional capacity assessments ("FCA"). The April 25 order said Rodenbiker would be able to pursue employment as a telemarketer, customer service representative, or receptionist.

[¶ 4] A few months later, on August 24, 2005, WSI issued an amended order awarding partial disability benefits. The amended order was different from the original order in one respect. In the amended order, WSI concluded as a matter of law that none of the statutorily listed rehabilitation options would return Rodenbiker to substantial gainful employment. The August amended order was the subject of an administrative hearing conducted on November 7, 2005. The administrative law judge ("ALJ") recommended findings of fact, conclusions of law, and an order on May 3, 2006. On May 18, 2006, WSI adopted the ALJ's recommended decision as its final order. Rodenbiker appealed WSI's final order to the district court.

[¶ 5] On January 25, 2007, the district court affirmed WSI's May 18, 2006, final order. The district court concluded that the ALJ reasonably determined Rodenbiker was entitled only to partial disability benefits. Rodenbiker appeals.

[¶ 6] The record reveals Rodenbiker initially sought treatment from a chiropractor, who referred her to Dr. Michael Martire. Dr. Martire became her primary treating physician in the years that followed. Rodenbiker was referred to a surgeon after a disk protrusion was detected in May 2000. Rodenbiker underwent back surgery in August 2000.

[¶ 7] WSI initiated vocational rehabilitation services in December 2000. These services were discontinued the following August. Rodenbiker continued to experience significant pain and was referred for further exploration of surgical options. Rodenbiker underwent a second back surgery in February 2002. Following surgery, Dr. Martire prescribed physical therapy. Rodenbiker began an independent exercise program in July 2002. She also began psychotherapy in 2002. The treatment for her work-related injury has involved various pain medications and anti-depressants.

[¶ 8] In late August 2002, a FCA found Rodenbiker capable of working at a less-than-sedentary to sedentary job for twenty hours a week, four hours per day. The FCA placed various limitations on Rodenbiker. She was to avoid forward-bending and had a low tolerance for sitting and standing. She could only occasionally lift objects, carry objects, or rotate while sitting.

[¶ 9] In February 2003, a vocational rehabilitation consultant recommended a skills upgrading program for Rodenbiker to enhance her customer service and computer skills. The record shows Rodenbiker, who previously attended a two-year legal secretary/word processing program at Bismarck State College, participated in a skills upgrading program. Dr. Martire approved her participation in the program. Rodenbiker was to attend the program two hours per day, three days per week. The ALJ noted that Rodenbiker missed several sessions for various reasons, but eventually completed the program. The record reveals Rodenbiker underwent a mini-FCA following the skills upgrading program. The assessment recommended Rodenbiker perform volunteer work as a work conditioning tool. Rodenbiker volunteered several times at a senior citizens' center as a bingo caller and receptionist.

[¶ 10] On January 21, 2004, Dr. Robert Cooper of Medical Evaluations, Inc., evaluated Rodenbiker to address work release issues and whether there was a need for an additional FCA. Dr. Cooper reported that Rodenbiker remained at the level indicated in her August 2002 FCA. He opined there were no absolute medical contraindications to Rodenbiker's ability to return to work. However, Dr. Cooper noted that Rodenbiker's pain medications might need to be altered, and Rodenbiker could struggle with psycho-social interaction required by the work recommended by WSI.

[¶ 11] Following Dr. Cooper's evaluation of Rodenbiker, Dr. Martire wrote to WSI. Dr. Martire agreed with Dr. Cooper in many respects, but questioned whether Rodenbiker would be capable of fulfilling the identified job goals because of her low sitting tolerance and emotional frailty. Dr. Martire was unsure whether different medications would help Rodenbiker participate in gainful employment. WSI scheduled a psychological evaluation for Rodenbiker with Dr. Harjinder Virdee. In Dr. Virdee's opinion, Rodenbiker's psychological condition did not prevent her from following the 2002 FCA recommendations regarding her return to work.

[¶ 12] In June 2004, Rodenbiker moved to Rock Lake to care for her mother, who has Alzheimer's disease. During the administrative hearing, Rodenbiker testified that her family paid her $300 per month to perform light housework, ensure her mother took her medications, and watch out for her mother's physical safety.

[¶ 13] In January 2005, a vocational rehabilitation consultant, Joyce Clock Olson, prepared an earnings capacity report and found Rodenbiker capable of part-time work. The report identified telemarketing customer service, and receptionist work as jobs that would not be too physically demanding for Rodenbiker. Olson based her opinion regarding the physical demand of the job goals on descriptions in the Dictionary of Occupational Titles and modifications she learned from employer contacts and site visits. Olson reported that employers would be willing to allow employees to alternate between sitting and standing while working and employees could walk within their cubicles and around the office premises during breaks. The report concluded that Rodenbiker had a retained earnings capacity of $163 per week.

II

[¶ 14] This Court reviews an agency order in the same manner as the district court. N.D.C.C. § 28-32-49. When a district court reviews an administrative agency's order, the district court must affirm the order of the agency unless the district court finds that any of the following are present:

1. The order is not in accordance with the law.

....

5. The findings of fact made by the agency are not supported by a preponderance of the evidence.

6. The conclusions of law and order of the agency are not supported by its findings of fact.

N.D.C.C. § 28-32-46. In its review of an agency order, this Court does not make independent findings of fact or substitute its judgment for that of the administrative agency. Aga v. Workforce Safety & Ins., 2006 ND 254, ¶ 12, 725 N.W.2d 204. This Court determines only "whether a reasoning mind reasonably could have determined that the factual conclusions reached were proved by the weight of the evidence from the entire record." Id.

[¶ 15] Application and interpretation of a statute is a question of law. Rojas v. Workforce Safety & Ins., 2006 ND 221, ¶ 13, 723 N.W.2d 403. Questions of law are fully reviewable on appeal from an administrative order. Forbes v. Workforce Safety & Ins., 2006 ND 208, ¶ 10, 722 N.W.2d 536.

III

[¶ 16] Two statutes are central to this case: N.D.C.C. § 65-05.1-01 and N.D.C.C. § 65-05-10. The parties mistakenly agreed that the 2003 version of the statutes was the appropriate version to apply to Rodenbiker's claim. However, the applicable statutes are those effective on March 2000, the date Rodenbiker suffered her work-related injury. Unless otherwise provided, statutes in effect on the date of an injury govern WSI benefits. See Robertson v. N.D. Workers Comp. Bureau, 2000 ND 167, ¶ 21, 616 N.W.2d 844; N.D.C.C. § 1-02-10 (stating no part of code is retroactive unless expressly declared). Thus, the 1999 versions of N.D.C.C. § 65-05.1-01 and N.D.C.C. § 65-05-10 apply to this case. Although those statutory provisions were amended between 1999 and 2003, the amendments did not relate to eligibility for partial disability benefits and do not affect the outcome of this case. See 2003 N.D. Sess. Laws ch. 561, § 3 (changing the name of the agency from "workers compensation bureau" to "workforce safety and insurance"); 2003 N.D. Sess. Laws ch. 562, § 6 (amending N.D.C.C. § 65-05-10 regarding the maximum amount of partial disability benefits payable to injured workers receiving partial disability benefits).

[¶ 17] Section 65-05.1-01(3), N.D.C.C. (1999), provides that the goal of vocational rehabilitation is "to...