Saakian v. North Dakota Workers Compensation Bureau, 980122

• Decision Date: 22 December 1998
• Docket Number: No. 980122,980122
• Citation: 587 N.W.2d 166,1998 ND 227
• Parties: Valeriy SAAKIAN, Claimant and Appellant, v. The NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellee, and Bismarck Transportation, Inc., Respondent. Civil
• Court: North Dakota Supreme Court

Page 166

587 N.W.2d 166

1998 ND 227

Valeriy SAAKIAN, Claimant and Appellant, v. The NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellee and Bismarck Transportation, Inc., Respondent.

Civil No. 980122

Supreme Court of North Dakota.

Dec. 22, 1998.

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

Tracy Vigness Kolb, Special Assistant Attorney General, Bismarck, N.D., for appellee.

SANDSTROM, Justice.

¶1 Valeriy Saakian appealed from a judgment affirming a Workers Compensation Bureau order denying him disability benefits. We conclude Saakian had adequate notice his entitlement to disability benefits was an issue to be determined at the administrative hearing on compensability of his claim. We also conclude the Bureau's finding Saakian was not disabled when it initially dismissed his claim is supported by a preponderance of the evidence. We affirm.

I

¶2 During the summer of 1996, Saakian was employed as a car washer by Bismarck Transportation, Inc., doing business as Taxi 9000. He had been employed there since December 1995, and his work duties included washing, vacuuming, and changing oil on various types of vehicles, as well as general maintenance in the office and mechanical areas of the building. Saakian, a 38-year-old Russian immigrant, is a musician and has played the accordion since he was a teenager. Saakian performs professionally on a limited basis, but claims he never experienced any problems with his arms, hands, or wrists as a result of playing music.

¶3 Saakian was examined on July 2, 1996, by an emergency room physician who diagnosed him with bilateral tendinitis or "tennis elbow." The physician placed Saakian on anti-inflammatories with physical therapy and also ordered that he be taken off work for a period of one week. The physician noted "this is a work related process. We will have Dr. [Joseph] Carlson follow up in one week to check on his progress and determine whether or not this job is something that he can continue on in."

¶4 On July 10, 1996, Saakian filed an application for Workers Compensation benefits, claiming he sustained an overuse injury to his forearms while performing his job duties at work. Taxi 9000 objected to the claim, alleging Saakian had suffered no injury, or if he had, it was not work related.

¶5 Dr. Carlson, an orthopaedic surgeon who later examined Saakian, reported he "does not necessarily have to be placed on any sort of restrictions," but noted Saakian's discomfort while working "could be relieved with taking frequent breaks, applying ice to this area and taking nonsteroidal medication." After being questioned by the Bureau, Dr. Carlson said "I feel his pain may indeed be related to over use or repetitive type of activity. This may indeed be a combination of playing keyboard and accordion coupling this with his current work situation."

¶6 In November 1996, the Bureau dismissed Saakian's claim, concluding he had not proven a compensable injury entitling him to benefits. Saakian requested an administrative hearing. Following the hearing, the Administrative Law Judge (ALJ) recommended reversal of the Bureau's dismissal. The ALJ concluded Saakian had proven a compensable injury entitling him to benefits because Saakian's treating physicians related his tennis elbow condition to his work at Taxi 9000. The ALJ found "none of the factual information previously identified revealed that the claimant had been engaged in any significant activities as a musician that may have contributed to cause his bilateral arm pain."

¶7 The Bureau followed the ALJ's recommendation and awarded Saakian medical expense benefits. However, the Bureau amended the decision by concluding Saakian was not entitled to disability benefits:

Saakian testified he left his employment at Taxi 9000 in September 1996, and has not been employed or worked since September 1996. Saakian agreed no doctor advised him he could not perform his job at Taxi 9000. In July 1996, and again in August 1996, Dr. Carlson released Saakian to his job at Taxi 9000 without restrictions. Dr. Carlson did advise that Saakian should take work breaks, apply ice, and take nonsteroidal medication. Therefore, when the Bureau dismissed Saakian's claim on November 12, 1996, Saakian was not disabled from performing his job at Taxi 9000 due to the work injury.

Saakian appealed to district court, which affirmed the Bureau's decision.

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

II

¶9 On appeal, we review the Bureau's decision, not the district court's decision. Hopfauf v. North Dakota Workers Comp. Bureau, 1998 ND 40, p 8, 575 N.W.2d 436. 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 violates the appellant's constitutional rights, or the agency's rules or procedures deprived the appellant of a fair hearing. Sprunk v. North Dakota Workers Comp. Bureau, 1998 ND 93, p 4, 576 N.W.2d 861. Our review of the Bureau's findings of fact is limited to determining if a reasoning mind reasonably could have determined the findings were proven by the weight of the evidence from the entire record. Loberg v. North Dakota Workers Comp. Bureau, 1998 ND 64, p 5, 575 N.W.2d 221.

A

¶10 Saakian asserts he had inadequate notice his entitlement to disability benefits would be an issue during the administrative hearing because the only issue listed by the ALJ in the specification of issues was "whether claimant sustained a compensable injury."

¶11 Due process requires a participant in an administrative proceeding be given notice of the general nature of the questions to be heard, and an opportunity to prepare and to be heard on those questions. Hentz Truck Line, Inc. v. Elkin, 294 N.W.2d 774, 780 (N.D.1980). Notice is adequate if it apprises the party of the nature of the proceedings so there is no unfair surprise. Erovick v. Job Service North Dakota, 409 N.W.2d 629, 631 (N.D.1987). These due process principles are embodied in N.D.C.C. § 28-32-05(3)(c), which requires a written specification of issues before an administrative hearing on a workers compensation claim:

A hearing under this subsection may not be held unless the parties have been properly served with a copy of the notice of hearing as well as a written specification of issues for hearing or other document indicating the issues to be considered and determined at the hearing. In lieu of, or in addition to, a specification of issues or other document, an explanation about the nature of the hearing and the issues to be considered and determined at the hearing may be contained in the notice.

Basic notions of fundamental fairness dictate a person challenging an agency action must be adequately informed in advance of the questions to be addressed at the hearing so the person can be prepared to present evidence and arguments on those questions. Estate of Robertson v. Cass County, 492 N.W.2d 599, 602 (N.D.1992).

¶12 Saakian relies on Flink v. North Dakota Workers Comp. Bureau, 1998 ND 11, 574 N.W.2d 784, to support his argument inadequate notice was given in this case. In Flink, we held the Bureau had not provided the claimant with proper notice of the reason for discontinuing his disability benefits when it advised the claimant through a form he was no longer eligible for those benefits because he had transferable skills to return to work. After an administrative hearing, the ALJ recommended terminating the claimant's benefits, not because he had transferable skills, but because the claimant had been released to return to work. We concluded the Bureau, through the ALJ, had "blindsided" the claimant by not identifying the release-to-work issue in the discontinuation of benefits notice, which "indicated being released to work was not at issue." Flink, 1998 ND 11, p 16, 574 N.W.2d 784. We questioned whether the Bureau even anticipated the release-to-work issue would be dispositive, because there was no testimony during the administrative hearing regarding the date the claimant was released to return to work and the Bureau's attorney asked no questions about the subject. Flink, 1998 ND 11, pp 16, 17, 574 N.W.2d 784.

¶13 The circumstances in this case are vastly different from the situation in Flink. Here, Saakian had filled out information requested by the Bureau for a disability claim on the original claim form, and the Bureau had given the claim a time loss claim designation in its caption. Saakian and his attorney were well aware of the type of benefits Saakian sought from the Bureau. During the hearing, questions were asked and testimony and evidence were presented by both parties regarding Saakian's disability status. Questions focused on Saakian's ability to perform his work at Taxi 9000. A physician's report of injury and letter indicated Saakian could perform his work at Taxi 9000 without restrictions. Saakian's attorney and the Bureau's attorney asked Saakian questions regarding his job duties at Taxi 9000 and his ability to perform them. Saakian even admits the Bureau's order denying him disability benefits was "based on evidence which was not only available but was admitted during the formal administrative hearing." Even though the specification of issues could have been more precise, Saakian was not, under these circumstances, unfairly surprised, and he had an opportunity to, and did, address the Bureau's evidence on the disability question. Saakian was not prejudiced by the specification of issues for this administrative...