Saari v. North Dakota Workers Compensation Bureau

• Citation: 1999 ND 144,598 N.W.2d 174
• Decision Date: 29 July 1999
• Docket Number: No. 980342,980342
• Parties: Edward SAARI, Claimant and Appellee, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellant. and Lake Ready Mix, Inc., Respondent
• Court: United States State Supreme Court of North Dakota

Page 174

598 N.W.2d 174

1999 ND 144

Edward SAARI, Claimant and Appellee, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellant and Lake Ready Mix, Inc., Respondent

No. 980342.

Supreme Court of North Dakota.

July 29, 1999.

Mark G. Schneider (argued) and Steven C. Schneider (appearance), Schneider, Schneider & Phillips, Fargo, for claimant and appellee.

Jacqueline Sue Anderson, Special Assistant Attorney General, Fargo, for appellant.

KAPSNER, Justice.

¶1 The Workers Compensation Bureau appealed from a judgment which reversed a Bureau order awarding Edward Saari permanent partial impairment (PPI) benefits and held the Bureau must follow former N.D.C.C. §§ 65-05-12 and 13, rather than N.D.C.C. § 65-05-12.2, in calculating Saari's PPI award. We conclude the Bureau correctly determined Saari's claim for PPI benefits is governed by N.D.C.C. § 65-05-12.2. We reverse the judgment.

I

¶2 On June 4, 1987, Saari injured his neck and left shoulder while working for Lake Ready Mix, Inc., in Devils Lake. The Bureau accepted Saari's claim and paid him medical and disability benefits. The Bureau has been providing Saari permanent total disability benefits since January 1991.

¶3 On August 13, 1997, the Bureau wrote Saari's treating physician and asked whether Saari had reached maximum medical improvement ¹ and, if so, when it occurred. The Bureau also asked whether the doctor believed Saari was entitled to an impairment rating above 16 percent. The doctor responded that Saari had reached maximum medical improvement and there had been no significant improvement to his injuries since June 4, 1987. The doctor also told the Bureau he believed Saari had an impairment of more than 16 percent.

¶4 In August 1997, the Bureau told Saari he may be entitled to a PPI award as a result of his work injury, and Saari requested a PPI evaluation. Saari was evaluated on December 11, 1997, by a physician who used the Fourth Edition of the American Medical Association's Guides to the Evaluation of Permanent Impairment (AMA Guides). The doctor concluded Saari had sustained a 5 percent "whole body" impairment for his cervical injury, a 22 percent impairment of his upper extremity for abnormal motion, and a 0.7 percent impairment of the upper extremity for sensory loss. The Bureau determined the upper extremity impairment was 13.7 percent when computed as a "whole body" figure. Combining the cervical and upper extremity impairments under the AMA Guides, the Bureau decided Saari had sustained a 17.7 percent whole body PPI from his work injury.

¶5 In making its calculations, the Bureau applied N.D.C.C. § 65-05-12.2, which became effective July 10, 1996. See McCabe v. North Dakota Workers Compensation Bureau, 1997 ND 145, p 6 n. 1, 567 N.W.2d 201. The parties stipulated Saari reached maximum medical improvement before July 10, 1996. Because Saari's PPI was determined after July 10, 1996, the Bureau applied the new statute, found Saari was entitled to 8.5 weeks of PPI compensation, and entered an order awarding Saari a total of $1,037. Saari argued his PPI award should have been calculated under N.D.C.C. §§ 65-05-12 and 13, the statutes in effect before July 10, 1996, when they were repealed and replaced by N.D.C.C. § 65-05-12.2. See 1995 N.D. Sess. Laws ch. 624, § 2. Saari contended under the old law he was entitled to a PPI award for his cervical injury of 25.9 percent for "whole body" impairment and 22.7 percent for his left upper extremity, for an award totaling $24,026.25. The matter was heard by an administrative law judge (ALJ), who agreed with the Bureau's argument the new law applied. The Bureau adopted the ALJ's recommendation, and Saari appealed to district court.

¶6 The court reversed the Bureau's decision, concluding the Bureau must follow the old law, N.D.C.C. §§ 65-05-12 and 13, in determining Saari's PPI benefits. The court found Saari's legal rights under the statute became vested on the date of his injury, and "[a]ny law that is passed subsequent to June 4, 1987 that diminishes ... Saari's benefits is void as it relates to the injuries sustained or impairments derived from the June 4, 1987 incident." The court did not decide which AMA Guide should be followed in determining the extent of impairment because Saari "has no vested right in how impairment is determined within a medical context." The Bureau appealed.

II

¶7 On appeal, we review the Bureau's decision, not the district court's decision. Loberg v. North Dakota Workers Compensation Bureau, 1998 ND 64, p 5, 575 N.W.2d 221. 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 Bureau's rules or procedures deprived the appellant of a fair hearing. Geck v. North Dakota Workers Compensation Bureau, 1998 ND 158, p 5, 583 N.W.2d 621. Deciding whether N.D.C.C. § 65-05-12.2 or former N.D.C.C. §§ 65-05-12 and 13 governs Saari's claim for PPI benefits is a question of law, fully reviewable by this Court. See Global Financial Services v. Duttenhefner, 1998 ND 53, p 5, 575 N.W.2d 667.

A

¶8 PPI benefits are intended to compensate injured workers for impairment, actual loss, loss of use, or partial loss of use of a portion of the body. See Effertz v. North Dakota Workers' Compensation Bureau, 481 N.W.2d 218, 219 n. 1 (N.D.1992); Kroeplin v. North Dakota Workmen's Compensation Bureau, 415 N.W.2d 807, 809 (N.D.1987). At the time of Saari's 1987 work injury, PPI benefits were governed by N.D.C.C. §§ 65-05-12 and 13, which set forth a schedule of payment for loss of body members and for percentages of permanent impairment. In 1995 the Legislature changed the PPI law by enacting N.D.C.C. § 65-05-12.2. See 1995 N.D. Sess. Laws ch. 624, § 1. This legislation increased the amount of benefits for some of the most severely impaired workers, but decreased the amount of benefits for less severely impaired workers and eliminated benefits for workers whose whole body impairments fell below 16 percent. Id. The legislation also required doctors evaluating workers for PPI to use the edition of the AMA Guides "in effect on the date of the employee's evaluation to establish a rating for impairment of function." Id. The new legislation repealed N.D.C.C. §§ 65-05-12 and 13 and was slated to become "effective on August 1, 1995, for all permanent impairment awards determined after July 31, 1995, irrespective of injury date." 1995 N.D. Sess. Laws ch. 624, § 3. However, the bill was referred and was approved by voters in June 1996, resulting in an effective date for the legislation of July 10, 1996. See Feist v. North Dakota Workers Compensation Bureau, 1997 ND 177, p 13 n. 3, 569 N.W.2d 1.

¶9 In support of Saari's claim the old PPI law should be applied in computing his benefits, Saari argues his right to benefits under the Workers Compensation Act resulting from his injury vested on the date of his injury, June 4, 1987. In the alternative, Saari argues if his right to PPI benefits did not vest on the date of injury his right to benefits vested at least on the date of his maximum medical improvement, which the parties stipulated was before July 10, 1996, the effective date of the new PPI law. Saari further contends the date of his injury serves as a "floor" for workers compensation benefits above which the Legislature may raise future benefits, but below which the Legislature may not lower future benefits.

B

¶10 Unless otherwise provided, the statutes in effect on the date of an injury govern workers compensation benefits. Loberg, 1998 ND 64, p 9, 575 N.W.2d 221. Here, the Legislature specifically provided the new law would apply to all PPI awards determined after the statute's effective date, "irrespective of injury date." 1995 N.D. Sess. Laws ch. 624, § 3. However, statutory enactments may not operate retrospectively to abrogate a vested right or a valid contractual obligation. See, e.g., Thompson v. North Dakota Workers' Compensation Bureau, 490 N.W.2d 248, 251 (N.D.1992). A vested right is an immediate or fixed right to present or future enjoyment that does not depend upon an event that is uncertain. See, e.g., Jensen v. North Dakota Workers Compensation Bureau, 1997 ND 107, p 11, 563 N.W.2d 112.

¶11 This Court's decision in Gregory v. North Dakota Workmen's Compensation Bureau, 369 N.W.2d 119 (N.D.1985) (Gregory I ), is instructive. In Gregory I, the Court considered whether the rate of payment for a PPI award under former N.D.C.C. § 65-05-12 was the statutory rate in effect at the time the impairment was determined, or the statutory rate in effect on the date the compensable injury occurred. At the time, N.D.C.C. § 65-05-12 did not clearly specify whether the rate to be paid was the rate on the date of injury or the date of determination. The Bureau ruled the claimant had a 20 percent whole body impairment and paid the rate in effect in 1958, when the claimant was first injured. The claimant sought compensation at the rate in effect in 1983, when his impairment was actually determined. This Court specifically rejected authority from other jurisdictions holding impairments arise on the date of injury, held the date of the determination of the impairment controlled which rate was to be applied, and ordered the claimant's PPI benefits paid at the 1983 rate. Gregory I, 369 N.W.2d at 121-22. Gregory I supports the Bureau's decision to apply the new PPI law in calculating Saari's award.

¶12 Saari raises numerous arguments in an attempt to distinguish Gregory I from the present case. Saari first contends Gregory I is distinguishable because that case dealt with the applicable rate of, rather than the vested nature of the claimant's right to, the PPI benefits. Saari's proposed distinction is one without a legal...