Schiff v. North Dakota Workers Compensation Bureau

• Decision Date: 04 February 1992
• Docket Number: No. 910244,910244
• Citation: 480 N.W.2d 732
• Parties: Vern J. SCHIFF, Appellant, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellee, Attorney General of the State of North Dakota; and William Clairmont, Inc., a North Dakota corporation, Respondents. Civ.
• Court: North Dakota Supreme Court

Page 732

480 N.W.2d 732

Vern J. SCHIFF, Appellant, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellee Attorney General of the State of North Dakota; and William Clairmont, Inc., a North Dakota corporation Respondents.

Civ. No. 910244.

Supreme Court of North Dakota.

Feb. 4, 1992.

Eugene F. Buresh of Freed, Dynes, Reichert, Buresh & Herauf, PC, Dickinson, for appellant.

Dean J. Haas, Asst. Atty. Gen., North Dakota Workers Compensation Bureau, Bismarck, for appellee.

MESCHKE, Justice.

Vern Schiff appealed from an order by the Workers Compensation Bureau that was affirmed by the district court. The Bureau ruled that Schiff was a candidate for vocational rehabilitation, and was not entitled to a lump sum payment of disability benefits. We affirm.

While managing a ranch in 1981, Vern Schiff was thrown from a horse, injuring his left hip and pelvis, and resulting in separation of his pelvic cartilage. Schiff received Workers Compensation benefits, including medical, disability, and partial permanent impairment for his injury. Following the accident, orthopedic specialists treated Schiff but he did not fully recover and his pelvic separation continued. This prevented Schiff from performing any physical labor and precluded return to his former position at the ranch.

In 1983, the Bureau had vocational experts test Schiff to assess the possibility of retraining him for other employment. The test reports showed that Schiff was not employable without retraining, and that he possessed strong academic and mental abilities. A vocational rehabilitation plan was recommended for education that would enable Schiff to return to employment.

Schiff resisted retraining. He began demanding a lump sum payment from the Bureau equal to the present value of all future disability payments on the grounds that he was totally and permanently disabled. In 1984, the Bureau offered him a lump sum settlement in an amount equal to the cost of vocational retraining. When Schiff would not agree to that amount, the offer was withdrawn. Thereafter, Schiff repeatedly requested a lump sum payment, and the Bureau persistently failed to respond. The Bureau did, however, continue to offer to develop a rehabilitation plan for him consistent with his physical limitations.

Finally, frustrated with the Bureau's lack of response to his requests for a lump sum payment, Schiff petitioned the district court for a writ of mandamus. The district court, on October 9, 1990, directed the Bureau to respond to his request for a lump sum, or to show cause why it did not do so. The Bureau promptly issued an order denying Schiff's request for a lump sum payment, ruling that Schiff was a candidate for vocational rehabilitation, and that Schiff failed to prove that a lump-sum payment was in his best interest. The Bureau found that Schiff "failed to provide any evidence whatever that payment in a lump sum is in his best interest in any way other than economically", declared that "economic best interest is clearly insufficient" for a lump sum payment, and concluded that "economic best interest is not a test for determining whether payment of a lump sum is in claimant's best interest" if it did not "rehabilitate him." The order directed that Schiff "cooperate with further vocational assessment to determine whether he is a rehabilitation candidate or is permanently and totally disabled." Schiff appealed. ¹ The same district court that issued the writ of mandamus affirmed.

Schiff appeals to this court. Here, Schiff continues to argue that the Bureau wrongly determined that he is a candidate for rehabilitation because he is totally and permanently disabled, and that the Bureau improperly denied him a lump sum payment.

The scope of judicial review of the Bureau's decision is governed by NDCC 28-32-19. The Bureau's decision must be affirmed unless we conclude that the findings of fact are not supported by a preponderance of the evidence, that the conclusions of law are not supported by the findings, or that the decision is not in accordance with law. Wendt v. N.D. Workers Compensation Bureau 467 N.W.2d 720 (N.D.1991). We determine only whether the agency reasonably made its factual determinations from the greater weight of all the evidence in the record. Power Fuels, Inc. v. Elkin, 283 N.W.2d 214, 220 (N.D.1979). These standards guide our review of the Bureau's decision here.

Schiff argues that he is totally and permanently disabled and thus, in effect, beyond rehabilitation. Schiff urges that rehabilitation applies only to those temporarily or partially disabled. Schiff relies on the medical treatment records of the orthopedic specialists who have treated him since his 1981 injury. These records show that they concluded that Schiff was "permanently disabled" from his 1981 injury; that it was "highly unlikely that his physical status will change in the future"; and that "[Schiff's] prognosis and level of recovery ... has been reached ...", and "no further recovery may be expected at this point." Additionally, Schiff claims that retraining is unrealistic because dealing with his physical limitations and pain on a day-to-day basis are all that he can handle.

There is no question that Schiff's disability precludes resumption of his duties as a ranch foreman, or any like work. The Bureau asserts, however, that disability is both a medical and a vocational question and that Schiff's inability to work at his former employment does not wholly preclude him from retraining for a new field of employment within his physical limitations.

The Bureau is directed to "assist the claimant ... in the...