Shiek v. North Dakota Workers Comp. Bureau

• Decision Date: 16 October 2001
• Docket Number: No. 20010030.,20010030.
• Citation: 2001 ND 166,634 N.W.2d 493
• Parties: Darold B. SHIEK, Claimant and Appellant, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellee, and North Dakota State University, Respondent.
• Court: North Dakota Supreme Court

634 N.W.2d 493

2001 ND 166

Darold B. SHIEK, Claimant and Appellant, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellee, and North Dakota State University, Respondent.

No. 20010030.

Supreme Court of North Dakota.

October 16, 2001.

Mark G. Schneider, Schneider, Schneider & Phillips, Fargo, ND, for claimant and appellant.

Andrew L.B. Noah (argued), and Jacqueline S. Anderson, Special Assistant Attorneys General, Nilles, Hansen & Davies, Ltd., Fargo, ND, for appellee.

MARING, Justice.

[¶ 1] Darold B. Shiek appealed from a judgment affirming a North Dakota Workers' Compensation Bureau order denying his claim for further disability benefits. We hold, under the 1991 version of N.D.C.C. 65-05-09.3, claimants who become permanently and totally disabled on or before their intended retirement are eligible for disability benefits after that date, subject to applicable offsets. We reverse and remand with directions to award Shiek appropriate benefits.

I

[¶ 2] In July 1991, Shiek injured his right shoulder during the course of his employment at North Dakota State University ("NDSU"). In August 1991, he filed a claim with the Bureau for workers' compensation benefits, and the Bureau accepted liability for his claim. Shiek had surgery on his right shoulder, did not work from July 31, 1991 through March 2, 1992, and received disability benefits for that time period.

[¶ 3] Shiek returned to work at NDSU in a modified light duty position on March 3, 1992. In August 1992, he filed a separate claim for benefits regarding an injury to his left knee, which he claimed was injured when he hurt his right shoulder in July 1991. The Bureau consolidated Shiek's knee-injury and shoulder-injury claims. Shiek missed work from August 4, 1992, when Dr. David Humphrey operated on his left knee, through August 16, 1992, and Shiek received disability benefits for that time period.

[¶ 4] When Shiek returned to work at NDSU on August 17, 1992, he submitted a resignation, effective on September 25, 1992, the date of his sixty-second birthday. Shiek worked from August 17, 1992 until August 31, 1992, when Dr. Humphrey told him to not work through September 3, 1992, because of swelling in his knee. Shiek saw Dr. Humphrey again on September 21 and was advised not to work the rest of the week. Shiek did not return to work, and in accordance with his earlier submitted resignation, left his job with NDSU on September 25, 1992.

[¶ 5] Shiek received disability benefits for work missed through September 3, 1992, and he sought further disability benefits from the Bureau. The Bureau denied him further benefits, concluding he voluntarily retired from the workforce on September 25, 1992, and he therefore was not entitled to further disability benefits under the retirement presumption in N.D.C.C. 65-05-09.3.

[¶ 6] In Shiek v. North Dakota Workers Comp. Bureau, 1998 ND 139, ¶¶ 1, 26, 582 N.W.2d 639, we reversed the Bureau's decision and remanded for further proceedings. We concluded the Bureau erred as a matter of law in deciding that whether Shiek was permanently and totally disabled was irrelevant to the application of the retirement presumption in N.D.C.C. 65-05-09.3. Shiek at ¶ 17. We said, once a claimant establishes permanent and total disability by a preponderance of the evidence, the Bureau must prove, without the aid of the presumption in N.D.C.C. 65-05-09.3, the claimant is voluntarily retired from the labor market instead of forced by the disability from the market. Shiek at ¶ 21. Because the Bureau did not decide whether Shiek was permanently and totally disabled, we reversed and remanded for the proper application of the retirement presumption, the admission of any necessary evidence, and the preparation of findings necessary to properly adjudicate Shiek's claim for benefits. Id. at ¶ 26.

[¶ 7] On remand, the Bureau decided Shiek was permanently and totally disabled as of September 25, 1992, but he was not entitled to further disability benefits because he voluntarily withdrew from the labor force when he retired effective September 25, 1992. The trial court affirmed the Bureau's decision, and Shiek appealed.

II

[¶ 8] On appeal, we review the Bureau's decision. Shiek, 1998 ND 139, ¶ 9, 582 N.W.2d 639. 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 violated the claimant's constitutional rights, or the Bureau's rules or procedures deprived the claimant of a fair hearing. Id. See N.D.C.C. §§ 28-32-19 and 28-32-21. Our review of the Bureau's findings of fact is limited to determining whether a reasoning mind reasonably could have concluded the findings were proven by the weight of the evidence from the entire record. Shiek at ¶ 9. Questions of law are fully reviewable on appeal. Hopfauf v. North Dakota Workers Comp. Bureau, 2000 ND 94, ¶ 7, 610 N.W.2d 60.

III

[¶ 9] Shiek argues the Bureau misapplied the retirement presumption and our previous decision in Shiek. He argues a claimant who is permanently and totally disabled cannot voluntarily retire from work and his subjective intent to retire on September 25, 1992, is irrelevant because the Bureau found he was permanently and totally disabled on that date. He argues the Bureau's finding he was permanently and totally disabled on September 25, 1992, dictates, as a matter of law, he did not retire from the labor market voluntarily but was forced from the labor market by his permanent and total disability. Shiek argues he was entitled to further disability benefits because he was permanently and totally disabled on and before the date of his intended retirement. Our consideration of Shiek's arguments requires an examination of our decision in Shiek and the law in effect in 1992.¹

[¶ 10] In Shiek, 1998 ND 139, ¶ 10, 582 N.W.2d 639, we explained that, under N.D.C.C. § 65-05-08(2), when a claimant reapplied for disability benefits after their discontinuance, those benefits must be reinstated upon a finding the employee has sustained a significant change in medical condition which results in actual wage loss attributable to the work injury and the employee has not retired or voluntarily withdrawn from the job market as defined in N.D.C.C. 65-05-09.3. 65-05-09.3, N.D.C.C., provides:

An employee who has retired or voluntarily withdrawn from the labor force is presumed retired from the labor market and is ineligible for receipt of disability benefits under this title. The presumption may be rebutted by a preponderance of the evidence that the worker:

1. Is actively seeking employment;

2. Is available for gainful employment;

3. Has not rejected any job offer made by a former employer, or other bona fide job offer by another employer; and

4. Has not provided the employer, upon written request, with written notice of a scheduled retirement date.

The presumption does not apply to any employee who is permanently and totally disabled as defined under this title.

[¶ 11] In Shiek, 1998 ND 139, ¶ 17, 582 N.W.2d 639, we held the Bureau erred, as a matter of law, in ruling that whether Shiek was permanently and totally disabled was irrelevant to application of the retirement presumption under N.D.C.C. § 65-05-09.3. We said the retirement presumption clearly and unambiguously did not apply to an employee who was permanently and totally disabled. Shiek at ¶ 17. We recognized that excluding permanently and totally disabled employees from the retirement presumption was neither absurd nor ludicrous, because "the right of a permanently and totally disabled employee to have disability benefits `continue into retirement years is built into the very idea of workmen's compensation as a self-sufficient social insurance mechanism.'" Shiek at ¶ 17 (quoting Gregory v. North Dakota Workers Comp. Bureau, 1998 ND 94, ¶ 18 n. 5, 578 N.W.2d 101). [¶ 12] In Shiek, 1998 ND 139, ¶¶ 18-26,582 N.W.2d 639, we also considered both the Bureau's argument Shiek failed to establish he was permanently and totally disabled and Shiek's argument the Bureau was not entitled to the benefit of the presumption because it failed to establish the threshold requirement that he was not permanently and totally disabled. We rejected Shiek's argument the retirement presumption shifted the burden of proof to the Bureau to establish Shiek was not permanently and totally disabled as one of the threshold requirements giving rise to the presumption. Shiek at ¶ 21. We said:

It would be illogical to require a claimant to prove he or she is totally disabled in order to qualify for benefits for temporary total or permanent total disability under N.D.C.C. 65-05-09, rather than partial disability under N.D.C.C. 65-05-10, but not to have to prove total disability for purposes of N.D.C.C. 65-05-09.3 (1993). We conclude once the claimant has established by a preponderance of the evidence that he or she is totally and permanently disabled, the Bureau must prove, without the aid of a presumption, the claimant is retired from the labor market. In other words, if the claimant demonstrates he or she is permanently and totally disabled, the burden shifts to the Bureau to prove the claimant is not permanently and totally disabled or that the claimant retired from the labor market voluntarily, rather than having been forced from that market by the disability, if the Bureau seeks to hold the claimant ineligible for further benefits. The claimant must still establish his or her disability, as any claimant must do, to qualify for benefits.

Shiek at ¶ 21.

[¶ 13] We concluded the Bureau's finding Shiek voluntarily retired on September 25, 1992, in accordance with his long-standing plan to retire was supported by a preponderance of the evidence. Shiek, 1998 ND 139, ¶ 22, 582 N.W.2d 639. We said, however, that finding did not give...