Shiek v. North Dakota Workers Compensation Bureau

Decision Date16 July 1998
Docket NumberNo. 970333,970333
PartiesDarold B. SHIEK, Claimant and Appellant, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellee, and North Dakota State University, Respondent. Civil
CourtNorth Dakota Supreme Court

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

Andrew L.B. Noah (argued), Special Assistant Attorney General, Fargo, for appellee.

NEUMANN, Justice.

¶1 Darold B. Shiek appealed from a judgment affirming a Workers Compensation Bureau order denying his claim for disability benefits. We conclude the Bureau misapplied the retirement presumption law under N.D.C.C. § 65-05-09.3 in considering Shiek's claim. We reverse the judgment and remand to the Bureau for the admission of any necessary evidence, and the preparation of findings necessary to properly adjudicate Shiek's claim for benefits.


¶2 On July 30, 1991, Shiek injured his right shoulder while working as a boiler operator at North Dakota State University (NDSU). Shiek was 60 years old at the time. He filed a claim with the Bureau on August 2, 1991, and the Bureau accepted liability. 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's surgeon, Dr. Charles Hartz, released Shiek to return to work "with restrictions on lifting and overhead work, that is to make it light duty for the right arm." NDSU accommodated these restrictions, and Shiek returned to work in a modified light duty position on March 3, 1992. In April 1992, Shiek told Hartz his only problem at work related to painting, which required him "to reach up as high as he can." Hartz recommended Shiek "work at waist level or below," and NDSU accommodated this restriction and modified Shiek's light duty cleaner/painter position.

¶4 On August 22, 1992, Shiek filed a separate claim for injury with the Bureau regarding his left knee. Shiek explained the injury to his left knee occurred when he injured his right shoulder on July 30, 1991, but his knee "didn't get bad for about 4 or 5 months...." The Bureau consolidated the claim for the left knee injury with the original claim for the right shoulder injury. Shiek had missed work from August 4, 1992, when Dr. David Humphrey operated on his left knee, through August 16, 1992. Humphrey, who examined Shiek's knee on August 10, 1992, told Shiek he could go back to work "in one week with advice that it be light work and no ladder climbing, etc." Shiek received disability benefits from the Bureau for the August 4 through August 16, 1992 period.

¶5 When Shiek returned to work on August 17, 1992, he submitted his voluntary resignation to NDSU effective September 25, 1992, Shiek's 62nd birthday. Shiek worked from August 17, 1992 until August 31, 1992, when Humphrey took him off of work through September 3, 1992, because of swelling in his knee. Shiek saw Humphrey again on September 21, 1992, and Humphrey advised him to keep off of work for the rest of the week. Shiek did not return to work that week, and in accordance with his earlier plans, retired from NDSU on September 25, 1992. NDSU never modified Shiek's work to accommodate his left knee injury. Shiek received disability benefits for the work he missed through September 3, 1992, because of his left knee injury.

¶6 Shiek asked the Bureau for further lost time disability benefits in connection with his claim. On January 10, 1995, the Bureau issued an order denying further benefits, concluding Shiek voluntarily retired from the work force on September 25, 1992, and therefore was not entitled to any further disability benefits under N.D.C.C. § 65-05-09.3. Shiek requested reconsideration and received a formal administrative hearing. The Administrative Law Judge (ALJ) issued recommended findings of fact and conclusions of law affirming the Bureau's January 10, 1995 order.

¶7 The ALJ found Shiek "regularly made it known to his fellow employees at the heating plant at [NDSU], at least as far back as 1990, and prior to a work-related injury he experienced on July 30, 1991, that he was going to retire at age sixty-two." The ALJ found Shiek "voluntarily withdrew from the labor force and retired from the labor market effective September 25, 1992, the date of his sixty-second birthday anniversary, in accordance with plans made years before to retire upon reaching age sixty-two, and not because of his work-related injury." The ALJ concluded:

"Darold Shiek is not entitled to either temporary total disability benefits or permanent total disability benefits calculated pursuant to N.D.C.C. § 65-05-09 after September 25, 1992, as those benefits are premised on a theory of wage replacement, and are, thus, intended to compensate an injured employee for lost wages. Because Mr. Shiek voluntarily withdrew from the labor market as of September 25, 1992 in accordance with his planned retirement, he surrendered his capacity to earn, and, conversely, to lose, wages, at least until such time as he might re-enter the labor market, with the result that he can claim no lost wages subsequent to that date for which he is entitled to compensation."

¶8 The Bureau issued an order adopting the ALJ's recommended findings and conclusions, and Shiek appealed to district court. The district court affirmed the Bureau's order, and this appeal followed.


¶9 On appeal, we review the Bureau's decision, not the district court's decision, but in our deliberations we consider the district court's analysis and reasoning. See Ekstrom v. North Dakota Workers Compensation Bureau, 478 N.W.2d 380, 382 (N.D.1991). We affirm unless the findings of fact are not supported by a preponderance of the evidence, the conclusions of law are not supported by the findings of fact, the decision is not supported by the conclusions of law, the decision is not in accordance with the law or violated the appellant's constitutional rights, or the agency's rules or procedures deprived the appellant of a fair hearing. See Sprunk v. North Dakota Workers Compensation Bureau, 1998 ND 93, p 4, 576 N.W.2d 861; N.D.C.C. §§ 28-32-19 and 28-32-21. 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. See Feist v. North Dakota Workers Compensation Bureau, 1997 ND 177, p 8, 569 N.W.2d 1.

¶10 When a claimant reapplies for disability benefits after their discontinuance, N.D.C.C. § 65-05-08(2) (1995) 1 directed those benefits "must be reinstated upon a finding that:"

"a. The employee has sustained a significant change in medical condition shown by a preponderance of the evidence;

"b. The employee has provided evidence of actual wage loss attributable to the work injury; and

"c. The employee has not retired or voluntarily withdrawn from the job market as defined in section 65-05-09.3."

¶11 A "retirement presumption" is codified at N.D.C.C. § 65-05-09.3 (1993), 2 and provided at the pertinent time:

"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."

¶12 The ALJ had difficulty interpreting the retirement presumption statute. In the ALJ's recommended findings and conclusions, which were adopted in total by the Bureau, the ALJ acknowledged the statutory language providing the retirement presumption " 'does not apply to an[y] employee who is permanently and totally disabled,' " but opined "[t]he intent of this exclusion is difficult to discern" and the language "[o]n its face ... is somewhat nonsensical." The ALJ then went on to attempt to define the "possible intended meaning" the Legislature had for this exclusion.

¶13 The ALJ speculated the language was "[p]erhaps ... intended to mean that the Bureau cannot, where an employee has retired, prorate, to the date of retirement, the amount of any lump sum permanent impairment award calculated pursuant to N.D.C.C. § 65-05-12...." The ALJ also speculated:

"Another possible intended meaning is that in calculating disability benefits based on lost wages under N.D.C.C. § 65-05-09, there is to be no presumption that a permanently and totally disabled employee who 'retires' has voluntarily removed himself from the labor market, and so if such lost wage benefits are to be terminated because the employee is no longer working, the voluntariness of such 'retirement' must be established by substantive evidence."

¶14 The ALJ concluded the Legislature "must have ... intended" this latter "possible intended meaning" of the statute, found Shiek had voluntarily terminated his employment on September 25, 1992, "and thus became ineligible for disability benefits premised on lost wages ... after that date."

¶15 The ALJ appeared to conclude whether Shiek was permanently and totally disabled was irrelevant to its decision. The ALJ reasoned, "[b]ecause I find that Shiek's termination of employment was voluntary and pursuant to his long-standing retirement plans and not because of the effects of his work-related injury, I do not find it necessary to address whether Shiek's functional limitations could or could not have been accommodated by any modified position NDSU might have offered him." The ALJ also said, "if an employee voluntarily...

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