Siewert v. North Dakota Workers Compensation Bureau

• Decision Date: 22 October 1996
• Docket Number: No. 960074,960074
• Citation: 554 N.W.2d 465
• Parties: Eugene SIEWERT, Claimant and Appellee, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellant, and Siewert's Jack & Jill, Respondent. Civil
• Court: North Dakota Supreme Court

Page 465

554 N.W.2d 465

Eugene SIEWERT, Claimant and Appellee, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellant, and Siewert's Jack & Jill, Respondent.

Civil No. 960074.

Supreme Court of North Dakota.

Oct. 22, 1996.

Kathryn L. Dietz (argued), of Dietz & Little, Bismarck, for claimant and appellee.

Brent J. Edison (argued), Special Assistant Attorney General, of Zuger Kirmis & Smith, Bismarck, for appellant.

MESCHKE, Justice.

The North Dakota Workers Compensation Bureau appeals from a district court judgment reversing the Bureau's order terminating Eugene Siewert's benefits and requiring him to repay all benefits received. We conclude the Bureau's finding that Siewert was not injured in a work-related accident is not supported by the greater weight of the evidence, and we affirm.

Siewert claimed he was injured on March 20, 1990 when he fell from a stepladder on the tailgate of his pickup while fixing an outside flood light on his grocery store in Elgin. The Bureau accepted liability and paid related medical expenses and disability benefits. Later, after receiving medical reports indicating Siewert might be malingering, the Bureau investigated the claim, medically evaluated Siewert and, on August 24, 1992, entered an order terminating benefits and requiring Siewert to repay $113,677.37 in benefits already received. Siewert requested a formal hearing. After much delay and an evidentiary hearing on September 23, 1994, the Bureau, by order dated May 15, 1995, adhered to its decision to terminate benefits and require reimbursement from Siewert.

Siewert appealed. The district court reversed the Bureau and remanded for reinstatement of benefits "or additional [f]indings related to [Siewert's] mental status vis a vis malingering or other medical phenomena not relating from his injuries of March 20, 1990." The Bureau appealed, ¹ asserting a preponderance of the evidence supported its finding Siewert did not fall in a work-related accident and therefore did not have compensable injuries.

Upon appeal from a district court's review of an administrative agency decision, we review the agency decision, rather than the decision of the district court, and we limit our review to the record before the agency, without deferring to the court's findings. Naumann v. N.D. Workers Compensation Bureau, 545 N.W.2d 184, 187 (N.D.1996). Under NDCC 28-32-19 and 28-32-21, we will affirm the Bureau's decision unless a preponderance of the evidence does not support its findings of fact, its findings do not support its conclusions of law, its conclusions do not support its decision, or its decision is not in accordance with the law. Spangler v. N.D. Workers Compensation Bureau, 519 N.W.2d 576, 577 (N.D.1994). When deciding whether a preponderance of the evidence supports the Bureau's findings, we do not reweigh the evidence or substitute our judgment for that of the Bureau. Id. Rather, as we explained in Rooks v. N.D. Workers' Compensation Bureau, 506 N.W.2d 78, 80 (N.D.1993), we determine only whether the Bureau's findings adequately explain its decision and are reasonably supported by the greater weight of the evidence.

The claimant carries the burden of proving by a preponderance of the evidence he is entitled to receive benefits from the fund. NDCC 65-01-11; Nemec v. N.D. Workers Compensation Bureau, 543 N.W.2d 233, 237 (N.D.1996). If the Bureau terminates benefits after initially accepting a claim, the claimant still has the burden of proving the right to continue receiving benefits. Ollom v. N.D. Workers Compensation Bureau, 541 N.W.2d 455, 456 (N.D.1995). However, under NDCC 65-01-11, the Bureau carries the burden of proving an employee is not entitled to benefits because "the employee's injury was caused by the employee's willful intention to injure himself."

The Bureau found Siewert did not fall from a ladder while working on March 20, 1990, and did not suffer head injuries "as the result of falling from a ladder." Those findings imply that Siewert self-inflicted his physical injuries, including bruises and scrapes, and thereafter fabricating his subjective injuries, including memory loss and cognitive deficits. The Bureau has the burden to prove Siewert self-inflicted the injuries he claims were caused by a work accident. NDCC 65-01-11. After reviewing the record, we agree with the trial court that a reasonable person could only find, from the greater weight of the evidence, that Siewert accidentally fell at work and was injured in the fall. ²

On March 20, 1990, when Siewert was found unconscious, lying on the ground at the back of his store, the local ambulance crew was summoned immediately. An ambulance attendant found Siewert "lying at a 45 degree angle with his face or head against the building" totally unconscious, and with bruises on his head. The ambulance crew took Siewert to the Elgin Hospital, where Dr. S.K. Patel examined him. Dr. Patel ordered Siewert transferred by ambulance to St. Alexius Hospital in Bismarck. ³ The Elgin nurse who rode with Siewert to Bismarck said Siewert was unconscious the entire time and completely limp with no response to painful stimuli. An ambulance attendant who also rode to Bismarck told the Bureau's investigator there was "no chance of Mr. Siewert faking unconsciousness."

When Siewert regained consciousness at the hospital, about 24 hours later, he could not remember the accident and was confused. He did not recognize his wife or daughter, and could not remember the alphabet or how to count. He complained of headaches, dizziness, and memory loss. He was extensively evaluated and treated at the hospital until his discharge on May 1, 1990. From June 25, 1990 to October 12, 1990, Siewert was hospitalized at St. Luke's psychiatric department in Fargo.

Dr. A.F. Samuelson conducted a psychiatric evaluation of Siewert at the St. Alexius Psychiatry Clinic. In a November 8, 1990, report Dr. Samuelson summarized Siewert's condition and treatment after the accident:

This patient has retrograde amnesia stemming from a head injury in March during which he remained unconscious for a period of 24 hours. His memory and cognitive deficits took on a very unusual, bizarre quality for his preliminary neurological evaluation at St. Alexius Hospital, revealed no objective findings consistent with severe brain injury. The neurological evaluation, electroencephalography, CT scan and MRI scan were negative. The diagnosis was thought to be that of a conversion hysteria and possibly malingering. He was discharged from St. Alexius, but returned within a few days and was subsequently referred to Fargo where he remained in the hospital for a period of several months under the care of Dr. Sharbo. The conclusions in Fargo after extensive neurological, neuropsychological evaluation and psychiatric observation were those of a psychogenic amnesia and possible malingering or a factitious disorder. While in the hospital he became exceedingly depressed and was placed on Prozac 60 mg daily....

Since his return home, he has continued to show evidences of severe memory deficit. He does not recognize people on the street, is not able to recall familiar events in his life and continues to demonstrate marked impairment of concentration and recent memory. He often leaves the burner burning, the sink running over with water and has not been able to follow through with tasks even of a simple nature.... [H]e remains exceedingly dependent upon his wife and she has been serving as his guardian. The only other medication he is now taking is Motrin a few times daily for pain.

* * * * * *

This individual is demonstrating a significant handicap no matter what the cause of his amnesia might be. Functionally he is not able to manage for himself and is very dependent upon his wife. Significant depressive symptoms are described and observed. The long term outcome remains very guarded.

Dr. Harold Hase conducted a psychological evaluation of Siewert on September 10, 1992. Dr. Hase concluded Siewert has a "generalized impairment in cognitive functioning" which "appears to be a consequence of his head injury."

Much of the testimony by Siewert's wife, Vicki Siewert, about her husband's medical condition is unrefuted. She said he had a bruise the size of a hamburger bun on his head and was scraped and bleeding on the left side when she saw him after the fall. She said her husband fractured a contact lens from the fall that had to be taken out of his eye, and a replacement was ordered. She also testified that her husband was incontinent during the entire time he was unconscious at St. Alexius hospital. She said his memory loss and confusion was so significant that she had to be named guardian for his personal affairs, and that she has had to have her sister stay with Siewert at home after his discharge from St. Alexius because he will "wander out the door and just start off for in the country." She also testified that since the accident Siewert's left leg gives out and "he has fallen down many, many times" causing him to get "all banged up." She said that the Fargo doctors concluded Siewert "compressed the left wrist and ... the medial nerve" when he fell and that Siewert had surgery to correct the problem.

Dr. Craig DeGree, a licensed psychologist at St. Alexius, was one of Siewert's primary treating doctors in the months following the accident. In DeGree's view, Siewert suffered a head injury from the fall that resulted in his considerable physical and psychological difficulties:

... [it] is very difficult to predict in mild traumatic brain injury, the subsequent loss in adaptive capabilities. The frontal areas of the brain that are involved in higher cognitive processes such as reasoning, planning, emotional modulation, etc. are the most susceptible, while at the same time the most difficult to access from a psychometric perspective. It seems fairly clear from the history that there was a substantial deterioration in Mr....