Sjostrand v. WORKERS COMPENSATION BUREAU

• Citation: 649 N.W.2d 537,2002 ND 125
• Decision Date: 15 August 2002
• Docket Number: No. 20010271.,20010271.
• Parties: Ronald J. SJOSTRAND, Claimant and Appellant, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellee. and University Of North Dakota, Respondent.
• Court: United States State Supreme Court of North Dakota

649 N.W.2d 537

2002 ND 125

Ronald J. SJOSTRAND, Claimant and Appellant, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellee. and University Of North Dakota, Respondent.

No. 20010271.

Supreme Court of North Dakota.

August 15, 2002.

Rehearing Denied October 15, 2002.

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

Leo F.J. Wilking, Special Assistant Attorney General, Fargo, for appellee.

VANDE WALLE, Chief Justice.

[¶ 1] Ronald J. Sjostrand appealed a judgment affirming a North Dakota Workers Compensation Bureau order adopting an administrative law judge's recommendation that Sjostrand forfeit all additional benefits for misrepresenting his physical condition and abilities. We affirm.

I

[¶ 2] While employed by the University of North Dakota as a landscaper, Sjostrand was injured in an automobile accident in 1995. Sjostrand filed a claim for workers compensation benefits. The Bureau accepted the claim and paid benefits. Sjostrand was terminated from his position in January 1997. Sjostrand began a retraining program in September 1997 to become a health information technician. Sjostrand developed fibromyalgia as a result of his injury and began consulting Dr. Yue for treatment in January 1998. Upon his request and the approval of Dr. Yue, Sjostrand reduced his classload in August 1998. Sjostrand discontinued his educational program in October 1998. After receiving an anonymous tip about Sjostrand's physical activities in April 1999, the Bureau began an investigation, which included videotaped surveillance. Sjostrand completed an independent medical examination at the Bureau's direction in September 1999.

[¶ 3] The Bureau issued a notice of intention to discontinue further benefits ("Notice") dated November 22, 1999, advising Sjostrand it had determined he violated N.D.C.C. § 65-05-33 with a false claim or a false statement, and all further benefits would be forfeited after September 13, 1999. The Notice contained a five-page summary of the evidence the Bureau was relying upon, including: (1) The Bureau received an anonymous report that Sjostrand had been engaging in physical activities beyond what his treating physician has reported him capable of doing; (2) Sjostrand's employment with the University of North Dakota was terminated for an inability to perform the essential functions of the position; (3) "During surveillance from May 11, 1999, through May 25, 1999, from July 14, 1999 through July 17, 1999, and September 12, 1999, through September 25, 1999, you were observed ... performing very rigorous physical activities, which required physical abilities beyond what Dr. Yue has stated you are capable of performing;" (4) a description of activities recorded in the videotaped surveillance; and (5) the following additional evidence:

On September 13, 1999, per the Bureau's request, Dr. Gregory Peterson completed an Independent Medical Evaluation (IME). Dr. Peterson documented your current symptoms as follows: Mr. Sjostrand reports that his pain problems are very "mutable." "Today my wrists, my arms, and my feet bother me." He notes that his upper back is "generally worse." Other times he has pain, "absolutely from the tips of my toes on up." Mr. Sjostrand reports that all activities aggravate his pain. Other than medications, the only alleviating activity is "my recliner is as good as it gets." On the pain drawing, there are listed different qualities of discomfort, including "pins and needles, stabbing, burning and deep ache." Mr.S jostrand has arrows pointing to all fourof these qualities and indicates, "all over."

Upon review of your medical records and completion of his examination, Dr. Peterson concluded the following: "Mr. Sjostrand has generalized, variable, non-specific pain complaints which are markedly out of proportion to objective findings. Findings on examination suggest a conscious or unconscious exaggeration of pain behaviors."

....

On October 21, 1999 ... Dr. Peterson reviewed the surveillance videos of you from May 1999, July 1999, and September 1999.

By letter dated October 22, 1999, Dr. Peterson made the following comment regarding his review of the surveillance videos. "On the surveillance videos, I observed Mr. Sjostrand demonstrating excellent neck range of motion without apparent pain. He had full functional use of his arms, performing very rigorous physical activities. The capabilities demonstrated on the surveillance videos clearly demonstrate that he misrepresented his abilities during my interview with him. The findings on the videotape also clearly demonstrate that Mr. Sjostrand willfully attempted to deceive me regarding his physical capabilities on physical examination. Based on my review of Mr. Sjostrand's surveillance video, I believe that he is capable of performing all duties required of a landscaper (his previous occupation)."

The Bureau sent Sjostrand an amended Notice, dated November 24, 1999, advising him his "disability benefits will be terminated due to the reasons outlined in the 11-22-99 notice effective 12-15-99." By letter of December 17, 1999, Sjostrand's attorney asserted "the Bureau's decision is `wrong' "and requested "a copy of Mr. Sjostrand's entire file at the Bureau."

[¶ 4] On February 2, 2000, the Bureau concluded Sjostrand made false statements and ordered forfeiture of all additional benefits and reimbursement for any benefits paid based upon the false statement. On February 21, 2000, Sjostrand requested a rehearing, demanded the immediate appointment of an administrative law judge ("ALP), and demanded the Bureau conduct no further investigation or discovery.

[¶ 5] An administrative hearing was held on June 23 and July 14, 2000. On November 22, 2000, the ALJ issued recommended findings of fact, conclusions of law, and the following forfeiture order, in part:

Ordered, that pursuant to N.D.C.C. § 65-05-33, Ronald Sjostrand shall forfeit any and all additional benefits in connection with his claim for workers compensation benefits, including disability benefits, medical expenses, vocational rehabilitation benefits, and permanent partial impairment benefits; and it is further

Ordered, that upon these proceedings the North Dakota Workers Compensation Bureau shall not have reimbursement of any workers compensation benefits paid to Ronald Sjostrand.

On December 27, 2000, the Bureau adopted the ALJ's recommendation.

[¶ 6] Sjostrand appealed to the district court, which affirmed the Bureau's decision. Sjostrand, in his appeal to this Court, contends: (1) termination of his benefits without an opportunity for an evidentiary hearing deprived him of due process of law; (2) the Bureau failed to show he has either willfully or materially violated N.D.C.C. § 65-05-33; (3) the Bureau erred in relying on a "preponderance of the evidence" standard, rather than a "clear and convincing evidence" standard of proof; and (4) the delays and continuing investigations by the Bureau after issuing the Notice of November 24, 1999, constitute impermissible adversarial conduct and endemic institutional delay requiring reinstatement of all future benefits and reimbursement of his costs and attorney fees.

II

[¶ 7] We recently again outlined the scope of review of the Bureau's decisions under N.D.C.C. §§ 28-32-19 and 28-32-21¹:

On appeal, we review the decision of the administrative agency, rather than that of the district court, although the district court's analysis is entitled to respect. Snyder v. North Dakota Workers Comp. Bureau, 2001 ND 38, ¶ 7, 622 N.W.2d 712. Under N.D.C.C. §§ 28-32-19 and 28-32-21, which, effective August 1, 2001, are codified at 28-32-46 and 28-32-49, 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 claimant's constitutional rights, or its rules or procedure deprived the claimant of a fair hearing. Negaard-Cooley v. North Dakota Workers Comp. Bureau, 2000 ND 122, ¶ 7, 611 N.W.2d 898. We exercise restraint in deciding whether the Bureau's findings of fact are supported by a preponderance of the evidence, and we do not make independent findings or substitute our judgment for that of the Bureau; rather, we decide whether a reasoning mind reasonably could have decided the Bureau's findings were proven by the weight of the evidence from the entire record. Renault v. North Dakota Workers Comp. Bureau, 1999 ND 187, ¶ 16, 601 N.W.2d 580. Questions of law, including the interpretation of a statute, are fully reviewable on appeal from a Bureau decision. Lawrence v. North Dakota Workers Comp. Bureau, 2000 ND 60, ¶ 11, 608 N.W.2d 254.

Paul v. North Dakota Workers Comp. Bureau, 2002 ND 96, ¶ 6, 644 N.W.2d 884.

III

[¶ 8] Sjostrand contends the Bureau's termination of his disability benefits without first providing an opportunity for an evidentiary hearing violated his right to due process of law.

[¶ 9] "[U]nder our state statutes, the continuing right to disability benefits under the Worker's Compensation Act is a `property' right protected by the Due Process Clause." Beckler v. North Dakota Workers Comp. Bureau, 418 N.W.2d 770, 772 (N.D.1988). This Court recognized the importance of disability benefits to a recipient: "Continuation of disability benefits is significant to those who are entitled to them. By definition, disability benefits are paid while the claimant is unable to work." Id. at 774. However, this Court said:

In contrast, eligibility for disability benefits depended on a medically determinable impairment, a subject more sharply focused and more easily documented than the typical entitlement to welfare. Thus, the potential value of an oral presentation or evidentiary hearing before deprivation of disability benefits was substantially less than in the case of

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