Sowatzki v. North Dakota Workers Compensation Bureau
Decision Date | 17 July 1997 |
Docket Number | No. 960267,960267 |
Citation | 567 N.W.2d 189 |
Parties | Gary SOWATZKI, Claimant and Appellee, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellant. Civil |
Court | North Dakota Supreme Court |
Neil Thompson, of Thompson & Thompson, Devils Lake, for Claimant and Appellee.
Douglas W. Gigler, Special Assistant Attorney General, Nilles, Hansen & Davies, Fargo, for Appellant.
¶1 The North Dakota Workers Compensation Bureau appealed a district court judgment reinstating the Bureau's August 16, 1995, order awarding Gary Sowatzki permanent partial impairment benefits. Sowatzki moved to dismiss the appeal. We deny the motion to dismiss, reverse the judgment, and remand for further proceedings.
¶2 On April 15, 1993, Sowatzki filed a claim for workers compensation benefits for hearing loss after thirty-one years of working around heavy equipment on construction sites. On January 20, 1994, the Bureau dismissed the claim, concluding it was not timely filed under NDCC 65-05-01. After a rehearing at Sowatzki's request, the Bureau issued an order affirming its January 20, 1994, dismissal of Sowatzki's claim.
¶3 Sowatzki appealed to the district court, which reversed the Bureau's dismissal orders and remanded the matter to the Bureau. On August 16, 1995, the Bureau awarded Sowatzki $15,561 under NDCC 65-05-12 for a 24.7 percent whole body impairment for bilateral hearing loss.
¶4 When Sowatzki received his award, he sent a letter to the Bureau questioning how the Bureau determined he had a 24.7 percent whole body impairment. In response to the letter, the Bureau reviewed the file and determined Sowatzki had been overpaid. The Bureau concluded Sowatzki was entitled to a permanent partial impairment award of $6,224.40 under NDCC 65-05-13(28), rather than a whole body impairment under NDCC 65-05-12. On October 20, 1995, the Bureau issued an order revoking Sowatzki's previous award and ordered Sowatzki to repay $9,336.60.
¶5 Sowatzki appealed the second order to the district court. On November 17, 1995, the court issued an order reversing the Bureau's October 20, 1995, order, and reinstating the Bureau's August 16, 1995, order. The district court did not wait for the Bureau to file a certified copy of the record of proceedings before the Bureau, or an abstract of the record, as required by NDCC 28-32-17. The district court also did not review the appeal from the Bureau's determination "based only on the record filed with the court," as provided in NDCC 28-32-19.
¶6 The Bureau requested the district court to reconsider its summary disposition of Sowatzki's appeal. In a hearing on December 20, 1995, the Bureau contended it was entitled to an opportunity to address the merits of Sowatzki's appeal before the court reversed the Bureau's order. In response to counsel's argument, the district court declined to discuss the merits of the appeal, but allowed the Bureau to submit a brief discussing whether the Bureau had the authority to revoke Sowatzki's award without affording him due process:
¶7 In a letter of January 17, 1996, the Bureau's attorney informed the district court the Bureau would not be filing a brief:
On January 22, 1996, the district court issued an order stating, in part:
A judgment decreeing the Bureau's "Order Awarding Permanent Partial Impairment Benefits dated August 16, 1995 is hereby re-instated and [Sowatzki] will not re-pay any benefits received," was entered in the district court on July 12, 1996. Sowatzki mailed a notice of entry of judgment to the Bureau on September 11, 1996. The Bureau appealed the judgment on September 12, 1996.
¶8 Sowatzki filed a motion to dismiss the Bureau's appeal of the district court judgment on two grounds: (1) "due to the lack of subject matter jurisdiction," and (2) "for the reason it is not a final order or judgment." Sowatzki contended that "the time for appeal would at least begin running on January 24, 1996 the date of the final order." As we understand Sowatzki's arguments in support of his motion, we must decide if the district court judgment entered on July 12, 1996, was a final and appealable judgment, and we must decide if the district court's earlier orders of November 17, 1995, and January 22, 1996, were appealable.
¶9 As we discussed in Municipal Servs. Corp. v. State, 483 N.W.2d 560 (N.D.1992), the district court judgment appealed from by the Bureau was a final, appealable, judgment:
Municipal Servs. Corp., 483 N.W.2d at 561, see also Siewert v. North Dakota Workers Comp. Bureau, 554 N.W.2d 465, 466 n. 1 (N.D.1996).
¶10 In Center State Bank, Inc. v. State Banking Bd., 276 N.W.2d 132 (N.D.1979), the Bank appealed a district court order affirming the Board's denial of an extension of time to meet conditions imposed by the Board. This court said NDCC 28-32-21 1 "only authorizes appeals from judgments" and quoted the following language from Langer v. Gray, 74 N.D. 709, 24 N.W.2d 339, 340 (1946) about NDCC Ch. 28-32:
Center State Bank, Inc., 276 N.W.2d at 134. In Davis v. Job Service, 365 N.W.2d 497, 499 (N.D.1985), this court dismissed an appeal in which the notice of appeal stated the appeal was from an "order" and not from a "judgment" because an appeal involving an administrative agency decision is governed by NDCC 28-32-21, and Id. at 499 (citations omitted).
¶11 In contexts other than appeals involving administrative agency decisions, we have treated district court orders obviously intended to be final as appealable final orders. See, e.g., Timmerman Leasing, Inc. v. Christianson, 525 N.W.2d 659, 660 n. 1 (N.D.1994); Sime v. Tvenge Associates Architects & Planners, P.C., 488 N.W.2d 606, 608 (N.D.1992). This court has also treated appeals from district court orders as appeals from subsequently entered judgments consistent with the orders from which appeals were...
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