Swanson v. North Dakota Workers Compensation Bureau

• Decision Date: 10 September 1996
• Docket Number: No. 950416,950416
• Parties: Douglas SWANSON, Claimant and Appellee, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellant, and Rockwell International, Respondent. Civil
• Court: North Dakota Supreme Court

Page 209

553 N.W.2d 209

Douglas SWANSON, Claimant and Appellee, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellant, and Rockwell International, Respondent.

Civil No. 950416.

Supreme Court of North Dakota.

Sept. 10, 1996.

Stephen D. Little (argued), Dietz & Little, Bismarck, for claimant and appellee.

Lawrence A. Dopson (argued), Special Assistant Attorney General, of Zuger Kirmis & Smith, Bismarck, for appellant.

NEUMANN, Justice.

The Workers Compensation Bureau appealed a district court judgment remanding the Bureau's order denying specific benefits to Douglas Swanson. Because the only issue decided is the narrow one of Swanson's standing, we reverse and remand for entry of a judgment affirming the Bureau's order, but without prejudice to Swanson's underlying claim.

Swanson sustained a work-related back injury in 1980. The Bureau accepted liability and paid benefits. By orders of January 13, February 28, and October 31, 1994, the Bureau denied specific medical benefits, ruling it was not liable for further payments for chiropractic care, vision problems and foot problems. Swanson requested a rehearing.

The Bureau conducted a hearing on November 17, 1994. At that proceeding the hearing officer stated:

"The issues to be considered at this hearing are whether the claimant is entitled to payment of past and ongoing chiropractic care and whether the claimant's vision and bilateral foot problems are related to his July 21, 1980 injury to the low back."

In his opening statement in the Bureau hearing, Swanson's attorney framed the issue more narrowly:

"Yes. Thank you. I believe that you correctly identified the issues which are the subject of this hearing. I would like to point out that certainly in terms of the reasonableness of any chiropractic care, Section 65-05-07, Subsection 3, of the Century Code states and I'll read it. 'The Bureau in cooperation with professional organizations of doctors and health care providers shall establish a system of peer review to determine the reasonableness of fees and payment denials for unjustified treatments, hospitalizations or visits.' I don't believe there's any evidence that the Bureau has used a peer review panel in this case. Consequently, I don't believe that the reasonableness of Mr. Swanson's chiropractic treatment or the denial of payment for that treatment is properly the subject of this hearing."

After the hearing, the Bureau issued its findings, conclusions, and order affirming the previous denials of benefits.

The Bureau found:

"III.

"Dr. Lester began to treat claimant on July 21, 1980.... Treatments increased dramatically from February, 1988, onward. From January 1988 on claimant received 807 treatments.... Dr. Lester agrees that ongoing chiropractic care is simply palliative and does not result in any long term cure to Swanson.

* * * * * *

"VII.

"On August 7, 1992, Workers Compensation/Casualty Services (WCCS) recommended no further chiropractic care beyond three more treatments. Dr. Julie Bryant who was then treating claimant contacted WCCS about the recommendation ... and on January 27, 1993, the adviser recommended an additional three visits, one per month, with no further care after April 25, 1993. WCCS is an organization with whom the Bureau contracts to provide medical recommendations. I find that this review does constitute a form of peer review under N.D.C.C. § 65-05-07.

"VIII.

"... [O]n September 9, 1993, the Bureau ordered claimant to attend an independent examination with Dr. Paul Davis, D.C.... Dr. Davis concluded that since spinal therapies are directed at restoring mobility and function and Swanson did not show any improvement, the treatment was not 'even reasonably effective.' ... Further, Dr. Davis opined that ongoing chiropractic care is likely counterproductive in the long run as it habituates Swanson to chiropractic care but does not provide long term relief.... Dr. Davis' examination also constitutes peer review under N.D.C.C. § 65-05-07."

The Bureau concluded that Swanson "failed to prove entitlement to ongoing chiropractic care to treat the back injury" (Conclusion II); that "[t]he Bureau has afforded Swanson peer review as required under N.D.C.C. § 65-05-07" (Conclusion III); and that Swanson failed to prove his vision and foot problems were related to his back injury (Conclusions IV and V).

Swanson appealed to the district court. In his notice of appeal from the Bureau to the district court, Swanson limited himself to a single issue:

"Specifically, Findings of Fact VII and VIII are not supported by the evidence and Conclusion of Law III is not supported by the Findings [of] Fact in that the Bureau has not established a peer review system pursuant to Section 65-05-07(3), N.D.C.C."

As the district court said, the sole issue presented to it was "whether the Bureau has complied with the requirements of N.D.C.C. Section 65-05-07(3) in denying Swanson further chiropractic treatment." The district court found "[t]he Bureau has not implemented the peer-review procedure required by N.D.C.C. Section 65-05-07(3)" and concluded "[t]he Bureau's use of WCCS and independent medical evaluations by doctors chosen by the Bureau does not satisfy the requirements of N.D.C.C. Section 65-05-07(3)." The court further concluded "[t]he Bureau was without authority to deny Swanson's chiropractic treatment without affording him the peer-review provided by N.D.C.C. Section 65-05-07," and reversed "that portion of the Bureau's Order denying further chiropractic treatment." The Bureau appealed from the judgment.

In its brief on appeal, the Bureau stated the issue to be: "Is the North Dakota Workers Compensation Bureau required to reimburse claimant Douglas Swanson for the cost of chiropractic treatments after April 24, 1993?" However Swanson, as he has throughout all of these proceedings, stated a narrower issue, tied to peer review: "This appeal revolves around a single legal question: Has the Bureau complied with the requirements of Section 65-05-07(3), N.D.C.C., in denying Doug Swanson further chiropractic treatment?" Thus, as in the previous proceedings, the sole issue presented by the parties in this appeal is whether the Bureau complied with the § 65-05-07(3), N.D.C.C., requirement for peer review. The larger question, whether the Bureau should be liable for further payments for Swanson's chiropractic care, vision problems and foot problems, has not been raised or preserved by Swanson, and is not presented here for our consideration.

The interpretation of a statute is a question of law, fully reviewable by this court. Adams County Record v. Greater North Dakota Ass'n, 529 N.W.2d 830 (N.D.1995). "When interpreting a statute, our primary purpose is to ascertain the intent of the legislature." Id. at 833. Section 65-05-07(3), N.D.C.C., ¹ provides:

"The bureau, in cooperation with professional organizations of doctors and health care providers, shall establish a system of peer review to determine reasonableness of fees and payment denials for unjustified treatments, hospitalization, or visits. The doctor or health care provider shall have the right to appeal adverse decisions of the bureau in accordance with the medical aid rules adopted by the bureau."

Under the statute, only doctors or health care providers may appeal adverse Bureau decisions on "reasonableness of fees and payment denials for unjustified treatments." The statute does not allow claimants to appeal adverse Bureau decisions on those matters and there is no indication the legislature intended the statute to benefit claimants in any way. Swanson is not an intended beneficiary of § 65-05-07(3), N.D.C.C.

We conclude Swanson did not have standing to challenge the Bureau's claimed lack of a peer review system. See Vickery v. North Dakota Workers Compensation Bureau, 545 N.W.2d 781, 785 (N.D.1996). The district court, therefore, erred in reversing the Bureau's order and in ordering the Bureau to pay for "Swanson's chiropractic treatment received to date and until such time as the Bureau implements a peer-review system pursuant to N.D.C.C. Section 65-05-07(3)."

The district court judgment is reversed and the matter is remanded for entry of a judgment affirming the Bureau's order, but without prejudice to Swanson's underlying claim.

VANDE WALLE, C.J., and SANDSTROM J., concur.

MESCHKE, Justice, dissenting.

The majority concludes Swanson has no standing to challenge the Bureau's lack of compliance with statutorily directed procedures that affect the claimant's rights. Because I believe the majority is wrong, I respectfully dissent.

The majority correctly describes how this question has been developed, but refuses to decide Swanson's specific question whether "the Bureau's practice of relying on its consultant's recommendations [or] its practice of picking and choosing adverse medical opinions constitutes an established 'system of peer review in cooperation with professional organizations of doctors and health care providers' " that is required by law.

Swanson was denied more chiropractic care for his 1980 back injury after April 25, 1993, because Workers Compensation/Casualty Services (WCCS) recommended the cessation of chiropractic care and an independent chiropractic examiner advised the Bureau further treatment was not "reasonably effective" to restore mobility and function. Both recommendations were made disregarding any need for palliative relief from pain. The Bureau expressly decided that WCCS's and the independent examiner's recommendations were a "form of peer review" under NDCC 65-05-07, a legal conclusion that Swanson contested without developing independent medical evidence. The majority decides the judicial branch should not review the Bureau's decision about what constitutes "peer review," and so reverses the district court's conclusion that the "Bureau has not implemented the peer-review procedure required by N.D.C.C. Section 65-05-07(3)."

The majority...