Tangen v. North Dakota Workers Comp. Bureau

• Decision Date: 29 June 2000
• Docket Number: No. 20000026.,20000026.
• Citation: 613 N.W.2d 490,2000 ND 135
• Parties: Brian TANGEN, Claimant, Appellee and Cross-Appellant, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellant and Cross-Appellee, and National Sun Industries, Inc., Respondent.
• Court: North Dakota Supreme Court

613 N.W.2d 490

2000 ND 135

Brian TANGEN, Claimant, Appellee and Cross-Appellant, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellant and Cross-Appellee, and National Sun Industries, Inc., Respondent.

No. 20000026.

Supreme Court of North Dakota.

June 29, 2000.

Mark G. Schneider, Schneider, Schneider & Phillips, Fargo, ND, for claimant, appellee and cross-appellant.

Sara Gullickson McGrane, Felhaber Larson Fenlon Vogt, Minneapolis, MN, for appellant and cross-appellee.

NEUMANN, Justice.

[¶ 1] The North Dakota Workers Compensation Bureau appeals from a judgment reversing the Bureau's order denying further disability benefits to Brian Tangen. We reverse and remand for further proceedings.

I

[¶ 2] Tangen suffered a work-related injury to his right knee in August 1992 while employed at National Sun Industries in Enderlin, North Dakota. The Bureau accepted Tangen's claim and paid benefits for the injury. In March 1994 Tangen moved to Thief River Falls, Minnesota, where he began working at Arctco.

[¶ 3] In December 1994 Tangen underwent knee surgery necessitated by the prior work injury. In a February 27, 1995, letter addressed "To Whom It May Concern," Dr. Mark Lundeen released Tangen to return to work:

Brian Tangen is a patient that I have recently had the opportunity to re-evaluate and I think at this point he is able to return to work. I would not want him doing any kneeling or squatting or twisting activities with heavy loads. I think as far as kneeling and squatting is concerned that should be avoided even without loads.

I'm also a little bit concerned about him lifting loads above shoulder level until this situation completely resolves.

[¶ 4] In a letter to the Bureau dated April 17, 1995, Dr. Lundeen stated he was not changing Tangen's work restrictions, but suggested if a position such as forklift operator were open Tangen should be given special consideration. Tangen was subsequently transferred to a position as a forklift operator at Arctco. On May 19, 1995, the Bureau issued an order awarding Tangen partial disability benefits.

[¶ 5] On June 7, 1996, Tangen voluntarily quit his job at Arctco for reasons unrelated to his knee injury. He worked briefly at a couple of other jobs, and in January 1997 began working at Sheldon's Auto Parts, where he dismantled cars. In June 1997 Tangen had some fluid on his knee, and Dr. Lundeen recommended medication and rest for one week. Tangen filed a reapplication for benefits, and received disability benefits for the short period he was off work. In August 1997, Tangen was reexamined by Dr. Lundeen. On August 12, 1997, Dr. Lundeen wrote to the Bureau explaining Tangen's knee had worsened and taking Tangen off work at Sheldon's:

Brian over time has developed increasing problems which I think are directly related to a breakdown in the cartilage surface between the kneecap and the groove in which it rides, and although we have tried to modify his lifestyle and activities at work, it simply is no longer appropriate for him to continue to do activities which require prolonged standing, prolonged sitting, kneeling squatting, climbing ladders or stairs. I also think that it is inappropriate for him to be carrying loads of any more than 40 to 50 pounds for very short periods of time. These limitations are particularly designed to preserve the function of his patellofemoral joint, but as I discussed this with Brian, I think the limitations I am imposing preclude his returning to work at Sheldon's.

[¶ 6] Tangen reapplied for disability benefits on August 18, 1997. The Bureau accepted the reapplication and began paying benefits. On February 18, 1998, the Bureau issued a Notice of Intent to Discontinue Benefits. On February 27, 1998, the Bureau issued an order finding that benefits awarded on Tangen's reapplications were paid in error and terminating any further disability benefits.

[¶ 7] Tangen requested a rehearing, and an evidentiary hearing was held on February 3, 1999. The administrative law judge ("ALJ") issued recommended findings of fact, conclusions of law, and order on March 11, 1999. The ALJ found Tangen had failed to show a significant change in his compensable medical condition, had failed to show actual wage loss, and had voluntarily withdrawn from the job market. The Bureau adopted the ALJ's recommendations in a March 22, 1999, order denying Tangen further benefits.

[¶ 8] Tangen appealed to district court. The district court reversed and remanded for an award of benefits. The Bureau has appealed to this Court.¹

II

[¶ 9] In an appeal from a judgment involving the decision of an administrative agency, we review the decision of the agency, not the decision of the district court, and our review is limited to the record before the agency. Stewart v. North Dakota Workers Comp. Bureau, 1999 ND 174, ¶ 7, 599 N.W.2d 280. Under N.D.C.C. §§ 28-32-19 and 28-32-21, we affirm the agency'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 the agency's rules or procedures deprived the claimant of a fair hearing. Stewart, at ¶ 7. The interpretation of a statute is a question of law, which is fully reviewable by this Court. Wanstrom v. North Dakota Workers Comp. Bureau, 2000 ND 17, ¶ 5, 604 N.W.2d 860.

III

[¶ 10] A claimant seeking additional disability benefits for aggravation of a prior work-related injury must follow the reapplication procedure outlined in N.D.C.C. § 65-05-08(1):

When disability benefits are discontinued, the bureau may not begin payment again unless the injured employee files a reapplication for disability benefits on a form supplied by the bureau. In case of reapplication, the award may commence no more than thirty days before the date of reapplication. Disability benefits must be reinstated upon proof by the injured employee that:

a. The employee has sustained a significant change in the compensable medical condition;

b. The employee has sustained an actual wage loss caused by the significant change in the compensable medical condition; and

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

The Bureau asserts Tangen performed activities beyond his work restrictions while employed at Sheldon's, and is therefore barred from seeking further disability benefits by N.D.C.C. § 65-05-28(5):

If an employee undertakes activities, whether or not in the course of employment, which exceed the treatment recommendations of the employee's doctor regarding the work injury, and the doctor determines that the employee's injury or condition has been aggravated or has worsened as a result of the employee's activities, the bureau may not pay benefits relative to the aggravation or worsening, unless the activities were undertaken at the demand of an employer.

A

[¶ 11] We initially consider whether N.D.C.C. § 65-05-28(5) applies to Tangen's reapplication. The statute was enacted in 1995. See 1995 N.D. Sess. Laws ch. 625, § 1. Tangen argues the law in effect at the time of his original 1992 work injury governs his claim, and, because the law at that time did not preclude benefits if the claimant exceeded restrictions, he is entitled to aggravation benefits. The Bureau asserts the law in effect in 1997, when Tangen's work injury was aggravated and he reapplied for benefits, governs the reapplication, and N.D.C.C. § 65-05-28(5) therefore precludes payment of additional disability benefits to Tangen.

[¶ 12] We have often stated the general rule that, unless otherwise provided, the statutes in effect on the date of injury govern a claimant's right to collect workers compensation benefits. See, e.g., Wanstrom, 2000 ND 17, ¶ 7, 604 N.W.2d 860; Saari v. North Dakota Workers Comp. Bureau, 1999 ND 144, ¶ 10, 598 N.W.2d 174. The rule is an outgrowth of our statutory mandate that provisions of the Century Code are not retroactive unless "expressly declared to be so." N.D.C.C. § 1-02-10; see Anderson v. North Dakota Workers Comp. Bureau, 553 N.W.2d 496, 498 (N.D.1996). [¶ 13] We have not previously addressed application of this rule to an aggravation claim where the original work injury occurred before the statutory change, but the aggravation of the prior injury and reapplication for benefits occurred after the new statute took effect. However, we find the situation in Gregory v. North Dakota Workmen's Comp. Bureau, 369 N.W.2d 119 (N.D.1985), to be closely analogous. In Gregory, the claimant was injured in 1958. He subsequently returned to work until 1981, when the cumulative effects of the 1958 injury forced him to quit. In 1983 he sought a permanent partial impairment award. The Bureau determined he had suffered a twenty percent whole body impairment, but awarded benefits at the rate in effect at the time of the original work injury in 1958, rather than the higher rate under the statutes in effect in 1983.

[¶ 14] On appeal, the Bureau argued the general rule that the statutes in effect on the date of injury controlled. We rejected the Bureau's arguments, holding the 1983 statutory rate applied:

The Bureau argues strenuously that because § 65-05-12 does not specify a time for determining the permanent impairment benefit rate, calculating impairment awards by the rate in effect on the date of determination results in an impermissible retroactive application of the later statutory rate. This retroactivity argument is premised on the faulty assumption that the impairment always takes place on the date of injury despite the fact that it sometimes does not become a permanent impairment until a later date as in this case. Common sense, as well as the plain language of § 65-05-12, tells us that an impairment does not take place until it is manifest

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