Thompson v. North Dakota Workers' Compensation Bureau

• Decision Date: 19 August 1992
• Docket Number: No. 910354,910354
• Citation: 490 N.W.2d 248
• Parties: Roger J. THOMPSON, Plaintiff and Appellant, v. NORTH DAKOTA WORKERS' COMPENSATION BUREAU, Defendant and Appellee, and Metric Construction, Defendant. Civ.
• Court: North Dakota Supreme Court

Page 248

490 N.W.2d 248

Roger J. THOMPSON, Plaintiff and Appellant, v. NORTH DAKOTA WORKERS' COMPENSATION BUREAU, Defendant and Appellee and Metric Construction, Defendant.

Civ. No. 910354.

Supreme Court of North Dakota.

Aug. 19, 1992.

Keith Wolberg (argued), Bismarck, for plaintiff and appellant.

Dean J. Haas (argued), Asst. Atty. Gen., North Dakota Workers' Compensation Bureau, Bismarck, for defendant and appellee.

ERICKSTAD, Chief Justice.

Roger Thompson appeals from a district court judgment affirming a decision by the North Dakota Workers' Compensation Bureau awarding him rehabilitation benefits but suspending the benefits during his noncompliance with a rehabilitation plan. We affirm.

In August 1986, Roger suffered a back injury while employed as a construction worker. The Bureau accepted Roger's claim and began paying him disability benefits on August 19, 1986. Roger underwent a partial hemilaminectomy on September 4, 1986, and a lateral mass fusion on January 8, 1987. On August 18, 1987, Roger's treating physician, Dr. Charles Dahl, released Roger for sedentary work. Because Roger's injury prevented him from returning to construction work, he was referred for vocational rehabilitation services.

Alan McCurry, a vocational consultant, proposed a rehabilitation plan which required Roger to pursue a two-year degree in business administration and management at Bismarck State College. The Bureau prepared a "rehabilitation contract," ¹ which authorized Roger to attend Bismarck State College from January 4, 1988 through December 30, 1989. However, the parties did not agree to the terms of the rehabilitation contract, and neither party signed the contract. Nevertheless, Roger began attending classes at Bismarck State College in January 1988, and the Bureau provided him with a rehabilitation allowance. Roger continued to experience back problems and he withdrew from all but one of his classes. In August 1988, Roger returned to Bismarck State College; however, he experienced more back problems, and in February 1989, McCurry advised him to quit school.

On June 24, 1989, Dr. Dahl reported that Roger had a non-union of the fusion. Roger received the same diagnosis from Dr. David Arnold, who reported that additional surgery could alleviate the pain but "should be pursued only if [Roger's] pain is of enough significance and disability in [his] life to warrant the risks." Roger elected not to have additional surgery.

In October 1989, Dr. Dahl informed Roger's new vocational consultant, Lori DeRemer, that Roger had reached "maximum medical improvement." Jeanne Dekrey, a physical therapist, administered a functional capacities assessment at DeRemer's request, and concluded that Roger qualified for work in the "sedentary category" with lifting restrictions of ten pounds or less. Dekrey also concluded that Roger was restricted from "climbing and balancing" and from "stooping or forward bending activities" and that he required work in a place where he could "intermittently and self-pacedly change his sitting or standing posture." Dr. Dahl agreed with Dekrey's functional capacities assessment, but commented that the ten-pound lifting restriction seemed excessive and suggested a twenty to twenty-five pound restriction on an infrequent basis.

In March 1990 DeRemer completed a vocational assessment and recommended a rehabilitation plan for Roger which identified a business management program at Bismarck State College from June 4, 1990 through July 25, 1991. Roger objected to the plan, asserting that he was physically unable to attend class full-time. On March 30, 1990, the Bureau issued an order awarding rehabilitation benefits under that plan. Roger petitioned for a hearing.

Although Roger did not initially attend classes at Bismarck State College pursuant to the March 1990 plan, his benefits were not suspended pending the hearing. After a hearing, the Bureau found that the March 1990 plan complied with Chapter 65-05.1, N.D.C.C., as amended in 1989, and suspended Roger's benefits, effective November 21, 1990. On January 8, 1991, Roger enrolled at Bismarck State College and his benefits were reinstated from that date through July 25, 1991.

Roger appealed to the district court, contending that the March 1990 plan was not valid under either the 1987 or 1989 versions of Chapter 65-05.1, N.D.C.C., and that upon rehabilitation, he was entitled to partial disability benefits under the 1987 law. ² The district court affirmed the Bureau's decision, concluding that the 1989 law applied and that the March 1990 rehabilitation plan complied with that law. Roger appealed.

Our scope of review of the Bureau's decision is governed by Section 28-32-19, N.D.C.C. We must affirm the Bureau's decision unless its findings of fact are not supported by a preponderance of evidence, its conclusions of law are not supported by its findings of fact, its decision is not supported by its conclusions of law, or its decision is not in accordance with the law. Schiff v. North Dakota Workers Compensation Bureau, 480 N.W.2d 732 (N.D.1992). In reviewing the Bureau's findings of fact, our analysis is limited to whether a reasoning mind could have reasonably determined that its findings were proved by the weight of the evidence from the entire record. Power Fuels, Inc. v. Elkin, 283 N.W.2d 214 (N.D.1979).

Roger argues that his rights under the 1988 rehabilitation contract had vested and those contractual rights could not be impaired by the 1989 amendments to Chapter 65-05.1, N.D.C.C. The Bureau responds that the 1989 amendments apply to Roger's rehabilitation award because he did not sign the 1988 rehabilitation contract and he therefore did not have a vested right to rehabilitation under that contract.

Unless otherwise provided, the statutes in effect on the date of an injury govern workers' compensation benefits. Gregory v. North Dakota Workmen's Compensation Bureau, 369 N.W.2d 119 (N.D.1985). See Leahy v. St. Mary's Hospital, 339 N.W.2d 265 (Minn.1983) [unless statute provides otherwise, rehabilitation benefits are governed by statute in effect on date of injury]. The 1989 amendments to Chapter 65-05.1, N.D.C.C., provide that "[t]he duties, responsibilities, and benefits available under this Act apply to all awards of vocational rehabilitation services made on or after July 1, 1989, irrespective of injury date." 1989 N.D.Sess.Laws ch. 771, Sec. 7. Although that language indicates that the 1989 amendments apply to all rehabilitation awards made after July 1, 1989, it is well established that statutory amendments may not operate retrospectively to abrogate contractual or vested rights. Fairmount Township Board of Supervisors v. Beardmore, 431 N.W.2d 292 (N.D.1988); Manikowske v. North Dakota Workmen's Compensation Bureau, 338 N.W.2d 823 (N.D.1983). In Dunham Lumber Co. v. Gresz, 71 N.D. 491, 2 N.W.2d 175, 179 (1942), we defined a vested right as "an immediate or fixed right to present or future enjoyment and one that does not depend upon an event that is uncertain." Vested rights include rights created by contract. Id. We therefore consider whether or not the 1989 amendments to Chapter 65-05.1, N.D.C.C., retrospectively abrogated Roger's contractual rights.

Pursuant to Section 65-05.1-05, N.D.C.C. [see fn. 1], the Bureau prepared a written rehabilitation contract which authorized Roger to attend Bismarck State College from January 4, 1988, through December 30, 1989, to obtain a two-year degree in business administration and management. Under Section 9-06-04(1), N.D.C.C., an agreement which by its terms cannot be performed within one year is invalid unless it is in "writing and subscribed by the party to be charged." If there is a possibility that an agreement may be performed within one year, the agreement does not have to be in writing and subscribed by the party to be charged. E.g., Delzer v. United Bank of Bismarck, 459 N.W.2d 752 (N.D.1990). The party to be charged means the party against whom the agreement is sought to be enforced. Hagen v. Schluchter, 126 N.W.2d 899 (N.D.1964); Petroleum Exchange v. Poynter, 64 N.W.2d 718 (N.D.1954).

In this case, the parties did not agree to the terms of the 1988 rehabilitation contract prepared by the Bureau, and neither party signed that written contract. By its own terms, that written contract specified that it would take two years to perform. Section 9-06-04(1), N.D.C.C., therefore required that rehabilitation contract to be in "writing and subscribed by the party to be charged" in order to be valid. Because neither party signed that rehabilitation contract, it is invalid under Section 9-06-04(1), N.D.C.C.

Roger nevertheless argues that the parties' conduct and part performance established a contract. Generally, part performance of a contract which is consistent only with the existence of the contract may remove it from the statute of frauds. ³ Williston Co-op. Credit Union v. Fossum, 459 N.W.2d 548 (N.D.1990); Buettner v. Nostdahl, 204 N.W.2d 187 (N.D.1973), overruled on other grounds, Shark v. Thompson, 373 N.W.2d 859 (N.D.1985).

In this case, the Bureau prepared a two-year written rehabilitation contract which Roger admits that he did not sign. Roger's refusal to sign the contract prepared by the Bureau is not indicative of conduct consistent only with the existence of a contract. Buettner v. Nostdahl, supra. Instead, Roger's refusal to sign that contract indicates conduct that is inconsistent with the existence of an agreement between the parties. We believe it is inconsistent for Roger to argue that part performance of a written contract that he did not sign removes that contract from the statute of frauds. See Heinrich v. Martin, 134 N.W.2d 786 (N.D.1965) [a written offer to sell land signed by the vendor does not remove contract from the statute of frauds if the vendee does not accept it]. Under these circumstances, we conclude that the 1988 rehabilitation contract was not binding....