Witcher v. North Dakota Workers Comp. Bureau

• Decision Date: 01 December 1999
• Docket Number: No. 990138.,990138.
• Parties: Patricia WITCHER, Claimant and Appellant, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellee, and University of North Dakota, Respondent.
• Court: North Dakota Supreme Court

602 N.W.2d 704

1999 ND 225

Patricia WITCHER, Claimant and Appellant, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellee, and University of North Dakota, Respondent.

No. 990138.

Supreme Court of North Dakota.

December 1, 1999.

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

Jacqueline Sue Anderson, Special Assistant Attorney General, Fargo, ND, for appellee.

MARING, Justice.

[¶ 1] Patricia Witcher appealed a judgment affirming a North Dakota Workers Compensation Bureau order offsetting an award of permanent partial impairment ("PPI") benefits against PPI benefits previously paid to her. We hold the Bureau properly offset Witcher's PPI award with previously paid PPI benefits that were pending appeal and were recalculated under the third edition revised of the American Medical Association's "Guides to the Evaluation of Permanent Impairment." We affirm.

I

[¶ 2] Witcher was injured during the course of her employment on November 7, 1989. The Bureau accepted Witcher's claim, and through a series of orders, paid her PPI benefits for various "whole body" and "scheduled" impairments. On March 9, 1995, the Bureau awarded Witcher 79.56 weeks of scheduled PPI benefits under the fourth edition of the AMA Guides for a 34% impairment of her "left leg at hip for knee." Witcher appealed, seeking an evaluation of her right knee, right shoulder and arm, left wrist, spine, and mental disorders.

[¶ 3] On June 20, 1995, the Bureau awarded Witcher 148.64 additional weeks of PPI benefits under the fourth edition of the AMA Guides for the following impairments:

26.5%—right leg at hip for knee—62.01 weeks

9.8%—right arm at shoulder for shoulder and elbow—24.50 weeks

25%—master hand—6.13 weeks

2.4%—left arm at shoulder for wrist—6 weeks

10%—whole body for cervical, thoracic, and lumbar spine—50 weeks

Witcher appealed, raising PPI issues about her chronic pain and the Diagnosis-Related Estimates Model versus Range of Motion Model for evaluating her lumbar spine.

[¶ 4] In July 1996, the Bureau denied Witcher whole body PPI benefits for a psychiatric condition. She appealed that order, and after a formal administrative hearing, the Bureau issued a July 11, 1997 order awarding her 295 weeks of PPI benefits for a 65% whole body impairment for her psychiatric condition. No further appeal was taken from the July 1997 order.

[¶ 5] Witcher also sought whole body PPI benefits for chronic pain. Additionally, under McCabe v. North Dakota Workers Comp. Bur., 1997 ND 145, 567 N.W.2d 201, and Witcher's pending appeals from the March 9 and June 20, 1995 orders, the Bureau recalculated the PPI ratings in those orders under the third edition revised of the AMA Guides. In McCabe, at ¶¶ 6-7, 16, we construed statutory language dictating use of the "most recent edition" and the "most current edition" of the AMA Guides to require the Bureau to calculate PPI awards under the edition of the AMA Guides in effect when the respective statutes were enacted. The Bureau's March 9 and June 20, 1995 orders calculated Witcher's PPI awards under the fourth edition of the AMA Guides, and the parties do not dispute McCabe required those awards to be recalculated under the third edition revised of the AMA Guides.

[¶ 6] The Bureau thereafter issued a May 12, 1998 order awarding Witcher a total of 123.31 weeks of PPI benefits for scheduled impairments:

20.5%—left leg at hip for knee—47.97 weeks

13.1%—right leg at hip for knee—30.65 weeks

2.5%—left arm at shoulder for wrist— 6.25 weeks

12.3%—right arm at shoulder for shoulder and elbow—30.75 weeks

25%—master hand—7.69 weeks After correcting a computational error, the Bureau's May 1998 order also awarded Witcher a combined 81 percent whole body impairment for her psychiatric condition, chronic pain, and cervical, thoracic, and lumbar spine, which entitled her to a total of 405 weeks of whole body PPI benefits. The Bureau combined Witcher's scheduled and whole body awards, and concluded she was entitled to PPI benefits for 528.31 weeks. The Bureau issued an amended order awarding Witcher PPI benefits for 528.31 weeks and offsetting that award with 523.30 weeks of benefits she had previously been paid. The Bureau thus awarded Witcher an additional 5.11 weeks of PPI benefits worth $659.19.

[¶ 7] Witcher appealed. The parties submitted the appeal on brief to an administrative law judge, and the ALJ recommended upholding the Bureau's PPI award. The Bureau adopted the ALJ's recommendation, and the district court affirmed the Bureau's decision.

II

[¶ 8] On appeal, we review the Bureau's decision, not the district court's decision. Vernon v. North Dakota Workers Comp. Bur., 1999 ND 153, ¶ 8, 598 N.W.2d 139. Under N.D.C.C. §§ 28-32-19 and 28-32-21, 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 its decision violates the claimant's constitutional rights or deprives the claimant of a fair hearing. Vernon, at ¶ 8. Questions of law, including the interpretation of a statute, are fully reviewable on appeal from a decision by the Bureau. Lee v. North Dakota Workers Comp. Bur., 1998 ND 218, ¶ 5, 587 N.W.2d 423.

III

[¶ 9] Witcher contends the Bureau improperly offset her "scheduled" PPI awards under N.D.C.C. § 65-05-13 against her "whole body" awards under N.D.C.C. § 65-05-12. As relevant to this issue, N.D.C.C. § 65-05-12 authorized PPI benefits for "whole body" impairments and provided "[a]ny subsequent award for impairment must be made minus any previous award given on any earlier claim or the same claim for that same member or body part." Section 65-05-13, N.D.C.C., authorized PPI benefits for "scheduled" impairments to enumerated body parts and provided "[a]n impairment award made by the bureau in the past under this section or section 65-05-12 must be deducted from a subsequent impairment award for injury to the same part of the body." The parties do not dispute the 1989 versions of N.D.C.C. §§ 65-05-12 and 65-05-13 apply to Witcher's PPI claims.

[¶ 10] Witcher argues a plain reading of N.D.C.C. § 65-05-12 dictates the Bureau may not subtract previous or past PPI awards from subsequent PPI awards for a different body part. She argues the Bureau's 1998 PPI ratings for her left and right knee are less than the previous ratings for those body parts, and rather than simply "zero" out the difference, the Bureau added the previous and the current awards and offset the previous awards against the current awards without considering whether the current award was for the same body part as the previous award. Witcher argues the Bureau's offset violates N.D.C.C. § 65-05-12, which prohibits subtracting any past or previous award from a subsequent award except for awards involving the same member or body part. She claims she is entitled to an additional $8,120.55 for 62.95 weeks of PPI benefits.¹ [¶ 11] Our primary objective in construing statutes is to ascertain the Legislature's intent, and we look first at the words used in the statute, giving them their plain, ordinary, and commonly understood meaning. Lee, 1998 ND 218, ¶ 11,587 N.W.2d 423. We construe statutes as a whole to harmonize and give meaning to each word and phrase. Blanchard v. North Dakota Workers Comp. Bur., 1997 ND 118, ¶ 14, 565 N.W.2d 485; Johnson v. North Dakota Workers' Comp. Bur., 484 N.W.2d 292, 295 (N.D.1992).

[¶ 12] The language of N.D.C.C. §§ 65-05-12 and 65-05-13 requires the Bureau to subtract "past" or "previous" impairment awards from "subsequent" awards for the "same member or body part" or the "same part of the body." Under that language, the Bureau's authority to subtract past or previous awards from subsequent awards is limited to past or previous awards for the same member or body part or the same part of the body.

[¶ 13] The Bureau nevertheless argues it has continuing jurisdiction under N.D.C.C. § 65-05-04 to offset past or previous awards from subsequent awards for different body parts, because Witcher's pending appeals and this Court's intervening decision in McCabe required the Bureau to reevaluate Witcher's PPI rating under the third edition revised of the AMA Guides.

[¶ 14] Section 65-05-04, N.D.C.C., authorizes the Bureau to review an award at any time and to end, diminish, or increase previously awarded benefits. Section 65-05-29(3)(b), N.D.C.C., permits the Bureau to recoup benefits paid under an erroneous adjudication.

[¶ 15] In Johnson, 484 N.W.2d at 295-96, this Court considered the Bureau's authority under N.D.C.C. §§ 65-05-04 and 65-05-29(3) to recoup previously paid benefits. There, a Bureau claims analyst initially accepted a claim, and the claimant received medical and disability benefits. Johnson, at 293. The Bureau subsequently dismissed the claim, concluding the injury did not arise in the course of employment, and ordered the claimant to repay the benefits he had received. Id. We concluded the claims analyst's initial acceptance of the claim was an erroneous adjudication by the Bureau within the meaning of N.D.C.C. § 65-05-29(3)(b), and the Bureau was authorized to review the award and seek repayment under N.D.C.C. § 65-05-04. Johnson, at 296.

[¶ 16] In Cridland v. North Dakota Workers Comp. Bur., 1997 ND 223, ¶¶ 23-30, 571 N.W.2d 351, we considered Johnson and N.D.C.C. §§ 65-05-04 and 65-05-29(3) in the context of the preclusive effect of a final Bureau order entered after a formal adjudicatory proceeding. After a formal adjudicatory hearing, the Bureau decided a work injury was compensable. Cridland, at ¶ 8. The Bureau subsequently litigated aggravation and apportionment issues for that injury. Id. at ¶ 9. We concluded:

Johnson and N.D.C.C. §§ 65-05-04 and 65-05-29(3) must be considered in light of the doctrine of administrative

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