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Eslinger v. North Dakota Workforce Safety & Insurance

May 27, 2009

SHARON ESLINGER, CLAIMANT AND APPELLANT
v.
NORTH DAKOTA WORKFORCE SAFETY & INSURANCE, APPELLEE AND AMERICAN LEGION POST, RESPONDENT



Appeal from the District Court of McLean County, South Central Judicial District, the Honorable Gail H. Hagerty, Judge.

The opinion of the court was delivered by: VandeWalle, Chief Justice.

AFFIRMED.

[¶1] Sharon Eslinger appealed from a district court judgment affirming the final order of Workforce Safety and Insurance ("WSI") awarding Eslinger permanent total disability benefits only until she becomes eligible for social security retirement benefits. We affirm, concluding WSI did not err in determining the retirement presumption statute, N.D.C.C. § 65-05-09.3(2), applied to Eslinger's claim.

I.

[¶2] Eslinger injured her knee in February 1995 while working at the Garrison American Legion Club. Her claim for workers compensation benefits was accepted and she began receiving benefits. She briefly returned to work but, on May 1, 1995, had surgery on her injured knee. WSI awarded Eslinger temporary total disability benefits beginning on May 1, 1995.

[¶3] On July 28, 1995, Eslinger's doctor released her to return to work. WSI issued a notice of intention to discontinue benefits ("NOID") to Eslinger on August 4, 1995, advising her that her disability benefits would terminate on August 24, 1995. Because Eslinger's position at the American Legion Club had been eliminated, Eslinger actively sought other employment. When her search proved unsuccessful, she applied for and received unemployment compensation benefits from October 1995 until April 1996.

[¶4] On November 20, 1995, WSI entered an order formally denying further disability benefits, and Eslinger sought a rehearing. Following an administrative hearing, the administrative law judge ("ALJ") found Eslinger was not disabled at the time WSI issued its order and was not entitled to further disability benefits. The ALJ suggested, however, that Eslinger's medical condition may have changed and it might be appropriate for her to file a reapplication for benefits. On September 6, 1996, WSI adopted the ALJ's recommended order as its final order denying further disability benefits.

[¶5] Eslinger did not appeal to the district court from WSI's order denying further benefits but filed a reapplication for disability benefits. WSI initially denied her reapplication for benefits. After an administrative hearing, however, WSI adopted the ALJ's recommendation to reverse its initial order and ultimately awarded Eslinger temporary total disability benefits retroactive to May 4, 1996. Over the course of the next several years, WSI unsuccessfully attempted to develop a vocational rehabilitation plan to allow Eslinger to return to work.

[¶6] Finally, in 2007, WSI issued a notice to Eslinger advising her that her status had been changed to permanent total disability, and that she would continue receiving disability benefits until she reached full retirement age as determined by social security. Eslinger disputed whether her benefits should be terminated at retirement age. Following an administrative hearing, the ALJ concluded that the retirement presumption in N.D.C.C. § 65-05-09.3(2) applied to Eslinger's claim and recommended that WSI's order be affirmed. Under the terms of the ALJ's recommended order, Eslinger's disability benefits would terminate when she became eligible for full social security retirement benefits on September 18, 2009. With one minor alteration, WSI adopted the ALJ's recommendations as its final order. Eslinger appealed to the district court, which affirmed WSI's final order.

II.

[¶7] Under the Administrative Agencies Practice Act, N.D.C.C. ch. 28-32, courts exercise a limited review in appeals from administrative agency decisions. Bergum v. North Dakota Workforce Safety & Ins., 2009 ND 52, ¶ 8; Bruder v. North Dakota Workforce Safety & Ins. Fund, 2009 ND 23, ¶ 6, 761 N.W.2d 588; Drayton v. Workforce Safety & Ins., 2008 ND 178, ¶ 9, 756 N.W.2d 320. Under N.D.C.C. § 28-32-46, the district court must affirm the order of the administrative agency unless: 1. The order is not in accordance with the law.

2. The order is in violation of the constitutional rights of the appellant.

3. The provisions of this chapter have not been complied with in the proceedings before the agency.

4. The rules or procedure of the agency have not afforded the appellant a fair hearing.

5. The findings of fact made by the agency are not supported by a preponderance of the evidence.

6. The conclusions of law and order of the agency are not supported by its findings of fact.

7. The findings of fact made by the agency do not sufficiently address the evidence presented to the agency by the appellant.

8. The conclusions of law and order of the agency do not sufficiently explain the agency's rationale for not adopting any contrary recommendations by a hearing officer or an administrative law judge.

On appeal from the district court's decision in an administrative appeal, we review the agency order in the same manner. N.D.C.C. ยง 28- 32-49; ...


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