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Miller v. Workforce Safety and Insurance

June 19, 2009

PALMER J. MILLER, CLAIMANT AND APPELLANT
v.
WORKFORCE SAFETY AND INSURANCE, APPELLEE AND REAL BUILDERS INC., RESPONDENT



Appeal from the District Court of Ward County, Northwest Judicial District, the Honorable William W. McLees, Judge.

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

AFFIRMED.

[¶1] Palmer Miller appealed from a district court judgment affirming the final order of North Dakota Workforce Safety and Insurance ("WSI") denying further disability and vocational rehabilitation benefits. We affirm, concluding that the administrative law judge ("ALJ") did not err in conducting a de novo hearing on the merits on remand from this Court and that WSI's findings of fact are supported by a preponderance of the evidence.

I.

[¶2] Miller suffered a work-related lower back injury in July 1993 while employed with Real Builders, Inc. Miller applied for and received workers compensation benefits. Between 1993 and 2001, Miller underwent numerous functional capacity examinations ("FCEs") to determine his ability to return to gainful employment.

[¶3] The results of a March 2001 FCE indicated that Miller was capable of working full time at a light-duty job classification. In September 2001 WSI notified Miller of its intent to terminate his disability and vocational rehabilitation benefits effective October 19, 2001. Miller requested reconsideration, and in November 2001 WSI issued an order denying further benefits to Miller, finding that Miller was employable on a full-time basis as a telephone solicitor, customer service representative, floor walker, or mail clerk.

[¶4] Miller requested a formal hearing, which was held in December 2002. The ALJ issued recommended findings of fact, conclusions of law, and order, concluding that Miller was not employable on a full-time basis and could not obtain substantial gainful employment. The ALJ therefore concluded that WSI's rehabilitation plan had not identified an appropriate rehabilitation option and recommended that WSI's order denying further disability and vocational rehabilitation benefits be reversed. WSI rejected the ALJ's recommendations, concluded Miller was employable full time, and issued a final order denying further benefits.

[¶5] Miller appealed to the district court, which affirmed WSI's order. Miller then appealed to this Court, which, after remanding to WSI for consideration of further evidence, concluded that improper ex parte communications had taken place between WSI's outside legal counsel and Nick Jolliffe, WSI's claims director. This Court therefore reversed the district court judgment and remanded to WSI for a rehearing on the merits, with Jolliffe disqualified from participating. See Miller v. Workforce Safety & Ins., 2006 ND 1, 707 N.W.2d 809; Miller v. Workforce Safety & Ins., 2004 ND 155, 684 N.W.2d 641.

[¶6] On remand the case was assigned to a new ALJ, who conducted a de novo evidentiary hearing. The ALJ found that Miller was capable of full- time employment and recommended that Miller's benefits be terminated. WSI adopted the second ALJ's recommendations and issued a final order denying further disability and vocational rehabilitation benefits. Miller appealed to the district court, which affirmed WSI's final order.

II.

[¶7] Courts exercise a limited review in appeals from administrative agency decisions under the Administrative Agencies Practice Act, N.D.C.C. ch. 28-32. Neuhalfen v. North Dakota Workforce Safety & Ins. Fund, 2009 ND 86, ¶ 9; Bruder v. North Dakota Workforce Safety & Ins. Fund, 2009 ND 23, ¶ 6, 761 N.W.2d 588. Under N.D.C.C. § 28-32-46, the district court must affirm an administrative agency order 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 ...


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