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Zimmerman v. North Dakota Workforce Safety and Insurance Fund

March 16, 2010

MARLYS ZIMMERMAN, CLAIMANT AND APPELLANT
v.
NORTH DAKOTA WORKFORCE SAFETY AND INSURANCE FUND, APPELLEE AND BAPTIST HOME, INC., RESPONDENT



Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Robert O. Wefald, Judge.

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

AFFIRMED.

[¶1] Marlys Zimmerman appealed from a judgment affirming a decision by Workforce Safety and Insurance ("WSI") which terminated her temporary partial disability benefits. We hold WSI properly interpreted and applied N.D.C.C. § 65-05-10(2) in terminating Zimmerman's partial disability benefits, and we affirm.

I.

[¶2] Zimmerman incurred a lumbar spine injury at work in November 2000, and WSI accepted her claim and began paying her temporary partial disability benefits. The parties do not dispute that from November 2000 through April 2008, WSI paid Zimmerman temporary partial disability benefits for a cumulative period of five years, but WSI never paid Zimmerman temporary partial disability benefits for a continuous five- year period. Effective April 22, 2008, WSI terminated Zimmerman's temporary partial disability benefits, concluding she had received a cumulative total of five years of partial disability benefits and she was not entitled to further disability benefits for her work injury under N.D.C.C. § 65-05-10(2), which provides, in part, "[b]enefits must be paid during the continuance of partial disability, not to exceed a period of five years." WSI concluded N.D.C.C. § 65-05-10(2) "does not require that temporary partial disability benefits be paid for five continuous years; but rather during the continuance of disability (whether it be continuous or intermittent) not to exceed five years."

[¶3] Zimmerman requested a formal hearing. Zimmerman and WSI agreed the issue specified for hearing presented only a question of law and submitted the case to an administrative law judge ("ALJ") for a final decision on briefs and the stipulated record. See N.D.C.C. § 65-02-22.1 (initiated measure approved November 4, 2008, and providing for designation of ALJ from office of administrative hearings for evidentiary hearing and for issuance of final findings of fact, conclusions of law, and orders). The ALJ upheld WSI's decision to terminate Zimmerman's partial disability benefits, concluding N.D.C.C. § 65-05-10(2) is ambiguous and, after considering legislative history, authorizes termination of benefits if the aggregation of the periods an individual receives temporary partial disability benefits totals five years. The district court affirmed the ALJ's final decision for WSI.

II.

[¶4] Courts exercise limited review in appeals from administrative agency decisions under the Administrative Agencies Practice Act, N.D.C.C. ch. 28-32. Bergum v. North Dakota Workforce Safety & Ins., 2009 ND 52, ¶ 8, 764 N.W.2d 178. The district court under N.D.C.C. § 28-32-46, and this Court under N.D.C.C. § 28-32-49, must affirm an administrative agency decision 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 ...


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