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Whedbee v. North Dakota Workforce Safety & Insurance Fund

Supreme Court of North Dakota

April 29, 2014

Dennis Whedbee, Appellant
v.
North Dakota Workforce Safety & Insurance Fund, Appellee
v.
Black Hawk Energy Services, Inc., Respondent

Appeal from the District Court of McKenzie County, Northwest Judicial District, the Honorable David W. Nelson, Judge. Opinion of the Court by Crothers, Justice.

Stephen D. Little, Bismarck, ND, for appellant.

Mitchell D. Armstrong (argued) and Brian Schmidt (on brief), Special Assistant Attorneys General, Bismarck, ND, for appellee.

Daniel J. Crothers, Lisa Fair McEvers, Carol Ronning Kapsner, Gerald W. VandeWalle, C.J. Opinion of the Court by Crothers, Justice. Sandstrom, Justice, dissenting.

OPINION

Page 633

Crothers, Justice.

[¶1] Dennis Whedbee appeals a district court judgment affirming Workforce Safety and Insurance's (" WSI" ) binding dispute resolution denying Whedbee's request for a myoelectric prosthesis and approving a body-powered prosthesis. Whedbee argues the binding dispute resolution was an abuse of discretion and violated his due process rights. He argues that WSI should have selected an independent medical examiner located closer to his residence and that his treating physician's opinion should have been given controlling weight. We affirm.

I

[¶2] On September 23, 2012, Whedbee suffered a compensable injury from an oil rig explosion while working for Black Hawk Energy Services, Inc. Whedbee sustained a below-the-elbow left arm amputation. WSI accepted liability for several injuries, including Whedbee's amputation.

[¶3] Whedbee lives in Pennsylvania and received treatment there from Dr. Marshall Balk. Dr. Balk recommended Whedbee receive a myoelectric prosthesis and emphasized the myoelectric prosthesis would help Whedbee in daily activities. Dr. Balk stated the myoelectric prosthesis would " hold up" under his job requirements and, in fact, was more elaborate than he needed to perform his duties as a safety specialist with Black Hawk. Dr. Balk noted the myoelectric prosthesis likely would need replacement every five to eight years.

[¶4] WSI requested an independent medical examination from Dr. Ronald Bateman of Edina, Minnesota, to determine the appropriateness of the myoelectric prosthesis. WSI provided Dr. Bateman with the medical review of Dr. Luis Vilella, WSI's medical director. Dr. Bateman recommended Whedbee receive a body-powered prosthesis for reasons including: (1) it would " maintain a defined functional state for a reasonable period of time," whereas the myoelectric prosthesis likely would need replacement every five to eight years; (2) Whedbee was physically

Page 634

capable of using the body-powered prosthesis; (3) the myoelectric prosthesis would put more strain on Whedbee's left shoulder, which he was still rehabilitating from his injury; (4) the myoelectric prosthesis " is very fragile and expensive to repair" ; (5) if Whedbee was concerned with appearances, " an artificial hand could be fabricated over the split hook" ; and (6) the myoelectric prosthesis may " be very sensitive to excessive moisture, dust and easy breakage" while he worked in and around the oil rigs.

[¶5] WSI denied the myoelectric prosthesis because Dr. Bateman opined the body-powered prosthesis was appropriate for Whedbee, because Dr. Balk opined the myoelectric prosthesis was more elaborate than Whedbee needed to perform his duties as a safety specialist and because it was not the most cost-effective option. Whedbee contested WSI's decision, requesting binding dispute resolution. WSI's binding dispute resolution review committee agreed the myoelectric prosthesis was not the most cost-effective option, denying the myoelectric prosthesis and approving the body-powered prosthesis.

[¶6] Whedbee appealed to the district court, asserting the myoelectric prosthesis is cost-effective and medically appropriate. The district court affirmed WSI's binding dispute resolution decision, concluding WSI complied with the law and its decision was the result of a rational mental process. Whedbee appealed.

II

[¶7] Section 65-02-20, N.D.C.C., provides: " Dispute resolution under this section is not subject to chapter 28-32 or section 65-01-16. . . . A dispute resolution decision under this section requested by an employee is reviewable by a court only if medical treatment has been denied to the employee. . . . The dispute resolution decision may be reversed only if the court finds that there has been an abuse of discretion in the dispute resolution process." " An abuse of discretion occurs if a hearing officer acts in an arbitrary, unreasonable, or capricious manner or if the hearing officer misinterprets or misapplies the law." Sonsthagen v. Sprynczynatyk, 2003 ND 90, ¶ 9, 663 N.W.2d 161. " '[A] decision is arbitrary, capricious, or unreasonable if it is not the product of a rational mental process.'" Sloan v. N.D. Workforce Safety & Ins., 2011 ND 194, ¶ 11, 804 N.W.2d 184 (citation omitted).

III


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