Boger v. North Dakota Workers Compensation Bureau

1999 ND 192, 600 N.W.2d 877, 1999 N.D. LEXIS 221, 1999 WL 956529
CourtNorth Dakota Supreme Court
DecidedOctober 20, 1999
Docket990140
StatusPublished
Cited by8 cases

This text of 1999 ND 192 (Boger v. North Dakota Workers Compensation Bureau) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Boger v. North Dakota Workers Compensation Bureau, 1999 ND 192, 600 N.W.2d 877, 1999 N.D. LEXIS 221, 1999 WL 956529 (N.D. 1999).

Opinion

MARING, Justice.

[¶ 1] Fred Boger appeals from a district court judgment affirming an order by the Workers Compensation Bureau denying him disability benefits. We affirm.

I.

[¶ 2] Fred Boger worked as a lineman at Main Electric Construction in Minot for 40 years. In 1988, at age 62, he injured his back and right shoulder while on the job. Boger worked without modification to his work schedule or duties until his retirement in 1992. Boger returned to work at Main Electric in 1993 and that summer suffered additional work-related injuries, one to his right knee and one to his left shoulder. The Bureau paid Boger’s medical expenses for all of these injuries, but denied disability benefits.

[¶ 3] Dr. Melissa Ray treated Boger after his 1993 shoulder injury. Dr. Ray, an occupational specialist, concluded Boger could work in a modified position at Main Electric. She issued work restrictions which allowed Boger to do light labor for up to eight hours a day, provided he did not lift or pull too great a weight, pull himself up into machines, operate a digger, or do pole work. Boger returned to a modified position at Main Electric, but again injured himself at work on October 14, 1994, while crawling under a vehicle to change the oil. He left work after telling his employer that he hurt his back and shoulder. He reported to work on two more days, but stated he was unable to work because of the pain.

[¶ 4] On October 24,1994, Boger saw Dr. Ray, complaining of back and shoulder pain. Upon examination, Dr. Ray determined Boger could comply with the work restrictions established for him as a result of his earlier injuries. In a letter to the Bureau, Dr. Ray later concluded Boger’s “symptomology never completely healed” from his 1988 injury and “all of his problems stem from the initial 1988 injury.”

[¶ 5] In January, February and March of 1995, Boger sought further treatment for his back, shoulder and neck pain from Dr. Peter Earnshaw, an orthopaedic surgeon in Minot. Responding to a Bureau inquiry about Boger’s condition and ability to work, Dr. Earnshaw stated:

I would still feel that he should be able to carry out at least restricted duties as defined by Dr. Ray and feel that he cannot do any serious harm by trying this. Again, the complaints are somewhat subjective in nature, but if the patient complaints of pain are too unbearable when he tries to work, then *879 some further modifications may be necessary.

[¶ 6] On July 7, 1995, Dr. Ray re-evaluated Boger and informed the Bureau of her belief that he could perform within the existing work restrictions. Dr. Ray also ordered a new Functional Capacity Evaluation (“FCE”) to confirm these statements. On August 14, 1995, physical therapist Karen Rasmusson performed a new FCE, and concluded that Boger, “was able to perform the activities as outlined in the modified duty form completed by Dr. Melissa Ray.” On October 6, 1995, the Bureau denied Boger’s claim for disability benefits based on his 1988 injury, relying on Dr. Ray’s opinion that Boger could continue working within the established work restrictions.

[¶ 7] Boger decided to seek treatment outside the Minot area and, on April 15, 1996, Dr. Carol Krause examined him in Bismarck. Dr. Krause also issued modified work restrictions for Boger, clearing him to work up to four hours per day with limited lifting, squatting, bending, stooping, standing and walking. On May 1, 1996, Boger reapplied for disability benefits based on Dr. Krause’s opinion.

[¶ 8] The Bureau did not consider Dr. Krause to be Boger’s treating physician, therefore on June 3, 1996, Boger filed a request to change doctors with the Bureau, citing his desire to see Dr. Carol Krause. The Bureau denied the request because Boger had access to competent medical care in his community. However, a Bureau Claims Analyst later informed Boger by letter that if he obtained a referral from Dr. Ray, he could continue to see Dr. Krause. Dr. Ray wrote to the Bureau, expressing that Boger’s request should be granted if he experienced successful treatment with Dr. Krause. Despite Dr. Ray’s referral, the Bureau denied Boger’s request. Boger subsequently chose a different Minot physician from a list approved by the Bureau. The Bureau denied Bo-ger’s reapplication for disability benefits on July 5, 1996, declaring Boger failed to prove his entitlement to benefits and Dr. Krause, because she was not Boger’s attending physician, could not certify disability.

[¶ 9] On September 25,1996, the Bureau held another hearing to determine Boger’s eligibility for disability benefits. The Administrative Law Judge (“ALJ”) recognized medical opinions of Boger’s capabilities differed. The ALJ stated, “[t]he fact that Dr. Krause is not Mr. Boger’s attending doctor for Worker compensation purposes does not equate with ignoring her opinion.” He then concluded:

Peter Earnshaw M.D., Melissa Ray D.O., and Karen Rasmusson M.P.T., are all of the opinion that Fred Boger was capable of performing the modified job set up for him at Main Electric. I find their opinions to be more persuasive than the opinion of Carol Krause, M.D. in this case. Dr. Krause’s opinion is primarily distinguishable from the opinions of Earnshaw, Ray and Rasmusson in terms of work up to four hours per day instead of up to eight hours per day for Fred Boger. This is not that much of a variance of opinions and can be reconciled by semi-retirement, retirement, the passage of time, the aging process and perhaps an inordinate amount of reliance upon Mr. Boger as a historian for his medical condition. What is actually most significant about Dr. Krause’s opinion is that even she does not support Fred Boger’s claim that he is totally disabled from working because of pain and comfort [sic] secondary to work injuries.

[¶ 10] The ALJ determined Boger failed to establish a total disability resulting from his 1988 work injury or a significant change in medical condition attributable to the injury, and thus was not entitled to disability or rehabilitation benefits. The ALJ also concluded Boger had not suffered a loss of earning capacity or actual wage loss attributable to the injury. The Bureau adopted the ALJ’s order and the district court affirmed.

*880 II.

[¶ 11] Under N.D.C.C. § 65-01-11, a workers compensation claimant must establish his or her right to receive benefits from the fund by a preponderance of the evidence. Spangler v. N.D. Workers Compensation Bureau, 519 N.W.2d 576, 577 (N.D.1994). It is within the province of the Bureau to weigh the credibility of medical evidence. Symington v. N.D. Workers Compensation Bureau, 545 N.W.2d 806, 809 (N.D.1996). Though the Bureau may resolve conflicts between medical opinions, the authority to reject medical evidence selectively does not permit the Bureau to “pick and choose in an unreasoned manner.” Spangler, 519 N.W.2d at 577 (citing Weber v. N.D. Workmen’s Compensation Bureau, 377 N.W.2d 571, 574 (N.D.1985)).

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Bluebook (online)
1999 ND 192, 600 N.W.2d 877, 1999 N.D. LEXIS 221, 1999 WL 956529, Counsel Stack Legal Research, https://law.counselstack.com/opinion/boger-v-north-dakota-workers-compensation-bureau-nd-1999.