Otto v. North Dakota Workers Compensation Bureau

533 N.W.2d 703, 1995 N.D. LEXIS 111, 1995 WL 380901
CourtNorth Dakota Supreme Court
DecidedJune 27, 1995
DocketCiv. 940403
StatusPublished
Cited by24 cases

This text of 533 N.W.2d 703 (Otto 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
Otto v. North Dakota Workers Compensation Bureau, 533 N.W.2d 703, 1995 N.D. LEXIS 111, 1995 WL 380901 (N.D. 1995).

Opinion

SANDSTROM, Justice.

Donna Otto appeals from a district court judgment affirming an order by the North Dakota Workers Compensation Bureau denying her reapplication for benefits. We hold the bureau’s finding Otto failed to prove her current condition was related to a prior work injury is supported by a preponderance of the evidence. We therefore affirm.

I

On April 6, 1983, Otto suffered a lower back injury while lifting a resident during the course of her employment as a child care attendant at the Anne Carlsen School. Otto’s treating physician, Dr. Ard Mardiro-sian, diagnosed a back sprain and estimated Otto would be disabled for two weeks. The bureau accepted liability for her injury, paid her related medical expenses, and awarded her disability benefits. Otto returned to work on April 22, 1983. According to Otto, on April 26, 1983, she began working at the school as a housekeeper, because that job did not require lifting.

On April 26, 1983, Otto went to a chiropractor, Dr. G.J. Harbaugh, for treatment. In May 1983, Dr. Harbaugh reported Otto’s recovery was not complete, but she suffered no permanent impairment and was progressing well with slight back and no leg pain. In July 1983, Dr. Harbaugh reported Otto was to return for treatment in one month if she had any further back problems. Otto did not return to Dr. Harbaugh for treatment until September 1985. Dr. Harbaugh’s office notes indicate he treated Otto nine times in 1985, seven times in 1986, five times in 1989, eight tunes in 1990, three times in 1991, five times in 1992, and two times in 1993. Dr. Harbaugh’s notes do not indicate the reason for the treatments and do not refer to Otto’s 1983 work injury. According to Otto, she sought chiropractic care when her back became symptomatic from housekeeping and yardwork.

Otto testified she left her job as a housekeeper at the Anne Carlsen School in 1988 or 1989, because of a respiratory ailment, and in July 1990, she began working as a part-time housekeeper at a nursing home, but she quit *705 that job after six months because it required lifting.

In August 1993, Otto reapplied for workers compensation benefits, asserting her medical condition had changed in July 1990. The bureau referred Otto to Dr. Paul Larsen, who examined Otto and reported

“her current complaints of back pain are clearly not related to her 1983 injury. She clearly did not have any permanent impairment arising from the 1983 injury. Based on the information in Mrs. Otto’s file and from the history she herself has provided, I can state with reasonable medical certainty that she recovered from her injury of April 6, 1983, most likely within one month of the injury.”

Meanwhile, Dr. Harbaugh referred Otto to Dr. Michael P. Martire, who reported:

“Chronic low back pain status post work related injury. Based on the medical records, the patient’s history, and examination today, the patient had an initial musculoli-gamentous injury. There is definite evidence of sacroiliac joint dysfunction and pain at this time along with some myofas-cial pain and dysfunction of the right qua-dratus lumborum and upper gluteus medi-us muscle.”

Dr. Martire concluded Otto’s complaints of back pain were related to her 1983 work injury.

On April 28,1994, the bureau held a formal hearing on Otto’s reapplication for benefits. Otto testified at the hearing, and on May 9, 1994, Dr. Larsen testified by telephone deposition which was received into evidence. On August 8, 1994, the bureau issued its order, finding Dr. Larsen’s opinion more credible than Dr. Martire’s opinion. The bureau concluded Otto’s present condition was unrelated to her 1983 work injury and denied her reapplication for benefits. The district court affirmed the bureau’s decision, and Otto appealed.

The district court had jurisdiction under Art. VI, § 8, N.D. Const., N.D.C.C. §§ 27-05-06, 28-32-15, and 65-10-01. This Court has jurisdiction under Art. VI, §§ 2, 6, N.D. Const., and N.D.C.C. § 28-32-21. The appeal was timely under Rule 4(a), N.D.R.App. P., and N.D.C.C. § 28-82-21.

II

While her appeal was pending in the district court, Otto applied for leave to offer additional evidence and submitted a letter from Dr. Martire, dated September 6, 1994. The letter was not part of the record before the bureau, see N.D.C.C. §§ 28-32-17, 28-32-19, and, although included in Otto’s appendix to the appellate briefs, the letter is not part of the record on appeal. See N.D.RApp.P. 10, 30. According to Otto, Dr. Martire’s letter was a “clarification of issues raised” by the bureau’s decision and included Dr. Martire’s comments about Dr. Larsen’s evaluation and the bureau’s decision. The district court denied Otto’s application, concluding Otto had failed to show reasonable grounds for her failure to offer the evidence in the administrative hearing.

Under N.D.C.C. § 28-32-18 a party may apply to the court in which an appeal is pending for leave to offer additional evidence. If the court finds the additional evidence is material and there were reasonable grounds for the failure to adduce the evidence at the administrative hearing, the court may order the additional evidence be taken, heard and considered on terms and conditions as it deems proper. N.D.C.C. § 28-32-18; Insurance Services Office v. Knutson, 283 N.W.2d 395, 400 (N.D.1979); Nohr v. North Dakota Workers Comp. Bureau, 419 N.W.2d 545, 546-47 (N.D.Ct.App.1988). The court’s review of a bureau decision is based on the record made before the bureau, and the district court and this Court may not consider evidence which has not been presented to the bureau. Knutson v. North Dakota Workmen’s Compensation Bureau, 120 N.W.2d 880, 882-83 (N.D.1963).

The record indicates Otto had the opportunity to solicit the letter from Dr. Martire before an appeal was taken to the district court and to offer it, or comparable evidence, in the proceedings before the bureau. Otto made no showing of reasonable grounds for her failure to procure the additional evidence and to make it part of the record before the bureau. We affirm the district court’s denial *706 of Otto’s application, and we do not consider Dr. Martire’s post-appeal letter.

Ill

Under N.D.C.C. § 28-32-21, our review of the bureau’s decision is governed by N.D.C.C. § 28-32-19. We affirm the bureau’s decision unless its findings of fact are not supported by a preponderance of the evidence, its conclusions of law are not supported by its findings of fact, its decision is not supported by its conclusions of law, or its decision is not in accordance with the law. Fischer v. North Dakota Workers Compensation Bureau, 530 N.W.2d 344, 346 (N.D.1995).

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Bluebook (online)
533 N.W.2d 703, 1995 N.D. LEXIS 111, 1995 WL 380901, Counsel Stack Legal Research, https://law.counselstack.com/opinion/otto-v-north-dakota-workers-compensation-bureau-nd-1995.