Risch v. North Dakota Workers Compensation Bureau

447 N.W.2d 308, 1989 N.D. LEXIS 198, 1989 WL 125635
CourtNorth Dakota Supreme Court
DecidedOctober 24, 1989
DocketCiv. 890096
StatusPublished
Cited by16 cases

This text of 447 N.W.2d 308 (Risch 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
Risch v. North Dakota Workers Compensation Bureau, 447 N.W.2d 308, 1989 N.D. LEXIS 198, 1989 WL 125635 (N.D. 1989).

Opinions

LEVINE, Justice.

Lucille Risch appeals from a district court judgment affirming the denial of workers compensation benefits. We affirm.

Risch injured her back on April 8, 1987, while working as a part-time assistant cook for the Mandan Public Schools. At the time of her injury, Risch was also employed part-time at the deli counter at K-Mart in Bismarck.

She filed a claim for benefits with the North Dakota Workers Compensation Bureau (the Bureau) on or about April 27, 1987. The Bureau accepted liability for the injury and awarded Risch medical benefits. [309]*309Risch continued to work both jobs until October 21, 1987, when, following funeral leave for the death of her mother, she quit working allegedly due to increasing back pain and inability to do the work required of her. The Bureau paid disability benefits beginning October 27, 1987. In May 1988, K-Mart offered Risch her old job at reduced hours to start with but Risch refused to return to work. In June 1988, the Bureau entered an order terminating benefits on the grounds that Risch had failed to prove that she remained disabled and had failed to comply with the requirements of NDCC § 65-05.1-04 by refusing to return to work.1

Risch requested and was granted a formal rehearing. Following the hearing, the Bureau affirmed its earlier order denying further benefits. Risch filed an appeal in district court. The district court affirmed the Bureau’s decision and Risch appealed.

Section 28-32-19, NDCC, requires us to affirm the Bureau’s decision unless its findings of fact are not supported by a preponderance of the evidence or unless its conclusions of law are not supported by its findings. In determining whether the Bureau’s findings of fact are supported by a preponderance of the evidence, we determine only whether a reasoning mind could have reasonably determined that the factual conclusions were supported by the weight of the evidence. Kroeplin v. North Dakota Workers Compensation Bureau, 434 N.W.2d 351, 352 (N.D.1989).

The claimant has the burden of proving by a preponderance of the evidence that she is entitled to receive benefits from the Bureau. NDCC § 65-01-11. If the Bureau terminates benefits, the claimant has the burden of proving her right to continue receiving benefits. Howes v. North Dakota Workers Compensation Bureau, 429 N.W.2d 730, 733 (N.D.1988).

Risch first attacks the Bureau’s finding that she failed to prove she remains disabled. Former NDCC § 65-01-02(8),2 in effect at all times relevant to Risch’s claim, defined disability as the “inability to work as a result of a compensable injury.” We have defined “total disability” as a worker’s inability, “solely because of his job-related injury, to perform or obtain any substantial amount of labor in his particular line of work, or in any other for which he would be fitted.” Jimison v. North Dakota Workers Compensation Bureau, 331 N.W.2d 822, 827 (N.D.1983). In Jimison, we suggested that “partial disability” contemplates at least three factors: “First, there should be a physical disability; second, the disability should be partial, or in other words, the employee should be able to work subject to the disability; and third, there should be an actual loss of earning capacity that is causally related to the disability.” Id. at 827 n. 5.

In determining that Risch was not disabled, the Bureau relied on the fact that Risch had been released by her doctor to return to work at either of her part-time jobs with only two restrictions: she was not to stand continuously for more than two hours or lift more than twenty pounds.

Although Risch disputed it, the Bureau specifically found that the positions at K-Mart and Mandan Public Schools, as the employers were willing to modify them, were within Risch’s physical limitations and medical restrictions. The Bureau also rejected Risch’s testimony that she did not know or understand what accommodations would be made for her at K-Mart. The Bureau has the responsibility and duty to pass on the credibility of witnesses appearing before it, including the claimant. Claim of Bromley, 330 N.W.2d 498, 502 (N.D.1983). The Bureau’s function is to weigh the evidence and make findings on questions of fact. Whether Risch was able to work was a question of fact. The Bureau’s finding that she was capable of returning to work, albeit with some restrictions, is supported by the record.

[310]*310A worker who is medically able to return to work does not have an inability to work and thus is not totally disabled. See Claim of Olson, 419 N.W.2d 894, 897 (N.D.1988). Further, by refusing to return to work when she was able to do so, Risch failed to establish the extent of her disability, if any. She also prevented the Bureau from determining her “actual loss of earning capacity that is causally related to the disability.” Jimison, supra, 331 N.W.2d at 827 n. 5. Thus, Risch failed to prove that she was partially disabled. We conclude that a reasoning mind could have reasonably determined that by the weight of the evidence that Risch failed to prove that she remained disabled.

Risch also argues that it was error for the Bureau to terminate benefits for her failure to comply with NDCC § 65-05.1-04.3 Before it was amended (see footnote 3), § 65-05.1-04 provided:

“It shall be the responsibility of the injured worker to seek, obtain, and retain reasonable and substantial employment in order to reduce the period of temporary disability to a minimum. In the event that the injured worker is unable to obtain substantial employment as a direct result of his injury he shall promptly notify the bureau and thereafter be available for such examinations and testing as may be prescribed by the bureau to determine whether or not a program of rehabilitation is necessary. If the bureau determines that a program of rehabilitation is necessary and feasible, the injured worker, upon having been so notified, shall be available for such a program.
“If the injured worker shall fail to comply with this section without a reasonable cause, the bureau, by formal order, shall discontinue all lost-time benefits under this title during the period of noncompliance. If, upon the bureau order becoming final, the period of noncompliance shall continue for six months, the bureau shall have no further jurisdiction in awarding any further temporary total, temporary partial, permanent total, or rehabilitation benefits.”

The Bureau found that “reasonable and substantial employment” was available to Risch because she could have returned to either the position at K-Mart or Mandan Public Schools on or about May 16, 1988. In fact, the Bureau, through its rehabilitation coordinator, had arranged for Risch to return to K-Mart under a reduced-hours arrangement.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Midthun v. NORTH DAKOTA WORKFORCE SAFETY AND INSURANCE
2009 ND 22 (North Dakota Supreme Court, 2009)
Rodenbiker v. WORKFORCE SAFETY AND INSURANCE
2007 ND 169 (North Dakota Supreme Court, 2007)
Sandberg v. American Family Insurance Co.
2006 ND 198 (North Dakota Supreme Court, 2006)
Saakian v. North Dakota Workers Compensation Bureau
1998 ND 227 (North Dakota Supreme Court, 1998)
Gullickson v. Gullickson
1998 ND 207 (North Dakota Supreme Court, 1998)
Rooks v. North Dakota Workers' Compensation Bureau
506 N.W.2d 78 (North Dakota Supreme Court, 1993)
Grotte v. North Dakota Workers' Compensation Bureau
489 N.W.2d 875 (North Dakota Supreme Court, 1992)
Schmidt v. North Dakota Workers' Compensation Bureau
483 N.W.2d 186 (North Dakota Supreme Court, 1992)
Wendt v. North Dakota Workers Compensation Bureau
467 N.W.2d 720 (North Dakota Supreme Court, 1991)
Kopp v. North Dakota Workers Compensation Bureau
462 N.W.2d 132 (North Dakota Supreme Court, 1990)
Risch v. North Dakota Workers Compensation Bureau
447 N.W.2d 308 (North Dakota Supreme Court, 1989)

Cite This Page — Counsel Stack

Bluebook (online)
447 N.W.2d 308, 1989 N.D. LEXIS 198, 1989 WL 125635, Counsel Stack Legal Research, https://law.counselstack.com/opinion/risch-v-north-dakota-workers-compensation-bureau-nd-1989.