Stenvold v. WORKFORCE SAFETY & INSURANCE

2006 ND 197, 722 N.W.2d 365, 2006 N.D. LEXIS 201, 2006 WL 2620537
CourtNorth Dakota Supreme Court
DecidedSeptember 14, 2006
Docket20050344
StatusPublished
Cited by6 cases

This text of 2006 ND 197 (Stenvold v. WORKFORCE SAFETY & INSURANCE) 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
Stenvold v. WORKFORCE SAFETY & INSURANCE, 2006 ND 197, 722 N.W.2d 365, 2006 N.D. LEXIS 201, 2006 WL 2620537 (N.D. 2006).

Opinions

VANDE WALLE, Chief Justice.

[¶ 1] Cindy Stenvold has appealed from a district court judgment affirming an order of Workforce Safety and Insurance (‘WSI”) denying her further disability benefits. We affirm.

I

[¶ 2] On June 1, 2000, Stenvold injured her left heel while working as a service station attendant and cashier. Stenvold was subsequently diagnosed with plantar fasciitis and a heel spur. In November 2000, Stenvold submitted a claim for workers compensation benefits. WSI accepted the claim and awarded medical and disability benefits.

[¶ 3] In April 2001, Stenvold began receiving vocational rehabilitation services. After it was determined Stenvold had reached maximum medical improvement, WSI approved Stenvold’s participation in a skills enhancement program to teach her office procedures and computer basics. During the course of the skills enhancement program, Stenvold began having problems with her hands and wrists. Stenvold had previously had surgery for carpal tunnel syndrome on her wrists in 1992 and 1997. Because of the recurrence of her carpal tunnel difficulties, Stenvold quit the skills enhancement program in January 2002. In March 2002, WSI issued an order suspending Stenvold’s disability benefits for noncompliance with her vocational rehabilitation plan. Stenvold requested a rehearing and, in February 2003, WSI issued an order revoking its prior order suspending disability benefits and reinstated Stenvold’s disability benefits.

[¶ 4] Stenvold underwent a functional capacities assessment which placed her in the sedentary-light category of work. A vocational consultant identified a job option of telephone solicitor for Stenvold. WSI thereafter terminated Stenvold’s disability benefits in December 2003, concluding that Stenvold was employable as a telephone solicitor. Stenvold sought referral to another doctor, who in May 2004 recommended that Stenvold avoid working any job, including telephone solicitor, which required typing or keyboarding.

[¶ 5] Stenvold requested a formal hearing, which began on August 18, 2004, and was continued and reconvened on September 27, 2004. On September 16, 2004, in the interim between the two hearings, Stenvold began working part-time as a telephone solicitor. Following completion of the administrative hearing on September 27, 2004, the administrative law judge (“ALJ”) on November 29, 2004, issued recommended findings of fact and conclusions of law determining that Stenvold’s rehabil[367]*367itation plan provided her with a reasonable opportunity for substantial gainful employment, and that WSI therefore had not erred in terminating her disability benefits. WSI adopted the ALJ’s recommendations as its final order on December 7, 2004.

[¶ 6] On November 9, 2004, Stenvold’s doctor reexamined her and diagnosed possible “carpal tunnel syndrome of median nerve compression of the wrist.” The doctor ordered a nerve conduction study, which demonstrated nerve damage to her wrists. On December 17, 2004, her doctor advised her to discontinue working. None of this new evidence of Stenvold’s disability was presented to the ALJ or WSI before issuance of the final order on December 7, 2004.

[¶ 7] On December 30, 2004, Stenvold submitted a petition for reconsideration from the final order, noting that her doctor had advised her to terminate her employment. WSI did not respond to the petition for reconsideration, and Stenvold appealed to the district court on February 7, 2005. The district court affirmed WSI’s December 7, 2004, final order.

II

[¶ 8] Courts exercise a limited review in appeals from administrative agency decisions under the Administrative Agencies Practice Act, N.D.C.C. ch. 28-32. Ziesch v. Workforce Safety & Ins., 2006 ND 99, ¶ 8, 713 N.W.2d 525; Victor v. Workforce Safety & Ins., 2006 ND 68, ¶ 12, 711 N.W.2d 188. Under N.D.C.C. § 28-32-46, the district court must affirm an order of an administrative agency unless it finds any of the following are present:

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 its findings of fact.
7. The findings of fact made by the agency do not sufficiently address the evidence presented to the agency by the appellant.
8. The conclusions of law and order of the agency do not sufficiently explain the agency’s rationale for not adopting any contrary recommendations by a hearing officer or an administrative law judge.

On an appeal from the district court’s decision on an administrative appeal, we review the agency order in the same manner. Ziesch, at ¶ 8; Victor, at ¶ 12.

Ill

[¶ 9] Stenvold contends WSI has failed to establish by the greater weight of the evidence that she can obtain and perform substantial gainful employment as a telephone solicitor. She argues her unsuccessful work trial in that position and her doctor’s subsequent determination that she is unable to perform the physical requirements of the job indicate WSI’s decision was in error. However, evidence of the failure of her work trial as a telephone solicitor and of her doctor’s December 17, 2004, recommendation that she discontinue working was not before either the ALJ when he issued his recommended decision on November 29, 2004, or WSI when it entered its. final order on December 7, 2004. WSI argues this evidence therefore [368]*368could not be considered by the district court or by this Court on appeal.

[¶ 10] An appeal of an administrative agency decision to the district court invokes that court’s appellate jurisdiction. In re Beckler, 2005 ND 33, ¶ 16, 692 N.W.2d 483; Benson v. Workforce Safety & Ins., 2003 ND 193, ¶ 5, 672 N.W.2d 640. The district court’s appellate review is expressly limited to the agency record filed with the court. N.D.C.C. §§ 28-32-44(5) and 28-32-46; Beckler, at ¶¶ 16-17; Miller v. Workforce Safety & Ins., 2004 ND 155, ¶ 11, 684 N.W.2d 641; Lewis v. North Dakota Workers Comp. Bureau, 2000 ND 77, ¶ 9, 609 N.W.2d 445. Section 28-32-45, N.D.C.C., allows a motion to supplement the record, but the district court does not consider the additional evidence and may only remand to the agency for the agency to consider the evidence. Beckler, at ¶ 17; Lewis, at ¶ 9. Stenvold did not move to supplement the record under N.D.C.C. § 28-32-45.

[¶ 11] We have previously addressed the precise issue raised in this case in Wright v. North Dakota Workers Comp. Bureau, 2001 ND 72, 625 N.W.2d 256. In Wright, the claimant injured his back and subsequently underwent retraining and vocational rehabilitation. After a formal hearing, the ALJ determined Wright could obtain and perform substantial gainful employment, and recommended discontinuation of further disability benefits. The Bureau issued a final order adopting the ALJ’s recommendations on March 7, 2000.

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Stenvold v. WORKFORCE SAFETY & INSURANCE
2006 ND 197 (North Dakota Supreme Court, 2006)

Cite This Page — Counsel Stack

Bluebook (online)
2006 ND 197, 722 N.W.2d 365, 2006 N.D. LEXIS 201, 2006 WL 2620537, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stenvold-v-workforce-safety-insurance-nd-2006.