Whedbee v. North Dakota Workforce Safety & Insurance Fund

2014 ND 79, 845 N.W.2d 632, 2014 WL 1696509, 2014 N.D. LEXIS 90
CourtNorth Dakota Supreme Court
DecidedApril 29, 2014
Docket20130391
StatusPublished
Cited by3 cases

This text of 2014 ND 79 (Whedbee v. North Dakota Workforce Safety & Insurance Fund) 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
Whedbee v. North Dakota Workforce Safety & Insurance Fund, 2014 ND 79, 845 N.W.2d 632, 2014 WL 1696509, 2014 N.D. LEXIS 90 (N.D. 2014).

Opinions

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 myoelec-tric prosthesis. WSI provided Dr. Bate-man with the medical review of Dr. Luis Vilella, WSI’s medical director. Dr. Bate-man 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 [634]*634capable 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).

Ill

A

[¶ 8] Whedbee argues WSI’s denial of the myoelectric prosthesis was an abuse of discretion. Section 65-05-07, N.D.C.C., provides WSI shall furnish medical services and supplies, including pros-thetics, to rehabilitate an injured employee. Section 65-02-20, N.D.C.C., provides the managed care program should “effect the best medical solution for an injured employee in a cost-effective manner upon a finding ... the employee suffered a com-pensable injury.” It therefore falls on WSI to evaluate a requested prosthetic device.

[¶ 9] WSI approved the body-powered prosthesis instead of the myoelectric prosthesis for several reasons, basing its decision on the medical reviews of Drs. Balk, Bateman and Vilella. WSI determined the myoelectric prosthetic was more elaborate than Whedbee needed for his work activities as a safety specialist. The myoelectric device was heavier than the body-powered device, raising concern over how the extra weight would affect Whedbee’s rehabilitation. The myoelectric device’s cost was concerning because it would need replace[635]*635ment every five to eight years and would be susceptible to excessive moisture, dust and potential breakage.

[¶ 10] WSI is not required to provide Whedbee’s preferred device. WSI appropriately considered each device’s durability, cost and impact on Whedbee’s injuries. WSI was not arbitrary, capricious or unreasonable in concluding the body-powered prosthesis was the best medical solution in a cost-effective manner. The binding dispute resolution was not an abuse of discretion.

B

[¶ 11] Whedbee argues his due process rights were violated because Drs. Vilella and Bateman did not testify under oath, no independent administrative law judge considered the matter and the decision was made by WSI’s review committee. For Whedbee’s argument to prevail, he must have a property interest in his medical care and WSI’s decision must result in a termination of benefits. “When deciding a due process claim, we consider whether a constitutionally protected property or liberty interest is at stake and, if so, whether minimum procedural due process requirements were met.” Whitecalfe v. N.D. Dept. of Transp., 2007 ND 32, ¶ 20, 727 N.W.2d 779; see, e.g., Drayton v. Workforce Safety & Ins., 2008 ND 178, ¶ 17, 756 N.W.2d 320 (due process considerations require notice and an opportunity to respond where a termination of a continuing disability benefit is concerned). ' This Court stated:

“ ‘To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.’ ... A crucial factor in determining whether a particular statutory benefit constitutes a property interest is the nature and degree of discretion given to the governmental administrator in awarding or denying the benefit. A statute does not create an entitlement for due process purposes if the -statute confers discretion on the governmental agency or official without providing objective criteria for and limitations upon that discretion.”

Ennis v. Williams Cnty. Bd. of Comm’rs,

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Cite This Page — Counsel Stack

Bluebook (online)
2014 ND 79, 845 N.W.2d 632, 2014 WL 1696509, 2014 N.D. LEXIS 90, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whedbee-v-north-dakota-workforce-safety-insurance-fund-nd-2014.