Zueger v. North Dakota Workers Compensation Bureau

1998 ND 175, 584 N.W.2d 530, 1998 N.D. LEXIS 190, 1998 WL 665791
CourtNorth Dakota Supreme Court
DecidedSeptember 29, 1998
DocketCivil 980035
StatusPublished
Cited by23 cases

This text of 1998 ND 175 (Zueger 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
Zueger v. North Dakota Workers Compensation Bureau, 1998 ND 175, 584 N.W.2d 530, 1998 N.D. LEXIS 190, 1998 WL 665791 (N.D. 1998).

Opinions

MESCHKE, Justice.

[¶ 1] Maynard Zueger appealed a judgment affirming the Workers Compensation Bureau’s order terminating all of Zueger’s future benefits and ordering him to repay $7,808 in disability benefits he had previously received. We conclude Zueger’s performance on a functional capacity evaluation was not a “false statement” under N.D.C.C. § 65-05-33, and the Bureau erred in terminating all benefits on that basis. Accordingly, we reverse and remand.

[¶ 2] In 1990, Zueger injured his back in a work-related accident. The Bureau accepted his claim and paid benefits. As a result of his accident, Zueger had two surgeries on his back — a discectomy in 1993 and an intertran-sverse fusion in 1994. Zueger remained off of work and received disability benefits through 1995.

[¶ 3] In July 1995, Zueger’s doctor rated Zueger’s permanent partial impairment (PPI) at twenty percent of the whole body. The Bureau disagreed with the doctor’s analysis and, on January 8, 1996, ordered a ten percent PPI award. Zueger requested reconsideration of the PPI award.1

[¶ 4] In September and October 1995, an investigator hired by the Bureau videotaped Zueger and some friends building a garage on his property. The Bureau later directed Zueger to undergo a functional capacity evaluation (FCE) on February 15, 1996. The occupational therapist who conducted the FCE noted Zueger had self-limited his performance on some parts of the test because of reported pain and numbness. The therapist did not, however, conclude the test was invalid, and indicated Zueger was capable of performing work at a sedentary level. The Bureau later showed the therapist the videotape of Zueger working on his garage several months before the FCE. The therapist wrote the Bureau to note discrepancies between Zueger’s activities on the tape and his performance on the FCE. She indicated the work level shown in the videotape was “in the medium work category at least.”

[¶ 5] On May 8, 1996, the Bureau issued a notice of intention to discontinue benefits for false statements under N.D.C.C. § 65-05-33. Zueger petitioned for reconsideration, and the Bureau issued an order denying further benefits and directing repayment of $7,808 in disability benefits Zueger had received.

[¶ 6] Zueger petitioned for rehearing that was held before an administrative law judge (ALJ) on March 18, 1997. The Bureau adopted the recommended findings of fact, conclusions of law, and order of the ALJ, who concluded Zueger’s performance on the FCE constituted a “false statement” under N.D.C.C. § 65-05-33. The Bureau ordered Zueger to repay $7,808 in disability benefits dating back to September 25, 1995, the date of the first videotaping, and terminated all future benefits in connection with the injury, including the pending PPI award. Zueger appealed to the district court who affirmed the Bureau’s order. Zueger then appealed to this Court.

[¶ 7] We review the record and decision of the Bureau rather than the district court’s decision. McDaniel v. North Dakota Workers Compensation Bureau, 1997 ND 154, ¶ 11, 567 N.W.2d 833. As we explained in Loberg v. North Dakota Workers Compensation Bureau, 1998 ND 64, ¶ 5, 575 N.W.2d 221, under N.D.C.C. §§ 28-32-19 and 28-32-[533]*53321, we will 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, its decision is not in accordance with the law or violates the claimant’s constitutional rights, or the Bureau’s rules Or procedures deprived the claimant of a fair hearing.

[¶ 8] In terminating Zueger’s benefits, the Bureau relied solely upon N.D.C.C. § 65-05-332:

Filing false claim or false statements— Penalty. Any person claiming benefits or payment for services under this title, who willfully files a false claim or makes a false statement, or willfully fails to notify the bureau as to the receipt of income, or an increase in income, from employment, after the issuance of an order awarding benefits, in connection with any claim or application under this title is guilty of a class A misdemeanor, but if the act is committed to obtain, or pursuant to a scheme to obtain, more than five hundred dollar’s in benefits or services, the offense is a class C felony. Provided further that:
1. For the purposes of this section, “statement” includes any testimony, claim form, notice, proof of injury, proof of return to work status, bill for services, diagnosis, prescription, hospital or doctor records, x-ray, test results, or other evidence of loss, injury, or expense.
2. In addition to any other penalties provided by law, the person claiming benefits or payment for services in violation of this section shall reimburse the bureau for any benefits paid based upon the false claim or false statement and, if applicable, under section 65-05-29 and shall forfeit any additional benefits relative to that injury.

As defined in subsection 1 of this statute, the Bureau argues Zueger’s performance on the FCE was a “statement.”

[¶ 9] Interpretation of a statute is a question of law fully reviewable by this Court. Shiek v. North Dakota Workers Compensation Bureau, 1998 ND 139, ¶ 16, 582 N.W.2d 639; In re Estate of Opatz, 554 N.W.2d 813, 815 (N.D.1996). Our primary purpose is to ascertain the intent of the legislature. Shiek, 1998 ND 139, ¶16, 582 N.W.2d 639; State v. Schlotman, 1998 ND 39, ¶ 10, 575 N.W.2d 208. In ascertaining legislative intent, we look first to the language of the statute as a whole, construing the words in their plain, ordinary, and commonly understood sense. Singha v. North Dakota State Board of Medical Examiners, 1998 ND 42, ¶ 16, 574 N.W.2d 838; Little v. Traynor, 1997 ND 128, ¶ 37, 565 N.W.2d 766. If the statutory language is clear and unambiguous, we do not disregard the letter of the statute under the pretext of pursuing its spirit, because the intent is presumed clear from the face of the statute. Singha, 1998 ND 42, ¶ 16, 574 N.W.2d 838; Little, 1997 ND 128, ¶ 37, 565 N.W.2d 766. However, if the statute is susceptible to differing but rational meanings the statute is ambiguous and we may look to extrinsic aids to construe it. Singha, 1998 ND 42, ¶ 16, 574 N.W.2d 838; Medcenter One, Inc. v. North Dakota State Board of Pharmacy, 1997 ND 54, ¶ 13, 561 N.W.2d 634. These principles guide our interpretation of N.D.C.C. § 65-05-33.

[¶ 10] The statute provides an exclusive list of items which are included in the definition of “statement.” All of these items are oral or written verbal expressions. The Bureau relied solely on Zueger’s “conduct” on the FCE, not on any verbal statement made during the FCE. The Bureau has not pinpointed which of the statutorily listed items Zueger’s conduct falls under, but argues it must be covered generically under “the plain language of the statute.” We do not read the plain language of the statute to unambiguously cover nonverbal conduct on an FCE.3 [534]*534In its “plain, ordinary, and commonly understood sense,” the word “statement” does not include nonverbal conduct.

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Zueger v. North Dakota Workers Compensation Bureau
1998 ND 175 (North Dakota Supreme Court, 1998)

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Bluebook (online)
1998 ND 175, 584 N.W.2d 530, 1998 N.D. LEXIS 190, 1998 WL 665791, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zueger-v-north-dakota-workers-compensation-bureau-nd-1998.