Darold B. SHIEK, Claimant and Appellant, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellee, and North Dakota State University, Respondent.
No. 20010030
Supreme Court of North Dakota.
Oct. 16, 2001.
2001 ND 166
[¶ 11] Gronneberg did not timely file objections to the Report of the Hearing Panel and the matter was referred to the Supreme Court.
[¶ 12] Gronneberg‘s actions violate N.D.R. Prof. Conduct 5.5 which provides that a lawyer shall not practice law in а jurisdiction where doing so violates the regulation of the legal profession, as Gronneberg was suspended from the practice of law under N.D.R. Continuing Legal Ed. 4 from December 31, 1994, and continued to be suspended at the time he wrote the letter as “Staff Counsel” clearly implying he was acting as legal counsel for Red River Collections, Inc. In addition, Gronneberg‘s actions in this matter violate N.D.R. Prof. Conduct 8.4 through violation of
[¶ 13] Under N.D. Stds. Imposing Lawyer Sanctions 7.2 suspension is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed to the profession and causes injury or potential injury to a client, the public, or the legal system.
[¶ 14] Neither mitigating nor aggravаting factors under N.D. Stds. Imposing Lawyer Sanctions 9.0 was presented
[¶ 15] ORDERED, the Report of the Hearing Panel is approved.
[¶ 16] FURTHER ORDERED, Gronneberg is suspended from the practice of law for one year following any application by him for licensure of an inactive attorney under Admission to Practice R. 7.
[¶ 17] FURTHER ORDERED, Gronneberg pay the costs and expenses of the disciplinary proceedings in the amount of $935.00, plus the cost of preparation of the transcript of the hearing dated June 13, 2001, as certified by Disciplinary Counsel, payable to the Secretary of the Disciplinary Board.
[¶ 18] GERALD W. VANDE WALLE, C.J., CAROL RONNING KAPSNER, MARY MUEHLEN MARING, WILLIAM A. NEUMANN and DALE V. SANDSTROM, JJ., concur.
Mark G. Schneider, Schneider, Schneider & Phillips, Fargo, ND, for claimant and appellant.
Andrew L.B. Noah (argued), and Jacqueline S. Anderson, Special Assistant Attorneys General, Nilles, Hansen & Davies, Ltd., Fargo, ND, for appellee.
[¶ 1] Darold B. Shiek appealed from a judgment affirming a North Dakota Workers’ Compensation Bureau order denying his claim for further disability benefits. We hold, under the 1991 version of
I
[¶ 2] In July 1991, Shiek injured his right shoulder during the course of his employment at North Dakota State University (“NDSU“). In August 1991, he filed a claim with the Bureau for workers’ compensation benefits, and the Bureau accepted liability for his claim. Shiek had surgery on his right shoulder, did not work from July 31, 1991 through March 2, 1992, and receivеd disability benefits for that time period.
[¶ 3] Shiek returned to work at NDSU in a modified light duty position on March 3, 1992. In August 1992, he filed a separate claim for benefits regarding an injury to his left knee, which he claimed was injured when he hurt his right shoulder in July 1991. The Bureau consolidated Shiek‘s knee-injury and shoulder-injury claims. Shiek missed work from August 4,
[¶ 4] When Shiek returned to work at NDSU on August 17, 1992, he submitted a resignation, effective on September 25, 1992, the date of his sixty-second birthday. Shiek worked from August 17, 1992 until August 31, 1992, when Dr. Humphrey told him to not work through September 3, 1992, because of swelling in his knee. Shiek saw Dr. Humphrey again on September 21 and was advised not to work the rest of the week. Shiek did not return tо work, and in accordance with his earlier submitted resignation, left his job with NDSU on September 25, 1992.
[¶ 5] Shiek received disability benefits for work missed through September 3, 1992, and he sought further disability benefits from the Bureau. The Bureau denied him further benefits, concluding he voluntarily retired from the workforce on September 25, 1992, and he therefore was not entitled to further disability benefits under the retirement presumption in
[¶ 6] In Shiek v. North Dakota Workers Comp. Bureau, 1998 ND 139, 582 N.W.2d 639, we reversed the Bureau‘s decision and remanded for further proceedings. We concluded the Bureau erred as a matter of law in deciding that whether Shiek was permanently and totally disabled was irrelevant to the application of the retirement presumption in
[¶ 7] On remand, the Bureau decided Shiek was permanently and totally disabled as of September 25, 1992, but he was not entitled to further disability benefits because he voluntarily withdrew from the labor force when he retired effective September 25, 1992. The trial court affirmed the Bureau‘s decision, and Shiek appealed.
II
[¶ 8] On appeal, we review the Bureau‘s decision. Shiek, 1998 ND 139, ¶ 9, 582 N.W.2d 639. 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, its decision is not in accordance with the law or violated the claimant‘s constitutional rights, or the Bureau‘s rules or procedures deprived the claimant of a fair hearing. Id. See
III
[¶ 9] Shiek argues the Bureau misapplied the retirement presumption and our previous decision in Shiek. He argues a claimant who is permanently and totally disabled cannot voluntarily retire from
[¶ 10] In Shiek, 1998 ND 139, ¶ 10, 582 N.W.2d 639, we explained that, under
An employee who has retired or voluntarily withdrawn from the labor force is presumed retired from the labor market and is ineligible for receiрt of disability benefits under this title. The presumption may be rebutted by a preponderance of the evidence that the worker:
- Is actively seeking employment;
- Is available for gainful employment;
- Has not rejected any job offer made by a former employer, or other bona fide job offer by another employer; and
- Has not provided the employer, upon written request, with written notice of a scheduled retirement date.
The presumption does not apply to any employee who is permanently and totally disabled as defined under this title.
[¶ 11] In Shiek, 1998 ND 139, ¶ 17, 582 N.W.2d 639, we held the Bureau erred, as a matter of law, in ruling that whether Shiek was permanently and totally disabled was irrelevant to application of the retirement presumption under
It would be illogical to require a claimant to prove he or she is totally disabled in order to qualify for benefits for temporary total or permanent total disability under
N.D.C.C. 65-05-09 , rather than partial disability underN.D.C.C. 65-05-10 , but not to have to prove total disability for purposes ofN.D.C.C. 65-05-09.3 (1993) . We conclude once the claimant has established by a preponderance of the evidence that he or she is totally and permanently disabled, the Bureau must prove, without the aid of a prеsumption, the claimant is retired from the labor market. In other words, if the claimant demonstrates he or she is permanently and totally disabled, the burden shifts to the Bureau to prove the claimant is not permanently and totally disabled or that the claimant retired from the labor market voluntarily, rather than having been forced from that market by the disability, if the Bureau seeks to hold the claimant ineligible for further benefits. The claimant must still establish his or her disability, as any claimant must do, to qualify for benefits.
[¶ 13] We concluded the Bureau‘s finding Shiek voluntarily retired on September 25, 1992, in accordance with his long-standing plan to retire was supported by a preponderance of the evidence. Shiek, 1998 ND 139, ¶ 22, 582 N.W.2d 639. We said, however, that finding did not give rise to the presumption of retirement under
[¶ 14] On remand, the Bureau found that, as of September 25, 1992, Shiek was permanently and totally disabled as defined by
[¶ 15] Under our workers’ compensation law, a permanently and totally disabled employee generally is entitled to disability benefits “during such disability.”
[¶ 16] The applicable statutory scheme contemplates an employee with a temporary total disability can be rehabilitated and returned to the labor market, but an employee with a permanent total disability cannot be rehabilitated and returned to the labor market. The Bureau‘s finding under those definitions that Shiek‘s disability was permanent in nature and total in character and that he was not capable of rehabilitation of his earnings capacity on September 25, 1992 when he effectuated his intent to retire is supported by a preponderance of evidence. Although in Shiek, 1998 ND 139, ¶ 17, 582 N.W.2d 639, we said the retirement presumption in
[¶ 17] The interpretation of a statute is a question of law which is fully viewable by this Court. Shiek, 1998 ND 139, ¶ 6, 582 N.W.2d 639. The primary purpose of statutory construction is to ascertain legislative intent. Id. In ascertaining legislative intent, we look first at the words used in the statutes, and we give those words their ordinary, plain-language meaning. Id. If a statute is clear and unambiguous on its face, we will not disregard the letter of the statute under the pretext of pursuing its spirit, because legislative intent is presumed clear from the face of the statute. E.g., County of Stutsman v. State Historical Soc‘y, 371 N.W.2d 321, 325 (N.D.1985). If, hоwever, the language of a statute is ambiguous or of doubtful meaning or if adherence to the strict letter of the statute would lead to an absurd or ludicrous result, a court may resort to extrinsic aids, such as legislative history, to interpret the statute. Id. We construe statutes to avoid absurd and ludicrous results, and if possible, to give meaning to all provisions of a statutory scheme. Id. A statute is ambiguous if it is susceptible to differing, but rational, meanings. Jorgenson v. Agway, Inc., 2001 ND 104, ¶ 5, 627 N.W.2d 391.
[¶ 18] The Legislature enacted the retirement presumption in 1991 N.D. Sess. Laws ch. 714, § 46. Under the law in effect before 1991, a permanently and totally disabled claimant‘s disability benefits were subject both to a social security offset under
[¶ 19] Before the retirement presumption wаs enacted in 1991, our workers’ compensation law did not purport to totally preclude or terminate an award of disability benefits to a claimant who reached retirement age or retired or voluntarily withdrew from the labor force.
[¶ 20] The 1991 version of
[¶ 21] The relevant legislative history for
Section 6 is a new section that creates a rebuttable retirement presumption. It specifies that those who have retired or voluntarily withdrawn from the work-force are not eligible for disability benefits unless they are permanently and totally disabled as defined under the act. The worker does have the opportunity to rebut this presumption with evidence that they are actively seeking employment, are available for employment, have not rejected bona fide job offers and have not provided their employer with written notice of a scheduled retirement date.
Hearing on S.B. 2246 Before Senate Judiciary Committee, 52nd N.D. Legis. Sess. (Feb. 4, 1991) (prepared testimony of Pat Mayer, Assistant Claims and Rehabilitation Manager of Workers’ Compensation Bureau).2
[¶ 22] The legislative history for the 1991 version of
[¶ 23] Other courts have recognized that permanent disability benefits do not terminate on retirement. See Hilyard Drilling Co., Inc. v. Janes, 462 So. 2d 942, 943 (Ala. Civ. App. 1985); Bailey v. Litwin Corp., 780 P.2d 1007, 1010-11 (Alaska 1989); Franco v. Industrial Comm‘n, 130 Ariz. 37, 633 P.2d 446, 449-50 (1981); State Comp. Ins. Auth. v. Industrial Claim Appeals Office, 786 P.2d 423, 425 (Colo. Ct. App. 1989); Brown v. City of Wichita, 17 Kan. App. 2d 72, 832 P.2d 365, 368-69 (1992); Inland Steel Co. v. Terry, 464 S.W.2d 284, 285 (Ky. 1970); Reves v. Kindell‘s Mercantile Co., Inc., 793 S.W.2d 917, 922-23 (Mo. Ct. App. 1990); Skrukrud v. Gallatin Laundry Co., Inc., 171 Mont. 217, 557 P.2d 278, 281-82 (1976); State ex rel. Baker Material Handling Corp. v. Industrial Comm‘n, 69 Ohio St. 3d 202, 631 N.E.2d 138, 144-49 (1994); Krugen v. Beall Pipe & Tank Corp., 19 Or. App. 922, 529 P.2d 962, 963 (1974).
[¶ 24] In State ex rel. Baker, 631 N.E.2d at 146-47, the Ohio Supreme Court explained that the rationale for not terminating рermanent total disability benefits on retirement was those benefits were designed to compensate an injured employee for impairment of earnings capacity and not for actual wages lost. See also Franco, 633 P.2d at 449-50; State Comp. Ins. Auth., 786 P.2d at 425; Brown, 832 P.2d at 368-69; Inland Steel, 464 S.W.2d at 285. Citing Inland Steel, 464 S.W.2d at 285, the Ohio Supreme Court said “[t]he advent of retirement, regardless of how imminent at the time of disability, will not extinguish or limit the claimant‘s right to PTD compensation. If an otherwise compensable injury or disease has rendered the claimant unfit for sustained remunerative employment, ‘what he actually intended to do with his time in the future is immaterial, and the acceptance of retirement benefits is irrelevant.‘” State ex rel. Baker at 147. The court held that if an employee retires before becоming permanently and totally disabled, the employee is precluded from receiving permanent total disability benefits only if the retirement is voluntary and constitutes an abandonment of the entire job market; however, if the employee retires after becoming permanently and totally disabled, the employee is not precluded from receiving permanent total disability benefits regardless of the nature or extent of the retirement. Id. at 148.
[¶ 25] Professor Larson also explains that permanent total disability benefits do not terminate on retirement:
If permanent disability or death benefits become payable, they are not limited to the period of what would have been claimant‘s active working life. In other words, if a person becomes totally permanently disabled at age twenty-five, and is awarded benefits for life, they obviously do not stop when he or she is sixty-five, but extend on into the period of what probably would have been retirement. This being so, if a person is permanently and totally disabled at age sixty, it is not correct to say that benefits should be based on the theory that his or her probable future loss of earnings was only five years of earnings. The right to have compensation benefits continue into retirement years is built into the very idea of workers’ compensation as a self-sufficient social insurance mechanism.
[¶ 26] The Workers’ Compensation Act is remedial legislation, and we construe it to afford relief and avoid forfeiture with the view of extending its benefits to all who fairly can be brought within its provisions. Ash v. Traynor, 2000 ND 75, ¶ 8, 609 N.W.2d 96. The 1991 version of our workers’ compensation law does not explicitly terminate or preclude permanent total disability benefits upon retirement, defines disability as loss of earnings capacity, see
[¶ 27] Here, Shiek became permanently and totally disabled on or before his intended retirement on September 25, 1992. We, therefore, conclude the Bureau erred as a matter of law in determining he was not entitled to permanent total disability benefits after September 25, 1992, subject to the appropriate offset.
[¶ 28] We reverse the judgment and remand with directions to award Shiek benefits in accordance with this opinion.
[¶ 29] GERALD W. VANDE WALLE, C.J., concurring.
NEUMANN, Justice, concurring specially.
[¶ 30] While Justice Maring makes a strong argument that a workers compensation system should never be permitted to find a permanently and totally disabled worker has voluntarily withdrawn from the labor market, I cannot find such a policy reflected in the statutes that apply in this case. I agree with much of what Justice Kapsner has written about the meaning and interpretation of the applicable statutes, but I cannot agree with her final conclusion regarding the Bureau‘s findings of fact. I therefore write separately.
[¶ 32]
[¶ 33] According to Justice Maring, this statement is incorrect. Justice Maring argues once the claimant has established total and permanent disability, the Bureau doesn‘t get a chance to prove anything more. According to Justice Kapsner, not only is the statement correct, but the Bureau in this case has met its burden of proof. With the greatest respect, I must disagree with both of my colleagues.
[¶ 34] Justice Maring, as I have said, finds an admirable policy reflected in the statutes. Unfortunately, I am not convinced, and therefore cannot agree, that the statutes declare the pоlicy she finds articulated there. Justice Kapsner quite correctly, I believe, states at ¶ 47 that “[r]etirement from a specific job is insufficient to show removal from the labor market because the presumption does not apply.” Without the presumption, retirement or voluntary withdrawal from the labor force does not, standing alone, prove retirement from the labor market. But Justice Kapsner then refers to and relies on the Bureau‘s conclusion that Shiek had retired from the labor market, a conclusion the Bureau has based on Shiek‘s long-standing plans to retire from this particular job. That, I would argue, is exactly the presumption the legislature has said the Bureau may not use in this casе. The Bureau has concluded Shiek has retired from the labor market because the Bureau has found he had withdrawn from the labor force-retired from a specific job. The Bureau has applied the presumption to reach its conclusion. Reviewing the Bureau‘s findings I note many references to Shiek‘s plans to retire from this specific job. I find none saying Shiek expressed an intent to quit working entirely.
[¶ 35] Perhaps some confusion was caused by paragraph 22 in Shiek I. The first sentence states, “The Bureau‘s finding that Shiek voluntarily retired on September 25, 1992, in accordance with his long-standing plan to retire is supported by a preponderance of the evidence.”
[¶ 36] However, despite any short-lived confusion that may have been caused by paragraph 22, a careful reading of
[¶ 37] William A. Neumann
KAPSNER, Justice, dissenting.
[¶ 38] I respectfully dissent.
[¶ 39] The majority opinion overlooks the plain language of
[¶ 40] Under the statutory scheme effective in 1992 an injured claimant with a permanent total disability would ordinarily continue to receive benefits past retirement age subject to certain offsets. That, I agree, is the import of the wording in
[¶ 41] But
[¶ 42]
An employee who has retired or voluntarily withdrawn from the labor force is presumed retired from the labor market and is ineligible for receipt of disability benefits under this title. The presumption may be rebutted by a preponderance of the evidence that the worker:
- Is actively seeking employment;
- Is available for gainful employment;
- Has not rejected any job offer made by a former employer, or other bona fide job offer by another employer; and
- Has not provided the employer, upon written request, with written notice of a scheduled retirement date.
The presumption does not apply to any employee who is permanently and totally disabled as defined under this title.
[¶ 43] The statute establishes a rebuttable presumption that a worker who has retired from the labor force has also removed himself or herself from the labor market, but does not permit the presumption to be applied to a worker who is permanently and totally disabled.
[¶ 44]
[¶ 45] This Court held the mere application of federal benefits law did not make Kallhoff a person who had “retired” as required by the statute.
So, retirement is linked with the ordinary and commonly understood meaning that retirement is voluntary. However, there is no statutory presumption of retirement for “any employee who is permanently and totally disаbled as defined in [Title 65].”
Id. at 514. Kallhoff cannot be read to say a claimant who is permanently and totally disabled cannot voluntarily retire. Rather it stands for the proposition that where a statute requires a voluntary action (such as retirement), the requirement is not satisfied by the automatic operation of law over which a person has no control.
[¶ 46] Kallhoff is consistent with the later holding of this Court in Shiek I, construing
[¶ 47] In Shiek I, we remanded with the following direction in applying
We conclude once the claimant has established by a preponderance of the evidence that he or she is totally and permanently disabled, the Bureau must prove, without the aid of a presumption, the claimant is retired from the labor
market. In other words, if the claimant demonstrates he or she is permanently and totally disabled, the burden shifts to the Bureau to prove the claimant is not permanently and totally disabled or that the claimant retired from the labor market voluntarily, rather than having been forced from that market by the disability, if the Bureau seeks to hold the claimant ineligible for further benefits.
Shiek I, 1998 ND 139, ¶ 21, 582 N.W.2d 639. To qualify for benefits under
[¶ 48] Given the explicit language of
[¶ 49] The Bureau found:
The greater weight or preponderance of the evidence has clearly demonstrated that the claimant, Darold Shiek, voluntarily resigned and retired from the labor market effective September 25, 1992, which was the date of his 62nd birthday. This voluntary action was done in accordance with plans that the claimant had made years before to retire upon reaching the age of 62. This decision was not based upon ... his wоrk-related injuries. A preponderance of the evidence has shown, without the aid of the retirement presumption, that the claimant voluntarily retired from the labor market in September of 1992 rather than having been forced from the market by any disability. As such, the claimant is ineligible for further benefits.
[¶ 50] Given the extensive recitation of evidence on which this finding is based, I would not hold that this finding is unsupported by the record. I would affirm.
[¶ 51] DALE V. SANDSTROM, J., concurs.
MARY MUEHLEN MARING
JUSTICE