Shiek v. North Dakota Workers Compensation Bureau

prevents or corrects by an action which ND 85 estate); see of unlawful distribution SHIEK, Darold B. Claimant Annot., (1955); 40 A.L.R.2d also Appellant, and Estate Attor- to Allowance Out Eight v. Attempt to Estab- Incurred in neys’ Fees settling ques- By lish or Will. Defeat DAKOTA NORTH WORKERS will, court validity of the tion of the BUREAU, COMPENSATION administration of was able to direct Appellee, the estate’s as- distribution of estate and intestate law. in with our sets accordance circumstances, we conclude Under these University, North Dakota State did not its discretion the trial court abuse Respondent. legal attorney services awarding

in fees the will. contesting rendered No. 20010319. of North Dakota. Supreme Court

V 14, May 2002. this opinion, In accordance with hold trial court did abuse we June Rehearing Denied approving the administration discretion accounting personal repre- final

sentative; attorney fees and awarding in de- personal representative;

fees request for removal nying the representative attorney and the sonal estate; denying request therefore supervised administration. We July trial court’s 2001 order affirm the entirety. in its WALLE, W. VANDE [¶ 25] GERALD NEUMANN, C.J., A. DALE WILLIAM V. SANDSTROM and CAROL RONNING

KAPSNER, JJ„ concur. (submitted brief),

Mark G. Schneider Schneider, Fargo, & Phillips, Schneider appellant. claimant and (submitted on Jacqueline Sue Anderson General, brief), Attorney Assistant Special Fargo, appellee.

MARING, Justice. from appeals

[¶ 1] Darold Shiek North judgment affirming a district court’s Compensation Bureau Dakota Workers’ decision determined Shiek was not which higher permanent partial entitled to already re- than he had pairment benefits decision ceived. reverse Bureau’s We in ac- action appropriate and remand for opinion. cordance with this

I 30, 1991, Darold Shiek July 2]

[¶ On working as injured right shoulder while his at Dakota State North operator boiler filed with the University. Shiek a claim Bu- Compensation North Workers’ Dakota (“Bureau”) compensa- reau and received 4, 1992, injury. August On tion for the surgery on arthroscopic Shiek underwent repair posteri- his left knee to tear of Au- horn the medial On meniscus. 25, 1992, claim separate filed a gust Shiek left in which he injury to his knee injury knee occurred at explained that the right he injured time that the same July The shoulder on 1991. the claim for the left-knee consolidated right- original for the injury with the claim 3, 1994, injury. On shoulder October arthroplasty a total Shiek underwent orthopedic of an upon left knee advice surgeon. 3, 1996, is- the Bureau April 3]

[¶ On Par- Awarding an sued Permanent Order Impairment tial Benefits related Shiek’s order, July In its injury work that Shiek had sustained the Bureau found right impairments: 15.5% following shoulder; 28, 2000, additional January arm at the 25% On an evalua- hand; 50% left leg hip master and tion right of Shiek’s knee was conducted. order awarded knee. Shiek evaluation, Subsequent to this the Bureau $20,845.44 in benefits accordance with denied Shiek additional partial Century former North Dakota Code sec- benefits for his knee. 65-05-13(l)(18) (1989). tions 65-05-14 However, the Bureau reversed this deci- after receiving sion a memorandum from requested reconsideration order, contending that the Office of Independent of this he was enti- Review. On higher leg award for his left tled to June the Bureau issued Order that he was entitled to an award for ve- Awarding Impairment Permanent Partial insufficiency. nous These matters were relating Benefits right to Shiek’s knee as hearing. consolidated for an administrative body right follows: “20% Whole knee Additionally, hearing the was intended to gait derangement 20.0 weeks.” As a re- address the issue of whether an order of order, sult of the Shiek received an addi- 26, 1998, the Bureau dated March properly $2,920. tional award of denied Shiek benefits for a condition that 1, 2000, [¶ 8] On June Shiek requested developed right had in his knee. reconsideration of the Bureau’s order dat- 23, 1999, [¶ 5] On December the hear- 1, ed argued June 2000. Shiek that he was ing officer issued an order which recom- entitled to an evaluation and award for mended that the Denying Bureau’s Order insufficiency right venous of his knee. 26, 1998, Specific Benefits dated March be argued Shiek also that under the current right reversed because Shiek’s knee condi- 65-05-12.2, version of N.D.C.C. his tion was work-related. The order also rec- partial impairment awards should have ommended that the Bureau’s Order been converted into Awarding Permanent Partial Impairment ment terms and taken into account when Benefits be reversed to reflect Shiek’s en- determining the extent of titlement to permanent partial additional that existed right after his impairment benefits for left-leg condi- knee evaluation. tion and insufficiency for his venous condi- Bureau’s counsel and Shiek’s adopted tion. The Bureau the recommen- counsel reached an agreement regarding 28, dation as its final order on December argument. Shiek’s first In accordance agreement, with the Shiek was awarded 20 4, 2000, January [¶ 6] On the Bureau insufficiency weeks venous for his issued an Awarding Order Permanent Par $2,920 knee and received an additional Impairment order, tial Benefits. In the benefits. In regard to Shiek’s second ar- the Bureau found that Shiek had sustained gument, hearing the officer concluded that following the impairments: 15.5% right nothing “there is language within the of shoulder; arm at 25% additional for mas (10) Section which re- hand; knee; ter 54% left leg hip quires the conversion prior impair- of all 10% whole for venous insufficiency. ments to a ‘whole body’ basis before After subtracting benefits award awarding benefits for a member or 3, ed to Shiek in the order dated April part not 1996, previously subject of an im- the Bureau concluded Shiek was en pairment $7,479.36 award.” The Bureau adopted titled to in additional benefits hearing accordance with officer’s decision in former North Dakota an order 2, Century 65-05-12, 65-05-14, 2001, July Code sections dated appealed and Shiek 65-05-13(1)(18) (1989). the district court. The district court af-

725 r goal Ou order, primary ap- and Shiek firmed Bureau’s statutory construction is ascertain pealed this Court. Legislature. See intent of the Western II Resources, Inc. Heitkamp, v. 489 Gas (N.D.1992). N.W.2d 872 ascertain review the appeal, On we intent, we ing Legislature’s first look decision of and not the Bureau’s decision language and. plain of statute v. See Klein N.D. the district court. ordinary of the its give each word statute Bureau, ND Comp. Workers Thompson, Estate meaning. See to af required We are of 634 N.W.2d 530. ¶ 7, ND 847. We con N.W.2d find decision unless its firm the Bureau’s give strue the statute as whole effect supported by prepon not ings of fact are possible. if Id. If provisions of its evidence, its law conclusions derance is clear and language statute fact, findings of not its supported are whole, when read as a we unambiguous its supported by conclu its decision is under language pre cannot ignore law, in accor its decision is not sions leg pursuing spirit text of because the law, violates or its decision dance with the presumed is clear from the islative intent or rights de the claimant’s constitutional Zueger face of statute. v. N.D. See hearing. of a fair See prives claimant ¶ Bureau, Comp. 1998 ND Workers 28-32-19, §§ (citing 28-32-2 id. N.D.C.C. If, however, the 530. statute 584 N.W.2d 1).1 reviewing findings the Bureau’s if to ambiguous is adherence the strict fact, a rea only determine whether of we lead to an ab letter of the statute would reasonably have soning mind could deter result, may a court re surd or ludicrous by the findings proven were mined the aids, legislative as such sort extrinsic Questions of See id. weight the evidence. history, interpret the statute. See law, including whether the cor of Bureau, Comp. N.D. Workers Shiek v. statute, fully a are re rectly interpreted ¶ 17, 166, A 2001 N.W.2d 493. ND 634 from appeal on a Bureau decision. viewable ambiguous susceptible if it is statute is N.D. Workers (citing id. Robertson v. See different, are but rational. meanings that ¶ 8, Bureau, 167, Comp. 2000 ND 616 Inc., Jorgenson (citing Agway, id. v. See 844). N.W.2d 391). 104, 5, 627 2001 ND N.W.2d III permanent impairment The eval- [¶ per- knee right that the Bu uation for Shiek’s was argues [¶ 11] Shiek 28, Thus, January 2000. his formed on incorrectly reau calculated case is the 1999 applicable statute this right- partial impairment benefits § 65-05-12.2. Com- version of N.D.C.C. impairment because under N.D.C.C. knee 551, § ch. 65-05-12.2, N.D. Laws required pare Sess. § the Bureau was of the 1999 version ratings (stating that prior impairment convert Shiek’s N-D.C.C. applies § to all evaluations ratings and 65-05-12.2 whole-body impairment 1999) 31, July with N.D. whole-body formed after then them with the combine 580, (stating § 2 that the ch. he for his Sess. Laws impairment rating received ap- § of 65-05-12.2 cumulative 2001 version N.D.C.C. knee to current arrive after performed plies to all evaluations impairment rating. appeal from filed the Bu- § adds 2001. Shiek We 28-32-46 addi- 1. note N.D.C.C. 19, July affirming decision on grounds an adminis- reau’s tional decision, applies. § August 29-32-19 agency former N.D.C.C'. trative effective 2001). noted, July required Unless otherwise all reau was to determine the per- § references to 65-05-12.2 centage N.D.C.C. of Shiek’s to the opinion refer 1999version of the in accordance with the Guides to the Eval- statute. uation of Impairment. Permanent

[¶ 14] Section Under the “Rules for Evalua- N.D.C.C., injury “If the provides, causes tions” contained the American Medical permanent impairment, the award must be Association’s Guides to the of Evaluation percentage determined based on the Impairment, Permanent impairing if an ” .... The amount condition involves organ systems, several permanent partial impairment of a organ system “each impairment should be by multiplying “thirty-three determined expressed a whole-person impairment; as average and one-third week- whole-person then the impairments should ly wage in this state the date of the by be combined means of the Combined evaluation, rounded to the 322).” (p. Values Chart See American dollar, highest next the number of Association, Medical Guides to the Evalua- weeks” listed in N.D.C.C. (4th tion Permanent Impairment, 8 ed. corresponds to the percent- claimant’s 1993) (“AMA Guides”). June Similarly, if age impairment. See physician patient determines that a has 65-05-12.2(2). governing N.D.C.C. significant, conditions, two unrelated procedure conducting permanent im- physician may calculate a whole-person pairment evaluation is set forth in pairment estimate condition. See 65-05-12.2(6). Section 65-05- id. “The whole-person impairment esti- 12.2(6),N.D.C.C., provides: mates for separate the two conditions then A evaluating permanent doctor impair- would be combined into an impair- overall ment report shall include a clinical using estimate the Combined Values sufficient support percent- detail to the Thus, Chart.” Id. the AMA Guides con- age ratings assigned. The bureau shall template the combination of work-related adopt governing administrative rules the impairments to single determine a whole- evaluation of impairment. body impairment rating, regardless of These rules incorporate must principles whether impairments the are to different practices and of the American medical Furthermore, body parts. as illustrated association’s “Guides to the Evaluation Saari v. North Dakota Compen- Workers of Permanent Impairment” modified to Bureau, sation the Bureau has previously law, be consistent with North Dakota to relied on the AMA im- Guides convert practice resolve issues of interpreta- pairments to body parts different to whole- tion, and to address areas not sufficient- body impairment percentages and to com- ly by guides. covered the Until rules bine impairment those percentages into a adopted under this subsection become single whole-body impairment rating for a effective, impairments must be evaluat- 4, claimant. ND See 1999 598 edition, ed under the fourth print- third N.W.2d 174. ing, guides. of the Saari, In [¶ 16] the claimant ex- adopted Bureau has not was any adminis- trative amined under the Fourth modify rules that would Edition appli- the of the cation of the AMA Guides. Guides the See id. The Evaluation of doctor con- Permanent Impairment ducting this case. See evaluation determined the N.D. Thus, Admin. Code 92-01-02-25. claimant had sustained a 5 percent whole- under N.D.C.C. the Bu- body impairment a cervical a 22 injury, found in N.D.C.C. extremity ment schedule upper of his impairment percent 12.2(10). Therefore, motion, percent and a 0.7 must determine we for abnormal upper extremity sen- impairment whether the is relieved its obli- The Bureau then de- sory loss. See id. under subsections 6 10 of gation impair- upper extremity that the termined a § 65-05-12.2 to combine ah of percent to a 13.7 whole- equal were ments impairments to different claimant’s id.; see rating. also See single whole-body impairment parts into a Guides, a 22 (stating at 20 AMA rating although the impairments, when extremity impairment upper percent injuries by caused work-related from impair- percent person equals accident, are determined at two dif- same ment). percent It combined the 5 then ferent evaluations impairment whole-body rating for the cer- impairment and result in on two differ- awards based percent 13.7 impairment with the vical permanent impairment systems. ent whole-body rating up- for the Nothing the AMA nor Guides to arrive at a extremity impairment per regulations, Bureau’s own indicates single whole-body prior impairments to scheduled mem- id.; see percent. See also claimant 17.7 whole-body bers cannot be converted to Guides, (listing at 322 the combined AMA impairment ratings as and combined with a percent of 5 and 13 value percent). impairment to ar- whole-body single whole-body impairment at a rive case, undisputed In it is fact, rating. contain AMA Guides caused impairments all of Shiek’s were converting numerous charts injuries suffered compensable whole-body ments specific parts July on working operator as boiler while and a Combined if im- Values all of Shiek’s combining determined at Chart for pairments had been manent evaluation conducted body parts into pairments to the different January Bureau would single impairment percent- required have been convert Guides, 20, 77-78, 218, age. AMA See body parts to different Furthermore, Bureau not does and com- impairment ratings argue that it cannot convert sched- each of the bine whole-body impair- uled to a impairment ratings single whole-body to arrive at a if Shiek’s subse- ment and concedes that Saari, rating. See 1999 ND impairment was for his left quent impairment award Guides, 174; 144, 4, 598 AMA at N.W.2d knee, required it have to con- would been Saari, however, in claimant 8. Unlike the impairment for his vert scheduled impairments were not all deter- Shiek’s leg whole-body impairment per- left to a permanent impairment at the mined same However, centage. argues Bureau evaluation, were determined two but 65-05-12.2(7), that, it is under N.D.C.C. impairment evalua- different prior im- required to convert Shiek’s Furthermore, par- the permanent tions. in whole-body impairments pairments given impairment awards to Shiek as a tial im- this because Shiek’s case of the first evaluation were based on result knee award for his was pairment injuries separate body the schedule of previ- had never part for which he in parts found former N.D.C.C. impairment an award. ously received (1989), impairment giv- while the award In Feist v. North Dakota Work- result of his second evalu- en to Shiek as a Bureau, re- Court whole-body impair- Compensation ers ation was based on (Revised) jected argument argu- editions, similar to the Third contains the by ment the Bureau in this advanced case following sentence: “Note: If im- being as inconsistent with the AMA pairments from organ sys- two or more Guides: tems are be combined to express a 1993 permanent partial impair- whole-person impairment, each must award, the Bureau calculated expressed first be a whole-person as impairment rating by Feist’s combining pairment percent.” We conclude the impairment rating his lumbar with a Bureau was authorized to combine the previous rating. cervical Feist contends impairment ratings Feist’s lumbar “there in nothing (any the Guides and cervical impairments. edition) which would allow the Bureau to brief, As in Feist noted when the ratings combine the and awards for two awarded Feist separate pertaining sepa- claims to two impairment here, challenged award impairments.” rate anatomical We dis- provided N.D.C.C. 65-05-12 part: in agree. The Third Edition and the Third “Any subsequent award for (Revised) Edition each contain a “Com- must be made any previous minus

bined bearing legend Values Chart” given any earlier claim or the same stating part: claim for that same member or “To any combine two val- part.” provision That on awards ues, larger locate the of the values on impairments does not undercut any the side the chart and read along way the ability Bureau’s to combine until you row come to the column impairment ratings. indicated the smaller value at the bottom the chart. At the intersec- ¶¶ 14-15, (em 1997 ND 569 N.W.2d 1 tion of the row and the column is the added). phasis combined value.[”] Similar to former N.D.C.C. (1989), § 65-05-12 section “If three or more val- N.D.C.C., provides: “The bureau shall de- combined, ues are to be select two duct, basis, on a and find their combined value as from an award for impairment under this above. Then use that value and the section, any previous impairment award third value locate the combined val- for that same or body part member under ue of all. process This can be re- compensation workers’ any jur- laws of peated indefinitely, the final value isdiction.” Just as nothing former being instance the combination of (1989) prevented 65-05-12 all previous values.” Bureau from combining prior a and a sub- legends The on the combined values sequent impairment rating for sepa- two charts do not indicate that sepa- “two body Feist, rate parts, 177, see 1997 ND rate impairments” anatomical may not ¶¶ 14-15, 1, 569 N.W.2d in nothing be combined. The combined values 65-05-12.2(7) § N.D.C.C. prevents Bu- the charts allow two or impair- more reau from combining Shiek’s impair- ment values to be combined. That ments with impairment to pairments of separate anatomical areas arrive at a combined whole-body impair- of the may be in combined one percentage. ment impairment 65-05-12.2(7), Section value is made even more N.D.C.C., requires clear in the the deduction pre- combined values chart in the of a Edition, which, Fourth in vious permanent addition to impairment the “award” from language same that as in the Third and a new permanent impairment “award,” not

729 system to a previous permanent of the a deduction from a new impairment percentage system.2 Legislature When the switched partial percentage. partial impairment permanent whole-body impairment system a to previous impairment a before 1995, intent amount was to increase the N.D.C.C. can be deducted under award severely impaired of benefits the most of claim § the amount the workers, but decrease the amount of bene- As must be determined. new award ant’s severely impaired less fits for workers earlier, 6 and under subsections explained eliminate benefits workers whose 65-05-12.2, § the amount 10 N.D.C.C. of whole-body fell 16 impairments below impairment permanent of a ¶ Saari, 8, 144, 1999 ND 598 cent. See be on the combined must award based However, by 174. as illustrated N.W.2d whole-body per all the claimant’s value of in- following examples, two under the if impairments, impair even manent 65-05-12.2(7) § of N.D.C.C. terpretation body parts. See ments are to different case, Bureau in some advanced ¶ 174; Saari, ND 598 N.W.2d impaired most severely workers Guides, Nothing at in the Bu AMA 8. the full amount of would never receive regulations or reau’s own administrative partial impairment benefits to permanent that AMA Guides indicates they simply entitled because which are not impairment awards should permanent impairments happened develop their of all the be on combined value based times the same different and did affect simply claimant’s because body part. impairment for the permanent percentages example, In body parts are determined at two the first assume different impairment determines, permanent through evalua different different four § N.D. Code 92-01-02- tions. See Admin. impairment evaluations Guides, 25; AMA at 8. times, a claimant made at different that left-leg percent impairment has of 15 being In inconsistent addition whole-body, impairment of 15 right-leg Guides, the with the AMA Bureau’s inter- whole-body, impairment a left-arm 65-05-12.2(7) percent § is pretation of N.D.C.C. body, percent right-arm and a contrary Legislature’s intent also whole-body, all of 15 switching impair- from scheduled injury "legisla- injury impairment system to a whole- uled dissent at 36 The asserts regarding awards to the system tive intent successive 1995. See expressed Legis- 65-05-12.2(7) (1995) ("The was when the same claimant § bu- N.D.C.C. Assembly § N.D.C.C. lative amended deduct, subsequent award from a reau shall 12.2(7) required past setoff of given any previous or impairment, against awards for the 'same awards current earlier or the same calculated claim ” body part.’ This or assertion member body part.”). same member or claim phrase "same member incorrect. Legislature amended § body part” part was N.D.C.C. 65-05-12 65-05-12.2(7) provide the deduction impairment award of the former previous permanent awards injuries was scheduled system that based on be made "on a whole shall body parts. specific See N.D.C.C. 65-05- (1999) basis.” N.D.C.C. (1989) ("Any subsequent award for deduct, ("The body bureau shall on a previous any be minus must made ment basis, impair- impairment from an award for given any earlier claim or the same award section, any previous impair- under this ment body part.”). or that member claim for same body award for that same member ment body part” was phrase "same member or compensation laws of part under the workers’ 65-05-12.2(7) § over into N.D.C.C. carried ’’). jurisdiction. Legislature a sched- switched from when injuries. by compensable caused Under is both inconsistent with the AMA Guides § interpretation of N.D.C.C. 65-05- contrary Legislature’s to the intent in 12.2(7) advanced the Bureau this switching whole-body impairment to a sys- case, impairments none of these would be tem, § we conclude that N.D.C.C. 65-05- they combined because arose at different 12.2, whole, requires when read as a body times and parts. were to different the overall number of weeks a worker Therefore, each of these impairments receives for all the prior worker’s separately would be viewed and this claim- subsequent impairments must be the ant would never receive an award for the number of corresponds weeks that to the impairments, work-related see N.D.C.C. combined value of prior both the and sub- 65-05-12.2(10) § (providing for an award sequent impairments on a im- of zero an impairment weeks for of one to Therefore, pairment basis. when a claim- percent), despite fifteen the fact that the ant who prior permanent has received a claimant suffers from a combined whole- impairment award is later determined to body impairment of 48 percent, see AMA have a subsequent impairment, (Combined Guides, Chart). at 322 Values first, the Bureau must in accordance with 65-05-12.2(10), § Under N.D.C.C. a claim- § subsections 6 and 10 of N.D.C.C. 65-05- ant percent whole-body impair- with 12.2, determine whole-body impair- rating is entitled to an award of 230 ment for each condition and then combine weeks. prior the claimant’s and subsequent example, the second assume pairment percentages single into a com- the Bureau first determines that a claim- bined percentage, ant a right-leg impairment has of 30 regardless of whether the and sub- determines, cent and later sequent awards were for impairments to evaluation, through subsequent that the body Saari, different parts. See 1999 ND claimant left-leg impairment has a of 30 174; Guides, 598 N.W.2d AMA percent whole-body. Under the Bureau’s Next, at 8. the Bureau must determine interpretation § of N.D.C.C. the number of weeks that correlates to because these were deter- percentage § under N.D.C.C. 65-05- mined at different impairment 12.2(10). “deduct, The Bureau must then evaluations and were to different body basis, on a whole impairment from parts, the Bureau would not be required to award for under this sec- combine them. this claimant tion, any previous impairment award for would receive 50 weeks for same member or part under the ment, for a total award of 100 weeks for compensation workers’ any juris- laws of both impairments. § See N.D.C.C. 65-05- diction,” § 65-05-12.2(7), see N.D.C.C. 12.2(10). Under the AMA. Guides Com- determine the number of additional weeks Chart, however, bined Values the claimant that must be awarded to the claimant for actually suffers from a combined whole- the subsequent impairment. percent. of 51 See AMA Guides, (Combined Chart). at 322 Values a compensable inju [¶ 25] When A claimant with a whole-body ry results in a claimant receiving previ is entitled to receive a total ous award and a of 280 weeks. See N.D.C.C. 65- impairment award that are both based on 05-12.2(10). whole-body impairment percentages, de

[¶ 24] Rather than adopt ducting a con award from the subse struction of N.D.C.C. quent award under N.D.C.C.

731 is 12.2(7) simply percentage, process employed. the same generally involve sub- will that tracting way only, the number of weeks were if on By of illustration remand prior whole-body the actually for awarded finds the Bureau that Shiek’s combined By way example, impairment. assume whole-body impairment rating of after his per- a 16 is to have a worker determined right percent is 56 as knee evaluation her whole-body impairment for cent contends, the Shiek total number of weeks whole-body impair- percent a 17 leg and Shiek would be entitled to receive is 380. arm, for her left for a combined 65-05-12.2(10). § See From this N.D.C.C. per- 30 whole-body rating of impairment weeks, “deduct, 380 the must on a (Combined Guides, at 322 See cent. AMA basis, impairment an body whole from Chart). § 65-05- Under N.D.C.C. Values section, impairment award for under this 12.2(10), therefore, would worker be previous any impairment award for that If 50 the worker sub- awarded weeks. body or part same member under to 18 have an sequently determined compensation juris- of any workers’ laws her whole-body impairment for left cent 65-05-12.2(7). .§ diction.” See N.D.C.C. would impairment 18 be leg, percent in previous example, As the “member whole-body prior combined with body part” or would be Shiek’s issue single for a combined whole- pairments subsequent body because his award impairment rating percent. 43 body See impairment not be based on an would (Combined Guides, at 322 Values AMA any particular body but on the com- part, Chart). 65-05-12.2(10), § Under N.D.C.C. subsequent of his prior bined value whole-body corre- impairment a 43 impairments. The Shiek has al- awards sponds an award 180 weeks. From ready impairments for includ- received “deduct, weeks, must 180 the Bureau this whole-body in impairment ed his combined basis, from body impairment on a whole an rating of 244.80 his are awards weeks for section, under this impairment award prior impairments and 40 weeks for previous impairment any award body under part at issue this case. right-leg same member any juris- Thus, laws of compensation already workers’ has Shiek been awarded 65-05-12.2(7). N.D.C.C. diction.” See whole-body impair- 284.80 weeks his body part” “member or at issue this Therefore, ment. if Shiek’s combined body example is the worker’s whole be- 56 impairment percentage is subsequent her award was based not cause contends, 284.80 percent as Shiek then body particular on an weeks, from weeks would be deducted all but on the combined value of her part, an and Shiek would be awarded additional body. The impairments pre- to her whole 95.2 weeks. vious this argues once the all worker received number Bureau determines the of weeks her whole was weeks. his combined whole- corresponds to 50 weeks under N.D.C.C. weeks, percentage, it from should be would deducted actually be the worker would awarded addition- deduct the number of weeks he al 130 weeks. impairments, but prior received for all listed number weeks When, case, compensa- in as corresponds which injuries receiving a claimant ble result impairment percent combined injuries impairment award based right-leg to his age as it existed parts, and a to scheduled evaluation, along with the 40 weeks Shiek award based on abeady received for right-leg impab- his IV calculations, According ment. to Shiek’s We reverse the decision of the whole-body impairment rating prior his district court and remand to the Bureau right-leg percent evaluation was 37.38 for further proceedings consistent with and his combined remand, opinion. this On the Bureau is to rating right-leg after the evaluation would single determine a combined percent. be 56 Shiek contends that 37.38 impabment percentage for all of Shiek’s percent corresponds to 123.8 weeks under impairments and the number of weeks that 65-05-12.2(10) § N.D.C.C. and 56 corresponds percentage under Thus, corresponds to 380 weeks. Shiek 65-05-12.2(10). § N.D.C.C. The Bureau is concludes that his additional award is to then deduct the 244.80 weeks and the 40 equal weeks, to 380 weeks minus 163.8 previously weeks were awarded to 216.2 weeks. Shiek. The result will be the additional number of weeks to which Shiek is entitled agree [¶ 28] We do not with Shiek’s 65-05-12.2(10). § under N.D.C.C. 65-05-12.2(7). interpretation § of N.D.C.C. earlier, As § discussed N.D.C.C. 65-05- WALLE, C.J., [¶ 30] VANDE 12.2(7)requbes previous the deduction of a NEUMANN, JJ., concur. impabment “award” from a KAPSNER, Justice, new impabment dissenting. “award.” the amount of the deduction I respectfully dissent. 65-05-12.2(7) under N.D.C.C. is not de- opinion [¶ 32] The majority by termined the amount previous of the reaches result that logical would be if the impairment percentage, but the actual legislature requbed However, had it. it amount previous award. The total only reaches this result by the most award previously Shiek received for all his strained interpretation of the statute. weeks, impairments was 284.80 not 163.8 (1999), N.D.C.C. requbes: To deduct 163.8 weeks from 380 weeks.. deduct, The bureau shall on a whole weeks would result in receiving body impairment basis, from an award additional award of 216.2 weeks and a total section, under this award for prior both his and subsequent previous impairment award for (216.2 impairments of 501 weeks + same member or part under the 284.80=501). Thus, if Shiek’s prior compensation workers’ any juris- laws of pairment awards were deducted diction. manner suggests, he he would end up re- majority’s The result depends upon in- ceiving 121 more weeks than the total terpretation that this section pro- does not number of weeks that corresponds to the hibit the result it imposes and uses that combined value of all impairments prohibition lack of to create a mandate. (501-380=121). earlier, As discussed majority also language strains the whole, when read as a the statute when it holds that the language prohibits 12.2 such a by requbng result “that same member or part” actually the total permanent impabment means the body. It is a strain the given to workers with both plain language of the simply statute won’t and subsequent impairments must corre- support. spond to the combined value of all the (7) on a quoted [¶ 33] The above subsection

whole-body impairment basis. is the subsection dbectly which addresses compen- under the workers present body part a or awards with combining prior jurisdiction.” Id. The laws of right to Shiek’s sation pertain It not award. does weight convert- of the evidence has es- require greater not award and does knee no body parts to that had received for other be tablished Shiek ing prior awards knee. right award to the PPI for his knee. previous with the combined lied section ry combining prior Subsection percentage accordance award must [¶ upon causes 34] Neither (10) by the (10) with [the of N.D.C.C. be determined does awards with majority directly relate subsection require “[i]f statutory schedule] impairment, 65-05-12.2 based on the later awards. (6) nor sub- the inju- the re- in right knee. language nent before applicable to Shiek’s or body part requires partial awarding benefits for Section Section impairment benefits for There is to a “whole the conversion of not award. previously 65-05-12.2[7] 65-05-12.2[7] nothing award of body” basis the a member within all perma- subject or is not ^[10] the isolation but evaluated as pairment right knee intent inconsistent with requires tem switching to a whole Bureau same claimant Legislative [¶35] [¶ be 36] relying regarding successive does not 1995, majority this result and subsection Although the Shiek’s awards analyze injury. Assembly amended N.D.C.C. challenges the failure of the a whole was challenge such an in the right knee all combination However, expressed prior permanent legislative body impairment. majority purports approach. ¶21, the awards to the required set- injury analysis no statute when legislative intent with (7) is sys- was the in version of all within the ter of This manent not “whole Amended Order previously 12.2[7] Partial efits award. ary right knee and applicable hearing undersigned for a law, that body” basis before Impairment or partial impairment As ^[10] language such, it member should officer subject to Shiek’s which Section Awarding Permanent Benefits be affirmed. concludes, is of Section impairments to a requires of an the conclusion of there 65-05-12.2[7] body part award of the Bureau’s awarding ben- benefits for dated Janu- is as mat- the con- nothing 65-05- is affirmed, not- court awards The district against awards current past off of of the stat- body part.” interpretation ing the “same member or that Shiek’s ma- ute, adopted by the partially which and the tri- I the Bureau believe and the was not rational jority opinion, § 65-05- were correct. N.D.C.C. al court by the supportable interpretation was not to con- require the Bureau 12.2 does not the statute. language of body impair- awards to whole past vert require the interpretation would Shiek’s are not past awards ment basis when every injury old to add The conclusions body part. for the same qualified for every single person who ALJ, by the adopted were which If injury. based on new Bureau, PPI award provide: such a had intended legislature In accordance with Section explic- scheme, written an it should have N.D.C.C., 12.2[7], ordinary plain setting process. out that it statute Bu- requires statute language of the body impair- “on a whole simple phrase “any previous to deduct reau to create is not sufficient ment basis” only the same member award” “for process complicated Shiek advo- Shiek’s combined whole-body impairment interpretation rating. cates. Shiek’s is not ra- Such are to issues be determined tional; this statute is not am- therefore Bureau on remand. Resources, Inc., biguous. Gas Western petition rehearing, (stating at 872 that a statute N.W.2d pointed also out a mathematical susceptible if it ambiguous is to differ- error one of the orders of the interpretations). ent rational Bureau awarding impair- Because I believe the Bureau ment benefits. If the Bureau’s order is incorrect, correctly

and the trial court have inter- the Bureau should correct statute, I affirm preted the would the deci- petition order remand. The for re- court. I hearing sion of the district is denied.

dissent. WALLE,

[¶ 43] GERALD VANDE W. SANDSTROM, J., C.J., NEUMANN, J., concurs. WILLIAM A. . concur. MARING, Justice, on petition for re- grant would petition [¶ 44] We hearing. rehearing. petition The Bureau filed rehearing, arguing the AMA Guides do not KAPSNER, CAROL RONNING DALE permit the conversion and combination of SANDSTROM, JJ., V. concur. some of Shieks subsequent permanent ments with his

pairment. arguments raised petition

Bureau in its rehearing ad- concerning process dress issues ap- plying the AMA perma- Guides to Shiek’s

nent in order to determine

Case Details

Case Name: Shiek v. North Dakota Workers Compensation Bureau

Court Name: North Dakota Supreme Court

Date Published: May 14, 2002

Citation: 643 N.W.2d 721

Docket Number: 20010319

Court Abbreviation: N.D.