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Zander v. Workforce Safety and Insurance12/19/2003
tive law judge.
On appeal from the district court's judgment, this Court reviews the agency order in the same manner as the district court under N.D.C.C. § 28-32-46. N.D.C.C. § 28-32-49; Grand Forks Prof'l Baseball, Inc. v. North Dakota Workers Comp. Bureau, 2002 ND 204, 8, 654 N.W.2d 426. We review the decision of the administrative agency, rather than that of the district court, although the district court's analysis is entitled to respect. Paul v. North Dakota Workers Comp. Bureau, 2002 ND 96, 6, 644 N.W.2d 884. Although the administrative construction of a statute by the agency administering the law is ordinarily entitled to some deference if that interpretation does not contradict clear and unambiguous statutory language, Hamich, Inc. v. State, 1997 ND 110, 13, 564 N.W.2d 640, questions of law, including the interpretation of a statute, are fully reviewable on appeal from an administrative decision. Grand Forks Prof'l Baseball, at 8.
III.
[ ] WSI determined that Zander's claim was presumed closed under N.D.C.C. § 65-05-35, which provides in part:
. A claim for benefits under this title is presumed closed if the organization has not paid any benefit or received a demand for payment of any benefit for a period of four years.
. A claim that is presumed closed may not be reopened for payment of any further benefits unless the presumption is rebutted by clear and convincing evidence that the work injury is the sole cause of the current symptoms.
It was undisputed that WSI had not paid any benefit or received a demand for payment of any benefit on Zander's claim between 1994 and 2001. Applying N.D.C.C. § 65-05-35, the ALJ and WSI determined that Zander had failed to show by clear and convincing evidence that his 1991 work injury was the sole cause of his current condition. Zander argues that the ALJ and WSI applied an erroneous legal standard in reaching that decision.
[ ] In concluding that Zander had failed to meet the clear and convincing evidence standard, the ALJ noted that WSI interpreted that standard to mean Zander had to prove with 100 per cent medical certainty that the work injury was the sole cause of his current medical condition: "The Bureau's position is that . . . the standard is clear that the medical evidence must be 100 percent clear and convincing that the work injury is the sole or only cause of the current symptoms." The ALJ concluded that "she must issue the recommended decision in this case in accordance with the Bureau's interpretation of the statute, that Zander's claim can only be reopened if he presents medical evidence that is one hundred percent clear and convincing the 1991 work injury is the sole and only cause of his current symptoms."
[ ] The ALJ's analysis of the evidence and findings of fact were based upon this 100 per cent certainty standard:
43. There is no way to prove with absolute certainty any of the followng : that Zander may have injured discs other than the L4-5 level back in 1991, to what extent the 1993 surgery that was necessitated by the work injury has contributed to the later back pain symptoms that appear to come from the L5-S1 level, to what extent Zander's continued work as a mechanic has contributed to his current problems, or whether his current problems and degenerative changes at the L5-S1 level are simply the result of aging. Testimony of Dr. Fyfe, Exhibit B44 at 30-33.
44. It was Dr. Fyfe's opinion, to a reasonable degree of medical certainty, that Zander's current problems are a result of the work injury and the 1993 surgery but he could not say with 100 percent certainty that all of the ongoing degeneration was due to the
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