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Lawrence v. North Dakota Workers Compensation Bureau3/23/2000
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 its decision violates the claimant's constitutional rights or deprives the claimant of a fair hearing. Vernon, at 8. Questions of law, including the interpretation of a statute, are fully reviewable on appeal from a decision by the Bureau. Lee v. North Dakota Workers Comp. Bur., 1998 ND 218, 5, 587 N.W.2d 423.
III.
[ ] The Bureau argues N.D.C.C. § 65-01-16(8) is not unconstitutional and does not violate due process.
[ ] Section 65-01-16(8), N.D.C.C., was enacted in 1997 for workers compensation claims filed after July 31, 1997, see 1997 N.D. Sess. Laws ch. 532, § 7, and provides:
The following procedures must be followed in claims for benefits, notwithstanding any provisions to the contrary in chapter 28-32:
Rehearings must be conducted as hearings under chapter 28-32 to the extent the provisions of that chapter do not conflict with this section. The bureau may arrange for the designation of hearing officers to conduct rehearings and issue recommended findings, conclusions, and orders. In reviewing recommended findings, conclusions, and orders, the bureau may consult with its legal counsel representing it in the proceeding.
[ ] In Scott v. North Dakota Workers Comp. Bur., 1998 ND 221, 587 N.W.2d 153, we considered an issue involving the Bureau's ex parte contacts with its outside litigation counsel about a pending ALJ recommendation for a claim filed before July 31, 1997. In Scott, at 8, 10, the Bureau's outside counsel consulted with its director of claims and rehabilitation, advised the director the ALJ's recommendation should be rejected, and drafted several versions of findings, conclusions, and orders for the director to review. All of those ex parte contacts were without the knowledge or participation of the claimant or his attorney, and the claimant received no notice or copies of the Bureau's outside counsel's proposed findings, conclusions and orders prior to issuance of the final order. Id. at 8.
[ ] We concluded the provisions of N.D.C.C. § 28-32-12.1(3) and (5) and N.D.C.C. § 28-32-17(4)(i) and (k) then in effect prohibited the Bureau's outside litigation counsel from making those ex parte contacts with the Bureau's director of claims and rehabilitation. Scott, 1998 ND 221, 9-10, 587 N.W.2d 153. We decided the clear intent of those statutes was to prohibit ex parte contacts between the decision maker and persons who participated in the hearing or otherwise had an interest in the case. Id. at 10. We concluded the Bureau's ex parte contacts with its outside counsel in that case clearly violated those statutory proscriptions. Id. We also concluded N.D.C.C. § 28-32- 12.1(2), which allows an agency head or hearing officer to communicate with and receive aid from staff assistants if those assistants do not furnish, augment, diminish, or modify the evidence in the record, was intended to ensure staff assistance is available for the decision maker and was not intended to supersede the protections afforded by the specific provisions of N.D.C.C. § 28-32-12.1, prohibiting ex parte communications from persons who participated in an administrative hearing. Scott, at 11.
[ ] In Scott, 1998 ND 221, 12, 587 N.W.2d 153, we warned the Bureau about the due process implications of these types of ex parte communications:
There are strong policy reasons for prohibiting ex parte communications between the attorney who represented the agency at an adversarial hearing and the agency decision maker. In Camero v. United St
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