dissenting.
[¶ 23] The construction the majority places on N.D.C.C. § 65-05-28(4) is that only an intentional obstruction of the FCE results in the suspension of the right to claim compensation but that an unreasonable refusal to participate in the examination does not, although an unreasonable refusal to participate in treatment would suspend the right to claim compensation.
[¶ 24] The majority clings to the Administrative Law Judge’s statement that “Claimant’s performance in the FCE is not intentional obstruction of the FCE.” However the ALJ went on to state “it is, however, a refusal to reasonably participate in FCE.” Identifying a difference between “intentionally obstructs” and “refuses reasonably to participate in treatment,” the majority opinion concludes the Bureau, relying on the ALJ, applied the wrong standard because the FCE is an “examination” rather than medical “treatment.” I do not so easily set aside the ALJ’s findings. Rather, I read the ALJ’s statements as a generous and compassionate attempt to indicate to Ali what was required of her under the law. I gather that from the ALJ’s findings 12 and 13 as follows:
12. The Claimant’s performance in the FCE is not intentional obstruction of the FCE; it is, however, a refusal to reasonably participate in FCE. Her inability to reasonably participate was due to real or imagined pain; she attempted to comply with the FCE test requirements but self-limited her performance due to. pain. The Bureau suggests that it is imagined citing the inconsistencies of the Claimant’s performance in the FCE’s. All through the medical records there are questions raised about the cause of the Claimant’s complaints and whether it is a factitious process. However, one of the final diagnoses from the Mayo Clinic is Chronic Pain Disorder and all three of the physical therapists who conducted the FCE’s recommended a pain program. The Claimant’s complaints about pain require attention of some kind if only to determine there is a physiological basis for it.
13. Although language did not affect the Claimant’s performance of the FCE, culture may have. Through the Claimant’s attorney or otherwise, the Bureau should explain to the Claimant its responsibilities to the Claimant, the questions raised in the record of this hearing and elsewhere about the Claimant’s complaints, the purpose served by the importance of the FCE, and what happens when a successful FCE is accomplished.
Consideration should be given for a pain program and then the Claimant should be permitted another chance to successfully complete a FCE.1
[¶ 25] The majority’s fine parsings of the statutory language were unknown to the ALJ. In fact, they were not argued by Ali. Rather, on appeal to this Court, Ali’s counsel phrased the issues as:
I.
Whether the Bureau’s Conclusion of Law that Ali refused reasonably to partici*120pate in medical treatment is supported by the Bureau’s findings?
II.
Whether the Bureau acted in an imper-missably adversarial manner when it failed to address the unrefuted evidence that Ali should have treatment for chronic pain prior to undergoing additional Functional Capacity Evaluations (“FCEs”)?
III.
Whether the preponderance of the evidence establishes that Ali’s ability to perform adequately in the FCEs was limited by her chronic pain and, therefore, that she did reasonably participate in medical treatment as required by N.D.C.C. § 65-05-28(4)?
Thus, Ali also seems to rely on the “refused reasonably” standard and argues that her failure to fully participate was not unreasonable.
[If 26] I believe the correct reading of the statute is to deny compensation to a claimant who unreasonably refuses to participate in the FCE. The Bureau, adopting the ALJ’s recommended findings, found AJi did reasonably refuse to participate. Therefore Theige v. North Dakota Workers Comp. Bureau, 1997 ND 160, 567 N.W.2d 334 is indistinguishable. I would affirm.
[¶ 27] SANDSTROM, J., concurs.. The Bureau adopted the ALJ's recommended finding in total including an order for another FCE after Ali participated in a pain program.
This never happened as Ali took an immediate appeal to the district court.