Hoffman v. North Dakota Workers Compensation Bureau

SANDSTROM, Justice,

dissenting.

[¶ 25] I respectfully dissent. The majority wrongly concludes that prior to August 1, 2002, the Workers Compensation Bureau’s “failure to adequately explain its disregard of favorable medical evidence” automatically requires that this Court remand the case to the Bureau for further consideration. In addition, the majority’s application of the doctrine of legislative acquiescence is not consistent with the standard recently articulated by a majority of this Court in State ex rel. Clayburgh v. American West Community Promotions, Inc., 2002 ND 98, 645 N.W.2d 196.

I

[¶ 26] When reviewing an administrative agency’s factual findings, we determine only whether “a reasoning mind reasonably could have determined, -the findings were proven by the weight of the evidence from the entire record.” Flink v. N.D. Workers Compensation Bureau, 1998 ND 11, ¶ 9, 574 N.W.2d 784; see also Power Fuels, Inc. v. Elkin, 283 N.W.2d 214, 220 (1979). “In considering whether the Bureau’s findings of fact are supported by a preponderance of the evidence, we exercise restraint and do not make independent findings of fact or substitute our judgment for the Bureau’s determination.” Symington v. N.D. Workers Compensation Bureau, 545 N.W.2d 806, 808 (N.D.1996).

[¶ 27] Under N.D.C.C. § 28-32-19 (1991), the statutory authority in effect at the time of the Bureau’s order:

the court must affirm the order of the agency unless it shall find that any of the following are present:
1. The order is not in accordance with the law. •
2. The order is in violation of the constitutional rights of the appellant.
3. Provisions of this chapter have not been complied with in the proceedings before the agency.
4. The rules or procedure of the agency have not afforded the appellant a fair hearing.
5. The findings of fact made by the agency are not supported by a preponderance of the evidence.
6. The conclusions of law and order of the agency are not supported by its findings of fact.

[¶ 28] Here, rather than relying on the enumerated statutory provisions for modifying or reversing an agency’s order, the majority incorrectly concludes, at ¶ 19, that “[b]ecause the Bureau failed to give any explanation for its disregard of this evidence, the case must be remanded to the Bureau for reconsideration.” This basis relied on by the majority is not an enumerated ground under the statute in effect at the relevant time. The statute is exclusive and mandatory. The “court *610must affirm the order of the agency unless ” it finds one of the enumerated grounds is present.

[¶ 29] This Court is not permitted to create an additional method for modifying or reversing an agency’s order when a statute explicitly provides the means by which an agency decision may be overturned. Section 1-01-06, N.D.C.C., specifically provides: “In this state there is no common law in any case where the law is declared by the code.” The common law is the “body of law derived from judicial decisions, rather than from’ statutes or constitutions.” Black’s Law Dictionary 270 (7th ed.1999).

[¶ 30] If a particular statute is designed to cover the entire field to which it relates, it does so to the exclusion of the common law. In re White, 69 N.D. 61, 284 N.W. 357, 358-59 (1939). The statute in question is unambiguous, mandatory, and exclusive. Under N.D.C.C. § 28-32-19 (1991), this court must affirm, because none of the enumerated exceptions are present.

II

[¶ 31] The majority attempts to justify its conclusion and reliance on previous judicial error by invoking, at ¶ 18, the doctrine of legislative acquiescence. The doctrine of legislative acquiescence is a method of determining legislative intent. Clayburgh, 2002 ND 98, ¶ 50, 645 N.W.2d 196 (Sandstrom, J., dissenting). Legislative intent is used to clarify the meaning of a statute when its intent is not clear on its face; accordingly, when a statute is clear and unambiguous on its face, “it is improper for the courts to attempt to construe the provisions so as to legislate additional requirements or proscriptions which the words of the provisions do not themselves provide.” Haggard v. Meier, 368 N.W.2d 539, 541 (N.D.1985); see also N.D.C.C. § 1-02-05 (“When the wording of a statute is clear and free of all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.”). Section 28-32-19, N.D.C.C. (1991), is unambiguous. The majority has not asserted that N.D.C.C. § 28-32-19 is unclear or ambiguous. Also unambiguous is N.D.C.C. § 1-01-06: “In this state there is no common law in any case where the law is declared by the code.” The majority’s use of the doctrine of legislative acquiescence is improper when the statute in question is neither unclear nor ambiguous.

[¶ 32] In addition, the majority violates its own standards for ascertaining legislative acquiescence to the interpretations by other branches. The majority does not apply the recently redefined law of legislative acquiescence, as articulated in Clayburgh, 2002 ND 98, ¶¶ 11-12, 645 N.W.2d 196. In Clayburgh, a majority of this Court concluded the doctrine of legislative acquiescence did not apply to an administrative agency’s interpretation of a statute because the legislature’s attention had not been, specifically directed to the agency’s interpretation. Id. at ¶ 12. Here, the majority, at ¶ 18, cites our case law prior to Clayburgh, and concludes “[t]he Legislature’s failure to amend statutory language interpreted by the courts is evidence that the court’s interpretation accords with the legislative intent,” with no mention of whether the Legislature’s attention was specifically directed to the Court’s interpretation.

[¶ 33] The majority opinion’s disregard of the standard articulated in Clayburgh either limits the Clayburgh standard to instances when the doctrine of legislative acquiescence is applied to the executive branch’s interpretation of a statute, or signals a reluctance to reaffirm the standard. The former would create two separate doc*611trines of legislative acquiescence dependent upon whether the executive branch interprets a statute or whether the judicial branch interprets a statute — a distinction not supported by any meaningful discussion or authority. The latter result is preferable because it would restore our formulation of legislative acquiescence law prior to Clayburgh — the legislature is presumed to know the construction of its statutes by the executive and judicial branches, and the failure to amend the statute indicates legislative acquiescence in that construction. See, e.g., Western Nat’l Mut. Ins. Co. v. University of North Dakota, 2002 ND 63, 643 N.W.2d 4; Clarys v. Ford Motor Co., 1999 ND 72, 592 N.W.2d 573; Effertz v. N.D. Workers Compensation Bureau, 525 N.W.2d 691 (N.D.1994); Eklund v. Eklund, 538 N.W.2d 182 (N.D.1995); Capital Electric Coop., Inc. v. Public Service Comm’n, 534 N.W.2d 587 (N.D.1995).

[¶ 34] Because the relevant statutes are unambiguous, exclusive, and mandatory, legislative acquiescence does not apply under either the Clayburgh or the pre-Clayburgh standard. The majority’s failure to address Clayburgh is lacking in principle.

Ill

[¶ 35] Here, as in Horob v. N.D. Workers Compensation Bureau, 2000 ND 114, ¶ 20, 611 N.W.2d 875, there is evidence from which a reasoning mind could reasonably find that Hoffman did not have good cause for his failure to comply with his vocational rehabilitation. See id. The record reveals: (1) Hoffman had a previous instance of noncompliance without good cause; (2) Hoffman declined the assistance of a tutor; (3) Hoffman “did not give maximum, consistent effort” during a functional capacity evaluation; (4) Hoffman’s grade point average dropped below the required level; and, (5) Hoffman admitted he was “too burned out” with college, and computers were not an area of interest for him.

[¶ 36] Because, from this evidence, a reasoning mind reasonably could have determined the Bureau’s findings, that Hoffman did not have “good cause” for his noncompliance with his vocational rehabilitation plan, were proven by the weight of the evidence in the record, I would affirm the Bureau’s decision to terminate. Hoffman’s disability and vocational rehabilitation benefits.

[¶ 37] Dale V. Sandstrom