dissenting.
[¶ 23] I respectfully dissent because the WSI’s conclusions of law and order are not supported by its findings of fact and it does not sufficiently explain its rationale for not adopting recommended findings of fact and conclusions of law of the administrative law judge. See N.D.C.C. § 28-32-46(6), (8).
[¶ 24] It is undisputed that Baity suffered a work related injury to her low back on November 6, 1990, and began receiving temporary total disability benefits on December 4, 1990. On June 2, 1995, the claims analyst completed a review of Baity’s claim and concluded: “Sedentary work with no sitting for more than 10 minutes at a time. Can stand 10-15 minutes and walk no more than 15 min. at a time. Released to work 3-4 hours per day. Not a retraining candidate.” A cyclic benefit review was completed in September 1998 by a claims analyst, who recommended continued temporary total disability benefits because “cla has 3-4 hr release only. Cla not a chronic pain candidate. Cla not RHB candidate & no retraining. Cla is not going to rtn.” Baity was continued on temporary total disability benefits.
[¶ 25] On September 7, 1998, WSI instituted a procedure for review of all claims where the injured worker may be eligible for receipt of supplementary benefits. Under that procedure, Baity’s claim should have been reviewed ten years after her date of injury, which would have been in November 2000. This did not occur, however.
*721[¶ 26] On May 15, 2001, the WSI notepad reflects that an analyst would be reviewing Baity’s claim for additional cyclic benefits because it did not appear Baity’s condition was improving.
[¶ 27] Baity would have been first eligible for supplemental benefits July 1, 2001, which was when her weekly compensation was less than 60 percent of the state’s average weekly wage. No supplemental benefit review of Baity’s claim was completed, however, between 1998 and 2002.
[¶ 28] WSI expressly adopted numbers 14, 15, 16, 17, 18, 19, 20, 21 and 22 of the administrative law judge’s recommended Findings of Fact. Those findings are:
14. On May 25, 2001, Baity followed up with her treating physician, Dr. Koshnick. Baity had low back pain and had been taking Daypro. Dr. Koshnick switched Baity’s prescription to Naprosyn and advised Baity to follow up in five months.
15. Dr. Koshnick in a Dakota Clinic Work Injury Report dated May 25, 2001, concluded that Baity was unable to work. In a second Dakota Clinic Work Injury Report dated January 28, 2002[,] Dr. Koshnick concluded that Baity had been unable to work since October 22, 2000.
16. On October 10, 2001, Baity followed up with Dr. Koshnick. Dr. Kosh-nick noted Baity had an acute episode of back pain about two or three years ago and that Baity reported her fear of the possibility of this recurring again. Dr. Koshnick indicated that clinically, Baity’s condition had not changed. Dr. Koshnick assessed Baity as having a history of herniated disc status post operative repair; question of failed disc syndrome; chronic low back pain. Dr. Koshnick offered physical therapy and exercises but Baity was not interested. Dr. Koshnick advised Baity to recheck every six months.
17. In a letter dated December 18, 2001, WSI asked Dr. Koshnick whether Baity was able to undergo a strengthening program followed by a Functional Capacities Assessment (FCA); and whether there was any objective medical evidence preventing Baity from participating in vocational planning. On December 27, 2001, Dr. Koshnick provided responses indicating Baity was diagnosed as having lumbago and her current treatment plan was to continue with nonsteroidals. Dr. Koshnick indicated “yes” Baity may undergo a strengthening program and an FCA; and “no” there is no medical evidence to prevent Baity from participating in vocational planning.
18. On February 5, 2002, Baity underwent an FCA at MeritCare Occupational Health. The occupational therapist, Mr. Bryce Nelson (“Nelson”) determined in his report that the FCA was an invalid representation of Baity’s present physical capabilities based on consistencies and inconsistencies when interfacing grip dynamometer graphing, resistance dynamometer graphing, pulse variations, weights achieved, and selectivity of pain reports and pain behaviors.
19. On March 14, 2002, Baity underwent a second FCA at Healthsouth. Isometric strength testing revealed consistency of effort on 13 out of 13 tests. Functional testing revealed that Baity was lifting in the light category of work, as demonstrated by an occasional floor to knuckle *722lift of 15 pounds, knuckle to shoulder lift of 20 pounds, and shoulder to overhead lift of 20 pounds, and carrying of 20 pounds for 100 feet with pivoting. During positional tolerance testing, Baity demonstrated tolerance of static sitting, static standing, stair climbing, sustained bending, repetitive bending, overhead, forward and repetitive reaching, crouching; squatting, crawling, and kneeling on an occasional basis; and walking, pivot twisting, and push-pulling on a frequent basis. Baity would require adaptations to allow for frequent changes of position. Baity’s maximum ability for sitting was 5 to 12 minutes, standing was 3 to 10 minutes, and walking was 12 minutes.
20. In a note dated March 25, 2002, Dr. Koshniek indicated he basically agreed with the results of the second FCA.
21. On April 8, 2002, Dr. Koshniek completed a Dakota Clinic Work Injury Report indicating Baity was released to return to work within the restrictions of the FCA. Additionally, Dr. Koshniek restricted Baity to no lifting/carrying greater than 20 pounds and only for an hour or two. Dr. Koshniek restricted Baity’s daily work hours to four hours per day.
22. In a letter dated April 9, 2002, Dr. Koshniek indicated Baity’s maximum work capacity would be 16 to 20 hours per week on an initial trial basis. Dr. Koshniek indicated these work hours should only be increased as tolerated, and should be attempted on a trial basis only.
These findings establish that as of April 9, 2002, Baity’s work restrictions were nearly identical to the work restrictions noted by the claims analyst on June 2, 1995, which were — not sitting for more than 10 minutes at a time, standing 10-15 minutes, walking no more than 15 minutes at a time and released to work 3-4 hours per day. Although Baity’s medical condition and work conditions clearly had not changed, WSI sought an opinion whether Baity could work an eight-hour day. The response from the occupational therapist was that Baity could only initially work three to four hours a day and gradually increase as tolerated. WSI then concluded there were no viable rehabilitation options and declared Baity permanently and totally disabled on September 11, 2002, and eligible to receive supplemental benefits beginning only that day.
[¶ 29] The findings of the WSI can lead to only one conclusion: that Baity is permanently and totally disabled now and has been since at least 1995. There is no evidence in the record and WSI made no findings to support the idea that Baity can be vocationally rehabilitated. She has the same release to work of 3-4 hours per day now that she had in 1995. Nothing ever changed with regard to her impairment, age, education, work history, or vocational skills. In fact, WSI does not dispute that Baity was unable to work from 1995 to 2002.
[¶ 30] All of the evidence establishes that had Baity been reviewed on July 1, 2001, she would have been eligible for permanent total disability benefits on that date. It also establishes that she has been eligible for permanent total disability benefits from that date to the present.
[¶ 31] In Shiek v. North Dakota Workers Comp. Bureau, 2001 ND 166, ¶ 26, 634 N.W.2d 493, our Court said:
The Workers’ Compensation Act is remedial legislation, and we construe it to afford relief and avoid forfeiture with the view of extending its benefits to all *723who fairly can be brought within its provisions.
(Citation omitted.) We have also said “[although the claimant has the burden of proving the right to ... benefits, the Bureau must not place itself in a position fully adversary to the claimant.” Frohlich v. North Dakota Workers Comp. Bureau, 556 N.W.2d 297, 301 (N.D.1996).
[¶ 32] In order to be eligible to receive permanent total disability benefits, a claimant must be permanently and totally disabled. The majority cites to the current definition of permanent total disability. However, our Court has said that “[u]nless otherwise provided, statutes in effect on the date of an injury govern workers compensation benefits.” Snyder v. North Dakota Workers Comp. Bureau, 2001 ND 38, ¶ 9, 622 N.W.2d 712 (citations omitted). In 1989, the term “permanent total disability” was not defined in N.D.C.C. § 65-01-02. The term “disability” was defined in N.D.C.C. § 65-01-02(11) as follows:
“Disability” means that period of time an employee is totally or partially incapacitated from:
a. Performing employment at any suitable gainful employment or occupation for which the employee is reasonably suited by experience or training;
b. Earning in the same or any other employment the wages the employee was receiving at the time of injury.
In 1991, the legislature added the term “permanent total disability” to the definition of the term “disability.” The 1991 version, then enacted under N.D.C.C. § 65-01-02(12), reads as follows:
“Disability” means loss of earnings capacity and may be permanent total, temporary total, or partial,
a. Permanent total disability is permanent in nature and total in character, and is paid to an employee who is not capable of rehabilitation of earnings capacity, which depend upon the following factors:
(1) Nature of injury;
(2) Degree of physical impairment;
(3) Age;
(4) Education;
(5) Work History; and
(6) Vocational rehabilitation potential.
[¶ 33] The current Act authorizes permanent total disability benefits during such disability. N.D.C.C. § 65-05-09. Under N.D.C.C. § 65-05-08, “[i]f the period of disability is five consecutive calendar days’ duration or longer, benefits must be paid for the period of disability ...” (Emphasis added.) This means.the benefits are paid beginning on the date the evidence establishes the disability. See Shiek v. North Dakota Workers Comp. Bureau, 1998 ND 139, 582 N.W.2d 639 (an employee who becomes permanently and totally disabled on or before the employee’s retirement date is entitled to permanent total disability benefits and has not voluntarily retired).
[¶ 34] Baity has been continuously receiving temporary total disability benefits during her period of disability rather than permanent total disability benefits. Temporary total disability is total in character, but temporary in nature because the claimant’s medical condition is expected to improve. Once the claimant has reached maximum medical recovery, her physical and vocational limitations will determine whether she is permanently totally disabled. Frohlich, 556 N.W.2d at 301. “In reaching a determination of permanent total disability, consideration must be given to the type of work being done at the time of the accident, the nature and extent of the injury, and the age, experience, train*724ing, and capabilities of the employee. These factors specifically embrace the earning ability of a claimant.” Buechler v. North Dakota Workmen’s Comp. Bureau, 222 N.W.2d 858, 861 (N.D.1974) (citation omitted). “Total disability exists when a worker is unable, solely because of a job related injury, to perform or obtain any substantial amount of labor in that particular line of work, or in any other for which the worker would be fitted.” Bruns v. North Dakota Workers Comp. Bureau, 1999 ND 116, ¶ 28, 595 N.W.2d 298 (citation omitted).
[¶ 85] A benefit recipient’s status may change over time. See N.D.C.C. § 65-05-04. WSI can review at any time whether a recipient continues to be disabled. Id.; N.D.C.C. § 65-05-08(3).
[¶ 36] In the instant case, although a claims analyst questioned whether things had changed for Baity so that she could return to work, ultimately WSI concluded Baity is not only temporarily totally disabled, but is permanently totally disabled. To decide, however, that the date on which she is entitled to receive permanent total disability benefits is the date of WSI’s decision and not the date the evidence establishes Baity is permanently totally disabled ignores our statutes and case law on awarding permanent total disability benefits. The evidence only supports a conclusion that Baity was entitled to be receiving permanent total disability benefits on July 1, 2001.
[¶ 37] Under N.D.C.C. § 65-05.2-01, a claimant “who is receiving permanent total disability benefits, ... and who has been receiving disability ... for a period of [ten] consecutive years is eligible for supplementary benefits.” Therefore, because Baity was entitled to be receiving permanent total disability benefits on July 1, 2001, she is eligible for supplementary benefits as of July 1, 2001. The majority’s reading of the statute is not reasonable. It is also inconsistent with WSI’s own conclusion that Baity is eligible for supplementary benefits as of September 11, 2002, which is the date of its decision Baity is permanently and totally disabled and, therefore, the date she is “receiving” permanent total disability benefits.
[¶ 38] The legislative history of ch. 65-05.2 indicates it was enacted to provide a cost of living adjustment through increased benefits for injured workers who were permanently totally disabled beginning in 1979. See Testimony of Representative Royden D. Rued before the House on January 29, 1979. The purpose of the law, therefore, is to provide sufficient benefits essential to an injured worker’s survival. The majority’s interpretation of the statute, N.D.C.C. § 65-05.2-01, is not in keeping with the legislative intent nor is it consistent with our Court’s longstanding interpretation of determining when a claimant is permanently totally disabled and entitled to receive permanent total disability benefits. To interpret the statute as the majority does, penalizes the injured worker, whom the legislature intended to benefit, for a faulty process that delayed review of the claim.
[¶ 39] Therefore, I respectfully dissent and would reverse the decision of WSI and the district court and conclude, as a matter of law, the date of eligibility to receive permanent total disability benefits is dependent on the date the evidence establishes the permanent total disability of the claimant. Accordingly, I would direct WSI to enter an order declaring Baity entitled to supplementary benefits as of July 1, 2001.
[¶ 40] MARY MUEHLEN MARING, J.