dissenting.
[¶ 19] Workforce Safety & Insurance correctly interpreted the law, and its findings, under our standard of review, are supported by the evidence. I therefore respectfully dissent.
*283[¶ 20] Under N.D.C.C. § 28-32-42(4), the appealing party must specify the error or errors that are the issue on appeal. Dutton specified the issue:
The sole issue on appeal is whether Dutton is entitled to an evaluation for her chronic, unrelenting, and disabling pain under Chapter 18 of the AMA Guides to the Evaluation of Permanent Impairment (5th Edition). ALJ Thomas erred as a matter of law in adopting the unsubstantiated opinion of WSI’s hand-picked impairment evaluator, Robert Cooper, MD, that Ms. Dutton was not entitled to a chronic pain evaluation.
[¶ 21] Generally, there is no restriction on agency personnel testifying before an administrative proceeding. See N.D.C.C. § 28-32-24. There is a statutory restriction requiring that a permanent impairment evaluation be conducted by an independent evaluator:
If there is a medical dispute regarding the percentage of an injured employee’s permanent impairment, all relevant medical evidence must be submitted to an independent doctor who has not treated the employee and who has not been consulted by the organization in relation to the injury upon which the impairment is based.
N.D.C.C. § 65-05-12.2(12).
[¶ 22] Cooper had conducted a formal impairment evaluation before he was hired by WSI. He met the independent status at the time he conducted the evaluation. His subsequent letter testimony as to whether or not another evaluation was required was not prohibited by the statute. His testimony was competent and admissible.
[¶ 23] Put another way, Cooper’s subsequent employment did not retroactively negate his prior independent-evaluator status. And Cooper’s prior independent-evaluator status did not negate his otherwise competent, admissible, subsequent letter testimony.
[¶ 24] The findings, conclusion and order are properly supported. As the district court explained in its well-reasoned review of this case:
Further, the mere fact that WSI hired Dr. Cooper prior to his letter testimony of January 13, 2006, does not require WSI’s order be reversed. When Dr. Cooper saw and evaluated Dutton, he was not employed by WSI. When Dr. Cooper provided his initial opinion and diagnosis of Dutton, he was not employed by WSI. It is true Dr. Cooper was hired by WSI prior to his letter testimony of January 2006. However, that testimony was simply in the nature of clarification and amplification of Dr. Cooper’s earlier evaluation and testimony. Dr. Cooper did not evaluate Dutton while he was employed at WSI. Nor did Dr. Cooper provide some entirely new testimony unrelated to or inconsistent with his prior evaluation of Dutton. In his January 13, 2006, letter testimony Dr. Cooper testified only as to matters which predated his employment with WSI. Finally, Dutton herself requested additional testimony from Dr. Cooper (through her May 5, 2005, letter). She cannot now complain he provided such testimony. The mere fact that Dr. Cooper was hired by WSI after his evaluation of Dutton does not require ALJ Thomas’ recommendation and WSI’s order, be subject to reversal.
Dutton has not established any error on the part of WSI and/or ALJ Thomas in the administrative proceedings below.
[¶ 25] I would affirm.
[¶ 26] Dale V. Sandstrom