concurring.
I concur in most of the majority opinion and in the result. I hesitate over use of a dictum to declare that claimant failed to prove continuing entitlement to disability benefits.
The dictum repeated in the majority opinion should be more carefully considered. In Gramling v. North Dakota Workmen’s Compensation Bureau, 303 N.W.2d 323, 329 (N.D.1981), the opinion for this court rejected an argument that the “burden was upon the Bureau to prove that [the claimant] was a malingerer,” saying that “the burden is upon the claimant to prove that he is entitled to benefits.” We have recently begun citing Gramling for a broader statement:
“If the Bureau terminates benefits, after initially accepting a claim and paying benefits, the claimant has the burden of proving his or her right to continue receiving benefits.”
Hayes v. North Dakota Workers Compensation Bureau, 425 N.W.2d 356, 357 (N.D.1988). Similarly, Howes v. Workers Compensation Bureau, 429 N.W.2d 730, 733 (N.D.1988); Hayden v. North Dakota Workers Compensation Bureau, 447 N.W.2d 489 (1989); and now this majority opinion each reiterate the broad assertion. Unfortunately, none of these decisions have carefully looked at the role of the burden of proof in ending benefits.
That issue was not involved in Graml-ing, supra, because he was seeking reinstatement of disability after having returned to work for awhile. Like an initial claimant, Gramling had the burden of persuading the Bureau that his disability had returned. Thus, our Gramling decision did not study the proper placement of the burden of proof for ending benefits. So also, our following statements have been dicta, neither dictated by the facts of the cases decided nor derived from adversary presentations.
A prime function of the burden of proof is to fairly allocate the risk of nonpersuasion. 9 Wigmore, Evidence § 2485 (Chad-bourn rev. 1981). See Sunderland v. North Dakota Workmen’s Compensation Bureau, 370 N.W.2d 549, 552 (N.D.1985). When a workers compensation claimant has established disability, the universal rule is that the risk of nonpersuasion to end benefits should be on the employer and the Bureau. “The burden of proof of showing a change in condition is normally on the party, whether claimant or employer, asserting the change, although, in some cases, the burden may shift to the other party once the movant has established his case.” 3 Larson’s Worker’s Compensation Law, § 81.33(c) (1989) (footnotes omitted). The burden of proof is similarly applied for ending other forms of disability benefits. 70A Am.Jur.2d Social Security and Medicare § 690 (1987). There is a need to safeguard against the risk of erroneous deprivation of continuing benefits. See Beckler v. North Dakota Workers Compensation Bureau, 418 N.W.2d 770 (N.D.1988). Since the claimant has proven his entitlement to benefits, it is the Bureau that should be expected to prove a change of condition to reopen an award.
But, the subject of the burden of proof was not argued in this case. It has not been fully developed and argued to this court in any case. Nevertheless, there is reason aplenty to place the burden of persuasion for ending benefits upon the Bureau, not the claimant. Therefore, we should consider this subject more carefully when it is clearly and fully presented to us. Until then, I decline to join in those parts of the majority opinion which seem to say that the claimant failed in her proof. It is enough for me that this record supports the Bureau’s determination that Risch was *313capable of beginning work but improperly refused to try.