Otto v. Job Service North Dakota

VANDE WALLE, Justice,

concurring in the result.

I concur in the result. I write separately because I am concerned with that portion of the majority opinion which appears to indicate that Job Service must rely on the statement submitted by Otto’s doctor on October 28, 1983, some eight months after the actual operation. Under accepted principles of compensation law, Job Service was not obliged to accept the October 28 testimony of Otto’s doctor. Job Service may refuse to give credence to any witness’s testimony when it appears that there are matters which impair its accuracy and this may arise when the intrinsic character of the evidence or the extrinsic circumstances of the case cast suspicion upon the evidence. See Inglis v. North Dakota Workmen’s Comp. Bureau, 312 N.W.2d 318 (N.D.1981).

But in Claim of Bromley, 304 N.W.2d 412 (N.D.1981), which involved a claim for workmen’s compensation in which a medical record relied upon by the Workmen’s Compensation Bureau contained noticeable discrepancies, we stated, at page 417 of the reported case:

“If a report contains information directly supporting both denying and granting the claim and is not clarified by the Bureau, the discrepancies become critical when, as in this instance, the ‘maker’ of the inconsistent report is unavailable at the formal hearing to explain or clarify the discrepancies and the Bureau relies upon only one part of the report to deny the claim. This is especially true where all other reports, including the Bureau’s investigative report, either support or are reconcilable with the claimant’s statement and the claimant’s testimony at the formal hearing reflects a factual situation which, if true, would entitle him to benefits, and the claimant also presented medical testimony pointing out the deficiencies in the Bureau’s medical records.”

I believe the same rationale applies to Job Service.

The same doctor who prepared the March 15, 1983, physician’s statement to which Minn-Dak’s personnel manager testified also prepared the October 28, 1983, statement and the December 1, 1983, clarification. In this respect it appears to me that the March 15 statement, if it were as testified to by the personnel manager, would be a matter which would impair the accuracy or cast suspicion upon the later statements. Inglis, supra. However, it *554also appears to me that the doctor should have been directly asked about the contradiction between his March 15 and October 28 statements. Although Joan asked him for further information, which was given on December 1, 1983, I am not certain it removed all doubt about the March 15 statement. Nevertheless, in Bromley we cited with approval Hassler v. Weinberger, 502 F.2d 172 (7th Cir.1974), to the effect that an administrative agency may not select certain parts or rely upon a part or segment of a report, but must take into consideration the entire medical report or reports, including the history. Here, Job Service chose to believe testimony about a report not introduced into evidence without consideration of the remaining reports. Although I believe Job Service has the authority to do so if it believes the more recent reports were not accurate — for example, if it believes they were prepared solely for the purpose of assisting the claimant to obtain benefits and do not reflect the actual truth of the matter — I agree that in this case Job Service should not be able to do so without having requested a direct response as to the reason for what appears to be a discrepancy between the March 15 report and the October 28 report if, indeed, such a discrepancy existed.