dissenting.
I respectfully dissent. When a claimant has once proven a compensable disability, the Bureau should bear the burden of proving a change of that condition before dis-. continuing disability benefits.
Kopp injured his left shoulder in May 1985 while employed by the Director of Institutions as a custodian. The Bureau accepted his claim, paid his medical expenses, and, after Kopp had surgery to repair a rotator cuff tear in January 1986, paid disability benefits. The Bureau discontinued disability benefits in February 1987 without notice or opportunity for hearing, although physicians reported that his arm still had “minimal active motion” and could not explain why.
After a good deal of hassle, the Bureau finally ruled, after a hearing in March 1988, that Kopp “failed to prove that he remains disabled.” On appeal, Kopp’s disability benefits were extended by the district court through March 10, 1988 to remedy due process violations. See Beckler v. North Dakota Workers Compensation Bureau, 418 N.W.2d 770 (N.D.1988); Forster v. North Dakota Workers Compensation Bureau, 447 N.W.2d 501 (N.D.1989). After remand by the district court, more evidence, and further consideration, on July 26, 1989 the Bureau issued another “Order Affirming Order Affirming Order Denying Further Benefits.” The Bureau again ruled that Kopp “failed to prove that he remains disabled” and “failed to prove that he is entitled to further benefits.”
Recently, in Perman v. North Dakota Workers Compensation Bureau, 458 N.W.2d 484 (N.D.1990), we left open the question of which party has the burden of proof when disability benefits are changed.
In Froysland v. North Dakota Workers Compensation Bureau, 432 N.W.2d 883 (N.D.1988), this court ruled in favor of a claimant by reversing to permit the claimant an opportunity to cross-examine the Bureau’s medical experts before termination of claimant’s disability benefits. In doing so, we said: “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.” Id. at 887. Which party had the burden of proof was not disputed in that case, nor was it disputed in this case. However, Professor Larson observes (1) that in some jurisdictions once a work-connected disability is established, there is a “presumption of continuance of that condition until the contrary is proved,” which shifts “the burden of proof to the employer to prove change of condition” [3 Larson’s Workmen’s Compensation Law § 80.33(d) (1989)]; and (2) that “[t]he burden of proof of showing a change in condition is normally on the party, whether claimant or employer, asserting the change” [Id., § 81.33(c) ]. No question about the burden of proof was appealed in this case.
458 N.W.2d at 486-87, n. 2. Today, the majority opinion views the question as having been answered, selects dicta from some past decisions, and declares, with little explanation, that “where the Bureau decides to terminate [disability] benefits after initially granting compensation, the burden will be upon the claimant to establish that he or she has a continuing right to receive [disability] benefits.”
I have reviewed our prior decisions touching on this subject before.
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 *141prove 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 Gramling, 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.
Risch v. North Dakota Workers Compensation Bureau, 447 N.W.2d 308, 312 (N.D.1989) (Meschke, Justice, concurring). I am satisfied that precedent did not fairly forecast today’s result.
This court has clearly held that “the moving party has the burden of going forward as well as the burden of persuasion in an administrative hearing.” Matter of Stone Creek Channel Improvements, 424 N.W.2d 894, 898 (N.D.1988). See also Kobilansky v. Liffrig, 358 N.W.2d 781, 790 (N.D.1984). A public agency stands on the same footing in this respect as a private party. Jones on Evidence § 5.6, p. 540 (1972). So here, as the moving party, the Bureau should bear the burden of proof.
Instead, today’s holding sanctions arbitrary action by the Bureau. If the Bureau notifies a claimant that disability benefits will be discontinued, the Bureau has no duty to develop evidence. Unless the claimant develops current medical evidence to support his disability, the Bureau need do nothing and can simply rule that the claimant “failed to prove that he remains disabled.” That allows arbitrary action.
In a case where the evidence is closely balanced, the Bureau will always discontinue benefits. Or, much as in this case, the Bureau can submit the same medical evidence to different physicians, time and again, until it finds a favorable opinion. The Bureau could terminate a finding of disability on a reappraisal of the earlier evidence. These examples illustrate the risk that misplacement of the burden of proof will permit erroneous results and deprive claimants of the sure and certain compensation that the act contemplates.
A decision on disability, once made, is entitled to evenhanded dependability. The Bureau is entitled to rely on the preclusive effect of a prior determination that a claimant is not disabled and may refuse to reconsider a renewed claim without proof of a change of condition. Olson v. North Dakota Workers Compensation Bureau, 453 N.W.2d 606 (N.D.1990). Absent fraud or other good cause, a prior determination that a claimant’s condition is disabling should have a similar preclusive effect to prevent discontinuance of benefits solely on a reappraisal of the prior evidence. See, for example, Rush v. Secretary of Health and Human Services, 738 F.2d 909, 914 (8th Cir.1984). This court has recognized the effect of res judicata to prevent repetitive attacks on administrative agency decisions and “to protect successful parties from unnecessary, duplicative proceedings which cause drains on the resources of both the parties and the judiciary.” Berdahl v. North Dakota State Personnel Board, 447 N.W.2d 300, 307 (N.D.1989). See also Westman v. Dessellier, 459 N.W.2d 545, 547 (N.D.1990). Since Kopp proved his disability, the Bureau should bear the burden of proving a change, that *142he is able to work, before discontinuing his disability benefits.
Elsewhere, it is well established that the burden is on the moving party to change continuing benefits in workers compensation cases, as the cavalcade of decisions from other states, acknowledged by the majority, demonstrates. 3 Larsons’s Workmen’s Compensation Law § 81.33(c). There is a presumption of continuance of a condition until the contrary is proved. Id. at 80.33(d).
A prime function of the burden of proof is to fairly allocate the risk of nonpersuasion. 9 Wigmore, Evidence § 2485 (Chadbourn 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 nonper-suasion 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.
Risch, 447 N.W.2d at 312 (Meschke, Justice, concurring). Of course, the Bureau has continuing power to review awards. NDCC 65-05-04. But, when it does, the claimant receiving benefits has proven disability and should not have to do so again. In fairness, a claimant receiving benefits should not be deprived of them without proof that the person is able to work.
The evidence in this case is disordered, not decisive. After surgery, Kopp had “minimal active motion” in his previously injured arm, although medical experts could not really explain why. The Bureau ruled repeatedly that Kopp “failed to prove that he remains disabled.” I would reverse and remand with directions that the Bureau carry the burden of proving that Kopp was able to work before discontinuing his benefits.