concurring and dissenting.
[¶26] I agree with the majority opinion through paragraph 14. I also agree with the forepart of paragraph 15 describing how the ALJ found Lindell furnished medical evidence establishing a medical basis for his disability.
[¶ 27] The ALJ also found Lindell had “never furnished the Bureau with medical verification that satisfies the statutory requirements at NDCC § 65-05-08.1.” I disagree with the ALJ’s and the majority’s crabbed application of the other statutory requirements and their conclusion Lindell did not satisfy them.
[¶ 28] I would reject TranSystems’ argument physician office notes can never be used to satisfy the statutory requirements. Recognizing the limited application of the adversarial concept in a workers compensation setting, we have often held the Bureau must consider the entire medical record in evaluating a claim for benefits. See, e.g., Flink v. North Dakota Workers Compensation Bureau, 1998 ND 11, ¶ 12, 574 N.W.2d 784. Excluding physician office notes from consideration, when submitted as part of a physician’s “report” under N.D.C.C. § 65-05-08.1(2) (1995), would severely elevate form over substance. I would conclude a physician’s “report” under the statute includes not only the physician’s formal correspondence with the Bureau, but also any submitted medical records referenced in the report. Here, the formal correspondence with the Bureau and attached medical records, when read together, fairly satisfied the statutory requirements for verification of disability.
[¶ 29] The report under N.D.C.C. § 65-05-08.1(2)(b) and (c) (1995) must include information relating to “[w]hether the employee is totally disabled, from any and all employment, or whether the employee is able to *526return to some employment, including light work or sedentary work,” and “[i]f the employee is not totally disabled, a statement of the employee’s restrictions and physical limitations.” This information was all evident in the medical reports: Lindell supplied the Bureau with Dr. MacLeod’s office notes of August 31,1995, reporting
the patient has been unable to use his right arm since we first saw him. Essentially he has been unable to work. I have suggested that he would have to, since we first saw him, avoid using the right arm at work but he could function with the left arm if employment could be found for his left arm. Depending on the findings of the MRI again [sic] will determine which direction we go.
In an office note of September 14, 1995, Dr. MacLeod further said “[w]e will keep [Lin-dell] going with his present job status of not working hard with the shoulder. He can do light duty but basically no overhead work and no repetitive work.” In an August 1996 letter, Dr. Kon-Hweii Lee, a neurologist, said, “[b]ecause of continuing pain, [Lindell] is not able to perform his job as a truck driver which requires using right hand to shift gears.”
[¶ 30] Dr. Lee concluded that Lindell suffered from “traumatic tendinitis or bursitis on right shoulder” from his January 1994 injury. A physical therapist who had worked with Lindell reported in October 1995:
The patient is demonstrating significant deficits in force production capabilities secondary to pain in the shoulder with the greatest differences noted for external rotation and adduction. Pain is a limiting factor making very objective strength determinations very difficult. The patient did appear to be giving a good consistency of effort through each testing speed and all motions.
Although these medical records do not say “disability,” they clearly say Lindell was unable to use his right arm and, in turn, clearly recognize Lindell can no longer drive a truck. They specifically stated Lindell was, in statutory language, “able to return to some employment, including light work,” though not his former job.
[¶ 31] The plain meaning of what was said was “disability.” The medical records relegated Lindell to only “light duty.” I would conclude the medical records submitted with medical reports adequately met the requirements of N.D.C.C. § 65 — 05—08.1(2)(b) and (c) (1995) and showed Lindell’s physical limitations and disability as a truck driver.
[¶32] The Bureau argues Lindell nevertheless failed to satisfy the disability verification requirements because there was no “professional opinion as to the expected length of, and reason for, the disability.” N.D.C.C. § 65 — 05—08.1(2)(d) (1995). The reason for the disability was established by Dr. Mac-Leod’s November 20, 1995 letter report to the Bureau:
Basically, I saw the patient for the first time on June 5, 1995. The patient at that time gave me the history that he injured his shoulder. I would have to go with the patient’s history that he injured it as he states.
Absent contrary evidence, this clearly gives the reason for Lindell’s disability. Although there was no detailed opinion about the expected length of Lindell’s disability by days, months or years, it was clear from the medical record that Dr. MacLeod was 'simply unable to give a precise opinion about when the disability would end.
[¶ 33] The reasons why were evident. Lin-dell was undergoing continuing treatment, but it was not improving his condition. Dr. MacLeod referred Lindell to a neurologist for his “persistent pain,” before undergoing the further option of surgery. The referral was prompted by the results of a surface EMG by a physical therapist showing Lin-dell’s “impingement syndrome on the right may be mechanical, with muscle dysfunction resulting in an inability to perform painfree [range of motion].” The physical therapist noted the evaluation “highlights include extremely low activity of the right intraspina-tus, initially, which quickly fatigued to almost no activity.” These records fairly show continued treatment of some type was needed and, until an effective remedy could be developed for Lindell, Dr. MacLeod would keep *527Lindell on his present status of “light duty” with no overhead or repetitive work.
[¶ 34] When a physician is unable to fix the length of disability because medical professionals have been unable to develop a treatment that is expected to be effective, and when maximum medical improvement is still problematic, I do not believe the Bureau can reasonably require the length of disability to be stated more exactly. Under these circumstances, the obvious import of the report that Lindell could not work until an effective treatment remedy was developed sufficiently satisfied the statutory need to verify the expected length of disability. While the Bureau can prescribe the form of the doctor’s report, it cannot prescribe impossible or unprofessional predictions.
[f 35] Moreover, the statute places “the onus ... on the Bureau to request medical certification of the duration of the claimant’s disability, and thereafter the claimant must ensure that the requested reports are filed.” Frohlich v. North Dakota Workers Compensation Bureau, 556 N.W.2d 297, 302 (N.D. 1996). Subdivision 1 of N.D.C.C. § 65-05-08.1 (1995) directs the claimant’s doctor to “certify the period of temporary total disability upon request of the bureau.” (My emphasis). A Bureau claims analyst wrote Dr. MacLeod asking him to “outline the expected disability period and return-to-work date” for Lindell. When Dr. MacLeod finally answered several months later, he ended his November 20, 1995 letter by saying, “I hope this provides you with the information that you need.” If the Bureau believed that report and the medical records submitted did not yet adequately apprise it of the extent of disability and the expected disability period, the Bureau had a duty to request clarification from Dr. MacLeod, and should have done so.
[¶36] To conclude as the ALJ did, that Lindell medically demonstrated his disability, but that he must lose all disability benefits because Lindell’s doctor failed to answer in a form the Bureau never prescribed or demanded, is unjust. Under these circumstances, I would conclude the Bureau misapplied N.D.C.C. § 65-05-08.1 (1995) and could not have reasonably determined from the evidence in the record that Lindell failed to establish all of the statutorily required disability verification.
[¶ 37] In this appeal, Lindell sought disability benefits effective June 12, 1995, when he first requested those benefits. Because Lindell has not here sought benefits for the time before June 12, 1995, when his family was eligible for AFDC and Medicaid benefits, I agree with the majority, although for different reasons, we need not decide whether the Bureau erred in ruling Lindell voluntarily waived disability benefits for that earlier period.
[¶ 38] I would reverse the judgment and direct remand to the Bureau to determine the appropriate amount of disability benefits for Lindell. Therefore, I respectfully dissent.
[¶ 39] MARING, J., concurs.