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Elshaug v. Workforce Safety and Insurance11/18/2003
Bureau, 2002 ND 129, 5, 649 N.W.2d 207. Under N.D.C.C. §§ 28-32-46 and 28-32-49, the district court, and this Court on further appeal, must affirm an administrative agency decision unless one of the following is present:
. The order is not in accordance with the law.
. The order is in violation of the constitutional rights of the appellant.
. The provisions of this chapter have not been complied with in the proceedings before the agency.
. The rules or procedure of the agency have not afforded the appellant a fair hearing.
. The findings of fact made by the agency are not supported by a preponderance of the evidence.
. The conclusions of law and order of the agency are not supported by its findings of fact.
. The findings of fact made by the agency do not sufficiently address the evidence presented to the agency by the appellant.
. The conclusions of law and order of the agency do not sufficiently explain the agency's rationale for not adopting any contrary recommendations by a hearing officer or an administrative law judge.
We exercise restraint in deciding whether an agency's findings of fact are supported by a preponderance of the evidence, and we do not make independent findings or substitute our judgment for that of the agency. Barnes v. Workforce Safety and Ins., 2003 ND 141, 9, 668 N.W.2d 290. "We decide only whether a reasoning mind reasonably could have decided the agency's findings were proven by the weight of the evidence from the entire record." Id. "Questions of law, including the interpretation of a statute, are fully reviewable on appeal from an administrative decision." Id.
[ ] The opinions of Elshaug and her physicians are based on their view that multiple chemical sensitivity is a disease. The physicians' opinions upon which WSI relies are based on their view that multiple chemical sensitivity is not a disease. Elshaug's "claim involved a credibility choice between the expert medical opinions"of the physicians upon whom she relied and those of the physicians upon whom WSI relied. Otto v. N.D. Workers Comp. Bureau, 533 N.W.2d 703, 707 (N.D. 1995). "The bureau is responsible for weighing the credibility of medical evidence." Id.
[ ] In his September 19, 2001, recommended findings of fact, conclusions of law, and order, the ALJ found "I am not convinced that it is more likely than not that Elshaug's medical condition, diagnosed as MCS, is a disease." The ALJ found "there is not enough evidence of record to determine whether or not MCS is a disease," and concluded:
7. Whatever the nature of Elshaug's medical condition, she has failed to establish by a preponderance of the evidence that her medical condition is a disease that can be fairly traceable to her employment as a compensable injury within the meaning of N.D.C.C. § 65-01-02(9) (1995) for which she is entitled to workers' compensation benefits.
[ ] The ALJ and WSI found there was not enough evidence to determine if MCS is a disease. We have some concern about WSI's position before the ALJ that the claim should be denied in reliance on one expert witness who "does not consider this disease a real entity." But on this appeal, we need not resolve whether MCS is a disease, because, on this record, we conclude a reasoning mind could reasonably find, as WSI also did, that, whatever the nature of her medical condition, Elshaug failed to prove it is fairly traceable to her employment. Here, as in Halseth v. N.D. Workers Comp. Bureau, 514 N.W.2d 371, 374 (N.D. 1994), " he Bureau explained its reasons for relying on medical evidence supporting a denial of benefits and for not re
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