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Witcher v. North Dakota Workers Compensation Bureau12/1/1999
Appeal from the District Court of Ramsey County, Northeast Judicial District, the Honorable Donovan Foughty, Judge.
AFFIRMED.
Opinion of the Court by Maring, Justice.
[ ] Patricia Witcher appealed a judgment affirming a North Dakota Workers Compensation Bureau order offsetting an award of permanent partial impairment ("PPI") benefits against PPI benefits previously paid to her. We hold the Bureau properly offset Witcher's PPI award with previously paid PPI benefits that were pending appeal and were recalculated under the third edition revised of the American Medical Association's "Guides to the Evaluation of Permanent Impairment." We affirm.
I.
[ ] Witcher was injured during the course of her employment on November 7, 1989. The Bureau accepted Witcher's claim, and through a series of orders, paid her PPI benefits for various "whole body" and "scheduled" impairments. On March 9, 1995, the Bureau awarded Witcher 79.56 weeks of scheduled PPI benefits under the fourth edition of the AMA Guides for a 34% impairment of her "left leg at hip for knee." Witcher appealed, seeking an evaluation of her right knee, right shoulder and arm, left wrist, spine, and mental disorders.
[ ] On June 20, 1995, the Bureau awarded Witcher 148.64 additional weeks of PPI benefits under the fourth edition of the AMA Guides for the following impairments:
26.5% - right leg at hip for knee - 62.01 weeks
9.8% - right arm at shoulder for shoulder and elbow - 24.50 weeks
25% - master hand - 6.13 weeks
2.4% - left arm at shoulder for wrist - 6 weeks
10% - whole body for cervical, thoracic, and lumbar spine - 50 weeks
Witcher appealed, raising PPI issues about her chronic pain and the Diagnosis-Related Estimates Model versus Range of Motion Model for evaluating her lumbar spine.
[ ] In July 1996, the Bureau denied Witcher whole body PPI benefits for a psychiatric condition. She appealed that order, and after a formal administrative hearing, the Bureau issued a July 11, 1997 order awarding her 295 weeks of PPI benefits for a 65% whole body impairment for her psychiatric condition. No further appeal was taken from the July 1997 order.
[ ] Witcher also sought whole body PPI benefits for chronic pain. Additionally, under McCabe v. North Dakota Workers Comp. Bur., 1997 ND 145, 567 N.W.2d 201, and Witcher's pending appeals from the March 9 and June 20, 1995 orders, the Bureau recalculated the PPI ratings in those orders under the third edition revised of the AMA Guides. In McCabe, at 6-7, 16, we construed statutory language dictating use of the "most recent edition" and the "most current edition" of the AMA Guides to require the Bureau to calculate PPI awards under the edition of the AMA Guides in effect when the respective statutes were enacted. The Bureau's March 9 and June 20, 1995 orders calculated Witcher's PPI awards under the fourth edition of the AMA Guides, and the parties do not dispute McCabe required those awards to be recalculated under the third edition revised of the AMA Guides.
[ ] The Bureau thereafter issued a May 12, 1998 order awarding Witcher a total of 123.31 weeks of PPI benefits for scheduled impairments:
20.5% - left leg at hip for knee - 47.97 weeks
13.1% - right leg at hip for knee - 30.65 weeks
2.5% - left arm at shoulder for wrist - 6.25 weeks
12.3% - right arm at shoulder for shoulder and elbow - 30.75 weeks
25% - master hand - 7.69 weeks
After correcting a computational error, the Bureau's May 1998 order also awarded Witcher
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