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Elshaug v. North Dakota Workers Compensation Bureau3/21/2000
Appeal from the District Court of McIntosh County, South Central Judicial District, the Honorable Robert O. Wefald, Judge.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
[ ] The Workers Compensation Bureau appealed from a judgment reversing the Bureau's orders denying future benefits to Rosella Elshaug and denying reconsideration of its decision. We conclude there were improper ex parte contacts between the Bureau's outside counsel and the Bureau under N.D.C.C. ยง 28-32-12.1. We, therefore, affirm that part of the judgment reversing the Bureau's order denying reconsideration. We, however, reverse that part of the judgment directing the Bureau to award benefits and we remand with directions the Bureau grant Elshaug's petition for reconsideration and an evidentiary rehearing.
I.
[ ] Rosella Elshaug was employed in the Ashley Medical Center laundry facility for fourteen and one-half years until she resigned, effective November 22, 1997. Elshaug experienced severe physical reactions to chemical exposures while at work in the laundry on May 12, 1994, and again on November 4, 1996. She filed claims with the Bureau for the incidents. The Bureau accepted liability on both claims and paid medical benefits for her injuries.
[ ] On June 25, 1997, the Bureau issued an order terminating future benefits for the 1996 injury, concluding Elshaug no longer was suffering consequences from that incident. Elshaug, claiming she had not fully recovered from the chemical exposures at work and, as a result, currently suffers flu-like symptoms and severe allergic reactions to many substances, filed a reapplication for continued benefits. The Bureau issued an order on January 28, 1998, denying the reapplication for benefits. Elshaug then filed a request for reconsideration and for a formal hearing.
[ ] A hearing was held on June 11, 1998. Dr. Pedro Mendoza, who is a specialist in pulmonary disease and occupational medicine, had examined Elshaug at the Bureau's request. He testified Elshaug was no longer suffering consequences from the chemical exposures at work. He stated that, in his view, Elshaug's current allergies and severe flu-like symptoms are not caused by nor related to the prior work incidents. Contrary views were expressed by Dr. Jacqueline Krohn, and Dr. David L. Morris, both of whom examined and treated Elshaug for multiple chemical sensitivities. These doctors concluded that Elshaug's present allergic reactions to many substances and flu-like symptoms are caused by the 1994 and 1996 chemical exposures at work.
[ ] On August 5, 1998, the administrative law judge (ALJ) issued recommended findings of fact, conclusions of law, and order, concluding Elshaug's current medical conditions are not causally related to the prior work incidents and recommending the Bureau terminate Elshaug's benefits. On August 21, 1998, the Bureau's Director of Claims and Rehabilitation, Jeff R. Bitz, adopted the findings, conclusions, and recommendation of the ALJ and entered an order denying Elshaug future benefits. On September 16, 1998, Elshaug petitioned for reconsideration. In support of the petition, she filed additional medical reports by Dr. Krohn and Dr. Morris. On October 16, 1998, the Bureau entered an order denying Elshaug's petition for reconsideration. Elshaug appealed to the district court, which reversed both of the Bureau's orders and directed the Bureau to provide Elshaug the benefits to which she is entitled. The Bureau appealed.
II.
[ ] The dispositive issue on this appeal involves improper ex parte communications between the Bureau and its outside counsel.
After the ALJ had issued recommended fin
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