Eslinger v. North Dakota Workforce Safety & Insurance , 2009 N.D. LEXIS 95 ( 2009 )

MARING, Justice,

dissenting.

[¶ 26] I respectfully dissent. I am of the opinion that Gregory and Ash are applicable. Gregory v. N.D. Workers Comp. Bureau, 1998 ND 94, 578 N.W.2d 101; Ash v. Traynor, 1998 ND 112, 579 N.W.2d 180. Therein we held when the claimant has a vested interest in the right to receive disability benefits on the effective date of the retirement presumption statute that WSI could not apply that statute to discontinue the benefits the claimant had been receiving. Id. The majority concludes that Eslinger did not have a vested right to disability benefits on August 1, 1995, because her doctor said she could return to work on July 28,1995.

[¶ 27] However, as of August 1, 1995, Eslinger was still receiving disability benefits and her right to receive continuing disability benefits was vested until August 24, 1995. On August 1, 1995, Eslinger had a vested right to receive disability benefits and a continuing expectation that her benefits would continue. Under section 65-05-08.1(5), N.D.C.C., WSI must send a notice of intention to discontinue benefits to the employee upon receipt of a report that the employee has been or will be released to return to work. The notice must include an explanation of the reason for discontinuing benefits, an explanation of the employee’s right to respond, and the procedure for challenging “the proposed action.” Id. The majority overlooks the requirement in N.D.C.C. § 65-05-08.1 that disability benefits must be paid to the employee for “twenty-one days after the date the notice of intention to discontinue benefits is mailed.... ” The notice of intention to discontinue benefits was issued to Es-linger on August 4, 1995. Eslinger had a vested right to receipt of these benefits on August 1, 1995. In fact, our Court has said that an employee is entitled to benefits retroactively and prospectively until WSI has provided proper notice under N.D.C.C. § 65-05-08.1(5). See Beckler v. N.D. Workers Comp. Bureau, 418 N.W.2d 770, 774 (N.D.1988); Flink v. N.D. Workers Comp. Bureau, 1998 ND 11, ¶ 19, 574 N.W.2d 784; Vernon v. N.D. Workers Comp. Bureau, 1999 ND 153, ¶¶ 18-22, 598 N.W.2d 139.

[¶ 28] For these reasons I respectfully dissent and conclude that the retirement presumption statute does not apply to Es-linger’s claim. I would reverse the final order of WSI and the district court judgment and would remand for reinstatement of Eslinger’s benefits.

[¶ 29] Mary Muehlen Maring