DocketNumber： 20130391
Citation Numbers： 2014 ND 79, 845 N.W.2d 632, 2014 N.D. LEXIS 90, 2014 WL 1696509
Judges： Crothers, Vande Walle, McEvers, Kapsner, Sandstrom
Filed Date： 4/29/2014
Status： Precedential
Modified Date： 11/12/2024
[¶ 1] Dennis Whedbee appeals a district court judgment affirming Workforce Safety and Insurance’s (‘WSI”) binding dispute resolution denying Whedbee’s request for a myoelectric prosthesis and approving a body-powered prosthesis. Whedbee argues the binding dispute resolution was an abuse of discretion and violated his due process rights. He argues that WSI should have selected an independent medical examiner located closer to his residence and that his treating physician’s opinion should have been given controlling weight. We affirm.
I
[¶ 2] On September 23, 2012, Whedbee suffered a compensable injury from an oil rig explosion while working for Black Hawk Energy Services, Inc. Whedbee sustained a below-the-elbow left arm amputation. WSI accepted liability for several injuries, including Whedbee’s amputation.
[¶ 3] Whedbee lives in Pennsylvania and received treatment there from Dr. Marshall Balk. Dr. Balk recommended Whedbee receive a myoelectric prosthesis and emphasized the myoelectric prosthesis would help Whedbee in daily activities. Dr. Balk stated the myoelectric prosthesis would “hold up” under his job requirements and, in fact, was more elaborate than he needed to perform his duties as a safety specialist with Black Hawk. Dr. Balk noted the myoelectric prosthesis likely would need replacement every five to eight years.
[¶ 4] WSI requested an independent medical examination from Dr. Ronald Bateman of Edina, Minnesota, to determine the appropriateness of the myoelec-tric prosthesis. WSI provided Dr. Bate-man with the medical review of Dr. Luis Vilella, WSI’s medical director. Dr. Bate-man recommended Whedbee receive a body-powered prosthesis for reasons including: (1) it would “maintain a defined functional state for a reasonable period of time,” whereas the myoelectric prosthesis likely would need replacement every five to eight years; (2) Whedbee was physically
[¶ 5] WSI denied the myoelectric prosthesis because Dr. Bateman opined the body-powered prosthesis was appropriate for Whedbee, because Dr. Balk opined the myoelectric prosthesis was more elaborate than Whedbee needed to perform his duties as a safety specialist and because it was not the most cost-effective option. Whedbee contested WSI’s decision, requesting binding dispute resolution. WSI’s binding dispute resolution review committee agreed the myoelectric prosthesis was not the most cost-effective option, denying the myoelectric prosthesis and approving the body-powered prosthesis.
[¶ 6] Whedbee appealed to the district court, asserting the myoelectric prosthesis is cost-effective and medically appropriate. The district court affirmed WSI’s binding dispute resolution decision, concluding WSI complied with the law and its decision was the result of a rational mental process. Whedbee appealed.
II
[¶ 7] Section 65-02-20, N.D.C.C., provides: “Dispute resolution under this section is not subject to chapter 28-32 or section 65-01-16.... A dispute resolution decision under this section requested by an employee is reviewable by a court only if medical treatment has been denied to the employee.... The dispute resolution decision may be reversed only if the court finds that there has been an abuse of discretion in the dispute resolution process.” “An abuse of discretion occurs if a hearing officer acts in an arbitrary, unreasonable, or capricious manner or if the hearing officer misinterprets or misapplies the law.” Sonsthagen v. Sprynczynatyk, 2003 ND 90, ¶ 9, 663 N.W.2d 161. “‘[A] decision is arbitrary, capricious, or unreasonable if it is not the product of a rational mental process.’ ” Sloan v. N.D. Workforce Safety & Ins., 2011 ND 194, ¶ 11, 804 N.W.2d 184 (citation omitted).
Ill
A
[¶ 8] Whedbee argues WSI’s denial of the myoelectric prosthesis was an abuse of discretion. Section 65-05-07, N.D.C.C., provides WSI shall furnish medical services and supplies, including pros-thetics, to rehabilitate an injured employee. Section 65-02-20, N.D.C.C., provides the managed care program should “effect the best medical solution for an injured employee in a cost-effective manner upon a finding ... the employee suffered a com-pensable injury.” It therefore falls on WSI to evaluate a requested prosthetic device.
[¶ 9] WSI approved the body-powered prosthesis instead of the myoelectric prosthesis for several reasons, basing its decision on the medical reviews of Drs. Balk, Bateman and Vilella. WSI determined the myoelectric prosthetic was more elaborate than Whedbee needed for his work activities as a safety specialist. The myoelectric device was heavier than the body-powered device, raising concern over how the extra weight would affect Whedbee’s rehabilitation. The myoelectric device’s cost was concerning because it would need replace
[¶ 10] WSI is not required to provide Whedbee’s preferred device. WSI appropriately considered each device’s durability, cost and impact on Whedbee’s injuries. WSI was not arbitrary, capricious or unreasonable in concluding the body-powered prosthesis was the best medical solution in a cost-effective manner. The binding dispute resolution was not an abuse of discretion.
B
[¶ 11] Whedbee argues his due process rights were violated because Drs. Vilella and Bateman did not testify under oath, no independent administrative law judge considered the matter and the decision was made by WSI’s review committee. For Whedbee’s argument to prevail, he must have a property interest in his medical care and WSI’s decision must result in a termination of benefits. “When deciding a due process claim, we consider whether a constitutionally protected property or liberty interest is at stake and, if so, whether minimum procedural due process requirements were met.” Whitecalfe v. N.D. Dept. of Transp., 2007 ND 32, ¶ 20, 727 N.W.2d 779; see, e.g., Drayton v. Workforce Safety & Ins., 2008 ND 178, ¶ 17, 756 N.W.2d 320 (due process considerations require notice and an opportunity to respond where a termination of a continuing disability benefit is concerned). ' This Court stated:
“ ‘To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.’ ... A crucial factor in determining whether a particular statutory benefit constitutes a property interest is the nature and degree of discretion given to the governmental administrator in awarding or denying the benefit. A statute does not create an entitlement for due process purposes if the -statute confers discretion on the governmental agency or official without providing objective criteria for and limitations upon that discretion.”
Ennis v. Williams Cnty. Bd. of Comm’rs, 493 N.W.2d 675, 678 (N.D.1992) (citations omitted). Section 65-02-20, N.D.C.C;, provides that WSI, through binding dispute resolution, will decide the best medical solution in a cost-effective manner. Section 65-02-20, N.D.C.C., grants WSI broad discretion to encourage efficient determination of the issues. Important in this case is that no termination of benefits occurred. Rather, one prosthetic device was approved over another. Whedbee does not have a protectable property interest in receiving one device over another, here, a myoelectric prosthesis rather-than a body-powered prosthesis.
[¶ 12] Further, section 65-02-20, N.D.C.C., specifically states binding dispute resolution is not subject to chapter 28-32 or section 65-01-16, N.D.C.C. WSI therefore is not required to provide a trial-type procedure for managed care decisions. Whedbee asserts he should receive a trial-type hearing, arguing Mathews v. Eldridge supports his position. 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). Mathews addressed whether an evidentia-ry hearing was required prior to terminating social security disability benefits:
“More precisely, our prior decisions indicate that identification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous depriva*636 tion of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.”
Id. at 834-35, 96 S.Ct. 893 (citation omitted). Regarding the first prong, the private interest affected is not strong because Whedbee does not have a property interest in the benefit and because, even if he did, he was not denied the benefit but was given a different form of the benefit requested. The second prong does not support an evidentiary hearing requirement because Whedbee was provided a prosthetic and because he is able to request a different prosthetic if he experiences changes in his progress or recovery. Further, providing for additional procedures would controvert the legislature’s goals of enhancing efficiency. Regarding the third factor, if all managed care decisions merited a trial-type process, the increased administrative costs would be too great to justify the perceived benefit of the hearings. Whedbee failed to establish a due process violation.
C
[If 13] Whedbee argues WSI should have retained an independent medical examiner located closer to Whedbee’s residence and given controlling weight to Whedbee’s treating physician. Whedbee lived in Homer City, Pennsylvania, and Dr. Bateman was in Edina, Minnesota.
[¶ 14] Section 65-05-28(3), N.D.C.C., states:
“The organization may at any time require an injured employee to submit to an independent medical examination or independent medical review by one or more duly qualified doctors designated or approved by the organization. The organization shall make a reasonable effort to designate a duly qualified doctor licensed in the state in which the employee resides to conduct the examination before designating a duly qualified doctor licensed in another state or shall make a reasonable effort to designate a duly qualified doctor licensed in a state other than the employee’s state of residence if the examination is conducted at a site within two hundred seventy-five miles [ ] from the employee’s residence.”
N.D.C.C. § 65-05-28(3). Nothing in the record established that Whedbee objected to this independent medical examination or that WSI did not attempt to find a doctor located closer to Whedbee. Further, Whedbee has not shown how the location of the independent medical examination prejudices him or discredits Dr. Bateman. See Johnson v. N.D. Workers’ Comp. Bureau, 539 N.W.2d 295, 298 (N.D.1995) (“When no statutory remedy is provided for a statutory violation, we look to whether the victim of the violation was prejudiced.”).
[¶ 15] Whedbee argues under N.D.C.C. § 65-05-08.3 that Dr. Balk’s opinion should have been given controlling weight unless WSI explained the weight it gave to Dr. Balk’s and Dr. Bateman’s opinions under the statutory criteria for resolving conflicting opinions. Whedbee ignores the explicit provision in section 65-05-08.3(2), N.D.C.C., that the section does not apply to managed care programs under N.D.C.C. § 65-02-20. Whedbee has not shown the independent medical examination location prejudiced him or Dr. Balk’s opinion should have been given controlling weight.
IV
[¶ 16] We conclude that WSI did not abuse its discretion in awarding the body-