We have repeatedly cautioned that the Bureau must not place itself in a full adversary position to the claimant. Blanchard v. North Dakota Workers Comp. Bureau, 1997 ND 118, ¶ 23, 565 N.W.2d 485. The record evidence supports the Bureau's findings and does not demonstrate the Bureau assumed an inappropriate adversarial position.
[¶ 11] The Legislature has developed a scheme allowing an agency the option to request the OAH designate an ALJ to issue a final decision rather than a recommendation. See Blanchard v. North Dakota Workers Comp. Bur., 1997 ND 118, ¶ 14, 565 N.W.2d 485 (providing "[w]hen read as a whole, the statutory scheme for decisions by an ALJ manifests a legislative intent that an ALJ's decision is a final order when the Legislature has authorized the ALJ to issue a final order, or when the requesting agency has authorized the ALJ to issue a final order"). Section 28-32-13(2), N.D.C.C., indicates if a "person authorized by the agency head or by law to issue a final order, is presiding, the order issued is the final order."
[¶ 10] If the Bureau rejects a hearing officer's recommendation, it must sufficiently explain its rationale for not following the recommendation. Blanchard v. North Dakota Workers Comp. Bur., 1997 ND 118, ¶ 21, 565 N.W.2d 485. The Bureau may reject a hearing officer's recommendation on a witness's credibility. Id. An agency must adequately state its findings of fact and conclusions of law to facilitate meaningful appellate review.
Stenvold was, at the time of the hearing, engaged in a work trial and WSI was on notice by her testimony that there were problems. This Court has said: "Because the Bureau acts as both a fact finder and an advocate in considering a worker's claim and in resolving conflicting evidence, we have repeatedly cautioned that the Bureau `must not place itself in a full adversary position to the claimant.'" Blanchard v. N.D. Workers Comp. Bureau, 1997 ND 118, ¶ 23, 565 N.W.2d 485 (quoting Hayes v. N.D. Workers Comp. Bureau, 425 N.W.2d 356, 357 (N.D. 1988)). [¶ 24] The Bureau's obligation to adequately consider medical evidence is one distinction from the true adversarial process.
Under these circumstances, a reversal and remand is appropriate to allow the Board to explain its reasons for rejecting the ALJ's recommended sanction. See Blanchard v. North Dakota Workers Comp. Bureau, 1997 ND 118, ¶¶ 1, 29, 565 N.W.2d 485. III
75, divided those wages by one-fiftieth, resulting in an average weekly wage (rounded to the nearest dollar) of $138. [¶ 6] The claimant has the burden to prove the right to receive benefits from the worker's compensation fund. Blanchard v. N.D. Workers Comp. Bureau, 1997 ND 118, ¶ 23, 565 N.W.2d 485. Meljie provided the Bureau with very poor financial records of his earnings history, and he does not specifically object to the Bureau's use of his 1997 wages for computing his benefits, rather than using another year or combination of years of earnings history. However, Meljie claims the record does not support a finding that he is a seasonal worker, and he claims the Bureau, instead of computing his average weekly wage under subsection 5(a), should have used subsection 5(f), which is the usual wage paid other employees engaged in similar occupations or, alternatively, 5(g), which is a wage reasonably and fairly approximating the weekly wage lost by the claimant during the period of disability.
The Bureau's obligation to adequately explain its disregard of evidence favorable to the claimant applies with particular force to favorable medical evidence. See, e.g., Geck v. North Dakota Workers Comp. Bureau, 1998 ND 158, ¶ 13, 583 N.W.2d 621; Loberg v. North Dakota Workers Comp. Bureau, 1998 ND 64, ¶ 11, 575 N.W.2d 221; Flink v. North Dakota Workers Comp. Bureau, 1998 ND 11, ¶¶ 12-13, 574 N.W.2d 784; McDaniel v. North Dakota Workers Comp. Bureau, 1997 ND 154, ¶¶ 17, 20, 567 N.W.2d 833; Blanchard v. North Dakota Workers Comp. Bureau, 1997 ND 118, ¶¶ 23, 27, 565 N.W.2d 485. [¶ 18] Section 28-32-46(7), N.D.C.C., requires that we affirm an agency order unless "[t]he findings of fact made by the agency do not sufficiently address the evidence presented to the agency by the appellant."
A [¶ 32] Citing Blanchard v. North Dakota Workers Comp. Bureau, 1997 ND 118, ¶ 23, 565 N.W.2d 485 and Hayes v. North Dakota Workers Comp. Bureau, 425 N.W.2d 356, 357 (N.D. 1988), Sjostrand says "[t]his Court has `repeatedly cautioned' that the Bureau must not take a `position . . . fully adversary to the claimant . . .'"; notes this Court has said "[t]he adversary concept has only limited application to claims for workmen's compensation benefits and the Bureau . . . acts in a quasi-judicial capacity" (citing Roberts v. North Dakota Workmen's Comp. Bureau, 326 N.W.2d 702, 706 (N.D. 1982), Bromley v. North Dakota Workmen's Comp. Bureau, 304 N.W.2d 412, 416 (N.D. 1981), Steele v. North Dakota Workmen's Comp. Bureau, 273 N.W.2d 692, 702 (N.D. 1978)), and further notes "this Court long ago pointedly informed the Bureau that its admonishments to the Bureau must not be `treated as empty noise'" (citingSpangler v. North Dakota Workers Comp. Bureau, 519 N.W.2d 576, 578 (N.D. 1994)). That is the extent of Sjostrand's argument about impermissible adversarial conduct by
[¶ 25] It is the agency's responsibility to assess the credibility of witnesses and to resolve conflicts in the evidence. Blanchard v. N.D. Workers Comp. Bureau, 1997 ND 118, ¶ 23, 565 N.W.2d 485. We conclude a reasoning mind reasonably could have made the factual determination that Kraft's impairment at work was proven by the weight of the evidence from the entire record.
[¶ 10] Although the Bureau may request appointment of an ALJ to hear a case, the ALJ's decision is ordinarily a recommendation. See Blanchard v. North Dakota Workers Comp. Bureau, 1997 ND 118, ¶¶ 13-17, 565 N.W.2d 485. The Bureau is ultimately responsible for rendering a decision in workers compensation matters, and although the Bureau could have again referred the matter to the ALJ for additional findings and a recommendation, it was not required to do so.