Howes v. North Dakota Workers Compensation Bureau , 429 N.W.2d 730 ( 1988 )

ERICKSTAD, Chief Justice.

James C. Howes appeals from a district court judgment affirming an order of the North Dakota Workers Compensation Bureau. We affirm.

James Howes was injured on July 10, 1985, when he struck his head on an overhanging steel bar of a horse trailer owned by his employer, Leingang Steel Siding, Inc., of Mandan, North Dakota. Howes was able to finish work after hitting his head, but later became sick and was admitted to the emergency room of a Bismarck, North Dakota, hospital. Howes was hospitalized for five days and was diagnosed as having suffered a craniocerebral trauma.

The Bureau accepted liability in Howes’ case, paying medical expenses and disability benefits from July 7, 1985, through July 21, 1985. Howes returned to work on July 22, 1985. However, in March of 1986 Howes was released from his employment. Howes attributed his release to a memory loss which he believed was caused by the accident. The Bureau called Howes’ employer who apparently indicated Howes was released because of a “poor work attitude/ performance.”

Howes testified that he experienced mild headaches several times a week and severe headaches “maybe two times a month” after the July 1985 accident. On March 12, 1986, Howes sought medical treatment from Dr. John S. Pate complaining of what the report denominated a syncopal¹ episode. On March 20, 1986, Dr. Pate again examined Howes to follow up on his complaints. In a medical statement sent to the Job Insurance Claims Office dated that same day, Dr. Pate suggested Howes may be having seizures and advised that it would not be wise for him to work.²

On April 26, 1986, Howes experienced a severe headache. Howes was admitted to the hospital and remained there for approximately twenty-one days. Howes sought payment from the Bureau for the medical expenses connected with his second (April 1986) hospitalization.

The Bureau denied liability for the April 1986 hospitalization. The pertinent parts of the Bureau’s findings set forth in an “Order Denying Further Benefits” dated October 6, 1986 follow:

“III.

“Claimant alleges he sustained a head injury when he hit his head on a bar as he came out of a horse trailer on July 10, 1985.

“IV.

“Claimant’s condition was diagnosed as a craniocerebral trauma.

“V.

“The Bureau accepted liability in this case, paid medical expenses, and paid disability benefits from July 7, 1985, through July 21, 1985.

“VI.

“Claimant returned to work on July 22, 1985.

“VII.

“On March 20, 1986, claimant’s physician indicated that the claimant may be having seizures and it would be wise for him not to work.

“VIII.

“A medical report dated March 20, 1986, states that the claimant had a head injury in 1981, with symptoms similar to his current symptoms.

“IX.

“The claimant was hospitalized from April 26,1986, through May 14,1986, for severe headaches. He underwent psychological testing and evaluations and it was reported that he had no problems with his memory.

“X.

“Claimant’s physician indicated that he believed a great deal of the claimant’s headaches were related to tension.

“XI.

“Claimant’s medical history indicates that he had been having syncopal episodes prior to an automobile accident in October, 1980. The syncopal episodes went away after the claimant started medication.

“XII.

“The greater weight of the evidence indicates that the claimant’s current condition is not in any way related to his employment injury on July 10, 1985.

“CONCLUSIONS OF LAW

* * * * * *

“II.

“The claimant has failed to prove that he is entitled to further benefits under the North Dakota Workmen’s Compensation Act over and above those previously awarded and paid.”

Howes requested and was granted a rehearing before the Bureau. After the Bureau heard testimony from Howes, it affirmed its decision denying further benefits:

“The greater weight of the evidence, including testimony adduced at the formal hearing and medical reports in connection with claimant's medical assessment, indicated that the claimant’s continued complaints and hospitalization are not the result of the July 10, 1985, incident in the horse trailer.”

Howes appealed the Bureau’s decision to the district court, which affirmed the Bureau’s decision. On appeal to the district court and this Court Howes raises the following three issues:

“I. THE BUREAU HAD A RESPONSIBILITY TO DEVELOP THE EVIDENCE FURTHER IN THIS CLAIM FOR MEDICAL BENEFITS IN ORDER TO ASCERTAIN THE SUBSTANTIAL RIGHTS OF THE PARTIES.

"II. THE BUREAU FAILED TO CLARIFY INCONSISTENT MEDICAL EVIDENCE.

“III. THE BUREAU’S PROCEDURES DEPRIVED HOWES OF HIS STATE AND FEDERAL CONSTITUTIONAL RIGHT TO DUE PROCESS.”

I.

The essence of Howes’ first contention is that the Bureau has the evidentiary burden of proving that Howes’ 1986 headaches and hospitalization are unrelated to his July 1985 head injury, rather than Howes having the burden of proving that his July 1985 head injury is related to his April 1986 headaches and hospitalization. Howes contends “[t]here is simply no authority for the Bureau’s position” that Howes has the burden of proof with respect to connecting the July 1985 head injury to his April 1986 headaches. We disagree.

Section 65-01-11, N.D.C.C., unequivocally states that the claimant “shall have the burden of proving by a preponderance of the evidence that he is entitled to participate” in the fund. Our decisions have consistently recognized that the claimant must show that an “ensuing disability is causally connected to the employment injury.” Inglis v. North Dakota Workmen’s Compensation Bureau, 312 N.W.2d 318, 322 (N.D.1981); Claim of Bromley, 304 N.W.2d 412, 415 (N.D.1981), citing Kuntz v. North Dakota Workmen’s Compensation Bureau, 139 N.W.2d 525 (N.D.1966).

Following Howes’ July 1985 head injury, the Bureau accepted liability for medical expenses and disability benefits. Howes returned to work in July of 1985 and did not contact the Bureau for further benefits until after his headaches and hospitalization in April of 1986. Howes insists that he “proved” his case in July of 1985 and wonders “[h]ow many times must he prove his case?” We addressed the subject of Howes’ question recently in Hayes v. North Dakota Workers Compensation Bureau, 425 N.W.2d 356, 357 (N.D.1988): “If the Bureau terminates benefits, after initially accepting a claim and paying benefits, the claimant has the burden of proving his or her right to continue receiving benefits.” See also Gramling v. North Dakota Workmen’s Compensation Bureau, 303 N.W.2d 323, 325-26 (N.D.1981).

II

Howes next contends the Bureau failed to clarify inconsistent medical evidence, and “chose to ignore” Howes’ testimony which tended to prove that the April 1986 headache and hospitalization were causally connected to the July 1985 head injury. Howes further contends the Bureau “chose to ignore” a March 1986 statement of Dr. Pate which indicated Howes was experiencing a concussion with blackout spells and impaired memory.³

Our decisions have recognized that the adversarial concept has only limited application in determinations related to workers compensation claims. We have recently said that the Bureau is “obligated to consider the entire medical record, and if there is conflicting medical evidence, some favorable and some unfavorable to the claimant, the Bureau must adequately explain its reason for disregarding the favorable evidence in denying benefits.” Hayes, supra at 357; see also Weber v. North Dakota Workmen’s Compensation Bureau, 377 N.W.2d 571, 574 (N.D.1985) (Bureau did not “adequately address” medical evidence which did not support its findings).

Initially our rule requiring the Bureau to make reasonable efforts to clarify discrepancies in medical evidence arose out of a situation wherein the attending physician’s report contained the discrepancy. See Claim of Bromley, supra at 417.⁴ In a case following Bromley involving the issue of discrepancies in the medical evidence, the discrepancies were contained within different reports from the same doctor. See Roberts v. North Dakota Workmen’s Compensation Bureau, 326 N.W.2d 702, 706 (N.D.1982). In Roberts, the examining physician made two different statements in two different documents about the cause of the claimant’s disability. A statement in the first report partially conflicted with a statement in the latter report.

Roberts thus slightly expanded the principle in Bromley to require the Bureau to clarify conflicting evidence from the same individual who provided conflicting evidence in two different written reports. We concluded it is “inappropriate for the Bureau to rely only upon that part of an inconsistent medical report which is favorable to the Bureau’s position without attempting to clarify the inconsistency.” Roberts, supra at 706.

More recently in Weber, supra at 574, the Bureau was presented with conflicting evidence between two different orthopedic surgeons about the amount of time it would take the claimant to recover from his work related injury. Relying on Bromley, we remanded the case in Weber to “clarify the discrepancies.” Weber, supra at 574.

Bromley has apparently been expanded to require the Bureau to attempt to clarify conflicting medical evidence from different physicians. Notwithstanding this expansion we must keep in mind the basic rule which was stated in Bromley by Justice Sand who first enunciated our medical evidence discrepancy rule:

“Normally, it is within the province of the administrative agency, not the courts, to weigh conflicting medical opinions and to resolve these conflicts. Hassler v. Weinberger, 502 F.2d 172 (7th Cir.1974).” Bromley, supra at 417.

We must also keep in mind that pursuant to section 28-32-19, N.D.C.C., we must affirm the Bureau’s decision unless its findings of fact are not supported by a preponderance of the evidence or its conclusions are not supported by its findings of fact. Hayes, supra at 356-57, citing Gramling, supra. In determining whether or not an agency's findings of fact are supported by a preponderance of the evidence we do not make independent findings of fact or substitute our judgment for that of the agency, but we determine only whether a reasoning mind could have reasonably determined that the factual conclusions were supported by the weight of the evidence. Power Fuels, Inc. v. Elkin, 283 N.W.2d 214 (N.D.1979). We believe the Bureau’s conclusions are supported by a preponderance of the evidence and that the Bureau has adequately addressed conflicting evidence.

Howes was examined by Dr. Pate prior to the April 1986 hospitalization. Pate’s assessment, noted in the medical records from that period, indicates a possible concussion disorder.⁵ Pate recommended treating Howes’ blackout episodes with medication or otherwise seeing Donald M. Larson, M.D., a neurologist, for additional evaluation of the problem. Dr. Larson was consulted during the April 1986 hospitalization.

Howes again saw Dr. Larson when he underwent a “complete medical assessment” which included “psychological, psychiatric, neurologic, physical therapy, occupational therapy, social service and orthopedic evaluations” during March 1987. Howes also had an ophthalmological evaluation in March of 1987.

Howes’ neurologic exam was “normal” and the examining physician, Dr. Larson, concluded that Howes’ “problems with tension and nervousness ... [have] a considerable bearing on his headaches.” D.E. Townes, M.D., found “no ocular explanation for headache and no evidence for any residium from prior traumatic episode.”

Dr. Greg S. Peterson, M.D., also examined Howes and concluded:

“Mr. Howes has had a long history of nonspecific ‘spells’ of unknown etiology. His headaches do not appear to be related to his 7-10-85 work related head trauma. There is no evidence of memory loss and the patient’s reports of retrograde memory loss are not at all characteristic of patients with head trauma. The headaches that prompted admission to the hospital in April of 1986 would not appear to have any direct relationship to his work related injury. There was no evidence of disability on our evaluation.”

Weighing this evidence along with evidence of Howes’ prior medical history against Howes’ testimony that his April 1986 headache and hospitalization were related to the July 1985 head injury, we believe a reasoning mind could have reasonably concluded that Howes failed to show a causal connection between his July 1985 head injury and his April 1986 headaches.

III

Howes’ final contention is that the Bureau’s formal hearing process deprives him of due process guaranteed by the. state and federal constitutions.

Howes wrote the Bureau asking “[i]f the Bureau intends to rely upon evidence not presented at the pending formal hearing, please provide me with a copy of such evidence and please consider this a request to cross-examine the person[s] furnishing such evidence, pursuant to Section 28-32-07, N.D.C.C.” While the Bureau responded that it would “rely on the entire record,” Howes apparently anticipated that the Bureau would base its determination, at least in part, on medical reports written by Dr. Larson, and asked the Bureau to depose him. Counsel for the Bureau wrote a letter to Larson and asked whether or not his medical opinion could be determined by answering some written questions relating to Howes’ case. By letter the Bureau submitted questions to Larson and Larson responded in a written report. The Bureau apparently made Larson’s answers available to Howes pursuant to section 28-32-07, N.D.C.C., which reads in relevant part:

“28-32-07,Consideration of information not presented at a formal hearing. — If an administrative agency desires to avail itself of competent and relevant information or evidence in its possession or furnished by members of its staff, or secured from any person in the course of an independent investigation conducted by such agency, in addition to the evidence presented at any formal hearing, it may do so after first transmitting a copy of such information or evidence or an abstract thereof to each party of record in the proceeding, and after affording each such party, upon written request, an opportunity to examine such information or evidence and to present evidence in connection therewith and to cross-examine the person furnishing such information at a further public hearing to be called and held upon at least ten days’ notice given by registered or certified mail. Nothing contained in this section prevents any administrative agency from taking notice of any fact or facts set forth in its duly adopted rules or any facts which are judicially noticed by the courts of this state.”

Howes contends that as the Bureau used this medical evidence, the Bureau should have afforded Howes the opportunity to cross-examine Dr. Larson either by deposition or at the formal hearing and that the cost of the cross-examination should have been borne by the Bureau. After submitting the questions to Dr. Larson, however, counsel for the Bureau notified Howes that in the past Larson had been reluctant to participate in depositions and doubted he would be more willing to help here. Dr. Larson suggested by letter to the Bureau’s counsel that an evaluation by another MedCenter One physician might be the best way to obtain a comprehensive view of Howes’ problem. In response to this suggestion, and in light of Dr. Larson’s past reluctance to being deposed, the Bureau arranged for the more complete medical assessment which was later accomplished and is earlier referred to herein.

We believe section 28-32-07, N.D.C.C., clearly grants Howes, upon written request, the right to cross-examine the physician at a “further public hearing.” However, section 28-32-07, N.D.C.C., does not require the Bureau to pay for the costs of the cross-examination. Who must bear those costs is addressed in section 28-32-09, N.D.C.C., which reads in relevant part:

“28-32-09. Subpoena and attendance of witnesses.... The deposition of a witness or party in any proceeding before an agency may be taken in the same manner and on the same notice as in a civil action pending in the district court. Interrogatories may be sent to any witness or party in any proceeding in the same manner and on the same notice as in an action pending in the district court. A party, other than the administrative agency, must first show good cause before undertaking discovery proceedings, including interrogatories. Any witness who is subpoenaed under the provisions of this section and who appears at the hearing, or whose deposition is taken, shall receive the same fees and mileage as a witness in a civil case in the district court, and such fees shall be paid by the party or agency at whose instance the witness appears or his deposition is taken”. [Emphasis added.]

It is within the Bureau’s discretion to approve the taking of depositions to be paid for by the Bureau, and each case must be judged on its merits. Hayes, supra at 358; Steele v. North Dakota Workmen’s Compensation Bureau, 273 N.W.2d 692, 702 (N.D.1978). In this case the Bureau concluded that the physician’s opinion could be obtained “informally” by a written report.

The general rule in workers compensation law is that each party pays his or her own attorney and costs unless a statute specifically provides otherwise. Gross v. Great A. & P. Tea Co., 87 Mich.App. 448, 274 N.W.2d 817, 818 (1979); 3 Larson’s Workmen’s Compensation Law § 83.20, p. 15-695. Section 65-02-08, N.D.C.C., provides that the Bureau shall pay a claimant’s attorney fees incurred “in proceedings before the bureau....” Moore v. North Dakota Workmen’s Comp. Bureau, 374 N.W.2d 71, 74 (N.D.1985). Section 65-10-03, N.D.C.C., provides in pertinent part:

“The cost of the appeal and an attorney’s fee for the appellant’s attorney shall be set by the appellate court and taxed against the bureau unless the appeal is determined to be frivolous. The bureau shall pay such attorney’s fee from the bureau general fund. The amount of such attorney’s fee shall be determined in the same manner as prescribed by the bureau for attorney fees,, and the amount of attorney’s fee already allowed in proceedings before the bureau shall be taken into consideration.”

The North Dakota Legislature, therefore, specifically requires the Bureau to pay the claimant’s attorney’s fees and costs on appeal. The costs of taking depositions and subpoenaing expert witnesses for cross-examination, being not a part of the “appeal” process, are not set by the appellate court but are governed by section 28-23-09, N.D. C.C.

Statutes in other jurisdictions have been construed to require the Bureau to pay the claimant’s attorney’s fees as well as expert witness fees. See Moore v. General Motors Corp., Terex Div., 18 Ohio St.3d 259, 480 N.E.2d 1101 (1985) (relying on statute to allow recovery of fees for expert preparing for and giving deposition); Schauder v. Brager, 303 Md. 140, 492 A.2d 630 (1985) (Workers Compensation Commission has power under statute to approve and modify experts’ fees); Cf. Rosenbaum v. Industrial Commission, 93 Ill.2d 381, 67 Ill.Dec. 83, 444 N.E.2d 122 (1983) (statute indicates that the Commission has discretion in deposing experts, and where claimant refused to subpoena because of cost, not an abuse of discretion to refuse to issue dedimus potestatem to secure testimony of claimant's treating physicians).

Section 1-02-02, N.D.C.C., states that “[w]ords used in any statute are to be understood in their ordinary sense, unless a contrary intention plainly appears....” We understand the phrase “attorney's fee” as used in sections 65-02-08 and 65-10-03, N.D.C.C., to mean expenses incurred for the services of an attorney. Section 28-32-09, N.D.C.C., places the expense of witness fees on the party who calls the witness. Therefore, we conclude the Bureau did not abuse its discretion in refusing to pay the cost of deposing Dr. Larson.

Further, we are not convinced the Bureau’s “practice” of securing medical statements such as Dr. Larson's opinion deprived Howes of due process under the federal and state constitutions. We discussed the parameters of due process in the context of an administrative proceeding in First American Bank & Trust Company v. Ellwein, 221 N.W.2d 509, 514 (N.D.1974), cert. denied, 419 U.S. 1026, 95 S.Ct. 505, 42 L.Ed.2d 301, reh’g denied, 419 U.S. 1117, 95 S.Ct. 798, 42 L.Ed.2d 816 (1975):

“What constitutes due process within an administrative proceeding? While recognizing that the adjudicative function of the Board is quasi-judicial in nature, we have never held that the minimal due process that must be afforded participants before an administrative board or agency is synonymous with minimal requirements of due process in a court of law. To do so would be to create a second judicial branch without statutory authority and add to time required in the disposition of administrative decisions.” 221 N.W.2d at 514.

More recently in Berger v. State Highway Commissioner, 394 N.W.2d 678, 681 (N.D.1986), we said that a person before an administrative agency cannot demand due process equivalent to that followed in courts, but that a person is entitled to procedural fairness in an administrative hearing.⁶

The fundamental requirements of due process are notice of contemplated action and the opportunity to be heard.⁷ Beckler v. North Dakota Workers Compensation Bureau, 418 N.W.2d 770, 773 (N.D.1988) citing Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970) (continuing right to welfare benefits is an entitlement equivalent to a property interest within meaning of Due Process Clause of Fourteenth Amendment of the United States Constitution). A fair héaring includes the opportunity to confront and cross-examine adverse witnesses.⁸ Which party bears the expense associated with the right of confrontation requires a balancing of the interests involved.⁹ Such a determination is best made by the Legislature.¹⁰

Howes requested and the Bureau granted a full evidentiary hearing to determine the correctness of its decision to terminate Howes’ benefits. Howes was given an opportunity to be heard. Howes also had the opportunity to cross-examine Dr. Larson, albeit at Howes’ expense, through the use of a deposition or subpoena to appear at a formal hearing. Section 28-32-09, N.D.C. C. Accordingly, we conclude that neither Howes’ state nor federal constitutional due process rights were violated.

For the reasons stated herein, the judgment affirming the Bureau’s decision is affirmed.¹¹

GIERKE and VANDE WALLE, JJ., concur.

1 . Syncopal episodes involve fainting and other temporary losses of consciousness due to lack of oxygen to the brain. 3A Lawyers’ Medical Cyclopedia, § 23.13 (3d ed. 1983).

2 . Medical Statement follows:

"Medical Statement

"NAME James C. Howes SSA No. 522-78-8217 "TO THE PHYSICIAN:

“We shall appreciate your certification of the results of your examination, as the examining physician of this individual, in answer to the questions below:

"1. Nature of illness or disability (lay terms) concussion with black-out spells and impaired memory.

"2. Patient under my care from 3/5/86 to present.

"3. Date illness or disability occurred July '85.

“4. Date last examined 3/20/86.

"5. If condition due to pregnancy—

a. What is the expected date of confinement? No.

b. What was the date of childbirth? No.

"6. Did you advise patient to quit his/her last job because of illness, disability or pregnancy?

No.

"7. Has patient been unable to work at any time due to illness, disability or pregnancy? Yes.

"If Yes,' give dates: From 3/3/86 To present.

"8. Has patient been released as able to resume full-time work? No

"If Yes,' on what date? _)

"9. If patient must now limit the kind, days or hours per week, or place of work because of his/her health, please explain limitation: James Howes may be having seizures at this time and it would not be wise for him to work.

"3/20/86 s/s J. Pate, M.D.

(Date) (Signature of Physician)

515 E. Broadway

(Address)

Bismarck, ND 58501

(City, State, Zip Code)

"CLAIMANTS RELEASE

"I herewith consent to the release of the above information to the North Dakota Employment Security Bureau with the understanding that it is for the confidential use of that agency in determining my eligibility for unemployment insurance benefits.

Claimant’s Signature

"RETURN TO:

"JOB INSURANCE CLAIMS OFFICE

BOX 609

MANDAN, ND 58554

(Local Office Address)"

3 . See supra note 2 for text of the medical statement.

4 . In Bromley we stated:

"In this instance the Bureau based its decision upon the part of the report by Dr. Ching supporting its decision but discounted the part of the same report which was inconsistent with its decision without any attempt to obtain a clarification of the discrepancy. This report, as well as the other reports made by Dr. Ching, were received by the Bureau before it made its initial dismissal order. The Bureau could not help notice these discrepancies and should have made reasonable efforts to have them clarified.” Bromley, 304 N.W.2d at 417.

5 . The Job Insurance claim form filed by Dr. Pate refers back to July 1985 as the date the disability occurred. See supra note 2 for the full text of this medical statement.

6 . The decisions of the federal courts indicate that a full judicial hearing in conjunction with administrative proceedings has been required only if the interest at stake is protected by due process and if adjudicative facts are in dispute. 2 Davis, Administrative Law Treatise § 12.10 (2d ed. 1979).

7 . In an article written by the late Judge Henry J. Friendly as recently as 1975, Mr. Justice White was quoted as stating, "The Court has consistently held that some kind of hearing is required at some time before a person is finally deprived of his property interests.” See Some Kind of Hearing, 123 U Pa.L.Rev. 1267 (1975) (hereinafter Hearing) (quoting from Wolff v. McDonnell, 418 U.S. 539, 557-58, 94 S.Ct. 2963, 2975-2976, 41 L.Ed.2d 935 (1974)).

Judge Friendly, in discussing further due process requirements and the right of participants before an administrative board or agency to cross-examine witnesses, said that the Administrative Procedure Act (APA) enacted in 1946, prescribed trial-type procedures only "when rules are required by statute to be made on the record after opportunity for an agency hearing.” 5 U.S.C. § 553(c) (1970). He continued:

“When the question of the scope of this exception finally reached the Supreme Court in United States v. Allegheny-Ludlum Steel Corp. [406 U.S. 742, 757 [92 S.Ct. 1941, 1950, 32 L.Ed.2d 453] (1972)] and United States v. Florida East Coast Railway Co. [410 U.S. 224, 239 [93 S.Ct. 810, 818, 35 L.Ed.2d 223] (1973)], not only was the exception given a narrow construction but the opinions (particularly the one in Florida East Coast) opened wide and unexpected vistas for the use of less than full trial-type hearing procedures in business and social regulation." Hearing, supra at 1272-73.

8 . In pointing out that the right of confrontation is the most debated issue in conjunction with executive and administrative proceedings, Judge Friendly noted:

"Since the only provision in the Bill of Rights conferring the right of confrontation is limited to criminal cases, one might think the constitutional right of cross-examination was similarly confined. However, in Greene v. McElroy [360 U.S. 474, 497 [79 S.Ct. 1400, 1413-1414, 3 L.Ed.2d 1377] (1959)] Chief Justice Warren said that the Court had applied this principle ‘in all types of cases where administrative and regulatory actions were under scrutiny.'” Hearing, supra note 7, at 1283.

In Goldberg v. Kelly, 397 U.S. 254, 267-68, 90 S.Ct. 1011, 1020, 25 L.Ed.2d 287, 299 (1970), the Supreme Court addressed the constitutional issue with respect to executive and administrative proceedings and held that due process requires timely and adequate notice and an effective opportunity to defend by confronting any adverse witnesses and by presenting arguments and evidence orally.

However, Judge Friendly noted that:

"The absolutes of Greene v. McElroy [360 U.S. 474, 496-97 [79 S.Ct. 1400, 1413-1414, 3 L.Ed.2d 1377] (1959)] and of Goldberg v. Kelly [397 U.S. 254, 269-70 [90 S.Ct. 1011, 1020-1022, 25 L.Ed.2d 287] (1970)] with respect to confrontation arguably have now been ended by Wolff v. McDonnell [418 U.S. 539 [94 S.Ct. 2963, 41 L.Ed.2d 935] (1974)]. There the Court considered whether a prisoner faced with the loss of up to eighteen months in ‘good time’ credits had a constitutional right to confront and cross-examine adverse witnesses. It concluded that, in the special circumstances of the prison, interest-balancing would dictate a right to cross-examination only in a most limited range of cases. In other situations, whether to allow cross-examination was left to the ‘sound discretion’ of the prison authorities.” [Citations omitted.] Hearing, supra at 1285-86.

Judge Friendly further noted that "the Wolff decision, as well as the case-by-case approach of Gagnon v. Scarpelli [411 U.S. 778, 787-91 [93 S.Ct. 1756, 1762-1764, 36 L.Ed.2d 656] (1973) ] on revocation of probation, are likely to have considerable anti-Goldberg reverberations." See Hearing, supra note 7, at 1288-89.

9 . Judge Friendly suggests:

‘It should be realized that procedural requirements entail the expenditure of limited resources, that at some point the benefit to individuals from an additional safeguard is substantially outweighed by the cost of providing such protection, and that the expense of protecting those likely to be found undeserving will probably come out of the pockets of the deserving.” Hearing, supra note 7, at 1276.

10 . Courts are good at deciding cases, bad at drafting legislation; typically they see the case at hand and a few others but not the entire spectrum. Hearing, supra note 7, at 1302.

11 . In light of the length, content, tenor and intensity of the dissent some response seems appropriate if not required.

The essence of the dissent seems to be that as the Bureau relies upon Dr. Larson’s report and responses to written questions posed by the Bureau, Howes is entitled to cross-examine Dr. Larson at the Bureau’s expense to test the truth of his testimony. Actually, however, Howes has the burden of proving he is entitled to benefits pursuant to § 65-01-11, N.D.C.C. See discussion in opinion. Dr. Larson was Howes' own doctor and was not sought out by the Bureau as its own expert to meet Howes’ expert testimony.

Incidentally, if we were to require the Bureau to pay for subpoena costs, not only might this further deplete scarce and diminishing funds, but it would also likely introduce a delaying factor into an increasingly complex process and produce or increase a backlog in Workers Compensation cases. These latter consequences point to a need for legislative attention rather than for judicial legislation.