author: NEUMANN, Justice. SANDSTROM, Justice,

text:
    2002 ND 77
    Ambrose Joel WHITEMAN, Petitioner and Appellant, v. STATE of North Dakota, Respondent and Appellee.
    No. 20010224.
    Supreme Court of North Dakota.
    May 14, 2002.

      Ambrose Joel Whiteman, pro se, Bismarck, ND, Submitted on brief.
    Wade Lykken Webb, Assistant State’s Attorney, Fargo, ND, for respondent and appellee.
   NEUMANN, Justice.

[f 1] Ambrose Joel Whiteman appealed from a judgment summarily dismissing his application for post-conviction relief. We conclude Whiteman has raised a genuine issue of material fact whether his attorney was ineffective for failing to follow his instructions to appeal his criminal conviction, entitling him to an evidentiary hearing on the issue. We reverse and remand for further proceedings.

I

[¶ 2] On May 22, 1998, a Cass County jury found Whiteman guilty of class AA felony murder in connection with the October 1997 death of Donald Strassberg in Fargo. Whiteman was sentenced to life imprisonment without parole. No appeal was taken from the criminal judgment and commitment.

[¶ 8] On June 25, 2001, Whiteman filed a pro se application for post-conviction relief, claiming he was “denied effective assistance of counsel at trial herin [sic], and in his Direct Appeal attorney, Gordon Dex-heimer as counsel failed to file the required Notice of Appeal as requested, thereby; denying defendant of his requested appeal.” Whiteman sought “all rights attendant to his Direct Appeal,” including trial transcripts and a court-appointed attorney to handle the appeal. Whiteman’s application was accompanied with an affidavit, in which he claimed:

That following the said trial attorney Gordon Dexheimer, was informed by Ambrose Joel Whiteman, that he wanted to appeal the conviction and sentence and was promised that an appeal would be taken.
It was the petitioner’s understanding that an appeal was being taken from the conviction.
I attempted to contact between [sic] attorney Gordon Dexeimer [sic], to determine how my appeal was going, and upon contacting him, I was assured that the appeal would be taken.
That the petitioner found out through other individuals that attorney Gordon Dexheimer, has been disbarred and is no longer practicing law.
The petitioner upon finding such facts concerning Gordon Dexheimer’s being disbarred brings this post-conviction relief.

[¶ 4] The State denied Whiteman’s allegation in its response, and “put[] the petitioner upon his proof.” The State argued Whiteman’s application should be summarily denied because Dexheimer “consult[ed] with petitioner and followed] the petitioner’s express wishes to not Appeal the underlying criminal conviction.” The State supported its motion with Dex-heimer’s affidavit, in which he stated he had not been disbarred, and:

That after Ambrose Joel Whiteman’s conviction in May of 1998, as well as after Ambrose Joel Whiteman’s sentencing to Life in prison without parole, I discussed all options available to him, including his right to Appeal within 10 days of his sentencing and his right to submit a Rule 35 within 120 days;
That, after discussing the options of an Appeal and a Rule 35, Ambrose Joel Whiteman told me he did not want to Appeal, but did want to submit a Rule 35 to the Court for a possible reduction of his sentence;

[¶ 5] Dexheimer further stated he responded to one of Whiteman’s letters in January 1999 and reminded him of “our discussions following his conviction and again after his sentencing, ...” Dexheimer attached to his affidavit Whiteman’s January 1999 letter, in which Whiteman asked Dexheimer “about my Appeal on my case. I have ask [sic] you once before about my appeal, but I got no response. So I hope you could tell me something about my Appeal, a court date or something.”

[¶6] Whiteman moved for an eviden-tiary hearing because “there is in dispute evidence of material fact.” The court denied Whiteman’s request for an evidentia-ry hearing and granted the State’s motion for summary disposition, concluding ‘Whiteman has failed to present sufficient evidence showing a genuine issue of material fact concerning his claim that his trial counsel was ineffective because he allegedly failed to pursue an appeal of conviction and sentence.” Whiteman appealed.

II

[¶ 7] Under N.D.C.C. § 29-32.1-09(1), a trial court may summarily dismiss an application for post-conviction relief if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Hughes v. State, 639 N.W.2d 696, 2002 ND 28, ¶4. We review an appeal from a summary denial of post-conviction relief as we review an appeal from summary judgment. Abdi v. State, 2000 ND 64, ¶ 8, 608 N.W.2d 292. The party opposing the motion for summary disposition is entitled to all reasonable inferences at the preliminary stages of a post-conviction proceeding and is entitled to an evidentiary hearing if a reasonable inference raises a genuine issue of material fact. Heyen v. State, 2001 ND 126, ¶ 6, 630 N.W.2d 56.

A

[¶ 8] Whiteman argues he is entitled to an evidentiary hearing on his ineffective assistance of counsel claim based on the United States Supreme Court’s decision in Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000).

[¶ 9] In Flores-Ortega, the defendant pled guilty to second degree murder in a state court and was sentenced to 15 years to life in prison. The trial judge informed the defendant he had 60 days to appeal. Although defense counsel wrote “bring appeal papers” in her file, no notice of appeal was filed within the 60 days allowed by state law. Flores-Ortega, 528 U.S. at 474, 120 S.Ct. 1029. About four months after sentencing, the defendant attempted to file a notice of appeal, which was rejected by the clerk of court as untimely. After unsuccessful attempts at obtaining state ha-beas corpus relief, the defendant filed a federal habeas corpus petition alleging constitutionally ineffective assistance of counsel based on his attorney’s failure to file the notice of appeal after she promised to do so.

[¶ 10] The Supreme Court held the two-pronged analysis articulated in Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) — requiring a defendant to show counsel’s performance was deficient and the deficient performance prejudiced the defendant— “applies to claims ... that counsel was constitutionally ineffective for failing to file a notice of appeal.” Flores-Ortega, 528 U.S. at 477, 120 S.Ct. 1029. Under the performance prong of Strickland, the Supreme Court noted two extremes where effectiveness of counsel is easily determined when a direct appeal is not taken:

We have long held that a lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable ... This is so because a defendant who instructs counsel to initiate an appeal reasonably relies upon counsel to file the necessary notice. Counsel’s failure to do so cannot be considered a strategic decision; filing a notice of appeal is a purely ministerial task, and the failure to file reflects inattention to the defendant’s wishes. At the other end of the spectrum, a defendant who explicitly tells his attorney not to file an appeal plainly cannot later complain that, by following his instructions, his counsel performed deficiently....

Id. (internal citations omitted).

[¶ 11] The Supreme Court said the “question presented in this case lies between those poles: Is counsel deficient for not filing a notice of appeal when the defendant has not clearly conveyed his wishes one way or another?” Flores-Ortega, 528 U.S. at 477, 120 S.Ct. 1029. If counsel has consulted with the defendant, “[c]ounsel performs in a professionally unreasonable manner only by failing to follow the defendant’s express instructions with respect to an appeal.” Id. at 478, 120 S.Ct. 1029. If there has been no consultation, deficient performance is measured by determining whether counsel had an obligation to consult with the defendant about an appeal. Id. The Supreme Court held that “counsel has a constitutionally imposed duty to consult with the defendant about an appeal when there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing.” Id. at 480, 120 S.Ct. 1029.

[¶ 12] Under the prejudice prong of the Strickland test, the Supreme Court noted no showing of actual prejudice is required when a defendant alleges that during a critical stage of a judicial proceeding he was “denied the assistance of counsel altogether ... because ‘the adversary process itself [is] presumptively unreliable.’ ” Flores-Ortega, 528 U.S. at 483, 120 S.Ct. 1029 (quoting United States v. Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984)). The Supreme Court explained that defense counsel’s “alleged deficient performance [in failing to appeal] arguably led not to a judicial proceeding of disputed reliability, but rather to the forfeiture of a proceeding itself.” Flores-Ortega, 528 U.S. at 483, 120 S.Ct. 1029. The Supreme Court held the “denial of the entire judicial proceeding itself, which a defendant wanted at the time and to which he had a right, ... demands a presumption of prejudice.” Id. Nevertheless, the Supreme Court said that although prejudice was presumed, the defendant still had to show that counsel’s deficient performance “actually cause[d] the forfeiture of the defendant’s appeal.” Id. at 484, 120 S.Ct. 1029. The Supreme Court held, “to show prejudice in these circumstances, a defendant must demonstrate that there is a reasonable probability that, but for counsel’s deficient failure to consult with him about an appeal, he would have timely appealed.” Id.

[¶ 13] Particularly relevant to White-man’s allegations in the present case are the Supreme Court’s comments about the evidence necessary to make the requisite showing:

[A]lthough showing nonfrivolous grounds for appeal may give weight to the contention that the defendant would have appealed, a defendant’s inability to “specify the points he would raise were his right to appeal reinstated,” Rodriquez [v. United States, 395 U.S. 327, 330, 89 S.Ct. 1715, 23 L.Ed.2d 340 (1969)] will not foreclose the possibility that he can satisfy the prejudice requirement where there are other substantial reasons to believe that he would have appealed. See ibid; see also Peguero [v. United States, 526 U.S. 23, 30, 119 S.Ct. 961, 143 L.Ed.2d 18 (1999)] (O’CONNOR, J., concurring) (“To require defendants to specify the grounds for their appeal and show that they have some merit would impose a heavy burden on defendants who are often proceeding pro se in an initial [habeas] motion”). We similarly conclude here that it is unfair to require an indigent, perhaps pro se, defendant to demonstrate that his hypothetical appeal might have had merit before any advocate has ever reviewed the record in his case in search of potentially meritorious grounds for appeal. Rather, we require the defendant to demonstrate that, but for counsel’s deficient conduct, he would have appealed.

Flores-Ortega, 528 U.S. at 486, 120 S.Ct. 1029. The Supreme Court remanded for a determination of whether the attorney “had a duty to consult with respondent (either because there were potential grounds for appeal or because respondent expressed interest in appealing), whether she satisfied her obligations, and, if she did not, whether respondent was prejudiced thereby.” Id. at 487, 120 S.Ct. 1029.

[¶ 14] In denying Whiteman’s application for post-conviction relief, the trial court relied in part on Hopfauf v. State, 1998 ND 30, 575 N.W.2d 646, and Sampson v. State, 506 N.W.2d 722 (N.D.1993). In those cases, this Court ruled no eviden-tiary hearings were required for defendants’ claims that counsel was ineffective for failing to pursue requested appeals because the defendants had made no showing how they were prejudiced by counsels’ failures to appeal the convictions. Hopfauf, at ¶¶ 9-10; Sampson, 506 N.W.2d at 726. The State argues the trial court was correct in relying on these cases because many of the things said in Flores-Ortega are dicta. The State argues Flores-Ortega is specifically limited to its factual context of a failure to consult, rather than a failure of counsel to follow a defendant’s directions about an appeal, and the Supreme Court’s discussion about the two extremes which form the boundaries of the failure to consult holding, does not have binding precedential value.

[¶ 15] The State has not cited, nor have we discovered, any case law that has construed as dicta the Flores-Ortega Court’s statements about the failure of counsel to file an appeal after being directed to do so by a defendant. Rather, courts routinely have held Flores-Ortega thus establishes that an indigent, perhaps pro se defendant, even if he pled guilty, cannot be required to demonstrate how his appeal would have been successful in order to establish that he was prejudiced by his attorney’s failure to pursue a requested appeal. People v. Edwards, 197 Ill.2d 239, 258 Ill.Dec. 753, 757 N.E.2d 442, 450 (2001). See also, e.g., Hendricks v. Lock, 238 F.3d 985, 988 (8th Cir.2001); Hudson v. Hunt, 235 F.3d 892, 896 (4th Cir.2000); Musone v. United States, 113 F.Supp.2d 255, 259 (D.R.I.2000); Langston v. State, 341 Ark. 739, 19 S.W.3d 619, 621 (2000).

[¶ 16] In cases involving allegations that counsel failed to appeal despite a defendant’s express instructions to do so, courts have not uniformly analyzed the Supreme Court’s statements in Flores-Ortega about presumed prejudice and the requirement that a defendant establish prejudice by showing, but for counsel’s failure to file an appeal, the defendant would have appealed. However, the results are consistent. Most courts say prejudice is presumed per se from counsel’s failure to file a notice of appeal when so requested by a defendant. See, e.g., Solis v. United States, 252 F.3d 289, 293-94 (3rd Cir.2001); Hernandez v. Reno, 238 F.3d 50, 57 (1st Cir.2001); Hendricks, 238 F.3d at 989; State v. McCroy, 259 Neb. 709, 613 N.W.2d 1, 8 (2000); State v. Trotter, 259 Neb. 212, 609 N.W.2d 33, 41 (2000). Other courts do not speak in terms of presumed prejudice, but indicate if a defendant shows counsel knew of the defendant’s desire to appeal and failed to file the appeal, the defendant has established, under Flores-Ortega, both the performance and prejudice prongs of the Strickland test. See, e.g., Manning v. Foster, 224 F.3d 1129, 1135-36 (9th Cir.2000); Dumas v. Kelly, 162 F.Supp.2d 170, 172 (E.D.N.Y.2001).

[¶ 17] Thus, under either analysis, if a defendant proves that counsel failed to follow his instructions to file an appeal of his criminal conviction, the defendant has established ineffective assistance of counsel entitling the defendant to a new appeal. Flores-Ortega, 528 U.S. at 485, 120 S.Ct. 1029. In light of Flores-Ortega, to the extent Hopfauf and Sampson can be construed to require a defendant to demonstrate how his appeal would have been meritorious in order to establish that he was prejudiced by his attorney’s failure to pursue a requested appeal, we disapprove them.

B

[¶ 18] In Owens v. State, 2001 ND 15, 621 N.W.2d 566, this Court confronted the Flores-Ortega decision in the context of a defendant’s claim, after several of his post-conviction relief applications had been previously rejected, that he urged appellate counsel to directly appeal his conviction, but counsel failed to do so. A majority of the Court affirmed the summary denial of post-conviction relief on the basis of misuse of process. See Owens, at ¶ 15 (Sand-strom, J.) (noting “[t]he State has pleaded and proved misuse of process”); Owens, at ¶ 33 (VandeWalle, C.J., and Neumann, J., concurring) (noting Flores-Ortega does not “trump our jurisprudence on misuse of process”). Misuse of process is not an issue in this case. Whiteman’s application for post-conviction relief is the only application he has filed.

[¶ 19] In Solis v. United States, 252 F.3d 289, 295 (3rd Cir.2001), the court ruled:

[W]hen a defendant is convicted of a crime and alleges that his lawyer failed to appeal the conviction, and there is a potential factual dispute on this issue, the defendant is entitled to a hearing before the District Court to prove that he made the request and that the lawyer failed to honor it. However, a defendant would not be entitled to a hearing if his allegations were contradicted conclusively by the record, or if the allegations were patently frivolous.

See also United States v. Witherspoon, 231 F.3d 923, 927 (4th Cir.2000); McCroy, 613 N.W.2d at 8. Compare Abdi, 2000 ND 64, ¶ 8, 608 N.W.2d 292 (stating if there is a contradiction between the record and an applicant’s unsupported assertions, a post-conviction court may accept the record). Although an evidentiary hearing need not be held if there is no evidence in the record to support a defendant’s claim, see United States v. Arvizu, 270 F.3d 605, 606 (8th Cir.2001); Sarroca v. United States, 250 F.3d 785, 788 (2nd Cir.2001), a defendant’s allegation in an affidavit is sufficient to require an evidentiary hearing unless the records and files affirmatively show the defendant is entitled to no relief. E.g., Solis, 252 F.3d at 294; Hudson, 235 F.3d at 894-95; Witherspoon, 231 F.3d at 925; McCroy, 613 N.W.2d at 8. The timeliness of a defendant’s claim of ineffective assistance of counsel based on a failure to appeal may affect the credibility of the defendant’s claim, but that credibility determination is for the trier of fact. E.g., Musone, 113 F.Supp.2d at 258; Commonwealth v. Touw, 781 A.2d 1250, 1255 (Pa.Super.2001).

[¶ 20] Although Whiteman was not required to include with his application for post-conviction relief supporting evidence necessary to meet a possible motion for summary judgment, Wilson v. State, 1999 ND 222, ¶ 15, 603 N.W.2d 47, White-man attached a verified affidavit to his application claiming he told Dexheimer he wanted to appeal the conviction and Dex-heimer promised to appeal. The State argues, and the trial court ruled, because Whiteman did not provide evidentiary support for his allegation after the State responded to the application with Dexheimer’s affidavit denying Whiteman requested him to appeal the conviction, Whiteman “failed to present sufficient evidence showing a genuine issue of material fact concerning his claim that his trial counsel was ineffective because he allegedly failed to pursue an appeal of conviction and sentence.”

[¶ 21] Once the party moving for summary disposition has established there is no genuine issue of fact, the burden shifts to the nonmoving party to show a genuine issue of fact exists. Bell v. State, 2001 ND 188, ¶ 6, 636 N.W.2d 438. At that point, the party resisting the motion may not merely rely on the pleadings or unsupported conclusory allegations, but must present competent admissible evidence by affidavit or other comparable means. Clark v. State, 1999 ND 78, ¶ 5, 593 N.W.2d 329. Because the State, as the party moving for summary disposition, did not meet its initial burden of establishing there was no genuine issue of fact, the burden did not shift to Whiteman to provide evidence to support his claim. Although the State did not formally “put[] [Whiteman] upon his proof’ until it responded to the application with Dexheimer’s affidavit and attachments, Whiteman had already provided proof for his claim by attaching his affidavit to his original application. Whiteman’s affidavit itself raised a genuine issue of material fact. To suggest Whiteman needed to resubmit his affidavit after the State put him on his proof exalts form over substance. Moreover, the trial court faulted Whiteman for not providing the court with “copies of letters previously written to Dexheimer regarding appeal .... ” However, Dexheimer attached to his affidavit Whiteman’s January 1999 letter requesting information on the progress of the appeal. Whiteman was not required to resubmit the letter after it was already part of the court’s record.

[¶22] If the evidence raises a reasonable inference of ineffective representation which creates a genuine fact issue, an evidentiary hearing on a post-conviction claim of ineffective assistance of counsel is required. DeCoteau v. State, 1998 ND 199, ¶ 11, 586 N.W.2d 156. The opposing affidavits and other material submitted in this case create a genuine issue of material fact. The State has pointed to nothing in the record that conclusively contradicts Whiteman’s allegations. We conclude Whiteman is entitled to an evidentia-ry hearing on his ineffective assistance of counsel claim.

C

[¶ 23] If, after the evidentiary hearing, the trial court finds that Dexheimer did not fail to follow Whiteman’s instructions regarding a direct appeal, Whiteman’s claim of ineffective assistance of counsel should be dismissed. See Bearse v. United States, 176 F.Supp.2d 67, 76-77 (D.Mass.2001); State v. Curtright, 262 Neb. 975, 687 N.W.2d 599, 604-05 (Neb.2002). If, however, the trial court finds Dexheimer did not comply with a request by White-man to appeal his conviction, Whiteman has been denied effective assistance of counsel and he is entitled to a new direct appeal. See Flores-Ortega, 528 U.S. at 485, 120 S.Ct. 1029; Dumas, 162 F.Supp.2d at 172-73; Langston, 19 S.W.3d at 621-22.

[¶ 24] If a court finds in favor of an applicant, N.D.C.C. § 29-32.1-11(3) authorizes the court to enter any order “that may be necessary and proper.” We agree with the Nebraska Supreme Court’s approach to the procedure for a new direct appeal based on a Flores-Ortega denial of effective assistance of counsel:

The jurisdictional time limits for the new direct appeal run from the day postcon-viction relief is entered in the trial court, such appeal being conditioned on proper perfection. The record would necessarily contain the same record as the original appeal would have contained, with some indication that the defendant was awarded posteonviction relief of a new direct appeal.

Trotter, 609 N.W.2d at 41.

Ill

[¶ 25] The judgment is reversed and the case is remanded for an evidentiary hearing on Whiteman’s claim of ineffective assistance of counsel.

[¶ 26] GERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING and CAROL RONNING KAPSNER, JJ„ concur.

SANDSTROM, Justice,

concurring specially.

[¶ 27] I write separately to note that this opinion does not mean a defendant is always entitled to an evidentiary hearing— regardless of how tardy the claim — by asserting an instruction to counsel to appeal.

[¶ 28] Flores-Ortega sought to file his own appeal about forty days after the deadline. Roe v. Flores-Ortega, 528 U.S. 470, 474, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000). He had been unable to communicate with his lawyer for thirty of those days. Id.

[¶ 29] Rodriquez sought to file his own appeal about thirty-eight days after the deadline. Rodriquez v. United States, 395 U.S. 327, 328, 89 S.Ct. 1715, 23 L.Ed.2d 340 (1969). “He alleged that he had told his counsel to perfect an appeal, but that counsel had failed to do so.” Id.

[¶ 30] In Flores-Ortega and Rodriquez, the defendants promptly sought to appeal when it became clear their lawyers had not appealed.

[¶ 31] If a defendant does not attempt to appeal within a reasonable time or does not assert within a reasonable time that counsel failed to follow a direction to appeal, the defendant’s own conduct may concede that counsel’s alleged failure to act was not responsible for the lack of a timely appeal.

[¶ 32] Here, Whiteman’s September 15, 1998, letter to the trial court — about three and a half months after the appeal deadline — arguably evidenced a belief that an appeal was under way. When this is coupled with the trial court’s knowledge that no appeal had been filed, I agree there are sufficient grounds to remand for an evi-dentiary hearing.

[¶ 33] Dale V. Sandstrom

      . In a September 15, 1998 letter to the trial court requesting a reconsideration of his sentence which is contained in the record of his criminal conviction, Whiteman said:

        I do know that I hope that the truth will come out on my appeal and that I will be set free.

      I have prayed hard and long that you might consider making my sentence one that I can do with a chance for getting out in the future. I hope that you will allow this just in case my appeal fails.
      The trial court denied Whiteman’s N.D.RXrim.P. 35(b) motion for reduction of sentence.

      . In Nix v. United States, 111 F.Supp.2d 186, 190 (E.D.N.Y.2000), the court ruled a defendant’s affidavit stating he had asked his attorney to file an appeal from a criminal conviction was insufficient to justify an evidentiary hearing on his ineffective assistance of counsel claim:
      Nix’s thoroughly self-serving assertion is contradicted by a declaration made under penally of petjury by an officer of the Court that no such request was made. Nix’s claim that Hochbaum ignored an express request to file a notice of appeal is questionable, especially considering that Hochbaum clearly indicated to the Court at the sentencing hearing that he would file a notice of appeal if instructed to do so. In the absence of any other evidence to suggest that petitioner might actually have suffered a deprivation of his constitutional right to effective representation by trial counsel, Nix’s assertion is simply not sufficient to justify the investment of judicial resources that a hearing would require.
      We believe Nix is unpersuasive not only because its reasoning would foreclose the possibility of any defendant prevailing on an ineffective assistance of counsel claim when the attorney denies the allegation, but because it conflicts with our rules for summary disposition under N.D.C.C. § 29-32.1-09(1).

      . The State also argues the trial court did not err in denying Whiteman’s request for an evidentiary hearing because Whiteman failed "to secure a time for oral argument,” rendering his request for oral argument incomplete under N.D.R.Ct. 3.2. See Huber v. Oliver County, 529 N.W.2d 179, 183 (N.D.1995). This argument is without merit. Whiteman does not complain about a failure to have been granted oral argument on his application for post-conviction relief or his motion for an evidentiary hearing. See Syvertson v. State, 2000 ND 185, ¶¶ 9-11, 620 N.W.2d 362. Rather, Whiteman challenges the denial of an opportunity to present evidence at an eviden-tiary hearing under N.D.C.C. § 29-32.1-09. Whiteman was not required to secure a time for an evidentiary hearing that was never granted.


source: Caselaw Access Project

author: MARING, Justice.

license: Public Domain

text:
    2002 ND 82
    In the Matter of the ESTATE OF Francis HASS, Deceased. Dallas Hass, Lloyd Hass, and Shirley Puppe, Appellants, v. Kenneth W. DeKrey, Personal Representative, Wayne Hass and Louis Hass, Appellees.
    No. 20010233.
    Supreme Court of North Dakota.
    May 14, 2002.

      Monty G. Mertz, Mertz Law Office, Fargo, ND, for appellants.
    Steven K. Aakre, Serkland Law Firm, Fargo, ND, for appellees.
   MARING, Justice.

[¶ 1] Dallas Hass, Lloyd Hass, and Shirley Puppe appealed from a July 19, 2001 order, approving the administration of the intestate estate of Francis Hass. We hold the trial court did not abuse its discretion in approving the personal representative’s administration of the estate, approving the personal representative’s fees and attorney fees, approving the sale of the real estate and personal property, or in denying the appellants’ requests for supervised administration and for removal of the personal representative and the estate’s attorney. We affirm.

[¶ 2] Francis Hass died in 1997 at the age of 86. He was survived by four sons— Dallas, Lloyd, Wayne, and Louis — and a daughter, Shirley Puppe. Dallas and Lloyd Hass petitioned to probate a will, which had been executed by Francis Hass less than four weeks before his death, and which named them as personal representatives. The will gave $300 each to Shirley, Wayne, and Louis, and gave the remainder of Francis Hass’s estate to Dallas and Lloyd.

[¶ 3] Wayne and Louis Hass and Shirley Puppe retained attorney Erik R. Johnson to challenge the will. The trial court set aside the will after a jury found it was executed under the undue influence of Dallas and Lloyd Hass upon Francis Hass. While the will contest was being litigated, all five children of Francis Hass entered a stipulation agreeing to the appointment of Kenneth DeKrey as special administrator of the estate. When the will was set aside, the court appointed DeKrey to serve as personal representative of the intestate estate.

[¶ 4] DeKrey filed an inventory showing the total net value of the estate was $87,414.21, and the primary asset was a quarter section of farmland near Valley City. An appraiser valued the farmland at $72,000. DeKrey sold the farmland to its current tenants for’ their bid price of $62,000. He also sold the personal property of the estate at auction, and he filed a final accounting proposing to divide the estate’s net assets equally among the five children.

[¶ 6] On December 27, 2000, Dallas and Lloyd Hass filed an objection to the personal representative’s proposed distribution and also filed a petition requesting that the court remove DeKrey as personal representative, discharge Johnson as the attorney for the estate, and order a supervised administration of the estate. After an evidentiary hearing, the trial court entered the July 19, 2001 order approving administration of the estate by DeKrey, setting attorney and personal representative fees, and denying the requests for removal of the personal representative and the estate attorney and for supervised administration.

[¶ 6] On appeal Dallas and Lloyd Hass and Shirley Puppe request this Court to vacate the lower court’s order, to direct an independent accounting of the estate, to remove DeKrey as the personal representative and Johnson as the estate’s attorney, and to appoint “an independent, neutral fiduciary to complete the administration of the estate.”

I

[¶ 7] Although neither party has questioned the appealability of the court’s order, the right to appeal is jurisdictional, and we may consider appealability on our own initiative. Matter of the Estate of Stensland, 1998 ND 37, ¶ 10, 574 N.W.2d 203. This case involves an unsupervised administration of an intestate estate. Because each proceeding in an unsupervised probate is considered independent of other proceedings involving the same estate, there need be finality, for purposes of ap-pealability, only as to the proceeding being appealed, not as to the entire estate. Schmidt v. Schmidt, 540 N.W.2d 605, 607 (N.D.1995). The trial court’s July 19, 2001 order constituted a final approval of the estate administration and resolved all claims of interested parties pending at that time. We, therefore, conclude the court’s order is appealable and this Court has jurisdiction of the appeal under N.D. Const, art. VI, § 6 and N.D.C.C. § 28-27-01.

II

[¶ 8] After Erik Johnson represented some of the heirs in their successful challenge of the will, the trial court appointed DeKrey as personal representative to administer the intestate estate, and DeKrey retained Johnson to assist with that administration. The appellants claim the trial court erred in refusing to remove Johnson as the attorney for the estate because of the “inherent conflict of interest Mr. Johnson has had from the beginning of this entire case.” The appellants argue “[i]t is nearly beyond [the appellants’] comprehension that [Johnson] could presume to advise Mr. DeKrey in how to administer the estate in a fair and impartial manner, when he has continued to represent the opposite parties throughout, even dating before their father died ... A simple reading of Rule 1.7, of the North Dakota Rules of Professional Responsibility and the commentary thereto make it nearly beyond debate that Mr. Johnson has been operating under a fundamental conflict of interest throughout the entire case.”

[¶ 9] Rule 1.7, N.D.R. Prof. Conduct, provides in relevant part:

(a) A lawyer shall not represent a client if the lawyer’s ability to consider, recommend, or carry out a course of action on behalf of the client will be adversely affected by the lawyer’s responsibilities to another client or to a third person, or by the lawyer’s own interests.
(b) A lawyer shall not represent a client when the lawyer’s own interests are likely to adversely affect the representation.
(c) A lawyer shall not represent a client if the representation of that client might be adversely affected by the lawyer’s responsibilities to another client or to a third person, or by the lawyer’s own interests....

[¶ 10] Other than the cursory reference to Rule 1.7, counsel cites no authority to support his position that Johnson has an “inherent conflict” which mandates the trial court to remove Johnson from providing legal services for the estate. This action is not a disciplinary action, and we have said a violation of a Rule of Professional Conduct does not itself provide the basis for a recognized claim for relief. See Olson v. Fraase, 421 N.W.2d 820, 828 (N.D.1988) and cases cited therein. The appellants have failed to show how Johnson’s alleged conflict has rendered him unable to fairly represent the intestate estate and DeKrey as its personal representative. Furthermore, they have failed to show how they have been prejudiced by the legal services provided to the estate by Johnson. Under N.D.C.C. § 30.1-18-15(18) and (21), the personal representative is empowered to employ attorneys and others to assist and advise him and to have the estate pay compensation for those services. Matter of Estate of O’Connell, 476 N.W.2d 8, 11 (N.D.1991). The decision whether to remove a person from duties associated with management of an estate lies within the discretion of the trial court. See Brugger v. Stroh, 503 N.W.2d 848 (N.D.1993) (denial of petition to remove personal representative not an abuse of discretion). We conclude the trial court did not abuse its discretion in denying the appellants’ request to remove Johnson as attorney for the estate.

Ill

[¶ 11] The appellants claim the trial court erred in refusing to remove DeKrey as personal representative, in approving DeKrey’s administration of the estate, and in approving DeKrey’s fees.

A

[¶ 12] The appellants claim the trial court erred in refusing to remove DeKrey as personal representative of the estate. Under N.D.C.C. § 30.1-17-11, a person interested in an estate may petition for removal of a personal representative for cause, which exists when removal would be in the best interest of the estate, or the personal representative has mismanaged the estate or failed to perform a duty pertaining to the office. The removal of a personal representative for cause involves the exercise of discretion by the trial court, and the court’s decision will not be set aside on appeal absent an abuse of discretion. In re Estate of Howser, 2002 ND 33, ¶ 16, 639 N.W.2d 485. The appellants never made a formal objection to DeKrey’s appointment as personal representative and did not object to his administration of the estate until he filed the proposed final accounting. The appellants have failed to show specifically how DeK-rey has failed to perform a duty pertaining to the office or how he has mismanaged the estate, so as to require his removal. Consequently, we conclude the trial court did not abuse its discretion in refusing to grant the appellants’ request that DeKrey be removed as personal representative.

B

[¶ 13] The appellants claim DeK-rey did not act reasonably in selling the farmland to the tenants for $62,000 when the appraised price of the property was $72,000. Under N.D.C.C. § 30.1-18-03(2), the personal representative is empowered to administer the estate and to distribute the assets of an intestate estate to the heirs. Under N.D.C.C. § 30.1-18-15(6), the personal representative has the specific authority to “dispose of an asset, including land ... at public or private sale.” The personal representative’s decision to take possession of estate property is conclusive against the heirs and devisees. Schmidt v. Schmidt, 1997 ND 44, ¶ 5, 560 N.W.2d 886 (N.D.1997); N.D.C.C. § 30.1-18-09.

[¶ 14] DeKrey testified that he believed the $62,000 offer made by the tenants was a fair price for the property, even though an appraiser had valued it at a higher price. DeKrey testified he believed the sale of the property was reasonable considering there would be no sale’s commissions, advertising fees, or other expenses associated with the sale to the tenants. When the tenants offered to purchase the land, DeKrey sent a thirty-day notice to the heirs, giving them an opportunity to object to the sale or to purchase the land at the price offered by the tenants. None of the heirs filed an objection to the proposed sale and none of the heirs made an offer to purchase the land.

[¶ 15] The trial court found that the sale of the land was “reasonable and proper and the personal representative obtained fair value for the estate.” A trial court’s findings of fact will not be reversed on appeal unless they are clearly erroneous. N.D.R.Civ.P. 52(a). A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, after reviewing all of the evidence, we are left with a definite and firm conviction a mistake has been made. Moen v. Thomas, 2001 ND 95, ¶ 19, 627 N.W.2d 146. On appeal, the trial court’s findings of fact are presumed to be correct, and the complaining party bears the burden of demonstrating a finding is clearly erroneous. Id. We conclude the trial court’s finding that, under the circumstances, the personal representative’s sale of the estate farmland was reasonable and proper is not clearly erroneous.

C

[¶ 16] The appellants also assert that DeKrey sold items of their personal property at the estate auction sale. Although the heirs disagreed whether certain items of personal property located on the estate premises belonged to individual heirs or were owned by Francis Hass, none of them came forward with specific evidence credible to the trial court showing that they, rather than the estate, owned any of the personal property which DeK-rey gathered, inventoried, and sold at auction in settling the estate. We conclude the heirs have failed to show their claims of ownership have merit and the trial court did not abuse its discretion in approving DeKrey’s sale of these personal property items.

D

[¶ 17] The appellants also complain that some of the items of personal property, such as certain tractors, had a higher fair market value than the personal representative received for the items at the auction sale. However, other than their own opinion of the value, the appellants have offered no evidence credible to the trial court showing the value of those items or that a fair price was not obtained for them at the estate auction. The trial court found that the personal representative’s sale of the personal property “was reasonable and proper and the personal representative obtained fair value for the estate.” We conclude the trial court’s finding is not clearly erroneous.

E

[¶ 18] The appellants assert DeK-rey did not timely serve an inventory of the estate assets upon the heirs as required under N.D.C.C. § 30.1-18-06:

1. Within six months after appointment, or nine months after the death of the decedent, whichever is later, a personal representative, who is not a special administrator or a successor to another representative who has previously discharged this duty, shall prepare and file or mail an inventory of property owned by the decedent at the time of the decedent’s death, listing it with reasonable detail, and indicating as to each listed item, its fair market value as of the date of the decedent’s death, and the type and amount of any encumbrance that may exist with reference to any item.
2. The personal representative may file the original of the inventory with the court and send a copy of the inventory only to interested persons who request it. If the personal representative elects not to file the inventory with the court, the personal representative must mail a copy of the inventory to each of the heirs in an intestate estate, or to each of the devisees if a will has been probated, and to any other interested persons who request it.

(Emphasis added.) DeKrey filed an inventory with the court on July 27, 2000. The statute unambiguously states that if the inventory is filed with the court the personal representative is required to provide a copy “only to interested persons who request it.” The appellants have failed to show they made a request to DeKrey for a copy of the inventory or that DeKrey ignored any such request by them. They have failed to show how DeKrey did not comply with the requirements of the statute.

TV

[¶ 19] The appellants assert the trial court erred in awarding attorney fees to Erik Johnson for legal services he rendered in the will contest. Attorney Roger Weisenburger represented Dallas and Lloyd Hass in unsuccessfully defending the challenge to the will. The trial court awarded Weisenburger $10,622.47 in attorney fees to be paid by the estate. The personal representative has not appealed that award, and we, therefore, express no opinion on the appropriateness of that ruling. But see Estate of Honerud, 326 N.W.2d 96, 97 (N.D.1982) (person nominated as personal representative under a will subsequently invalidated as having been executed under his undue influence over the testator cannot claim good faith in defending the will and is not entitled to attorney fees incurred in defending against challenge to the will).

[¶ 20] Wayne and Louis Hass and Shirley Puppe retained attorney Erik Johnson to contest the will. The trial court concluded those legal services were rendered in good faith and, in equity, were a benefit to the entire estate as a whole and, therefore, awarded $16,742.99 in attorney fees to be paid by the estate for Johnson’s legal services in contesting the will.

[¶ 21] In Estate of Rohrich, 496 N.W.2d 566, 570 (N.D.1993), this Court considered the issue of whether an attorney who is employed by a beneficiary for a will contest can recover attorney fees from the estate. This Court concluded there is no statutory basis for an award of attorney fees for legal services performed primarily for the personal interest of a beneficiary, but recognized the trial court may award attorney fees, as a matter of equity, for legal services benefiting the estate as a whole:

It has been held that the equitable power of a court authorizes an award of attorney fees in an action by one person which benefits a class of persons, thus making it equitable to spread the costs of the action among the members of the benefited class. More specifically, some states allow beneficiaries to recover fees in equity when, at their own expense and not for their sole benefit, their attorney’s services benefited the estate as a whole by increasing a common fund in which other beneficiaries might share.

Id. at 572 (citations omitted). In Rohrich this Court held the attorney’s action chai-lenging the personal representative’s administration added value to the estate and, consequently, the trial court did not abuse its discretion in awarding attorney fees for those legal services. Id. at 573.

[¶ 22] However, this Court has also recognized that, in awarding attorney fees under N.D.C.C. § 30.1-18-20 for a good faith defense or prosecution of issues involving the estate, a benefit to the estate may occur even when there is not an enhancement of value or increase in estate assets:

A “benefit” to an estate certainly includes services that bring about an enhancement in value or an increase in the assets of the estate. See, e.g., Matter of Estate of Ambers, 477 N.W.2d 218, 224 (N.D.1991). However, we believe that a “benefit” to the estate is not to be measured solely in monetary terms, but can also include a personal representative’s good faith attempts to effectuate the testamentary intention set forth in a facially valid will. See, e.g., In re Estate of Lewis, 442 So.2d 290, 292 (Fla.Ct.App.1983). As the court reasoned in In re Pelgram’s Estate, 146 Misc. 750, 262 N.Y.S. 848, 854 (1933):
“To be beneficial, it need not be shown that net tangible monetary advantage was realized or that a money loss was avoided. The administration of trust property does not permit so simplified a test of ‘benefit.’ The word applies to every aspect of administration which sound judgment would approve. If in the carrying on of such an administration legal services are required either in defense or in attack, the fiduciary may contract for or may pay and receive allowance for reasonable fees.”
Statutes providing for attorney fees to be paid out of the estate to a successful or unsuccessful personal representative who engages in good faith proceedings recognize that an estate as an entity is benefited when genuine controversies as to the validity or construction of a will are litigated and finally determined.

Estate of Flaherty, 484 N.W.2d 515, 518 (N.D.1992). In determining the appropriateness of awarding attorney fees from an estate, a crucial factor is whether the services of the attorney are for the common benefit of the estate rather than by whom the attorney was employed. See Estates of Kjorvestad, 287 N.W.2d 465, 468 (N.D.1980). A trial court’s decision regarding an award of attorney fees will not be overturned on appeal unless the court has abused its discretion. Oliver v. City of Larimore, 540 N.W.2d 630, 635 (N.D.1995).

[¶ 23] The trial court specifically found that the will contest was conducted in good faith and, in equity, was a benefit to the entire estate as a whole. We conclude the trial court’s finding is not clearly erroneous. While the will contest litigation here did not increase the overall value of the estate, it resulted in the determination of the proper course of administering the decedent’s estate and in determining the proper distribution of the estate’s assets among the heirs of the deceased. Without the litigation, the estate likely would have been administered under the guidance of an invalid will, executed upon undue influence over the testator. It is in the best interests of an estate to be administered under the intestate law rather than under the terms of an invalid will. Estate of Foster, 102 N.M. 707, 699 P.2d 638, 645-46 (App.1985) (trial court’s award of attorney fees upheld for litigation resulting in denial of probate of invalid will because the estate was benefited by having assets distributed according to the intestate law rather than under invalid will); Estate of Gardner, 114 N.M. 793, 845 P.2d 1247, 1258 (App.1992) (attorney fees may be awarded for services rendered that benefit the entire estate, and there is such benefit by an action which prevents or corrects an unlawful distribution of the estate); see also 40 A.L.R.2d 1407 (1955); Annot., Eight to Allowance Out of Estate of Attorneys’ Fees Incurred in Attempt to Establish or Defeat Will. By settling the question of the validity of the will, the court was able to direct administration of the estate and distribution of the estate’s assets in accordance with our intestate law. Under these circumstances, we conclude the trial court did not abuse its discretion in awarding attorney fees for legal services rendered in contesting the will.

V

[¶ 24] In accordance with this opinion, we hold the trial court did not abuse its discretion in approving the administration and final accounting of the personal representative; in awarding attorney fees and fees to the personal representative; in denying the request for removal for the personal representative and the attorney for the estate; or in denying the request for supervised administration. We therefore affirm the trial court’s July 19, 2001 order in its entirety.

[¶ 25] GERALD W. VANDE WALLE, C.J., WILLIAM A. NEUMANN, DALE V. SANDSTROM and CAROL RONNING KAPSNER, JJ„ concur.


author: MARING, Justice. KAPSNER, Justice, MARING, Justice,

text:
    2002 ND 85
    Darold B. SHIEK, Claimant and Appellant, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellee, and North Dakota State University, Respondent.
    No. 20010319.
    Supreme Court of North Dakota.
    May 14, 2002.
    Rehearing Denied June 5, 2002.

      Mark G. Schneider (submitted on brief), Schneider, Schneider & Phillips, Fargo, for claimant and appellant.
    Jacqueline Sue Anderson (submitted on brief), Special Assistant Attorney General, Fargo, for appellee.
   MARING, Justice.

[¶ 1] Darold Shiek appeals from the district court’s judgment affirming a North Dakota Workers’ Compensation Bureau decision which determined Shiek was not entitled to higher permanent partial impairment benefits than he had already received. We reverse the Bureau’s decision and remand for appropriate action in accordance with this opinion.

I

[¶ 2] On July 30, 1991, Darold Shiek injured his right shoulder while working as a boiler operator at North Dakota State University. Shiek filed a claim with the North Dakota Workers’ Compensation Bureau (“Bureau”) and received compensation for the injury. On August 4, 1992, Shiek underwent arthroscopic surgery on his left knee to repair a tear of the posteri- or horn of the medial meniscus. On August 25, 1992, Shiek filed a separate claim for the injury to his left knee in which he explained that the knee injury occurred at the same time that he injured his right shoulder on July 30, 1991. The Bureau consolidated the claim for the left-knee injury with the original claim for the right-shoulder injury. On October 3, 1994, Shiek underwent a total arthroplasty of his left knee upon the advice of an orthopedic surgeon.

[¶ 3] On April 3, 1996, the Bureau issued an Order Awarding Permanent Partial Impairment Benefits related to Shiek’s work injury of July 30, 1991. In its order, the Bureau found that Shiek had sustained the following impairments: 15.5% right arm at the shoulder; 25% additional for master hand; and 50% left leg at hip for knee. The order awarded Shiek $20,845.44 in benefits in accordance with former North Dakota Century Code sections 65-05-14 and 65-05-13(l)(18) (1989).

[¶ 4] Shiek requested reconsideration of this order, contending that he was entitled to a higher award for his left leg and that he was entitled to an award for venous insufficiency. These matters were consolidated for an administrative hearing. Additionally, the hearing was intended to address the issue of whether an order of the Bureau dated March 26, 1998, properly denied Shiek benefits for a condition that had developed in his right knee.

[¶ 5] On December 23, 1999, the hearing officer issued an order which recommended that the Bureau’s Order Denying Specific Benefits dated March 26, 1998, be reversed because Shiek’s right knee condition was work-related. The order also recommended that the Bureau’s Order Awarding Permanent Partial Impairment Benefits be reversed to reflect Shiek’s entitlement to additional permanent partial impairment benefits for his left-leg condition and for his venous insufficiency condition. The Bureau adopted the recommendation as its final order on December 28, 1999.

[¶ 6] On January 4, 2000, the Bureau issued an Order Awarding Permanent Partial Impairment Benefits. In the order, the Bureau found that Shiek had sustained the following impairments: 15.5% right arm at shoulder; 25% additional for master hand; 54% left leg at hip for knee; 10% whole body for venous insufficiency. After subtracting the prior benefits awarded to Shiek in the order dated April 3, 1996, the Bureau concluded Shiek was entitled to $7,479.36 in additional benefits in accordance with former North Dakota Century Code sections 65-05-12, 65-05-14, and 65-05-13(1)(18) (1989).

[¶ 7] On January 28, 2000, an evaluation of Shiek’s right knee was conducted. Subsequent to this evaluation, the Bureau denied Shiek additional permanent partial impairment benefits for his right knee. However, the Bureau reversed this decision after receiving a memorandum from the Office of Independent Review. On June 1, 2000, the Bureau issued an Order Awarding Permanent Partial Impairment Benefits relating to Shiek’s right knee as follows: “20% Whole body for right knee gait derangement 20.0 weeks.” As a result of the order, Shiek received an additional award of $2,920.

[¶ 8] On June 1, 2000, Shiek requested reconsideration of the Bureau’s order dated June 1, 2000. Shiek argued that he was entitled to an evaluation and award for venous insufficiency of his right knee. Shiek also argued that under the current version of N.D.C.C. § 65-05-12.2, his prior partial impairment awards should have been converted into whole-body impairment terms and taken into account when determining the extent of his whole-body impairment that existed after his right knee evaluation.

[¶ 9] The Bureau’s counsel and Shiek’s counsel reached an agreement regarding Shiek’s first argument. In accordance with the agreement, Shiek was awarded 20 weeks for venous insufficiency for his right knee and received an additional $2,920 in benefits. In regard to Shiek’s second argument, the hearing officer concluded that “there is nothing within the language of Section 65-05-12.2(7) or (10) which requires the conversion of all prior impairments to a ‘whole body’ basis before awarding benefits for a member or body part not previously the subject of an impairment award.” The Bureau adopted the hearing officer’s decision in an order dated July 2, 2001, and Shiek appealed to the district court. The district court affirmed the Bureau’s order, and Shiek appealed to this Court.

II

[¶ 10] On appeal, we review the Bureau’s decision and not the decision of the district court. See Klein v. N.D. Workers Comp. Bureau, 2001 ND 170, ¶ 6, 634 N.W.2d 530. We are required to affirm the Bureau’s decision unless its findings of fact are not supported by a preponderance of evidence, its conclusions of law are not supported by its findings of fact, its decision is not supported by its conclusions of law, its decision is not in accordance with the law, or its decision violates the claimant’s constitutional rights or deprives the claimant of a fair hearing. See id. (citing N.D.C.C. §§ 28-32-19, 28-32-21). In reviewing the Bureau’s findings of fact, we determine only whether a reasoning mind reasonably could have determined the findings were proven by the weight of the evidence. See id. Questions of law, including whether the Bureau correctly interpreted a statute, are fully reviewable on appeal from a Bureau decision. See id. (citing Robertson v. N.D. Workers Comp. Bureau, 2000 ND 167, ¶ 8, 616 N.W.2d 844).

III

[¶ 11] Shiek argues that the Bureau incorrectly calculated his permanent partial impairment benefits for his right-knee impairment because under N.D.C.C. § 65-05-12.2, the Bureau was required to convert Shiek’s prior impairment ratings to whole-body impairment ratings and then combine them with the whole-body impairment rating he received for his right knee to arrive at a current cumulative whole-body impairment rating.

[¶ 12] Our primary goal in statutory construction is to ascertain the intent of the Legislature. See Western Gas Resources, Inc. v. Heitkamp, 489 N.W.2d 869, 872 (N.D.1992). In ascertaining the Legislature’s intent, we first look to the plain language of the statute and. give each word of the statute its ordinary meaning. See Estate of Thompson, 1998 ND 226, ¶ 7, 586 N.W.2d 847. We construe the statute as a whole and give effect to each of its provisions if possible. Id. If the language of the statute is clear and unambiguous when read as a whole, we cannot ignore that language under the pretext of pursuing its spirit because the legislative intent is presumed clear from the face of the statute. See Zueger v. N.D. Workers Comp. Bureau, 1998 ND 175, ¶ 9, 584 N.W.2d 530. If, however, the statute is ambiguous or if adherence to the strict letter of the statute would lead to an absurd or ludicrous result, a court may resort to extrinsic aids, such as legislative history, to interpret the statute. See Shiek v. N.D. Workers Comp. Bureau, 2001 ND 166, ¶ 17, 634 N.W.2d 493. A statute is ambiguous if it is susceptible to meanings that are different, but rational. See id. (citing Jorgenson v. Agway, Inc., 2001 ND 104, ¶ 5, 627 N.W.2d 391).

[¶ 13] The permanent impairment evaluation for Shiek’s right knee was performed on January 28, 2000. Thus, the applicable statute in this case is the 1999 version of N.D.C.C. § 65-05-12.2. Compare 1999 N.D. Sess. Laws ch. 551, § 4 (stating that the 1999 version of N-D.C.C. § 65-05-12.2 applies to all evaluations performed after July 31, 1999) with N.D. Sess. Laws ch. 580, § 2 (stating that the 2001 version of N.D.C.C. § 65-05-12.2 applies to all evaluations performed after July 31, 2001). Unless otherwise noted, all references to N.D.C.C. § 65-05-12.2 in this opinion refer to the 1999 version of the statute.

[¶ 14] Section 65-05-12.2(10), N.D.C.C., provides, “If the injury causes permanent impairment, the award must be determined based on the percentage of whole body impairment .... ” The amount of a permanent partial impairment award is determined by multiplying “thirty-three and one-third percent of the average weekly wage in this state on the date of the impairment evaluation, rounded to the next highest dollar, by the number of weeks” listed in N.D.C.C. § 65-05-12.2(10) that corresponds to the claimant’s percentage of whole-body impairment. See N.D.C.C. § 65-05-12.2(2). The governing procedure for conducting a permanent impairment evaluation is set forth in N.D.C.C. § 65-05-12.2(6). Section 65-05-12.2(6), N.D.C.C., provides:

A doctor evaluating permanent impairment shall include a clinical report in sufficient detail to support the percentage ratings assigned. The bureau shall adopt administrative rules governing the evaluation of permanent impairment. These rules must incorporate principles and practices of the American medical association’s “Guides to the Evaluation of Permanent Impairment” modified to be consistent with North Dakota law, to resolve issues of practice and interpretation, and to address areas not sufficiently covered by the guides. Until rules adopted under this subsection become effective, impairments must be evaluated under the fourth edition, third printing, of the guides.

The Bureau has not adopted any administrative rules that would modify the application of the Guides to the Evaluation of Permanent Impairment in this case. See N.D. Admin. Code § 92-01-02-25. Thus, under N.D.C.C. § 65-05-12.2(6), the Bureau was required to determine the percentage of Shiek’s whole-body impairment in accordance with the Guides to the Evaluation of Permanent Impairment.

[¶ 15] Under the “Rules for Evaluations” contained in the American Medical Association’s Guides to the Evaluation of Permanent Impairment, if an impairing condition involves several organ systems, “each organ system impairment should be expressed as a whole-person impairment; then the whole-person impairments should be combined by means of the Combined Values Chart (p. 322).” See American Medical Association, Guides to the Evaluation of Permanent Impairment, 8 (4th ed. June 1993) (“AMA Guides”). Similarly, if a physician determines that a patient has two significant, unrelated conditions, the physician may calculate a whole-person impairment estimate for each condition. See id. “The whole-person impairment estimates for the two separate conditions then would be combined into an overall impairment estimate using the Combined Values Chart.” Id. Thus, the AMA Guides contemplate the combination of work-related impairments to determine a single whole-body impairment rating, regardless of whether the impairments are to different body parts. Furthermore, as illustrated in Saari v. North Dakota Workers Compensation Bureau, the Bureau has previously relied on the AMA Guides to convert impairments to different body parts to whole-body impairment percentages and to combine those impairment percentages into a single whole-body impairment rating for a claimant. See 1999 ND 144, ¶ 4, 598 N.W.2d 174.

[¶ 16] In Saari, the claimant was examined under the Fourth Edition of the AMA Guides. See id. The doctor conducting the evaluation determined the claimant had sustained a 5 percent whole-body impairment for a cervical injury, a 22 percent impairment of his upper extremity for abnormal motion, and a 0.7 percent impairment of the upper extremity for sensory loss. See id. The Bureau then determined that the upper extremity impairments were equal to a 13.7 percent whole-body impairment rating. See id.; see also AMA Guides, at 20 (stating that a 22 percent upper extremity impairment equals a 13 percent whole person impairment). It then combined the 5 percent whole-body impairment rating for the cervical impairment with the 13.7 percent whole-body impairment rating for the upper extremity impairment to arrive at a single whole-body impairment for the claimant of 17.7 percent. See id.; see also AMA Guides, at 322 (listing the combined value of 5 percent and 13 percent as 17 percent).

[¶ 17] In this case, it is undisputed that all of Shiek’s impairments were caused by the compensable injuries Shiek suffered while working as a boiler operator on July 31, 1991. Therefore, if all of Shiek’s impairments had been determined at the permanent impairment evaluation conducted on January 28, 2000, the Bureau would have been required to convert each of the impairments to different body parts to whole-body impairment ratings and combine each of the whole-body impairment ratings to arrive at a single whole-body impairment rating. See Saari, 1999 ND 144, ¶ 4, 598 N.W.2d 174; AMA Guides, at 8. Unlike the claimant in Saari, however, Shiek’s impairments were not all determined at the same permanent impairment evaluation, but were determined at two different permanent impairment evaluations. Furthermore, the permanent partial impairment awards given to Shiek as a result of the first evaluation were based on the schedule of injuries to separate body parts found in former N.D.C.C. § 65-05-13 (1989), while the impairment award given to Shiek as a result of his second evaluation was based on the whole-body impairment schedule found in N.D.C.C. § 65-05-12.2(10). Therefore, we must determine whether the Bureau is relieved of its obligation under subsections 6 and 10 of N.D.C.C. § 65-05-12.2 to combine ah of a claimant’s impairments to different body parts into a single whole-body impairment rating when the impairments, although caused by work-related injuries from the same accident, are determined at two different permanent impairment evaluations and result in awards based on two different permanent impairment award systems.

[¶ 18] Nothing in the AMA Guides nor the Bureau’s own regulations, indicates that prior impairments to scheduled members cannot be converted to whole-body impairment ratings and combined with a subsequent whole-body impairment to arrive at a single whole-body impairment rating. In fact, the AMA Guides contain numerous charts for converting impairments to specific body parts to whole-body impairments and a Combined Values Chart for combining the whole-body impairments to the different body parts into a single whole-body impairment percentage. See AMA Guides, at 20, 77-78, 218, 322. Furthermore, the Bureau does not argue that it cannot convert a prior scheduled impairment to a whole-body impairment and concedes that if Shiek’s subsequent impairment award was for his left knee, it would have been required to convert his prior scheduled impairment for his left leg to a whole-body impairment percentage. However, the Bureau argues that, under N.D.C.C. § 65-05-12.2(7), it is not required to convert Shiek’s prior impairments to whole-body impairments in this case because Shiek’s subsequent impairment award for his right knee was for a body part for which he had never previously received an impairment award.

[¶ 19] In Feist v. North Dakota Workers Compensation Bureau, this Court rejected an argument similar to the argument advanced by the Bureau in this case as being inconsistent with the AMA Guides:

In its 1993 permanent partial impairment award, the Bureau calculated Feist’s impairment rating by combining his lumbar impairment rating with a previous cervical rating. Feist contends “there is nothing in the Guides (any edition) which would allow the Bureau to combine the ratings and awards for two separate claims pertaining to two separate anatomical impairments.” We disagree. The Third Edition and the Third Edition (Revised) each contain a “Combined Values Chart” bearing a legend stating in part:
“To combine any two impairment values, locate the larger of the values on the side of the chart and read along that row until you come to the column indicated by the smaller value at the bottom of the chart. At the intersection of the row and the column is the combined value. [”]
“If three or more impairment values are to be combined, select any two and find their combined value as above. Then use that value and the third value to locate the combined value of all. This process can be repeated indefinitely, the final value in each instance being the combination of all the previous values.”
The legends on the combined values charts do not indicate that “two separate anatomical impairments” may not be combined. The combined values charts allow any two or more impairment values to be combined. That impairments of separate anatomical areas of the body may be combined in one impairment value is made even more clear in the combined values chart in the Fourth Edition, which, in addition to the same language as that in the Third and Third (Revised) editions, contains the following sentence: “Note: If the impairments from two or more organ systems are to be combined to express a whole-person impairment, each must first be expressed as a whole-person impairment percent.” We conclude the Bureau was authorized to combine the impairment ratings for Feist’s lumbar and cervical impairments.
As Feist noted in his brief, when the Bureau awarded Feist the permanent impairment award challenged here, N.D.C.C. 65-05-12 provided in part: “Any subsequent award for impairment must be made minus any previous award given on any earlier claim or the same claim for that same member or body part.” That provision on awards for impairments does not undercut in any way the Bureau’s ability to combine impairment ratings.

1997 ND 177, ¶¶ 14-15, 569 N.W.2d 1 (emphasis added).

[¶ 20] Similar to former N.D.C.C. § 65-05-12 (1989), section 65-05-12.2(7), N.D.C.C., provides: “The bureau shall deduct, on a whole body impairment basis, from an award for impairment under this section, any previous impairment award for that same member or body part under the workers’ compensation laws of any jurisdiction.” Just as nothing in former N.D.C.C. § 65-05-12 (1989) prevented the Bureau from combining a prior and a subsequent impairment rating for two separate body parts, see Feist, 1997 ND 177, ¶¶ 14-15, 569 N.W.2d 1, nothing in N.D.C.C. § 65-05-12.2(7) prevents the Bureau from combining Shiek’s prior impairments with his subsequent impairment to arrive at a combined whole-body impairment percentage. Section 65-05-12.2(7), N.D.C.C., requires the deduction of a previous permanent impairment “award” from a new permanent impairment “award,” not the deduction of a previous permanent partial impairment percentage from a new permanent partial impairment percentage. Therefore, before a previous impairment award can be deducted under N.D.C.C. § 65-05-12.2(7), the amount of the claimant’s new award must be determined. As explained earlier, under subsections 6 and 10 of N.D.C.C. § 65-05-12.2, the amount of a whole-body permanent impairment award must be based on the combined value of all the claimant’s whole-body permanent impairments, even if the impairments are to different body parts. See Saari, 1999 ND 144, ¶ 4, 598 N.W.2d 174; AMA Guides, at 8. Nothing in the Bureau’s own administrative regulations or the AMA Guides indicates that whole-body permanent impairment awards should not be based on the combined value of all the claimant’s impairments simply because the permanent impairment percentages for the different body parts are determined at two different permanent impairment evaluations. See N.D. Admin. Code § 92-01-02-25; AMA Guides, at 8.

[¶ 21] In addition to being inconsistent with the AMA Guides, the Bureau’s interpretation of N.D.C.C. § 65-05-12.2(7) is also contrary to the Legislature’s intent in switching from a scheduled injury impairment system to a whole-body impairment system. When the Legislature switched to a whole-body impairment system in 1995, its intent was to increase the amount of benefits for the most severely impaired workers, but decrease the amount of benefits for less severely impaired workers and eliminate benefits for workers whose whole-body impairments fell below 16 percent. See Saari, 1999 ND 144, ¶ 8, 598 N.W.2d 174. However, as illustrated by the following two examples, under the interpretation of N.D.C.C. § 65-05-12.2(7) advanced by the Bureau in this case, some of the most severely impaired workers would never receive the full amount of permanent partial impairment benefits to which they are entitled simply because their impairments happened to develop at different times and did not affect the same body part.

[¶ 22] In the first example, assume the Bureau determines, through four different permanent impairment evaluations each made at different times, that a claimant has a left-leg impairment of 15 percent whole-body, a right-leg impairment of 15 percent whole-body, a left-arm impairment of 15 percent whole body, and a right-arm impairment of 15 percent whole-body, all caused by compensable injuries. Under the interpretation of N.D.C.C. § 65-05-12.2(7) advanced by the Bureau in this case, none of these impairments would be combined because they arose at different times and were to different body parts. Therefore, each of these impairments would be viewed separately and this claimant would never receive an award for the work-related impairments, see N.D.C.C. § 65-05-12.2(10) (providing for an award of zero weeks for an impairment of one to fifteen percent), despite the fact that the claimant suffers from a combined whole-body impairment of 48 percent, see AMA Guides, at 322 (Combined Values Chart). Under N.D.C.C. § 65-05-12.2(10), a claimant with a 48 percent whole-body impairment rating is entitled to an award of 230 weeks.

[¶ 23] In the second example, assume the Bureau first determines that a claimant has a right-leg impairment of 30 percent whole-body and later determines, through a subsequent evaluation, that the claimant has a left-leg impairment of 30 percent whole-body. Under the Bureau’s interpretation of N.D.C.C. § 65-05-12.2(7), because these impairments were determined at different permanent impairment evaluations and were to different body parts, the Bureau would not be required to combine them. Therefore, this claimant would receive 50 weeks for each impairment, for a total award of 100 weeks for both impairments. See N.D.C.C. § 65-05-12.2(10). Under the AMA. Guides Combined Values Chart, however, the claimant actually suffers from a combined whole-body impairment of 51 percent. See AMA Guides, at 322 (Combined Values Chart). A claimant with a 51 percent whole-body impairment is entitled to receive a total award of 280 weeks. See N.D.C.C. § 65-05-12.2(10).

[¶ 24] Rather than adopt a construction of N.D.C.C. § 65-05-12.2(7) that is both inconsistent with the AMA Guides and contrary to the Legislature’s intent in switching to a whole-body impairment system, we conclude that N.D.C.C. § 65-05-12.2, when read as a whole, requires that the overall number of weeks a worker receives for all the worker’s prior and subsequent impairments must be the number of weeks that corresponds to the combined value of both the prior and subsequent impairments on a whole-body impairment basis. Therefore, when a claimant who has received a prior permanent impairment award is later determined to have a subsequent permanent impairment, the Bureau must first, in accordance with subsections 6 and 10 of N.D.C.C. § 65-05-12.2, determine the whole-body impairment for each condition and then combine the claimant’s prior and subsequent impairment percentages into a single combined whole-body impairment percentage, regardless of whether the prior and subsequent awards were for impairments to different body parts. See Saari, 1999 ND 144, ¶ 4, 598 N.W.2d 174; AMA Guides, at 8. Next, the Bureau must determine the number of weeks that correlates to this percentage under N.D.C.C. § 65-05-12.2(10). The Bureau must then “deduct, on a whole body impairment basis, from an award for impairment under this section, any previous impairment award for that same member or body part under the workers’ compensation laws of any jurisdiction,” see N.D.C.C. § 65-05-12.2(7), to determine the number of additional weeks that must be awarded to the claimant for the subsequent impairment.

[¶ 25] When a compensable injury results in a claimant receiving a previous impairment award and a subsequent impairment award that are both based on whole-body impairment percentages, deducting the prior award from the subsequent award under N.D.C.C. § 65-05-12.2(7) will generally involve simply subtracting the number of weeks that were actually awarded for the prior whole-body impairment. By way of example, assume a worker is determined to have a 16 percent whole-body impairment for her right leg and a 17 percent whole-body impairment for her left arm, for a combined whole-body impairment rating of 30 percent. See AMA Guides, at 322 (Combined Values Chart). Under N.D.C.C. § 65-05-12.2(10), therefore, the worker would be awarded 50 weeks. If the worker is subsequently determined to have an 18 percent whole-body impairment for her left leg, the 18 percent impairment would be combined with the prior whole-body impairments for a single combined whole-body impairment rating of 43 percent. See AMA Guides, at 322 (Combined Values Chart). Under N.D.C.C. § 65-05-12.2(10), a 43 percent whole-body impairment corresponds to an award of 180 weeks. From this 180 weeks, the Bureau must “deduct, on a whole body impairment basis, from an award for impairment under this section, any previous impairment award for that same member or body part under the workers’ compensation laws of any jurisdiction.” See N.D.C.C. § 65-05-12.2(7). The “member or body part” at issue in this example is the worker’s whole body because her subsequent award was based not on an impairment to any particular body part, but on the combined value of all her impairments to her whole body. The previous permanent impairment award this worker received for all the impairments to her whole body was 50 weeks. Therefore, under N.D.C.C. § 65-05-12.2(7), 50 weeks would be deducted from 180 weeks, and the worker would be awarded an additional 130 weeks.

[¶ 26] When, as in this case, compensa-ble injuries result in a claimant receiving a prior impairment award based on injuries to scheduled body parts, and a subsequent award based on a whole-body impairment percentage, the same process is employed. By way of illustration only, if on remand the Bureau finds that Shiek’s combined whole-body impairment rating after his right knee evaluation is 56 percent as Shiek contends, the total number of weeks Shiek would be entitled to receive is 380. See N.D.C.C. § 65-05-12.2(10). From this 380 weeks, the Bureau must “deduct, on a whole body impairment basis, from an award for impairment under this section, any previous impairment award for that same member or body part under the workers’ compensation laws of any jurisdiction.” See N.D.C.C. .§ 65-05-12.2(7). As in the previous example, the “member or body part” at issue would be Shiek’s whole body because his subsequent award would not be based on an impairment to any particular body part, but on the combined value of his prior and subsequent impairments. The awards Shiek has already received for the impairments included in his combined whole-body impairment rating are awards of 244.80 weeks for his prior impairments and 40 weeks for the right-leg impairment at issue in this case. Thus, Shiek has already been awarded 284.80 weeks for his whole-body impairment. Therefore, if Shiek’s combined whole-body impairment percentage is 56 percent as Shiek contends, then 284.80 weeks would be deducted from 380 weeks, and Shiek would be awarded an additional 95.2 weeks.

[¶ 27] Shiek argues that once the Bureau determines the number of weeks that corresponds to his combined whole-body impairment percentage, it should not deduct the number of weeks he actually received for all his prior impairments, but the number of weeks listed in N.D.C.C. § 65-05-12.2(10) which corresponds to his combined whole-body impairment percentage as it existed prior to his right-leg evaluation, along with the 40 weeks Shiek abeady received for his right-leg impabment. According to Shiek’s calculations, his whole-body impairment rating prior to his right-leg evaluation was 37.38 percent and his combined whole-body impairment rating after the right-leg evaluation would be 56 percent. Shiek contends that 37.38 percent corresponds to 123.8 weeks under N.D.C.C. § 65-05-12.2(10) and 56 percent corresponds to 380 weeks. Thus, Shiek concludes that his additional award is equal to 380 weeks minus 163.8 weeks, or 216.2 weeks.

[¶ 28] We do not agree with Shiek’s interpretation of N.D.C.C. § 65-05-12.2(7). As discussed earlier, N.D.C.C. § 65-05-12.2(7) requbes the deduction of a previous permanent impabment “award” from a new permanent impabment “award.” Therefore, the amount of the deduction under N.D.C.C. § 65-05-12.2(7) is not determined by the amount of the previous impairment percentage, but by the actual amount of the previous award. The total award Shiek previously received for all his impairments was 284.80 weeks, not 163.8 weeks.. To deduct 163.8 weeks from 380 weeks would result in Shiek receiving an additional award of 216.2 weeks and a total award for both his prior and subsequent impairments of 501 weeks (216.2 + 284.80=501). Thus, if Shiek’s prior impairment awards were deducted in the manner he suggests, he would end up receiving 121 more weeks than the total number of weeks that corresponds to the combined value of all his impairments (501-380=121). As discussed earlier, when read as a whole, N.D.C.C. § 65-05-12.2 prohibits such a result by requbng that the total permanent impabment award given to workers with both prior and subsequent impairments must correspond to the combined value of all the prior and subsequent impairments on a whole-body impairment basis.

IV

[¶ 29] We reverse the decision of the district court and remand to the Bureau for further proceedings consistent with this opinion. On remand, the Bureau is to determine a single combined whole-body impabment percentage for all of Shiek’s impairments and the number of weeks that corresponds to this percentage under N.D.C.C. § 65-05-12.2(10). The Bureau is to then deduct the 244.80 weeks and the 40 weeks that were previously awarded to Shiek. The result will be the additional number of weeks to which Shiek is entitled under N.D.C.C. § 65-05-12.2(10).

[¶ 30] VANDE WALLE, C.J., and NEUMANN, JJ., concur.

KAPSNER, Justice,

dissenting.

[¶ 31] I respectfully dissent.

[¶ 32] The opinion of the majority reaches a result that would be logical if the legislature had requbed it. However, it reaches this result only by the most strained interpretation of the statute. N.D.C.C. § 65-05-12.2(7) (1999), requbes:

The bureau shall deduct, on a whole body impairment basis, from an award for impairment under this section, any previous impairment award for that same member or body part under the workers’ compensation laws of any jurisdiction.

The majority’s result depends upon its interpretation that this section does not prohibit the result it imposes and uses that lack of prohibition to create a mandate. The majority also strains the language of the statute when it holds that the language “that same member or body part” actually means the whole body. It is a strain the plain language of the statute simply won’t support.

[¶ 33] The above quoted subsection (7) is the subsection which dbectly addresses combining prior awards with a present award. It does not pertain to Shiek’s right knee award and does not require converting prior awards for other body parts to be combined with the award to the right knee.

[¶ 34] Neither subsection (6) nor subsection (10) of N.D.C.C. § 65-05-12.2 relied upon by the majority directly relate to combining prior awards with later awards. Subsection (10) does require “[i]f the injury causes permanent impairment, the award must be determined based on the percentage of whole body impairment in accordance with [the statutory schedule]

[¶35] Shiek’s right knee injury was evaluated as a whole body impairment. Shiek does not challenge the analysis in isolation but challenges the failure of the Bureau to analyze all prior permanent impairment awards in combination with the right knee injury. However, no statute requires this result and subsection (7) is inconsistent with such an approach.

[¶ 36] Although the majority purports to be relying on the legislative intent in switching to a whole body impairment system in 1995, majority at ¶21, legislative intent regarding successive awards to the same claimant was expressed when the Legislative Assembly amended N.D.C.C. § 65-05-12.2(7) in 1999, and required set-off of past awards against current awards for the “same member or body part.”

[¶ 37] I believe the Bureau and the trial court were correct. N.D.C.C. § 65-05-12.2 does not require the Bureau to convert past awards to whole body impairment basis when the past awards are not for the same body part. The conclusions of the ALJ, which were adopted by the Bureau, provide:

In accordance with Section 65-05-12.2[7], N.D.C.C., the plain and ordinary language of the statute requires the Bureau to deduct “any previous impairment award” only “for the same member or body part under the workers compensation laws of any jurisdiction.” Id. The greater weight of the evidence has established that Shiek had received no previous PPI award for his right knee. Therefore, Section 65-05-12.2[7] is not applicable to Shiek’s award of permanent partial impairment benefits for his right knee. There is nothing within the language of Section 65-05-12.2[7] or [10] that requires the conversion of all prior impairments to a “whole body” basis before awarding benefits for a member or body part not previously the subject of an impairment award.
This hearing officer concludes, as a matter of law, that Section 65-05-12.2[7] is not applicable to Shiek’s award of permanent partial impairment benefits for his right knee and that there is nothing within the language of Section 65-05-12.2[7] or [10] which requires the conversion of all prior impairments to a “whole body” basis before awarding benefits for a member or body part not previously the subject of an impairment award. As such, it is the conclusion of the undersigned that the Bureau’s Amended Order Awarding Permanent Partial Impairment Benefits dated January 22, 2001, should be affirmed.

[¶ 38] The district court affirmed, noting that Shiek’s interpretation of the statute, which is partially adopted by the majority opinion, was not rational and the interpretation was not supportable by the language of the statute.

Shiek’s interpretation would require the Bureau to add in every old injury for every single person who qualified for a PPI award based on a new injury. If the legislature had intended such a scheme, it should have written an explicit statute setting out that process. The simple phrase “on a whole body impairment basis” is not sufficient to create the complicated process Shiek advocates. Shiek’s interpretation is not rational; therefore this statute is not ambiguous. Western Gas Resources, Inc., 489 N.W.2d at 872 (stating that a statute is ambiguous if it is susceptible to different rational interpretations).

[¶ 39] Because I believe the Bureau and the trial court have correctly interpreted the statute, I would affirm the decision of the district court. Therefore, I dissent.

[¶ 40] SANDSTROM, J., concurs. .

MARING, Justice,

on petition for rehearing.

[¶ 41] The Bureau filed a petition for rehearing, arguing the AMA Guides do not permit the conversion and combination of some of Shieks prior permanent impairments with his subsequent permanent impairment. The arguments raised by the Bureau in its petition for rehearing address issues concerning the process of applying the AMA Guides to Shiek’s permanent impairments in order to determine Shiek’s combined whole-body impairment rating. Such issues are to be determined by the Bureau on remand.

[¶ 42] In its petition for rehearing, the Bureau also pointed out a mathematical error in one of the prior orders of the Bureau awarding Shiek permanent impairment benefits. If the Bureau’s order is incorrect, the Bureau should correct its order on remand. The petition for rehearing is denied.

[¶ 43] GERALD W. VANDE WALLE, C.J., WILLIAM A. NEUMANN, J., concur.

[¶ 44] We would grant the petition for rehearing.

CAROL RONNING KAPSNER, DALE V. SANDSTROM, JJ., concur.

      . We note N.D.C.C. § 28-32-46 adds additional grounds for not affirming an administrative agency decision, effective August 1, 2001. Shiek filed his appeal from the Bureau’s decision on July 19, 2001. Therefore, former N.D.C.C'. § 29-32-19 applies.

      . The dissent asserts at ¶ 36 that the "legislative intent regarding successive awards to the same claimant was expressed when the Legislative Assembly amended N.D.C.C. § 65-05-12.2(7) in 1999, and required setoff of past awards against current awards for the 'same member or body part.’ ” This assertion is incorrect. The phrase "same member or body part” was part of N.D.C.C. § 65-05-12 of the former permanent impairment award system that was based on scheduled injuries to specific body parts. See N.D.C.C. § 65-05-12 (1989) ("Any subsequent award for impairment must be made minus any previous award given on any earlier claim or the same claim for that same member or body part.”). The phrase "same member or body part” was carried over into N.D.C.C. § 65-05-12.2(7) when the Legislature switched from a scheduled injury impairment system to a whole-body impairment system in 1995. See N.D.C.C. § 65-05-12.2(7) (1995) ("The bureau shall deduct, from a subsequent award for impairment, any previous award given or calculated on an earlier claim or the same claim for that same member or body part.”). In 1999, the Legislature amended N.D.C.C. § 65-05-12.2(7) to provide that the deduction of previous permanent impairment awards shall be made "on a whole body impairment basis.” N.D.C.C. § 65-05-12.2(7) (1999) ("The bureau shall deduct, on a whole body impairment basis, from an award for impairment under this section, any previous impairment award for that same member or body part under the workers’ compensation laws of any jurisdiction. ’ ’).