Bishop v. N.D. Workforce Safety & Ins.

• Decision Date: 23 October 2012
• Docket Number: No. 20120138.,20120138.
• Citation: 2012 ND 217,823 N.W.2d 257
• Parties: Collette BISHOP, Appellant v. NORTH DAKOTA WORKFORCE SAFETY AND INSURANCE, Appellee and 4 K's Transportation, LLC, Respondent.
• Court: North Dakota Supreme Court

823 N.W.2d 257

2012 ND 217

Collette BISHOP, Appellant

v. NORTH DAKOTA WORKFORCE SAFETY AND INSURANCE, Appelleeand4 K's Transportation, LLC, Respondent.

No. 20120138.

Supreme Court of North Dakota.

Oct. 23, 2012.

Stephen D. Little, Bismarck, N.D., for appellant.

Shanon M. Gregor, Special Assistant Attorney General, Fargo, N.D., for appellee.

CROTHERS, Justice.

[¶ 1] Collette Bishop appealed from a district court judgment affirming an order of an administrative law judge (“ALJ”) which affirmed an order of Workforce Safety and Insurance (“WSI”) denying further vocational rehabilitation benefits and temporary total disability benefits to Bishop. We affirm, concluding the ALJ's finding that Bishop was capable of performing the return-to-work options identified in her vocational rehabilitation plan was supported by a preponderance of the evidence.

I

[¶ 2] Bishop sustained work-related injuries in 2004 and 2008 while employed as a truck driver. As a result, she suffered physical and psychological injuries, including depression, anxiety, memory loss, post-traumatic stress disorder and impulse control disorder. Following the 2008 injury, WSI paid Bishop medical benefits, vocationalrehabilitation benefits and temporary total disability benefits. Bishop briefly returned to work driving truck, but suffered increased physical difficulties and was taken off work by her doctor. Bishop subsequently returned to work with her pre-injury employer in a temporary position doing office work up to four hours per day. No evidence existed that Bishop's psychological impairments affected her ability to perform the office work.

[¶ 3] In May 2009, WSI referred Bishop to Corvel Corporation for vocational rehabilitation services. In December 2009, Bishop completed a functional capacity evaluation (“FCE”), showing she was physically capable of performing full-time light duty work. Bishop's physical therapist completed a “job match” based on the FCE and identified various positions Bishop could perform, and the vocational consultant selected dispatcher, customer service representative and information clerk/receptionist as appropriate return-to-work options for Bishop.

[¶ 4] Based upon the consultant's report concluding Bishop was capable of returning to full-time employment in a light-duty position, WSI issued a notice of intention to discontinue benefits to Bishop on June 6, 2010. On August 13, 2010, WSI issued its order denying further vocational rehabilitation benefits or disability benefits. Bishop requested a formal hearing, alleging WSI failed to properly consider her cognitive and psychological limitations when it approved the return-to-work options. After a hearing, an independent ALJ issued final findings of fact, conclusions of law and order affirming WSI's order terminating benefits. Bishop appealed to the district court, which affirmed the ALJ's order.

II

[¶ 5] Courts exercise limited appellate review of decisions of an administrative agency under the Administrative Agencies Practice Act, N.D.C.C. ch. 28–32. Sloan v. North Dakota Workforce Safety & Ins., 2011 ND 194, ¶ 4, 804 N.W.2d 184;Workforce Safety & Ins. v. Auck, 2010 ND 126, ¶ 8, 785 N.W.2d 186. Under N.D.C.C. §§ 28–32–46 and 28–32–49, the district court and this Court must affirm an order of an administrative agency unless:

“1. The order is not in accordance with the law.

2. The order is in violation of the constitutional rights of the appellant.

3. The provisions of this chapter have not been complied with in the proceedings before the agency.

4. The rules or procedure of the agency have not afforded the appellant a fair hearing.

5. The findings of fact made by the agency are not supported by a preponderance of the evidence.

6. The conclusions of law and order of the agency are not supported by its findings of fact.

7. The findings of fact made by the agency do not sufficiently address the evidence presented to the agency by the appellant.

8. The conclusions of law and order of the agency do not sufficiently explain the agency's rationale for not adopting any contrary recommendations by a hearing officer or an administrative law judge.”

N.D.C.C. § 28–32–46.

[¶ 6] When an independent ALJ issues final findings of fact, conclusions of law and order under N.D.C.C. § 65–02–22.1, courts apply the same deferential standard of review to the ALJ's factual findings as used for agency decisions. Sloan, 2011 ND 194, ¶ 5, 804 N.W.2d 184;Auck, 2010 ND 126, ¶ 9, 785 N.W.2d 186. Recognizing the ALJ had “the opportunity to observe witnesses and the ‘responsibility to assess the credibility of witnesses and resolve conflicts in the evidence,’ ” in reviewing the ALJ's findings of fact we do not make independent findings or substitute our judgment for that of the ALJ, but determine only whether a reasoning mind reasonably could have determined the findings were proven by the weight of the evidence from the entire record. Auck, at ¶ 9 (quoting In re Juran & Moody, Inc., 2000 ND 136, ¶ 24, 613 N.W.2d 503);see also Sloan, at ¶ 5. We do not, however, give deference to an independent ALJ's legal conclusions, and questions of law are fully reviewable on appeal. Sloan, at ¶ 5;Auck, at ¶ 9.

III

[¶ 7] The dispositive issue on appeal is whether the ALJ's finding that Bishop was capable of performing the jobs identified in her vocational rehabilitation plan was supported by a preponderance of the evidence. Bishop contends the ALJ failed to properly consider her psychological impairments and WSI was required to present an expert medical opinion from a treating physician expressly stating that the identified return-to-work options were appropriate in light of her mental impairments.

[¶ 8] Vocational rehabilitation for injured workers is governed by N.D.C.C. ch. 65–05.1, and the purpose of those services is to return the injured worker to gainful employment:

“It is the goal of vocational rehabilitation to return the disabled employee to substantial gainful employment with a minimum of retraining, as soon as possible after an injury occurs. ‘Substantial gainful employment’ means bona fide work, for remuneration, which is reasonably attainable in light of the individual's injury, functional capacities, education, previous occupation, experience, and transferable skills....”

N.D.C.C. § 65–05.1–01(3). A rehabilitation plan is appropriate if it meets the requirements of N.D.C.C. ch. 65–05.1 and gives the injured worker a reasonable opportunity to obtain substantial gainful employment. Shotbolt v. North Dakota Workforce Safety & Ins., 2010 ND 13, ¶ 19, 777 N.W.2d 853;Genter v. Workforce Safety & Ins. Fund, 2006 ND 237, ¶ 14, 724 N.W.2d 132. WSI has the burden “to establish that a vocational rehabilitation plan is appropriate.” Shotbolt, at ¶ 20;Genter, at ¶ 14. “Under this Court's standard of review, WSI's selection of a vocational rehabilitation plan will not be reversed when there is ‘evidence from which a reasoning mind could have reasonably concluded that the rehabilitation plan would return [the injured worker] to substantial gainful employment which was reasonably attainable in light of his injury and which would substantially rehabilitate his earning capacity.’ ” Shotbolt, at ¶ 21 (quoting Thompson v. North Dakota Workers' Comp. Bureau, 490 N.W.2d 248, 255 (N.D.1992)).

[¶ 9] The legislature intended for injured workers to be provided with actual rehabilitation, with a realistic opportunity to return to work, and not merely a theoretical rehabilitation on paper. Shotbolt, 2010 ND 13, ¶ 19, 777 N.W.2d 853;Genter, 2006 ND 237, ¶ 14, 724 N.W.2d 132;Svedberg v. North Dakota Workers Comp. Bureau, 1999 ND 181, ¶ 17, 599 N.W.2d 323. WSI therefore must consider all of the claimant's functional limitations when determining whether the employment options identified in the rehabilitation plan present a realistic opportunity for substantial gainful employment. See Shotbolt, at ¶ 20;Genter, at ¶ 14;Svedberg, at ¶ 17. As this Court explained in Svedberg:

“If [WSI], the consultant, the medical assessment team, and the treating physician assess the claimant as a hypothetical ‘perfect’ individual with only the current work-related disability, and do not take the worker's actual whole-person functional capacities into account, any vocational rehabilitation plan based upon that assessment will be flawed and unworkable. When the work-related injury makes return to the same job or occupation impossible, and the focus of rehabilitation turns to transferable skills and other occupations, common sense dictates that the worker's actual functional abilities must be considered if the vocational rehabilitation plan is to be meaningful.”

Svedberg, at ¶ 17.

[¶ 10] Bishop's vocational rehabilitation plan determined that returning to work in the local job pool in a position suited to her education, experience and job skills was the appropriate rehabilitation option under N.D.C.C. § 65–05.1–01(4) and identified dispatcher, customer service representative and information clerk/receptionist as viable job options. Bishop claims, however, that her psychological impairments affect her ability to work with the public and that WSI failed to ask any of her treating physicians whether she was capable of performing those positions in light of her mental impairments.

[¶ 11] In determining whether the vocational rehabilitation plan was appropriate and provided a realistic opportunity for substantial gainful employment, the ALJ provided detailed and exhaustive findings of fact addressing Bishop's arguments and chronicling her psychological history and treatment before and after the work injuries. The ALJ thoroughly documented Bishop's psychological impairments through medical notes and records, correspondence from her treating medical professionals, observations of persons who were in contact with Bishop during the rehabilitation process and evidence about Bishop's employment experiences after her 2008 injury.

[¶ 12] Contrary to...