Anderson v. Workforce Safety & Ins.

• Decision Date: 25 August 2015
• Docket Number: No. 20140346,20140346
• Parties: Calvin Anderson, Appellant v. Workforce Safety and Insurance, Appellee
• Court: North Dakota Supreme Court

2015 ND 205

Calvin Anderson, Appellant v. Workforce Safety and Insurance, Appellee

No. 20140346

SUPREME COURT STATE OF NORTH DAKOTA

August 25, 2015

Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable David E. Reich, Judge.

AFFIRMED.

Opinion of the Court by Sandstrom, Justice.

Amanda J. Brossart (argued) and Steven L. Latham (on brief), 521 East Main, Suite 450, P.O. Box 2056, Bismarck, N.D. 58502-2056, for appellant.

Douglas W. Gigler, Special Assistant Attorney General, 1800 Radisson Tower, 201 Fifth Street North, P.O. Box 2626, Fargo, N.D. 58108-2626, for appellee.

Sandstrom, Justice.

[¶1] Calvin Anderson appeals from a judgment affirming a Workforce Safety and Insurance ("WSI") decision approving a vocational rehabilitation plan. Because a reasoning mind reasonably could have determined the factual conclusions reached by WSI were proven by the greater weight of the evidence in the record and the vocational rehabilitation plan would return Anderson to substantial gainful employment that was reasonably attainable in light of his injury, we affirm the district court judgment.

I

[¶2] In January 2005, after slipping on an icy driveway and injuring his right shoulder and left hip while working as an inspector-tester for Finley Engineering, Anderson reported the injury to WSI. On January 28, 2005, WSI accepted liability for the right shoulder and left hip injury and paid benefits to Anderson. During the following three years, Anderson worked in similar positions with different companies. After his injury, and throughout 2010, Anderson sought medical and chiropractic care from numerous providers to address complications with his right shoulder, neck, and left hip.

[¶3] In April 2010, WSI issued a notice of its decision to deny further liability for Anderson's left hip injury on the grounds that the arthritis of which he complained had been present before he sustained the work injury in 2005. After finding no objective medical evidence indicating Anderson's hip condition was caused by his work injury, WSI issued its order denying liability for his hip condition.

[¶4] In June 2010, the rehabilitation consultant hired by WSI issued its report. The report noted that Anderson's treating physician, Steven Kraljic, M.D., had released Anderson to perform his pre-injury position without work restrictions. In accordance with N.D.C.C. § 65-05.1-01(4), the report contained a vocational rehabilitation plan which determined the first appropriate rehabilitation option would be for Anderson to "return to the same occupation, any employer." Later in June, WSI issued a notice of its intention to discontinue temporary disability benefits on the grounds Anderson had been released to work without restrictions and he was deemed capable of performing his pre-injury occupation. Shortly after, WSI advised Anderson that because it determined he had the transferable skills to return to his pre-injury work as an inspector, he was required to make a good-faith search for such a job.

[¶5] On July 22, 2010, WSI issued its order denying further disability and rehabilitation benefits because Anderson had been released to return to his pre-injury occupation. Anderson appealed from the order denying further disability and rehabilitation benefits, as well as the order denying specific benefits regarding the condition of his left hip, and requested a hearing. On December 20, 2010, an administrative hearing was held on both appeals. After the hearing, the administrative law judge ("ALJ") issued a final order affirming WSI's denial of specific benefits and further disability and rehabilitation benefits. Anderson appealed the ALJ's final order to the district court. The district court remanded the case to the ALJ, instructing her to make further factual determinations regarding whether WSI had accepted liability for Anderson's neck injuries. Prior to a remand hearing, WSI accepted liability for Anderson's neck injuries.

[¶6] On December 29, 2013, the ALJ affirmed WSI's earlier order. The ALJ found WSI had considered the condition of Anderson's neck at the time it formulated the vocational rehabilitation plan and the plan provided Anderson a reasonable opportunity to obtain substantial gainful employment in North Dakota. Anderson again appealed the ALJ's order to the district court, and the district court again affirmed. Anderson then appealed to this Court.

[¶7] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. §§ 27-05-06, 65-10-01, and 28-32-42. Anderson's appeal was timely under N.D.R.App.P. 4(a) and N.D.C.C. § 28-32-49. This Court has jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. § 28-32-49.

II

[¶8] In an appeal of a WSI order, under N.D.C.C. §§ 28-32-46 and 28-32-49, we are required to affirm an order by 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. "[W]e do not make independent findings of fact or substitute our judgment for that of the agency. We determine only whether a reasoning mind reasonably could have determined that the factual conclusions reached were proved by the weight of the evidence from the entire record." Power Fuels, Inc. v. Elkin, 283 N.W.2d 214, 220 (N.D. 1979). Questions of law, including the interpretation of a statute, are fully reviewable on appeal from an agency decision. Lawrence v. North Dakota Workers Comp. Bureau, 2000 ND 60, ¶ 11, 608 N.W.2d 254.

III

[¶9] Anderson argues WSI's selection of a vocational rehabilitation plan under N.D.C.C. ch. § 65-05.1 is not physically appropriate because no reasoning mind, after a review of his medical conditions, could conclude he is capable of completing the work required in his vocational rehabilitation plan. Anderson argues WSI failed to properly consider his difficulties with driving when it formed his vocational rehabilitation plan.

[¶10] Chapter 65-05.1, N.D.C.C., governs WSI's vocational rehabilitation services. Specifically, N.D.C.C. § 65-05.1-01(3) provides, in part:

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 . . . .

A vocational rehabilitation plan is appropriate if it satisfies the requirements of N.D.C.C. ch. 65-05.1 and gives the claimant a reasonable opportunity to obtain substantial gainful employment. Paul v. N.D. Workers Comp. Bureau, 2002 ND 96, ¶ 8, 644 N.W.2d 884. In determining whether certain employment options present an opportunity for substantial gainful employment, WSI must take a claimant's preexisting functional limitations into account. Genter v. Workforce Safety & Ins. Fund, 2006 ND 237, ¶ 14, 724 N.W.2d 132. "The Legislature intended for claimants to be provided with actual rehabilitation, with a realistic opportunity to return to work, and not a theoretical rehabilitation on paper only." Id.(citations omitted). WSI bears the burden of establishing that a vocational rehabilitation plan is appropriate. Hoffman v. N.D. Workers Comp. Bureau, 2002 ND 138, ¶ 15, 651 N.W.2d 601.

[¶11] "'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 . . . .'" Higginbotham v. Workforce Safety & Ins., 2014 ND 147, ¶ 8, 849 N.W.2d 233 (quoting Bishop v. Workforce Safety & Ins., 2012 ND 217, ¶ 8, 823 N.W.2d 257). In assessing the validity of a vocational rehabilitation plan, the question "'is whether the plan, at the time [it was formulated], gave [the injured worker] a reasonable opportunity to obtain substantial gainful employment.'" Hoffman v. N.D. Workers Comp. Bureau, 1999 ND 66, ¶ 9, 592 N.W.2d 533 (emphasis omitted) (quoting Lucier v. North Dakota Workers Comp. Bureau, 556 N.W.2d 56, 60 (N.D. 1996)); see also Svedberg v. North Dakota Workers Comp. Bureau, 1999 ND 181, ¶ 16, 599 N.W.2d 323.

[¶12] Despite Anderson's contentions, the ALJ found the vocational rehabilitation plan considered the condition of Anderson's neck. In her decision affirming WSI's orders denying disability and rehabilitation benefits, the ALJ reviewed the medical evidence regarding Anderson's neck and made the following findings:

The greater weight of the evidence shows that at the time of the vocational rehabilitation plan, Mr. Anderson was physically capable of performing the job of inspector/tester. He was released to work with restrictions that did not prevent him from performing this light duty work. Mr. Anderson complains that he is unable to do the job because he cannot tolerate driving. Over the years, Mr. Anderson has attributed his problem driving to neck pain. But Dr. Kraljic, who treated Mr. Anderson's neck pain, was aware of Mr. Anderson's complaints about

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