Genter v. Workforce Safety & Ins. Fund

• Citation: 724 N.W.2d 132,2006 ND 237
• Decision Date: 28 November 2006
• Docket Number: No. 20060145.,20060145.
• Court: United States State Supreme Court of North Dakota
• Parties: Paul GENTER, Claimant and Appellant v. WORKFORCE SAFETY & INSURANCE FUND, Appellee and Burleigh County, Respondent.

724 N.W.2d 132

2006 ND 237

Paul GENTER, Claimant and Appellant v. WORKFORCE SAFETY & INSURANCE FUND, Appellee and Burleigh County, Respondent.

No. 20060145.

Supreme Court of North Dakota.

November 28, 2006.

COPYRIGHT MATERIAL OMITTED

Stephen D. Little, Dietz & Little Lawyers, Bismarck, ND, for claimant and appellant.

Lawrence A. Dopson, Special Assistant Attorney General, Bismarck, ND, for appellee.

VANDE WALLE, Chief Justice.

[¶ 1] Paul Genter appealed from a district court judgment affirming an order of Workforce Safety & Insurance ("WSI") awarding partial disability benefits and requiring him to return to work part-time. Genter argues that WSI did not adequately consider his preexisting hearing loss in formulating his vocational rehabilitation plan. We affirm.

I

[¶ 2] In 1995, while working as an officer with the Burleigh County Sheriff's Department, Genter experienced chest pains that were later diagnosed as congestive heart failure. WSI accepted his claim and began paying total disability benefits. At the time of his work-related injury, Genter had been an employee of the Sheriff's Department for about 25 years. Throughout his employment as a deputy sheriff, Genter suffered from partial hearing loss, a problem which had arisen when he was a child. He began wearing hearing aids in both ears in the early 1980s and has worn them ever since then.

[¶ 3] In January 2002, WSI initiated vocational rehabilitation services and attempted to return Genter to work. Genter was eventually hired by DiCenzo Personnel Specialists and began work on August 27, 2002. In his position with DiCenzo, Genter worked from his home and conducted surveys over the telephone. In October 2002, DiCenzo sent Genter a letter evaluating his performance and informing him of the areas in which he could improve. The next communication from DiCenzo regarding Genter's work performance was a letter dated May 9, 2003. In this letter, DiCenzo notified Genter that he was not meeting performance standards and warned him that his employment was in "serious jeopardy." DiCenzo ultimately fired Genter from this position in June 2003 because of his failure to meet call counts and time standards, to properly fill in lead sheets, and to work enough hours per week.

[¶ 4] Shortly after this termination, WSI again initiated vocational rehabilitation services for Genter. Joyce Clock-Olson, a rehabilitation consultant with CorVel Corporation, was assigned to work with Genter. It is undisputed that Clock-Olson was aware of Genter's hearing loss at the time she began working on his file. WSI's referral report, which provided CorVel with information about Genter, listed "partial hearing loss" as one of Genter's other medical conditions. Also, Clock-Olson had previously helped Genter with telephone accommodations for his work with DiCenzo.

[¶ 5] Genter had numerous conversations with Clock-Olson in the course of his vocational rehabilitation, both in person and by telephone. On June 30, 2003, Clock-Olson called to arrange an initial meeting with Genter. At that first meeting, Genter informed Clock-Olson that he has had hearing problems since he was young and that he wears hearing aids in both ears. He also stated that he does not have problems hearing on a one-on-one basis in a quiet room. In her notes from this meeting, Clock-Olson observed that Genter did not have any problem hearing her.

[¶ 6] In late October 2003, Clock-Olson enrolled Genter in a keyboarding class at the Center for Technology and Business to upgrade his computer skills. Both Genter and Clock-Olson informed the instructor of Genter's hearing loss. When Clock-Olson contacted the instructor for a progress report, the instructor stated that she "spoke up" and that Genter did not have trouble hearing her or request that she repeat anything. In December 2003, Genter took an Introduction to Computers class from the same instructor at the Center. The instructor reported that Genter was having some difficulty seeing the computer monitor, but that he was able to keep up with the class and participated by asking good questions.

[¶ 7] On December 30, 2003, Clock-Olson called Genter to discuss another upcoming computer class. Genter was on the other line at the time and asked Clock-Olson if he could return her call later. Sometime later that day, Genter contacted Clock-Olson by telephone, and they discussed his file and the computer class. In January 2004, Clock-Olson contacted Genter by telephone regarding another computer class and noted in her status report that she had to speak louder than usual because Genter was not wearing his hearing aids. In February 2004, Genter called Clock-Olson, and they again spoke on the telephone regarding his file. On May 5, 2004, Clock-Olson conducted a vocational assessment appointment with Genter by telephone to discuss his skills, physical abilities, and job goals. Clock-Olson informed Genter that she would conduct the assessment appointment in person if he had any difficulty hearing or understanding, but Genter did not report having any problems.

[¶ 8] In the final vocational plan, dated August 5, 2004, Clock-Olson concluded that Genter could return to work as either a social services assistant or a security guard. WSI then notified Genter of its intention to reduce his disability benefits and require him to return to work part-time. Genter requested a hearing before an administrative law judge ("ALJ"), claiming that WSI had failed to consider his preexisting physical limitations, including hearing, vision, knee, and back problems, in formulating his vocational rehabilitation plan.

[¶ 9] At the administrative hearing, Genter testified regarding his hearing impairment. He observed that he cannot hear in crowded or noisy environments, and that high-pitched or soft-spoken voices are difficult for him to hear. He also stated that telephone use poses a problem. In support of his testimony, Genter produced a letter from Keith Telenga, a hearing aid specialist at Medcenter One. Although Genter admitted that he used the telephone during his employment with Burleigh County, he explained that he found it difficult so he preferred to speak with people directly. Genter testified that he "struggled with it and got by." He also claimed that his hearing problem has worsened in the last 10 years, since his employment as a deputy sheriff ended. Regarding his termination from employment with DiCenzo, Genter testified that he could not hear or understand over the telephone, which resulted in his inability to meet performance standards.

[¶ 10] Additionally, at the administrative hearing, Joyce Clock-Olson testified about the job goals of security guard and social services assistant that she had selected for Genter. As to the position of social services assistant, Clock-Olson stated that much of the work is done in person on a one-on-one basis, which complies with the hearing limitations Genter had described to her at their first meeting. With regard to the position of security guard, Clock-Olson testified that it would be similar to the type of work Genter successfully performed in law enforcement with his hearing loss. She also stated that security guard positions vary, with some involving group settings and others involving contact with people on an individualized basis.

[¶ 11] After considering the evidence presented at the administrative hearing, the ALJ made extensive findings of fact and conclusions of law, many of which pertained to Genter's hearing loss, including the following:

CorVel addressed Genter's "visual and hearing problems" with Ms. Clock-Olson's comments that those problems did not prevent him from performing his duties in law enforcement, that Genter acknowledged that "he does not have problems hearing people on an individual basis," and that he did not report any difficulty for his transactions with her, including transactions using the telephone.

. . . .

But Ms. Clock-Olson's testimony of her investigation of the particular requirements and duties of the jobs of social services assistant and security guard specified by North Dakota employers and her evaluation of those requirements and duties in the light of her knowledge of Genter's multiple and diverse functional impairments and the advice of Ms. DeKrey and, for what it's worth, the advice of Dr. Bonet and Dr. Lazarow, is together substantial evidence showing that those jobs are, in the words of N.D.C.C. § 65-05.1-01(3), reasonably attainable in light of . . . [his] injury, functional capacities, education, previous occupation, experience, and transferable skills. While it is considered that the complex and interrelated nature of Genter's multiple and diverse functional impairments required a more comprehensive and thorough investigation of employers' requirements and the duties for particular jobs, on balance with the evidence offered by Genter her findings are sufficient, if just so, to support CorVel's conclusions for its vocational plan for Genter.

. . . .

Genter's evidence is not that he was unable to meet the requirements and perform the duties of his work as a deputy sheriff, but that he "struggled and got by." While that is obviously not the circumstance one seeks for a job, Genter worked in that circumstance some twenty years and many workers must make their living struggling and getting by with the hope that they can do better. The question posed by the statute is whether Genter has the functional capacities and qualifications to compete for employment. The statute does not require that he have the functional capacities to easily perform the work required for a job or the qualifications to be considered well-qualified for a job. The statute requires that Genter have the functional capacities and qualifications such that employment is reasonably attainable. The evidence of record shows that Genter meets those requirements, albeit he may have to struggle and get by for some job for...