Johnson v. North Dakota Workers' Compensation Bureau, 950098

• Decision Date: 31 October 1995
• Docket Number: No. 950098,950098
• Citation: 539 N.W.2d 295
• Parties: Jeff JOHNSON, Claimant and Appellant, v. THE NORTH DAKOTA WORKERS' COMPENSATION BUREAU, Appellee, and Cross Country Courier, Respondent. Civ.
• Court: North Dakota Supreme Court

Page 295

539 N.W.2d 295

Jeff JOHNSON, Claimant and Appellant, v. THE NORTH DAKOTA WORKERS' COMPENSATION BUREAU, Appellee and Cross Country Courier, Respondent.

Civ. No. 950098.

Supreme Court of North Dakota.

Oct. 31, 1995.

Kathryn L. Dietz of Dietz & Little, Bismarck, for Claimant and Appellant.

Brent J. Edison, Special Assistant Attorney General of Zuger, Kirmis & Smith, Bismarck, for Appellee.

LEVINE, Justice.

Jeff Johnson appeals from a district court judgment affirming a North Dakota Workers' Compensation Bureau (Bureau) decision denying him additional benefits. We affirm.

Johnson was injured November 4, 1992, when he slipped and fell while working as a driver and delivery person for Cross Country Courier in Bismarck. He filed a claim for workers' compensation benefits on November 10, 1992, which the Bureau approved on February 17, 1993. On November 14, 1992, Johnson's employer dismissed him as part of a company reduction-in-force. Johnson returned to work part-time in March 1993. In August 1993, Professional Rehabilitation Management employee Randi Kreeger became Johnson's vocational consultant. She met with Johnson's employer August 23, 1993, and they worked together to develop a job that would fit Johnson's physical limitations. On August 30, 1993, Cross Country Courier rehired Johnson as a full-time warehouse person.

Kreeger filed a vocational consultant's report with the Bureau on October 29, 1993, which provided a medical assessment, examined Johnson's employment and educational history, and listed his transferable skills. The report recommended that Johnson "[r]eturn to a modified position--any employer" as the most appropriate rehabilitation option under section 65-05.1-01(4), NDCC. Kreeger gave two reasons for choosing the modified work option. She explained in the report that Johnson was not able to return to his previous job because of his physical limitations and restrictions. She also reported that his employer was willing to offer him a modified position at a wage identical to the wage he earned before his injury. The report stated that Johnson had been offered a light duty delivery driver position, and provided a detailed job description for this position. It also noted, however, that Johnson had actually returned to work as a light duty warehouse person.

The Bureau recommended approval of Kreeger's report on December 3, 1993, and sent Johnson a Notice of Intent to Discontinue Benefits on December 8, 1993. On December 27, 1993, the Bureau issued an order denying Johnson further benefits. On January 3, 1994, Johnson submitted a request for rehearing of the order denying benefits. In addition, on December 28, 1993, Johnson filed a reapplication for benefits with the Bureau. The Bureau issued an order denying Johnson's reapplication on January 31, 1994. On February 27, 1994, Johnson submitted a request for rehearing of this order. Meanwhile, Johnson quit work on January 26, 1994.

The Bureau held a hearing on Johnson's two claims for benefits on July 12, 1994, which resulted in an order denying further benefits. Johnson appealed to the district court, which affirmed the order. Johnson then filed this appeal from the district court judgment.

When a party appeals a district court review of an administrative agency decision, we review the decision of the agency, not of the district court. Skjefte v. Job Service North Dakota, 392 N.W.2d 815 (N.D.1986). We will reverse an agency decision if it is not in accordance with the law. See Erickson v. Director, N.D. Dept. of Transp., 507 N.W.2d 537 (N.D.1993).

Johnson argues that the Bureau did not follow the law when it denied him further benefits. He argues that the vocational consultant's report, prepared for the Bureau by Kreeger, did not meet statutory requirements. He also argues that the Bureau applied the wrong statutory test when it denied him benefits. We must interpret the applicable statutes to determine whether the Bureau followed the law. Questions requiring statutory interpretation are questions of law. Erickson, 507 N.W.2d at 539. Questions of law are fully reviewable on appeal. Newland v. Job Service North Dakota, 460 N.W.2d 118 (N.D.1990).

Johnson's first argument is that the vocational consultant's report was deficient because it did not specifically assess the physical demands of his particular job, light duty warehouse person. Johnson argues that the vocational consultant had a statutory duty to make such an assessment, and to include it in the report. The record is clear that Kreeger did, in fact, assess the physical demands of the warehouse job. Kreeger had Johnson's Functional Capacity Evaluation (FCA) in hand when she met with Johnson's employer about putting Johnson to work fulltime. Using the FCA, Kreeger and the employer developed Johnson's light duty warehouse job to meet Johnson's specific physical restrictions and limitations. Once Johnson started work, Kreeger kept in touch with him to see whether he was tolerating the job. Kreeger testified about her assessment of the warehouse job. She did not, however, include this assessment in her report. Instead, she included an assessment of the light duty driver position, which she testified also fit Johnson's restrictions and limitations and was chosen as "the vocational goal." ¹

The vocational consultant's report is a tool that helps the Bureau determine what rehabilitation services it should provide to the injured worker. See NDCC § 65-05.1-01 [outlining the purpose and goals of North Dakota's worker rehabilitation program and describing the tools used to achieve these aims]. Section 65-05.1-02.1, NDCC, directs the vocational consultant to "review all records, statements, and other pertinent information and prepare a report to the bureau and employee." In the report, the vocational consultant "must" identify the worker's "first appropriate rehabilitation option." Id. Section 65-05.1-01(4), NDCC, states the possible rehabilitation options:

"a. Return to the same position.

b. Return to a modified position.

c. Return to a related occupation in the local job pool which is suited to the employee's education, experience, and marketable skills d. Return to a related occupation in the statewide job pool which is suited to the employee's education, experience, and marketable skills.

e. On-the-job training.

f. Short-term retraining of fifty-two weeks or less.

g. Long-term retraining of one hundred four weeks or less.

h. Self-employment."

The report must not only identify the first rehabilitation choice, it must also contain "findings of why a higher listed priority, if any, is not appropriate." NDCC § 65-05.1-02.1(1)(b). If return to a job pool, on-the-job training, retraining, or self-employment is selected as a rehabilitation option, the report must contain additional information pertinent to the option selected. NDCC § 65-05.1-02.1(2).

Johnson argues that section 65-05.1-02.1, NDCC, and section 65-05.1-02(7), NDCC, read together, require the vocational consultant's report to include an assessment of a worker's particular job, here, the warehouse position. Section 65-05.1-02(7) provides a general description of the vocational consultant's duties. It instructs the Bureau to appoint vocational consultants on a case-by-case basis to assess "the worker's transferable skills, employment options, and the physical demand characteristics of the worker's employment options." Id. The vocational consultant also determines which rehabilitation option specified under section 65-05.1-01, NDCC, "will enable the worker to return to employment within the physical restrictions and limitations provided by the medical assessment team." Id. Section 65-05.1-02(7) further instructs the vocational consultant to "issue to the bureau a report as provided in section 65-05.1-02.1." Id.

Section 65-05.1-02.1 sets out specific guidelines for the vocational consultant's report. Nothing in section 65-05.1-02.1 requires the vocational consultant to include in the report an assessment of the worker's specific job. Instead, section 65-05.1-02(7) essentially instructs the vocational consultant to assess the worker's job options in light of the worker's restrictions and limitations. If a driver's job requires comparable duties, qualifications and skills, physical and mental, as a warehouse person's job, it matters not that one is identified in the report, but not the other. The required statutory exercise is to identify the category of work in which the worker can fairly engage. When we construe a statute, we must presume "...