Lucier v. North Dakota Workers Compensation Bureau

Decision Date13 November 1996
Docket NumberNo. 960082,960082
Citation556 N.W.2d 56
PartiesStephen J. LUCIER, Claimant and Appellant, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellee, and Housing Industry Training, Inc., Respondent. Civil
CourtNorth Dakota Supreme Court
Opinion Denying Rehearing

Dec. 4, 1996.

Arnold V. Fleck (argued), of Wheeler Wolf, Bismarck, for claimant and appellant. Appearance by Stephen J. Lucier.

Lawrence A. Dopson (argued), Special Assistant Attorney General, Bismarck, for appellee.

MESCHKE, Justice.

Stephen J. Lucier appeals from a judgment affirming a Workers Compensation Bureau order denying him further disability and rehabilitation benefits because a vocational assessment showed he had a reasonable opportunity for substantial gainful employment at an alternate occupation. We affirm.

While employed as a personal care attendant with Housing Industry Training, Inc. (HIT) in Mandan, Lucier had a compensable back injury in August 1992 and got disability and rehabilitation benefits from the Bureau. Although he remained employed at the same wage by HIT at a modified position, HIT did not offer Lucier enough hours to meet the earning requirements of NDCC Chapter 65-05.1. The Bureau hired Professional Rehabilitation Management, Inc. (PRM) to evaluate other employment options for him. PRM prepared a Vocational Consultant's Report Assessment/Plan dated October 15, 1993, showing that, under NDCC 65-05.1-04(d), Lucier had the capability of returning to a modified or alternative occupation with any employer.

The plan detailed PRM's endeavors to return Lucier to work. Lucier's physical therapist reported lifting will be tolerated occasionally to 50 pounds but should be limited to eye level only, with frequent lifts to 35 pounds from floor level to overhead height. Carrying tolerance was demonstrated to a maximum of 35 pounds. Forward bending and stooping should be avoided. It was noted that pushing could be tolerated up to 30 pounds and pulling could be tolerated up to 25 pounds.

Applying the United States Department of Labor Physical Demands Characteristics, this functional capacity assessment placed Lucier in the medium category of work. PRM determined that Lucier could tolerate a full eight-hour day of work if allowed to change posture on a frequent basis. After reviewing Lucier's prior employment as a warehouse worker and security guard, and after completing an analysis of his transferable skills, PRM concluded Lucier had the functional capacity and transferable skills for employment as a warehouse worker, security guard, or a sales route or light truck driver. Each of these positions is classified in the Dictionary of Occupational Titles as requiring light to medium physical demands. Lucier's treating physician certified that Lucier was capable of performing the work in these positions.

Through the use of the North Dakota B-96 Report of the North Dakota Job Order Index, PRM was satisfied that there were a substantial number of openings for each position in North Dakota, as well as in the Bismarck-Mandan region. PRM reviewed the North Dakota Wage and Benefit Survey to assess anticipated wages for those vocations. The rehabilitation coordinator also called employers in the selected job areas to learn the salaries offered for those positions. PRM concluded a warehouse worker could earn $6.40 per hour, a security guard $6.25 per hour, and a light truck driver $6.91 per hour. Lucier had been earning $5.75 per hour at HIT. The parties stipulated that, from January 15, 1992 until Lucier was injured in August 1992, his average weekly wage was $238. This was less than the $279 that represented 75 percent of the average weekly wage in the state on the date of the rehabilitation consultant's report. For a 40-hour work week at any of the proposed vocations, PRM calculated Lucier could earn between $250 and $276 per week.

The Bureau adopted PRM's plan and, on December 3, 1993, notified Lucier of its intention to discontinue his disability benefits effective December 16 because he had the transferable skills to obtain employment. On March 7, 1994, the Bureau issued its order denying disability and rehabilitation benefits after December 16, 1993, finding that Lucier was able to pursue employment as a light truck driver, sales route driver, security guard, or warehouse worker at a wage comparable to his pre-injury earnings and that he thus was no longer entitled to disability benefits.

Lucier requested a rehearing, alleging his rehabilitation plan was inadequate. The administrative hearing was rescheduled several times, and finally held June 8, 1995. The hearing officer found the rehabilitation plan "adequate" under NDCC Chapter 65-05.1, determining the "greater weight of the evidence indicates that considering Lucier's education, experience, skills, and medical limitations, he is able to pursue the three vocational goals identified in the October 15, 1993, rehabilitation plan--light truck driver, security guard, and warehouse worker." The hearing officer found Lucier's pre-injury earnings were properly calculated at $238 per week and that "[a]s a result of his transferable skills, he is able to perform competitive gainful employment and retains an earnings capacity equivalent to his preinjury earnings capacity." The hearing officer found that "a return to work in a related occupation within the statewide labor market suited to Lucier's education, experience, and marketable skills is feasible and appropriate because his preinjury wage can be met" and that "there is employment available in the statewide job market suited to Lucier's education, experience, and marketable skills, and within his medical limitations."

The Bureau adopted the hearing officer's findings and conclusions, and it adhered to its earlier order denying Lucier further disability and rehabilitation benefits. On appeal, the district court affirmed the Bureau's denial of further benefits. Lucier appealed again.


Our standard of review on appeal from a district court judgment on the decision of the Bureau is well settled. We review the Bureau's decision, not the decision of the district court, and we affirm the Bureau's decision unless its findings of fact are not supported by a preponderance of the evidence, its conclusions of law are not supported by its findings of fact, its decision is not supported by its conclusions of law, or its decision is not in accordance with the law. Otto v. N.D. Workers Comp. Bureau, 533 N.W.2d 703, 706 (N.D.1995); NDCC 28-32-19. As we said in Ollom v. North Dakota Workers Compensation Bureau, 529 N.W.2d 876, 878 (N.D.1995), in evaluating the Bureau's findings of fact, we do not make independent findings or substitute our judgment for that of the Bureau, but we determine only whether the Bureau reasonably reached its factual conclusions from the weight of the evidence on the entire record.


The primary question is whether the vocational consultant's report gave Lucier a reasonable opportunity for substantial gainful employment in the state under NDCC 65-05.1-01(3). Part of that statute, at the time of Lucier's injury and on the date of the plan, directed:

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, medical limitations, age, education, previous occupation, experience, and transferable skills, and which offers an opportunity to restore the employee as soon as practical and as nearly as possible to the employee's average weekly earnings at the time of injury, or to seventy-five percent of the average weekly wage in this state on the date the rehabilitation consultant's report is issued under section 65-05.1-02.1, whichever is less. The purpose of defining substantial gainful employment in terms of earnings is to determine the first appropriate priority option under subsection 4 of section 65-05.1-04 which meets this income test.

This vocational rehabilitation legislation was designed to return an injured employee to substantial gainful employment as quickly and with as little retraining as possible. Baldock v. N.D. Workers Comp. Bureau, 554 N.W.2d 441, 443 (N.D.1996). In enacting this statutory scheme, the legislature did not require the complete rehabilitation of a worker to his pre-injury earning capacity before getting him back to work. See Thompson v. N.D. Workers' Comp. Bureau, 490 N.W.2d 248, 254-255 (N.D.1992); Smith v. N.D. Workers Comp. Bureau, 447 N.W.2d 250, 254 (N.D.1989). We recognized in Held v. North Dakota Workers Compensation Bureau, 540 N.W.2d 166, 170 (N.D.1995), "[j]ust as a rehabilitation plan cannot guarantee a job, neither can it guarantee a predetermined weekly wage." See also Maginn v. N.D. Workers Comp. Bureau, 550 N.W.2d 412, 416 (N.D.1996). Because "substantial gainful employment" might not be reached immediately in a rehabilitation program, the legislature has authorized payment of partial disability benefits for a certain period of time, rather than allowing the first lower earnings to invalidate the plan from the start. See Held; NDCC 65-05.1-06.1(2)(i). We review Lucier's challenges to his rehabilitation plan accordingly.


Lucier argues the Bureau's findings that he is capable of performing the jobs identified in the rehabilitation plan and that those jobs are available in the state in sufficient numbers to give him a reasonable opportunity for employment are not supported by the greater weight of the evidence. We conclude the evidence reasonably supported the findings.

The vocational consultant testified she relied on the North Dakota B-96 Report, the Job Order Index, and telephone calls to employers in the region before deciding that the proposed jobs offered a reasonable opportunity for employment. The B-96...

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