Paul v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, 20010290.

• Citation: 2002 ND 96,644 N.W.2d 884
• Decision Date: 04 June 2002
• Docket Number: No. 20010290.,20010290.
• Parties: Ronald PAUL, Claimant and Appellant, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellee.
• Court: United States State Supreme Court of North Dakota

644 N.W.2d 884
2002 ND 96

Ronald PAUL, Claimant and Appellant,
v.
NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellee

No. 20010290.

Supreme Court of North Dakota.

June 4, 2002.

644 N.W.2d 885

Steven L. Latham, Wheeler Wolf, Bismarck, ND, for claimant and appellant

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

644 N.W.2d 886

SANDSTROM, Justice

[¶ 1] Ronald Paul appealed from a judgment affirming a North Dakota Workers Compensation Bureau decision approving a vocational rehabilitation plan and denying him further disability and vocational rehabilitation benefits. We hold the Bureau erroneously applied a presumption to Paul and placed the burden of proof on him. We reverse and remand for proceedings consistent with this opinion.

I

[¶ 2] In August 1985, Paul sustained a low-back injury during the course of his employment as a construction laborer. The Bureau accepted liability and paid disability benefits and medical expenses. Paul has not worked since his 1985 injury, and he underwent back surgery in 1986 and in 1993. After several unsuccessful attempts at rehabilitation, the Bureau referred Paul to Dr. Peterson for an independent medical examination in 1998. Dr. Peterson's independent medical examination stated Paul was capable of returning to gainful employment with some lifting restrictions. Paul had moved to Phoenix, Arizona, and his treating physician there, Dr. Shapiro, agreed with the findings in Dr. Peterson's independent medical examination. Paul underwent a functional capacity evaluation, which indicated Paul's lifting capabilities were 17.5 pounds "rarely" and 12.5 pounds "occasionally." The results of Paul's functional capacity evaluation indicated he qualified for "sedentary" and "light" categories of work as defined by the United States Department of Labor's Dictionary of Occupational Titles. The functional capacity evaluation defined sedentary work "as exerting up to 10 lbs. of force occasionally and/or a negligible amount of force frequently to lift, carry, push, pull, or otherwise moving objects including the human body," and light work as "exerting up to 20 lbs. of force occasionally, and/or up to 10 lbs. of force frequently, and/or a negligible amount of force constantly to move objects." Dr. Shapiro agreed with the results of Paul's functional capacity evaluation and released him to work under those restrictions.

[¶ 3] Under N.D.C.C. § 65-05.1-01, the Bureau's vocational rehabilitation consultant ultimately developed a rehabilitation plan for Paul to return to work in the Phoenix area. The rehabilitation consultant concluded there were sufficient job opportunities in the Phoenix area as a sales attendant, service establishment counter attendant, or automobile rental clerk, and those job opportunities satisfied his physical restrictions and the requirements of N.D.C.C. § 65 05.1-01. The Bureau accepted the rehabilitation consultant's plan and issued an order denying Paul further disability and vocational rehabilitation benefits.

[¶ 4] Paul requested and received a formal rehearing before an administrative law judge ("ALJ"). The ALJ said the job descriptions for sales attendant, service establishment counter attendant, and automobile rental clerk required a person to lift up to 20 pounds, which exceeded Paul's lifting abilities, but those three job descriptions did not describe lifting as a principal or significant activity. The ALJ stated, because of the number of openings for those jobs in the Phoenix area and because the descriptions did not describe lifting as a principal or significant activity, it was presumed there were employment opportunities for him in the Phoenix area and the burden was on him to show there were not. The ALJ said, in rapidly growing cities like Phoenix, it has become routine for employers to accommodate physically impaired employees and, in any event, the probability of finding a job in the Phoenix area within Paul's physical restrictions was favorable. The ALJ said Paul did not attempt a good faith work search or work

644 N.W.2d 887

trial in the Phoenix area with respect to any of the occupations identified in his vocational plan, and he did not show there were no employment opportunities for him within his lifting restrictions; nor did he show the vocational plan would not otherwise return him to substantial gainful employment. The ALJ recommended the following finding of fact

"[t]he greater weight of the evidence received at Mr. Paul's hearing shows, then, that the three occupations identified for him in the vocational plan, sales attendant, service establishment counter attendant, and automobile rental clerk, are entry-level positions with no specialized educational background, skills, or experience that Mr. Paul does not possess; that they meet the wage test; that there are ample opportunities for employment in those occupations in the Phoenix, Arizona vicinity where he resides; that both the doctor who performed the IME and his treating doctor were of the opinion that he could return to work and that those three occupations were appropriate for him; and that there is a reasonable likelihood that, given the number of annual job openings, he will find work that is within his capacity to perform."

The ALJ said Paul had not shown a good faith work trial or job search and had not shown that his injury...