Smith v. North Dakota Workers Compensation Bureau, 890047

• Decision Date: 26 September 1989
• Docket Number: No. 890047,890047
• Citation: 447 N.W.2d 250
• Parties: 56 Ed. Law Rep. 1008 David A. SMITH, Appellee and Cross-Appellant, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellant and Cross-Appellee. Civ.
• Court: North Dakota Supreme Court

Page 250

447 N.W.2d 250

56 Ed. Law Rep. 1008

David A. SMITH, Appellee and Cross-Appellant, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellant and Cross-Appellee.

Civ. No. 890047.

Supreme Court of North Dakota.

Sept. 26, 1989.

North Dakota Workers Compensation Bureau, Bismarck, for appellant and cross-appellee; argued by Dean J. Haas, Asst. Atty. Gen.

Joseph F. Larson II (argued), Jamestown, for appellee and cross-appellant.

ERICKSTAD, Chief Justice.

The North Dakota Workers Compensation Bureau appeals from the judgment of the district court reversing the order of the Bureau awarding David Smith a two-year rehabilitation retraining program. Smith cross-appeals from the judgment insofar as it upheld the Bureau's denial of relocation expenses for him to attend college. We affirm the district court on both issues.

Smith was working for Grace-Bomac Drilling Company as a winch truck driver, and was loading drill pipe on June 24, 1984, when a truck caught one of the pipes between its dual wheels and kicked it sideways striking him in the ankle. Smith's ankle was broken in three places. Smith was treated by Dr. Frank Ise of Williston and underwent an open reduction, internal fixation of the fracture. Smith subsequently underwent several more operations in an attempt to increase his range of motion and decrease his symptoms. When Dr. Ise left the community of Williston, Smith began seeing Dr. Charles P. Dahl, an orthopedic specialist in Bismarck. After making several more attempts to decrease the problems Smith was having with his ankle, Dr. Dahl suggested Smith have his ankle fused, which was then done. Although Smith had planned to return to his job with Grace-Bomac, Dr. Dahl advised him to seek a more sedentary occupation which involved no heavy lifting or prolonged walking or standing.

The Bureau had accepted liability for the injury and, once it appeared that Smith would not be able to return to his previous employment, which involved heavy labor, suggested vocational rehabilitation. The Bureau sent Beverly Schoedel, a rehabilitation specialist, to see Smith and talk with him about his career plans.

On his own initiative, Smith went to the adult learning center at the University of North Dakota--Williston and used a computer program designed to inform the user of possible career choices. Smith also went to Job Service North Dakota where he took a general aptitude test battery (G.A.T.B.), spoke with a vocational rehabilitation counselor about financing, and took some interest tests. As a result of the tests, and looking to future employability and promotability, Smith decided to go into accounting, with the goal of becoming a certified public accountant. He decided to attend Valley City State University primarily because his wife had family in that area and because the economy was better than in Williston.

The Bureau sent Smith a rehabilitation contract which provided that the Bureau would pay all reasonable retraining and schooling costs for 21 months in connection with Smith's retraining program in the area of business management. ¹ Smith did not sign this contract, and on March 23, 1987, the Bureau issued an order awarding two years of vocational training benefits. Smith requested a formal hearing, which was held, and then the Bureau issued an order affirming the award of two years of vocational retraining.

Smith appealed to the district court which reversed the Bureau's award of two years of vocational retraining, ordered that Smith was entitled to a rehabilitation program which would reasonably restore his pre-injury earning capacity, upheld the denial of relocation expenses and remanded the case to the Bureau for action in accord with the judgment. The Bureau has appealed from the judgment on the issue of the length of time necessary to vocationally rehabilitate Smith and Smith has cross-appealed on the issue of relocation expenses.

We have often reiterated the standard of review we apply to administrative agency decisions. In Six v. Job Service, we stated:

"Our review of administrative agency decisions is governed by section 28-32-19, N.D.C.C., and involves a three-step process: (1) Are the findings of fact supported by a preponderance of the evidence? (2) Are the conclusions of law sustained by the findings of fact? (3) Is the agency decision supported by the conclusions of law? Falcon v. Williams Cty. Social Serv. Bd., 430 N.W.2d 569 (N.D.1988). When an administrative agency decision is appealed to the district court and then to this Court, we review the decision of the agency and not the decision of the district court. Bohac v. Graham, 424 N.W.2d 144 (N.D.1988). We review the record compiled before the agency rather than the findings of the district court. Falcon v. Williams Cty. Social Serv. Bd., supra. In determining whether or not the agency's findings of fact are supported by a preponderance of the evidence, we do not make independent findings of fact or substitute our judgment for that of the agency, but determine only whether a reasoning mind could reasonably have determined that the factual conclusions were supported by the weight of the evidence. Power Fuels, Inc. v. Elkin, 283 N.W.2d 214 (N.D.1979)." Six v. Job Service North Dakota, 443 N.W.2d 911 (N.D.1989).

The Bureau asserts the issue on appeal is whether or not a two-year vocational retraining allowance is sufficient to return Smith to reasonable and substantial employment. Smith argues that four years of rehabilitation retraining is necessary to restore him to his pre-injury earning capacity. The first question we must answer, therefore, is to what extent an injured worker must be rehabilitated under the Workmen's Compensation Act.

The Bureau refers us to Levey v. N.D. Workers Compensation Bureau, where this Court had affirmed the Bureau's award of two years of vocational rehabilitation due to the fact that the record supported a finding that there were "numerous two-year-degree programs for persons interested in mathematics and science which would qualify a person for employment." Levey v. N.D. Workers Compensation Bureau, 425 N.W.2d 376, 377 (N.D.1988). However, we find Levey to be distinguishable. The extent of pre-injury earning capacity to which a claimant is entitled to be restored was not raised by Levey in his brief or in the petition for rehearing. Our opinion, therefore, did not address this issue. In the instant case, the pre-injury earning capacity and the potential income in a given area of employment are crucial to the determination of whether or not a two-year vocational retraining program is sufficient to rehabilitate Smith. As we do not find our holding in Levey to control the outcome in this case, we look for guidance to the North Dakota Century Code.

Chapter 65-05.1 of the North Dakota Century Code is entitled "Rehabilitation Services." ² At the time Smith was injured, section 65-05.1-01, N.D.C.C., provided in pertinent part:

"It is the purpose of this chapter to provide for the health and welfare by ensuring to workmen's compensation claimants otherwise covered by this title, services, so far as possible, necessary to assist the claimant and the claimant's family in the adjustments required by the injury to the end that the claimant may receive comprehensive rehabilitation services. Such services shall include medical, psychological, economic, and social rehabilitation."

Subsection 5 of section 65-05.1-02, entitled "Bureau responsibility" stated that bureau shall "[p]rovide such rehabilitation services and allowances as may be determined by the bureau to be most beneficial to the claimant within the limits of this chapter."

Section 65-05.1-04, N.D.C.C., entitled "Injured worker responsibility" stated in pertinent part that:

"It shall be the responsibility of the injured worker to seek, obtain, and retain reasonable and substantial employment in order to reduce the period of temporary disability to a minimum. In the event that the injured worker is unable to obtain substantial employment as a direct result of his injury he shall promptly notify the bureau and thereafter be available for such examinations and testing as may be prescribed by the bureau to determine whether or not a program of rehabilitation is necessary. If the bureau determines that a program of rehabilitation is necessary and feasible, the injured worker, upon having been so notified, shall be available for such a program." [Emphasis added.]

No other mention is made in chapter 65-05.1, N.D.C.C., to what extent an injured worker must be rehabilitated. In Six v. Job Service, supra, we said:

"The interpretation of a statute is a question of law, fully reviewable by this Court. State v. Bower, 442 N.W.2d 438 (N.D.1989). Our primary objective in the interpretation of a statute is to ascertain the intent of the legislature. Peterson v. Heitkamp, 442 N.W.2d 219 (N.D.1989). We look first to the language of the statute. Aanenson v. Bastien, 438 N.W.2d 151 (N.D.1989). If the language of a statute is clear and unambiguous, the letter of the statute cannot be disregarded under the pretext of pursuing its spirit. County of Stutsman v. State Historical Soc., 371 N.W.2d 321 (N.D.1985). If a statute's language is ambiguous or of doubtful meaning, we may consider extrinsic aids, including legislative history, along with the language of the statute, to ascertain legislative intent. First Sec. Bank, Underwood, N.D. v. Enyart, 439 N.W.2d 801 (N.D.1989)." Six v. Job Service, supra, 443 N.W.2d at 913.

Chapter 65-05.1, N.D.C.C., was enacted by the 1975 Legislative Session in chapter 584. In our review of the legislative history of chapter 65-05.1, N.D.C.C., we find no discussion regarding the extent to which an injured worker should be rehabilitated. The drafter's notes to Senate Bill No. 2145, which became chapter 584, state that "[t]he term 'comprehensive rehabilitation services' is the key to this bill. It is quite evident that the Bureau...