Svedberg v. NORTH DAKOTA WORKERS COMPENSATION BUREAU

• Citation: 1999 ND 181,599 N.W.2d 323
• Decision Date: 08 September 1999
• Docket Number: No. 990082.,990082.
• Parties: Arlo SVEDBERG, Claimant and Appellant, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellee, and Community News, Inc., Respondent.
• Court: United States State Supreme Court of North Dakota

599 N.W.2d 323

1999 ND 181

Arlo SVEDBERG, Claimant and Appellant, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellee, and Community News, Inc., Respondent.

No. 990082.

Supreme Court of North Dakota.

September 8, 1999.

Stephen D. Little, Dietz, Little & Haas, Bismarck, N.D., for claimant and appellant.

Jacqueline Sue Anderson, Special Assistant Attorney General, Fargo, N.D., for appellee.

NEUMANN, Justice.

[¶ 1] Arlo Svedberg appeals from a district court judgment affirming an order of the North Dakota Workers Compensation Bureau denying Svedberg further disability and vocational rehabilitation benefits. We reverse and remand.

[¶ 2] Svedberg began working for Community News, Inc., which published several newspapers, in 1984. Svedberg worked as a reporter, photographer, and advertising salesman, and also performed various other duties including shoveling snow and delivering bundles of newspapers. In January 1995 Svedberg suffered a work-related injury to his right shoulder which required surgery to repair a torn rotator cuff. The Bureau accepted Svedberg's claim and paid benefits, including disability benefits.

[¶ 3] Svedberg had previously suffered a work-related injury to his back in 1969 while working as a firefighter in Grand Forks. He had surgery and returned to his job several months later. He twice reinjured his back on the job, requiring additional surgeries in 1971 and 1973. Following the 1973 surgery Svedberg was unable to continue working as a firefighter.

[¶ 4] Svedberg also suffered from ongoing psychological difficulties. He had a history of personality disorders and suffered from panic attacks. In the months preceding the January 1995 shoulder injury Svedberg suffered from depression, which intensified after his injury.

[¶ 5] In August 1995 the Bureau initiated vocational rehabilitation services for Svedberg. The Bureau's vocational consultant, CorVel Corporation, determined the appropriate rehabilitation option under N.D.C.C. § 65-05.1-01(4) was return to the same employer in a modified position. Community News offered Svedberg a less physically demanding position, but at a significantly lower wage and with no benefits. Svedberg had moved to Devils Lake, and would have been required to commute to the job. Svedberg's treating physician, Dr. Robert Clayburgh, released Svedberg to return to work at the modified position. The Bureau, however, rejected the vocational rehabilitation plan, noting Svedberg "has a valid reason for not relocating and cannot be expected to drive 100 miles each way to work" for a minimum wage job. The Bureau directed CorVel to explore other options and amend the plan.

[¶ 6] Dr. Clayburgh subsequently released Svedberg to return to work with restrictions of "no repetitious pushing or pulling of the right arm or doing any overhead lifting or reaching." CorVel submitted an amended vocational rehabilitation plan, again identifying the modified position at Community News as the first option, but also concluding Svedberg had transferable skills and was qualified to work as an advertising salesperson, photographer, reporter, editorial assistant, graphic artist, van driver, bus driver, or truck driver. CorVel provided this list of jobs to Dr. Clayburgh, who agreed they were all within Svedberg's "current level of physical abilities."

[¶ 7] The Bureau approved the amended vocational rehabilitation plan and, on April 21, 1996, issued a notice of intention to discontinue benefits notifying Svedberg his disability benefits would be terminated effective April 23, 1996. On April 25, 1996, the Bureau issued an order denying further disability or vocational rehabilitation benefits. Svedberg requested an administrative hearing, which was held on June 9, 1997. Following a delay for additional medical testimony, the administrative law judge (ALJ) issued recommended findings of fact, conclusions of law, and order on January 6, 1998, concluding the vocational rehabilitation plan was appropriate and recommending affirmance of the prior order denying further benefits. The Bureau adopted the ALJ's recommended findings, conclusions, and order, and Svedberg appealed to the district court. The district court affirmed the Bureau's order, and Svedberg now appeals to this Court.

[¶ 8] The dispositive issue in this case is whether the vocational rehabilitation plan adopted by the Bureau was appropriate under N.D.C.C. § 65-05.1-01, which provides in part:

3. 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, functional capacities, 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 ninety percent of the employee's average weekly earnings at the time of injury, or to sixty-six and two-thirds 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 which meets this income test set out above.

4. The first appropriate option among the following, calculated to return the employee to substantial gainful employment, must be chosen for the employee:

a. Return to the same position.

b. Return to the same occupation, any employer.

c. Return to a modified position.

d. Return to a modified or alternative occupation, any employer.

e. Return to an occupation within the local job pool of the locale in which the claimant was living at the date of injury or of the employee's current address which is suited to the employee's education, experience, and marketable skills.

f. Return to an occupation in the statewide job pool which is suited to the employee's education, experience, and marketable skills.

g. On-the-job training.

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

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

j. Self-employment.

Interpretation of a statute is a question of law fully reviewable by this Court. Shiek v. North Dakota Workers Compensation Bureau, 1998 ND 139, ¶ 16, 582 N.W.2d 639. Our primary objective in construing a statute is to ascertain the intent of the legislature. Id.

[¶ 9] The dispute in this case centers on the failure to consider Svedberg's prior back injuries and psychological problems when assessing appropriate employment options in the vocational rehabilitation plan. The record demonstrates CorVel did not consider Svedberg's back injuries or psychological problems when it developed the plan, and Dr. Clayburgh did not consider them when he approved the employment options in the plan. Greg Toutges from CorVel testified at the administrative hearing:

Q. [by Mr. Little] ... I think you said the purpose of CorVel's rehabilitation activities is to determine the claimant's functional limitations assessment and what they can do despite those limitations?

A. Correct.

Q. Okay. Thanks. Am I correct in thinking that when you conducted Mr. Svedberg's functional limitations you were concerned with his right shoulder?

A. Correct.

Q. Did you look at anything else, any other limitations?

A. Not that I'm aware of.

Q. Were you aware of any prior Workers Compensation injuries?

A. No.

Q. Okay. Aware of any, any permanent residuals from those injuries?

A. No.

Q. That's something that the Bureau didn't provide CorVel?

A. I doubt it, because I just noticed this thing about the back injuries when he was employed by the fire department.

Q. You just saw it right now?

A. Yeah.

Q. And with respect to the information given Dr. Clayburgh, then, for his approval of various types of jobs, that would have been limited to the shoulder injury, too?

A. I would assume so.

Q. Do you know what kinds of records Dr. Clayburgh had? Let's talk about what he got from CorVel. That would have been limited to the shoulder injury. Is that right?

A. I believe so.

When Toutges later commented on the effects of Svedberg's back injuries, the ALJ asked clarifying questions:

THE COURT: You testified earlier that you were not aware of the fact that those injuries had taken place?

THE WITNESS: No, I wasn't aware of them.

THE COURT: So you were making that comment now, after the fact, and it was not considered at the time that the plan was developed. Is that correct?

THE WITNESS: That's correct.

[¶ 10] The crucial question presented in this case is whether a vocational rehabilitation plan must take into account all of the injured worker's functional limitations existing at the time of the injury, or only those directly caused by the current work injury. The Bureau argues our decision in Holtz v. North Dakota Workers Compensation Bureau, 479 N.W.2d 469 (N.D.1992), is dispositive of this issue.

[¶ 11] In Holtz, the claimant had to leave her job after she contracted dermatitis while working as a beautician. She was granted temporary total disability benefits. A week after she left her job, she fell and severely fractured her elbow, requiring surgery. A few months later she suffered further injuries in an automobile accident. Holtz asserted the Bureau should have considered her physical limitations caused by these subsequent, non-work-related injuries when it assessed her eligibility for disability and rehabilitation benefits. We concluded that, in the context of subsequent non-work-related injuries, such disabilities were not "medical limitations"¹ appropriate for consideration when assessing eligibility for disability benefits and developing a vocational rehabilitation plan under N.D.C.C. § 65-05.1-01(3). In so holding, we stated "we believe the intent of the legislature...