Anderson v. Workforce Safety & Insurance

2015 ND 205, 868 N.W.2d 508, 2015 N.D. LEXIS 225, 2015 WL 5013952

• Court: North Dakota Supreme Court
• Decided: August 25, 2015
• Docket: 20140346
• Status: Published

Opinions

SANDSTROM, Justice.

[¶ 1] Calvin Anderson appeals from a judgment affirming a Workforce Safety and Insurance (“WSI”) decision approving a vocational rehabilitation plan. Because a reasoning mind reasonably could have determined the factual conclusions reached by WSI were proven by the greater weight of the evidence in the record and the vocational rehabilitation plan would return Anderson to substantial gainful employment that was reasonably attainable in light of his injury, we affirm the district court judgment.

I

[¶ 2] In January 2005, after slipping on an icy driveway and injuring his right shoulder and left hip while working as an inspector-tester for Finley Engineering, Anderson reported the injury to WSI. On January 28, 2005, WSI accepted liability for the right shoulder and left hip injury and paid benefits to Anderson. During the following three years, Anderson worked in similar positions with different companies. After his injury, and throughout 2010, Anderson sought medical and chiropractic care from numerous providers to address complications with his right shoulder, neck, and left hip.

[¶ 3] In April 2010, WSI issued a notice of its decision to deny further liability for Anderson’s left hip injury on the grounds that the arthritis of which he complained had been present before he sustained the work injury in 2005. After finding no objective medical evidence indicating Anderson’s hip condition was caused by his work injury, WSI issued its order denying liability for his hip condition.

[If 4] In June 2010, the rehabilitation consultant hired by WSI issued its report. The report noted that Anderson’s treating physician, Steven Kraljic, M.D., had released Anderson to perform his pre-injury position without work restrictions. In accordance with N.D.C.C. § 65-05.1-01(4), the report contained a vocational rehabilitation plan which determined the first appropriate rehabilitation option would be for Anderson to “return to the same occupation, any employer.” Later in June, WSI issued a notice of its intention to discontinue temporary disability benefits on the grounds Anderson had been released to work without restrictions and he was deemed capable of performing his pre-injury occupation. Shortly after, WSI advised Anderson that because it determined he had the transferable skills to return to his pre-injury work as an inspector, he was required to make a good-faith search for such a job.

[¶ 5] On July 22, 2010, WSI issued its order denying further disability and rehabilitation benefits because Anderson had been released to return to his pre-injury occupation. Anderson appealed from the order denying further disability and rehabilitation benefits, as well as the order denying specific benefits regarding the condition of his left hip, and requested a hearing. On December 20, 2010, an administrative hearing was held on both appeals. After the hearing, the administrative law judge (“ALJ”) issued a final order affirming WSI’s denial of specific benefits and further disability and rehabilitation benefits. Anderson appealed the ALJ’s final order to the district court. The district court remanded the case to the ALJ, instructing her to make further factual determinations regarding whether WSI had accepted liability for Anderson’s neck injuries. Prior to a remand hearing, WSI accepted liability for Anderson’s neck injuries.

[¶ 6] On December 29, 2013, the ALJ affirmed WSI’s earlier order. The ALJ found WSI had considered the condition of Anderson’s neck at the time it formulated the vocational rehabilitation plan and the plan provided Anderson a reasonable opportunity to obtain substantial gainful employment in North Dakota. Anderson again appealed the ALJ’s order to the district court, and the district court again affirmed. Anderson then appealed to this Court.

[¶ 7] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. §§ 27-05-06, 65-10-01, and 28-32-42. Anderson’s appeal was timely under N.D.R.App.P. 4(a) and N.D.C.C. § 28-32-49. This Court has jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. § 28-32-49.

II

[¶ 8] In an appeal of a WSI order, under N.D.C.C. §§ 28-32-46 and 28-32-49, we .are required to affirm an order by an administrative agency unless:

1. The order is not in accordance with the law.

2. The order is in violation of the constitutional rights of the appellant.

3. The provisions of this chapter have not been complied with in the proceedings before the agency.

4. The rules or procedure of the agency have not afforded the appellant a fair hearing.

5. The findings of fact made by the agency are not supported by a preponderance of the evidence.

6. The conclusions of law and order of the agency are not supported by its findings of fact.

7. The findings of fact made by the agency do not sufficiently address the evidence presented to the agency by the appellant.

8. The conclusions of law and order of the agency do not sufficiently explain the agency’s rationale for not adopting any contrary recommendations by a hearing officer or an administrative law judge.

N.D.C.C. § 28-32-46. “[W]e do not make independent findings of fact or substitute our judgment for that of the agency. We determine only whether a reasoning mind reasonably could have determined that the factual conclusions reached were proved by the weight of the evidence from the entire record.” Power Fuels, Inc. v. Elkin, 283 N.W.2d 214, 220 (N.D.1979). Questions of law, including the interpretation of a statute, are fully reviewable on appeal from an agency decision. Lawrence v. North Dakota Workers Comp. Bureau, 2000 ND 60, ¶ 11, 608 N.W.2d 254.

III

[¶ 9] Anderson argues WSI’s selection of a vocational rehabilitation plan under N.D.C.C. ch. 65-05.1 is not physically appropriate because no reasoning mind, after a review of his medical conditions, could conclude he is capable of completing the work required in his vocational rehabilitation plan. Anderson argues WSI failed to properly consider his difficulties with driving when it formed his vocational rehabilitation plan.

[¶ 10] Chapter 65-05.1, N.D.C.C., governs WSI’s vocational rehabilitation services. Specifically, N.D.C.C. § 65-05.1-01(3) provides, in part:

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....

A vocational rehabilitation plan is appropriate if it satisfies the requirements of N.D.C.C. ch. 65-05.1 and gives the claimant a reasonable opportunity to obtain substantial gainful employment. Paul v. N.D. Workers Comp. Bureau, 2002 ND 96, ¶ 8, 644 N.W.2d 884. In determining whether certain employment options present an opportunity for substantial gainful employment, WSI must take a claimant’s preexisting functional limitations into account. Genter v. Workforce Safety & Ins. Fund, 2006 ND 237, ¶ 14, 724 N.W.2d 132. “The Legislature intended for claimants to be provided with actual rehabilitation, with a realistic opportunity to return to work, and not a theoretical rehabilitation On paper only.” Id. (citations omitted). WSI bears the burden of establishing that a vocational rehabilitation plan is appropriate. Hoffman v. N.D. Workers Comp. Bureau, 2002 ND 138, ¶ 15, 651 N.W.2d 601.

[¶ 11] “ WSI’s selection of a vocational rehabilitation plan will not be reversed when there is evidence from which a reasoning mind could have reasonably concluded that the rehabilitation plan would return the injured worker to substantial gainful employment which was reasonably attainable in light of his injury....’” Higginbotham v. Workforce Safety & Ins., 2014 ND 147, ¶ 8, 849 N.W.2d 233 (quoting Bishop v. Workforce Safety & Ins., 2012 ND 217, ¶ 8, 823 N.W.2d 257). In assessing the validity of a vocational rehabilitation plan, the question “ ‘is whether the plan, at the time [it was formulated], gave [the injured worker] a reasonable opportunity to obtain substantial gainful employment.’ ” Hoffman v. N.D. Workers Comp. Bureau, 1999 ND 66, ¶ 9, 592 N.W.2d 533 (emphasis omitted) (quoting Lucier v. North Dakota Workers Comp. Bureau, 556 N.W.2d 56, 60 (N.D.1996)); see also Svedberg v. North Dakota Workers Comp. Bureau, 1999 ND 181, ¶ 16, 599 N.W.2d 323.

[¶ 12] Despite Anderson’s contentions, the ALJ found the vocational rehabilitation plan considered the condition of Anderson’s neck. In her decision affirming WSI’s orders denying disability and rehabilitation benefits, the ALJ reviewed the medical evidence regarding Anderson’s neck and made the following findings:

The greater weight of the evidence shows that at the time of the vocational rehabilitation plan, Mr. Anderson was physically capable of performing the job of inspector/tester. He was released to work with restrictions that did not prevent him from performing this light duty work. Mr. Anderson complains that he is unable to do the job because he cannot tolerate driving. Over the years, Mr. Anderson has attributed his problem driving to neck pain. But Dr. Kral-jic, who treated Mr. Anderson’s neck pain, was aware of Mr. Anderson’s complaints about driving and released Mr. Anderson to do that job. Dr. Kraljic was provided with a Field Inspector Job Description that advised that the worker must have a valid driver’s license, that most assignments are performed at a job site, and that travel was required “approximately 90% of the time.”

[¶ 13] Although Anderson disagrees with Dr. Kraljic’s diagnosis regarding his neck and work restrictions, we do not “substitute our judgment for that of the agency” but instead “determine only whether a reasoning mind reasonably could have determined that the factual conclusions reached were proved by the weight of the evidence from the entire record.” Thompson v. Workforce Safety & Ins., 2006 ND 69, ¶ 9, 712 N.W.2d 309; Power Fuels, Inc. v. Elkin, 283 N.W.2d 214, 220 (N.D.1979). Here the evidence in the record allows WSI to reasonably conclude Anderson was capable of performing his pre-injury occupation. For example, in 2010, because WSI was aware Anderson had complained of neck pain, it provided his treating physician, Dr. Kraljic, with a Field Inspector Job Description that described the type of work required for an inspector. After reviewing the job description, Dr. Kraljic released Anderson to his pre-injury occupation without any work restrictions. As a result, WSI approved the vocational rehabilitation plan and notified Anderson of its intent to discontinue his temporary disability benefits. Moreover, the record also reflects that Anderson, after suffering his work-related injury, worked the same job that was recommended by WSI, an inspector-tester, for two different employers. Because the evidence in the record reflects that a reasoning mind could have reasonably concluded the vocational rehabilitation plan would return Anderson to substantial gainful employment which was reasonably attainable in light of his injury and which would substantially rehabilitate his earning capacity, we affirm the ALJ’s conclusion that Anderson’s vocational rehabilitation plan was valid and properly considered his neck pain.

IV

[¶ 14] Anderson also argues WSI’s selection of a vocational rehabilitation plan under N.D.C.C. ch. 65-05.1 is not physically appropriate, because the ALJ failed to weigh the conflicting medical evidence presented by Dr. Kraljic, who released Anderson to work with no restrictions, and Dr. Krause, who imposed driving restrictions after the formation and adoption of Anderson’s vocational rehabilitation plan, and failed to adequately explain her reasoning for rejecting evidence favorable to Anderson. Anderson also argues that although Dr. Krause’s diagnosis was given after the vocational rehabilitation plan, was approved, WSI should have taken the conflicting medical testimony into consideration and ordered a functional capacity assessment to ascertain whether he could perform the job duties of his former occupation.

[¶ 15] WSI argues the ALJ correctly concluded the viability of WSI’s vocational rehabilitation plan because viability of a rehabilitation plan is measured at the time WSI makes its selection. WSI cites Lucier v. N.D. Workers Comp. Bureau, 556 N.W.2d 56, 60 (N.D.1996), for the proposition that the question for this Court on appeal “is whether the [rehabilitation] plan, at the time, gave [the claimant] a reasonable opportunity to obtain substantial gainful employment....” (Emphasis added.) Because the work restrictions imposed by Dr. Krause came after WSI had approved the vocational rehabilitation plan for Anderson, WSI argues it was under no obligation to consider the restrictions in formulating the vocational rehabilitation plan.

[¶ 16] Under N.D.C.C. § 65-05-08.8, WSI is required to resolve conflicting medical evidence before it by considering the following factors:

a. The length of the treatment relationship and the frequency of examinations;

b. The nature and extent of the treatment relationship;

c. The amount of relevant evidence in support of the opinion;

d. How consistent the opinion is with the record as a whole;

e. Appearance of bias;

f. Whether the doctor specializes in the medical issues related to the opinion; and

g. Other relevant factors.

In the present case, in approving Anderson’s vocational rehabilitation plan requiring him to return to his same occupation with any employer, the record reflects WSI relied on medical evidence contained in the record, numerous medical opinions and work releases from Anderson’s treating physicians, and an independent medical examination. For example, before Anderson’s vocational rehabilitation plan was approved, Dr. Kraljic and Coleen Staloch, a certified physician assistant, both of whom treated Anderson’s neck and shoulder injuries, released Anderson with no work restrictions. The evidence contained in the record reflects that Dr. Kraljic was aware Anderson began to report neck pain more than two years after the work injury, but he nevertheless decided Anderson could be released without work restrictions. In addition to relying on Dr. Kraljic’s medical opinion, the record reflects WSI also considered the medical opinion of Dr. Carole Krause, a physiatrist who saw Anderson approximately one month after the vocational rehabilitation plan was issued. According to her medical reports, upon examining Anderson, Dr. Krause observed that he had decreased range of motion in his left hip, fair range of motion in his neck, and fair to good range of motion in his shoulder. Dr. Krause noted Anderson had cervical stenosis (narrowing of the spinal canal in the neck) and degenerative disc disease in his neck and a history of left hip osteoarthritis. Because of Anderson’s complaints regarding his work restrictions, Dr. Krause recommended tentative work restrictions that limited the amount of time Anderson could drive to ten to fifteen minutes at a time.

[¶ 17] Although Anderson argues WSI failed to adequately explain its reasoning for not weighing the medical evidence presented by Dr. Krause, the record reflects otherwise. In the agency’s final order dated December 29, 2013, the ALJ weighed the conflicting medical opinion presented by Dr. Kraljic and Dr. Krause and concluded that Dr. Krause’s reliance on Anderson’s “subjective complaints” regarding his back pain and difficulties with driving was outweighed by the medical opinion of Dr. Kraljic. While this explanation is rather brief, we conclude the ALJ adequately addressed the inconsistencies in the medical opinions, provided a reasonable basis for her findings, and sufficiently explained the reasoning for her conclusion to disregard the medical evidence offered by Dr. Krause. See Across Big Sky Flow Testing, LLC v. Workforce Safety & Ins., 2014 ND 236, ¶ 14, 867 N.W.2d 380.

V

[¶ 18] Anderson argues WSI failed to prove the vocational rehabilitation plan provided him with a reasonable opportunity to obtain substantial employment, because WSI failed to provide a job market analysis in order to prove Anderson had a reasonable opportunity to obtain the employment specified in the vocational rehabilitation plan.

[¶ 19] In support of his arguments, Anderson cites to Paul v. N.D. Workers Comp. Bureau, 2002 ND 96, 644 N.W.2d 884, for the proposition that WSI may not presume the availability of sufficient job opportunities within a claimant’s physical limitations or shift the burden of disproving the availability of sufficient job opportunities. In Paul, a claimant was injured during the course of his employment, and WSI accepted liability and paid disability benefits and medical expenses. Id. at ¶ 2. After the claimant underwent a functional capacity evaluation, WSI adopted a vocational rehabilitation plan for the claimant to return to work in the Phoenix area as a sales attendant, service establishment counter attendant, or automobile rental clerk, and issued an order denying the claimant any further disability and vocational rehabilitation benefits, which the claimant appealed. Id. at ¶¶ 2-3. Despite the • claimant’s objection, the ALJ upheld WSI’s order because it presumed there were employment opportunities for the claimant within the suggested occupations and because the claimant had not proven otherwise. Id. at ¶ 10. On appeal to this Court, WSI may not rely on a presumption to establish that a vocational rehabilitation plan provides a reasonable opportunity for employment within a claimant’s restrictions; instead, WSI must rely on the evidence presented at the hearing to prove the plan provides a reasonable opportunity for employment within a claimant’s restrictions. Id. at ¶ 11. In the present case, Anderson argues, as in Paul, it is inappropriate for WSI to simply presume there are sufficient job opportunities within his physical limitations.

[¶ 20] Conversely, WSI argues the vocational rehabilitation plan was valid even though the vocational consultant did not conduct labor market research to determine whether there were sufficient positions available to Anderson to provide him a reasonable opportunity for employment. WSI argues that according to N.D.C.C. § 65-05.1-02.1, a vocational consultant’s report is required to include labor market research only when the first appropriate option to return the employee to substantial gainful employment is listed in N.D.C.C. § 65-05.1-01(4)(e-g). See generally Held v. N.D. Workers Comp. Bureau, 540 N.W.2d 166, 169 (N.D.1995) (employment placement statistics were used to prove claimant had opportunity to obtain substantial gainful employment after completing retraining as prescribed by N.D.C.C. § 65-05.1-01(4)(g)). Because the first appropriate option to return Anderson to substantial gainful employment was to return him to the same occupation with any employer, WSI argues it was unnecessary to provide labor market research.

[¶ 21] According to N.D.C.C. § 65-05.1-02.1(2), depending on which option is identified as the appropriate option to return the employee to substantial gainful employment, the vocational consultant’s report must contain findings that:

a. Identify jobs in the local or statewide job pool and the employee’s anticipated earnings from each job; or

b. Describe an appropriate retraining program, the employment opportunities anticipated upon the employee’s completion of the program, and the employee’s anticipated earnings.

With that said, N.D.C.C. § 65-05.1-02.1(2) does not specify which rehabilitation options require market research about job availability and earning potential as required by N.D.C.C. § 65-05.1-01(4). In her decision affirming WSI’s decision to deny further disability and rehabilitation benefits, the ALJ concluded that because WSI did not identify a rehabilitation option within the local or statewide job pool suited to Anderson’s education, experience, and marketable skills, the vocational consultant’s report “was not required to contain findings that identified jobs in the local or statewide job pool.” Furthermore, the ALJ agreed with the vocational consultant’s testimony that because Anderson was returned to the same occupation with any employer, she was not required to include such findings. The ALJ then discussed Anderson’s reliance on Paul for the proposition that the vocational consultant - was required to do labor market research:

In Paul, three different occupations in the Phoenix, Arizona area had been identified as suitable for the claimant. That is not the case here. No alternative occupations have been identified for Mr. Anderson. The first appropriate rehabilitation option identified is a return to the same occupation — the same job he had been performing for various employers after his work injury. That he had been performing this job after his work injury, for several employers, shows that Mr. Anderson had a reasonable opportunity for employment within his restrictions in light of his injury, functional capacities, education, previous occupation, experience, and skills and the job met the wage test. Paul is distinguishable and does not indicate that the vocational consultant’s report is deficient under § 65-05.1-02.1.

[¶ 22] Although N.D.C.C. § 65-05.1-02.1 is unclear as to when a vocational consultant’s report must identify jobs in the local or statewide job pool and the employee’s anticipated earnings from each job, we defer to WSI’s interpretation and application of N.D.C.C. § 65-05.1-02.1, which appears to be reasonable and consistent with the statutory language. See Medcenter One, Inc. v. North Dakota State Bd. of Pharmacy, 1997 ND 54, ¶ 17, 561 N.W.2d 634 (an “agency’s long-standing and practical interpretation of a statute is entitled to deference” unless it is contrary to the unambiguous language of the statute). Despite the vocational consultant’s report’s lack of job market research, evidence contained in the record supports the hearing officer’s finding that WSI provided Anderson with a vocational rehabilitation plan that presented him with a reasonable likelihood of obtaining substantial gainful employment as an inspector-tester. As noted by the ALJ, Anderson worked for two engineering companies as an inspector-tester after his work-related injury, and this position was within his restrictions in light of his injury, functional capacities, education, experience, and skills and met the wage test prescribed in N.D.C.C. § 65-05.1-01(3); see Paul v. N.D. Workers Comp. Bureau, 2002 ND 96, ¶ 16, 644 N.W.2d 884 (VandeWalle, C.J., concurring) (this Court should not require “proof of the obvious to an inordinate point”). Therefore, because a reasoning mind could have reasonably concluded the vocational rehabilitation plan satisfied the requirements of N.D.C.C. ch. 65-05.1 and provided Anderson with a reasonable opportunity to obtain substantial gainful employment, we affirm the ALJ’s conclusion that Anderson’s vocational rehabilitation plan was valid. See Paul, at ¶ 8 (a vocational rehabilitation plan is appropriate if it satisfies the requirements of N.D.C.C. ch. 65-05.1 and gives the claimant a reasonable opportunity to obtain substantial gainful employment).

VI

[¶ 23] We have reviewed the record, and we conclude a reasoning mind reasonably could have determined the vocational rehabilitation plan would return Anderson to substantial gainful employment that was reasonably attainable in light of his injury. We therefore affirm the district court judgment.

[¶ 24] GERALD W. VANDE WALLE, C.J., DANIEL J. CROTHERS and LISA FAIR McEVERS, JJ., concur.