Svedberg v. NORTH DAKOTA WORKERS COMPENSATION BUREAU

1999 ND 181, 599 N.W.2d 323, 1999 N.D. LEXIS 200, 1999 WL 692830
CourtNorth Dakota Supreme Court
DecidedSeptember 8, 1999
Docket990082
StatusPublished
Cited by19 cases

This text of 1999 ND 181 (Svedberg v. NORTH DAKOTA WORKERS COMPENSATION BUREAU) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Svedberg v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, 1999 ND 181, 599 N.W.2d 323, 1999 N.D. LEXIS 200, 1999 WL 692830 (N.D. 1999).

Opinion

NEUMANN, Justice.

[¶ 1] Arlo Svedberg appeals from a district court judgment affirming an order of the North Dakota Workers Compensation *324 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 Svfedberg 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.

[f 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:

*325 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 Toutg-es 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.

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Bluebook (online)
1999 ND 181, 599 N.W.2d 323, 1999 N.D. LEXIS 200, 1999 WL 692830, Counsel Stack Legal Research, https://law.counselstack.com/opinion/svedberg-v-north-dakota-workers-compensation-bureau-nd-1999.