Paul v. North Dakota Workers Compensation Bureau6/4/2002
hoenix 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:
" 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 significantly impacts his ability to compete for employment under N.D.C.C. § 65-05.1-04(6):
" ther than some vague testimony that he had called a local business, detailed his back pain and lifting limitations, and then asked about his job opportunities under such circumstances, Mr. Paul offered no evidence of substance showing that he has, as yet, performed a good faith work trial or work search. Consequently, he did not meet that burden of proof, and because he has not undertaken such a work trial or work search, he is also not in a position to assert that `the injury significantly impacts the employee's ability to successfully compete for gainful employment in that the injury leads employers to favor those without limitations over the employee.'"
The ALJ recommended finding the Bureau's vocational plan met the goal of providing Paul with a reasonable opportunity of obtaining substantial gainful employment. The Bureau adopted the ALJ's recommendation, and the district court affirmed the Bureau's decision denying Paul further disability and vocational rehabilitation benefits.
[ ] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. §§ 27-05-06, 65-10-01, and 28-32-15, which, effective August 1, 2001, is codified at 28-32-42. Paul's November 26, 2001, appeal to this Court is timely under N.D.R.App.P. 4(a) and N.D.C.C. § 28-32-49, which was codified at N.D.C.C. § 28-32-21 before August 1, 2001. This Court has jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. § 28-32-49.
II.
[ ] On appeal, we review the decision of the administrative agency, rather than that of the district court, although the district court's analysis is entitled to respect. Snyder v. North Dakota Workers Comp. Bureau, 2001 ND 38, 7, 622 N.W.2d 712. Under N.D.C.C. §§ 28-32-19 and 28-32-21, which, effective August 1, 2001, are codified at 28-32-46 and 28-32-49, we affirm the Bureau's decision unless its findings of fact are not supported by a preponderance of the evidence, its conclusions of law are not supported by its findings of fact, its decision is not supported by its conclusions of law, its decision is not in accordance with the law or violates the claimant's constitutional rights, or its rules or procedure deprived the claimant of a fair hearing. Negaard-Cooley v. North Dakota Workers Comp. Bureau, 2000 ND 122, 7, 611 N.W.2d 898. We exercise restraint in d
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