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Paul v. North Dakota Workers Compensation Bureau6/4/2002
eciding whether the Bureau's findings of fact are supported by a preponderance of the evidence, and we do not make independent findings or substitute our judgment for that of the Bureau; rather, we decide whether a reasoning mind reasonably could have decided the Bureau's findings were proven by the weight of the evidence from the entire record. Renault v. North Dakota Workers Comp. Bureau, 1999 ND 187, 16, 601 N.W.2d 580. Questions of law, including the interpretation of a statute, are fully reviewable on appeal from a Bureau decision. Lawrence v. North Dakota Workers Comp. Bureau, 2000 ND 60, 11, 608 N.W.2d 254.
III.
[ ] Paul argues the Bureau's adoption of the ALJ's recommendation was not in accordance with the law because the ALJ placed the burden of proof on him. He argues the Bureau has the burden of establishing that the vocational plan provided him with a reasonable opportunity to obtain substantial gainful employment, and it is clear the ALJ placed the burden of proof on him to prove the plan does not meet the requirements of N.D.C.C. § 65-05.1-01. Paul argues the ALJ's recommended findings demonstrate the ALJ improperly placed the burden of proof on him to prove the vocational plan did not provide him with a reasonable opportunity for employment.
[ ] The parties agree the Bureau has the burden of establishing that a rehabilitation plan is appropriate. Under N.D.C.C. § 65-05.1-01(3), the goal of vocational rehabilitation is to return a disabled employee to substantial gainful employment, which means bona fide work for remuneration that is reasonably attainable in light of the individual's injury, functional capacities, education, previous occupation, experience, and transferable skills, and which meets a wage test. A rehabilitation plan is appropriate if it satisfies the requirements of N.D.C.C. ch. 65-05.1 and gives a claimant a reasonable opportunity to obtain employment. See Lucier v. North Dakota Workers Comp. Bureau, 556 N.W.2d 56, 59 (N.D. 1996). A rehabilitation plan, however, need not guarantee a claimant a job, or a predetermined weekly wage. Id.; Held v. North Dakota Workers Comp. Bureau, 540 N.W.2d 166, 169-70 (N.D. 1995). In Svedberg v. North Dakota Workers Comp. Bureau, 1999 ND 181, 17, 599 N.W.2d 323, we said the intent of N.D.C.C. ch. 65-05.1 is to rehabilitate an injured worker to return to substantial gainful employment, and the Legislature meant actual rehabilitation, with a realistic opportunity to return to work, not a theoretical rehabilitation on paper only.
[ ] Here, the Bureau adopted the ALJ's recommendation that the three jobs identified in the Bureau's vocational plan-sales attendant, service establishment counter attendant, and automobile rental clerk-were suitable for Paul's education, experience, and marketable skills, those occupations met the required wage test, and there was a viable market for those positions in the Phoenix area. The critical question is whether those jobs satisfied Paul's physical limitations for lifting.
[ ] The ALJ said the descriptions for the three jobs identified strength demands as "Light-Lift up to 20 pounds," which exceeded Paul's maximum material handling and lifting abilities of 17.5 pounds rarely and 12.5 pounds occasionally. The ALJ said, however, the job descriptions for those three jobs did not specify lifting as a principal or significant activity and did not address the likelihood a particular job would, or would not, entail lifting that exceeded Paul's limitations. The ALJ then said, because of the forecast for the number of jobs in the Phoenix area and because the descriptions for those three jobs did not specify lifting as a principal or significant activity, "it is presum
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