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Paul v. North Dakota Workers Compensation Bureau6/4/2002
ed that there are employment opportunities for Mr. Paul within those occupations in the Phoenix, Arizona vicinity that do not involve lifting in excess of his FCE lifting maximums, and the burden is upon him to show that there are not."
[ ] The ALJ's statement about a presumption is not in accordance with the requirement that the Bureau establish a rehabilitation plan with a reasonable opportunity for a claimant to obtain employment. The Bureau has cited no legal authority for the creation of a presumption, or the shifting of the burden of proof to Paul. Cf. Wanstrom v. North Dakota Workers Comp. Bureau, 2001 ND 21, 7, 621 N.W.2d 864 (statutory presumption that firefighter's lung disease suffered in line of duty); Robertson v. North Dakota Workers Comp. Bureau, 2000 ND 167, 31, 616 N.W.2d 844 (statutory presumption that law enforcement officer's heart attack suffered in line of duty); Shiek v. North Dakota Workers Comp. Bureau, 1998 ND 139, 11, 582 N.W.2d 639 (statutory retirement presumption). The ALJ erroneously relied on a presumption there were sufficient job opportunities in the Phoenix area within Paul's physical limitations, and erroneously shifted the burden of proof to Paul to show there were not job opportunities. The presumption and burden shifting are not in accordance with the law and adversely impacted the Bureau's ultimate findings about the rehabilitation plan. The Bureau's decision must be based on evidence presented at the hearing which establishes a rehabilitation plan that provides Paul with a reasonable opportunity for employment within his restrictions and without the aid of a presumption or shifting the burden of proof to Paul. We conclude the Bureau's ultimate decision was affected by its erroneous reliance on the presumption that there were employment opportunities for Paul in the Phoenix area, and the shifting of the burden of proof to him to show there were not employment opportunities.
IV.
[ ] We reverse the judgment and remand for proceedings consistent with this opinion.
[ ]Dale V. Sandstrom
William A. Neumann
Mary Muehlen Maring
Carol Ronning Kapsner
VandeWalle, Chief Justice, concurring.
[ ] The rehabilitation consultant assigned to Ronald Paul testified she had contacted a big employer in the Phoenix area and was told employers in that area routinely accommodate physically impaired applicants for entry level positions. The ALJ, recognizing the size of the Phoenix area, "presumed" there were a large number of employers in the Phoenix area, although that well-known fact is not in the record. A reasonable person could conclude that if there are a large number of employers in the area and that if employers routinely accommodate physically impaired applicants for entry level position, Paul had a reasonable likelihood he would be able to locate a job accommodating his lifting restrictions under the Bureau's plan.
[ ] The problem identified by the majority opinion is the "presumption" there be a large number of jobs available in a heavily populated area. If there are a large number of jobs in a populous area, there is evidence in that record that the employers filling those jobs routinely make accommodations for physically impaired applicants for entry level positions. In that instance, the conclusion that Paul has a reasonable likelihood of finding a job that will accommodate his lifting restrictions hardly seems unwarranted, unfair or an impermissible shifting of a burden to go forward.
[ ] I have reservations that the "presumption" used by the ALJ was unwarranted in this instance. Nevertheless, despite my fear this opinion will be rea
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