Higginbotham v. Workforce Safety & Insurance, 2014 ND 147

James Higginbotham, a 70‑year‑old former welder/pipefitter, injured his left rotator cuff while working for Industrial Contractors, Inc.; he can no longer perform his prior welding/pipefitting work.
After surgery, WSI referred him to vocational rehabilitation; the vocational consultant’s report (VCR) identified option (f) — return to a statewide job pool — as the first appropriate option, listing jobs (cashier, telephone sales, gaming dealer, greeter) with expected weekly income exceeding 90% of his pre‑injury earnings.
WSI approved the rehabilitation plan and notified Higginbotham it intended to discontinue disability benefits; Higginbotham sought reconsideration, an ALJ affirmed WSI, and the district court affirmed on appeal.
Higginbotham challenged the VCR/WSI decision on several grounds: lack of expert earning‑capacity proof, no labor‑market evidence, impracticality/affordability of the plan (commute/relocation), failure to account for his preexisting conditions and narrow work history, and lack of consideration of his wife’s income.
The ALJ relied on the VCR, a Functional Capacity Evaluation (FCE), and hearing testimony; the ALJ found WSI met its burden and that the VCR reasonably accounted for documented limitations.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether WSI identified the first appropriate rehabilitation option	Higginbotham: VCR not expert‑based, no labor‑market proof, plan not practical or affordable	WSI: VCR (with FCE) reasonably identified option (f) and demonstrates realistic opportunity for substantial gainful employment	Court: WSI met its burden; reasoning mind could find the VCR appropriate
Whether an expert must establish earning capacity for the plan	Higginbotham: earning capacity must be shown by expert under §65‑05‑10(3)	WSI: expert earnings proof statute applies to partial disability, not when a §65‑05.1‑01(4) option is chosen	Court: §65‑05‑10(3) inapplicable here; argument meritless
Whether commuting/relocation costs make the plan impractical	Higginbotham: commuting/relocation unaffordable; would force refusal of employment	WSI: no job has been offered yet; refusal doctrine (Lawrence) not ripe until offer/refusal exists	Court: claim not ripe; speculative without a job offer; Lawrence not controlling now
Whether VCR failed to consider preexisting conditions	Higginbotham: multiple preexisting conditions (should be considered)	WSI: FCE and VCR considered documented functional limits; no evidence of diagnosed PTSD in record	Court: documented preexisting conditions were considered; lack of evidence for PTSD; ALJ findings supported by record

Bishop v. Workforce Safety & Ins., 823 N.W.2d 257 (N.D. 2012) (standard for reviewing WSI vocational‑rehabilitation decisions and the requirement that plans provide realistic opportunity for substantial gainful employment)
Tverberg v. Workforce Safety & Ins., 723 N.W.2d 676 (N.D. 2006) (distinguishing rehabilitation options from partial disability framework)
Lawrence v. N.D. Workers’ Comp. Bureau, 608 N.W.2d 254 (N.D. 2000) (refusal‑of‑work doctrine — a job may be refused if a reasonably prudent person would refuse under similar circumstances)
Svedberg v. N.D. Workers Comp. Bureau, 599 N.W.2d 323 (N.D. 1999) (preexisting functional limitations are elements of the employee that must be considered in rehabilitation planning)
Sposato v. Sposato, 570 N.W.2d 212 (N.D. 1997) (ripeness principles: issues dependent on future contingencies are premature)
State v. Haibeck, 714 N.W.2d 52 (N.D. 2006) (appellate court will not consider issues inadequately briefed)
State v. Holzer, 656 N.W.2d 686 (N.D. 2003) (support for the court’s practice of refusing to consider inadequately supported appellate issues)