Johnson v. North Dakota Workforce Safety & Insurance Fund, 816 N.W.2d 74

Johnson appeals a district court ruling upholding an ALJ finding that WSI is not liable for his right shoulder condition and that he has a retained earnings capacity of $290 per week.
Johnson suffered a work-related back injury in 2001, returned to work, but was terminated in 2008; he pursued vocational rehabilitation and earned a GED while undergoing computer/keyboarding training.
In November 2008, Johnson developed significant right wrist and shoulder pain; WSI accepted liability for 50% of the wrist problem but denied shoulder liability.
A 2009 amended vocational consultant’s report identified telephone sales as a viable job; WSI initially concluded a retained earnings capacity of $318 per week.
At the hearing, the VCR referenced Wal-Mart greeter positions; the consultant noted openings, but Johnson initially chose not to apply due to wage level and social interaction concerns.
The ALJ found Johnson’s right shoulder pain coincided with typing from his GED course but was not substantially worsened or accelerated by it; the ALJ allowed Wal-Mart greeter work and fixed a $290 per week earnings capacity, calculating it from $7.25/hour and 40 hours/week. The district court affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Is the right shoulder condition compensable as substantially worsened by work?	Johnson argues shoulder pain was substantially accelerated or worsened by employment.	WSI contends the shoulder condition was not materially worsened or accelerated by work.	No; the evidence does not support substantial acceleration or worsening by work.
Is Johnson's retained earnings capacity correctly fixed at $290 per week?	Johnson contends the $290 figure is not supported by the evidence.	WSI presented evidence supporting the Wal-Mart greeter option and minimum wage-based earnings.	Yes; a reasonable mind could find $290/week based on available sedentary work meeting the income test.
Was the statutory hierarchy and income test properly applied to determine earnings capacity?	Johnson argues none of the hierarchy options justify the earnings capacity used.	WSI argued the reformulation met the income test under the hierarchy and minimum wage.	Yes; the court could reasonably apply the hierarchy and income test to conclude $290/week.

Bergum v. N.D. Workforce Safety & Ins., 764 N.W.2d 178 (2009 ND) (limits on compensability and standard of review in WSI appeals)
Rodenbiker v. Workforce Safety & Ins., 740 N.W.2d 831 (2007 ND) (weight of the evidence standard; no independent findings of fact by court)
Spectrum Care v. Stevick, 718 N.W.2d 593 (2006 ND) (scope of review of agency decisions)
Baier v. Job Serv. N.D., 673 N.W.2d 923 (2004 ND) (procedural fairness in agency proceedings; standard of review)