Tibor v. State
2012 ND 84
| N.D. | 2012Background
- Johnson suffered a work-related back injury in April 2001 and returned to work but was eventually terminated in June 2008 for incapacity; he began vocational rehabilitation, including GED studies and typing/keyboarding, and in November 2008 developed significant right wrist and right shoulder pain; WSI accepted liability for 50% of his right wrist problems but denied liability for the right shoulder issues; an amended VCR identified a telephone sales position and suggested Wal-Mart greeter positions as alternatives; the ALJ found the right shoulder pain was not substantially worsened or accelerated by work, but that Johnson could work as a Wal-Mart greeter and had a retained earnings capacity of $290 per week, leading to partial disability benefits; the district court and this Court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Johnson’s right shoulder pain is compensable | Johnson argues shoulder pain was substantially accelerated/worsened by work | WSI contends shoulder issues were not work-related to a compensable injury | Not compensable; burden not met by preponderance of the evidence |
| Whether Johnson has a retained earnings capacity of $290 per week | Johnson challenges the $290 calculation and whether it reflects his abilities | WSI relied on the VCR and market for a Wal-Mart greeter to establish earning capacity | Reasoning supports $290 per week as retained earnings capacity |
| Whether the Wal-Mart greeter positions meet the income test under statute | Johnson cannot meet the income test due to lack of evidence on local markets/qualifications | Evidence showed Johnson could perform sedentary greeter work earning at least minimum wage | Yes; Wal-Mart greeter positions meet the income test under 65-05.1-01(6)(a)(3) |
| Whether the ALJ properly weighed vocational evidence to reach the retained earnings outcome | Johnson asserts ALJ exceeded evidentiary scope | WSI presented functional capacities and qualifications supporting the wage-based limit | Yes; the record reasonably supports the retained earnings finding |
Key Cases Cited
- Bergum v. N.D. Workforce Safety & Ins., 764 N.W.2d 178 (2009 ND 52) (preponderance and standards for agency findings; framework for review)
- Rodenbiker v. Workforce Safety & Ins., 740 N.W.2d 831 (2007 ND 169) (hierarchy of return-to-work options and earnings-based test)
- Johnson v. N.D. Workforce Safety & Ins., 2012 ND 27 (2012 ND 27) (legal standards for agency review of WSI decisions; burden of proof)
- Spectrum Care v. Stevick, 718 N.W.2d 593 (2006 ND 155) (standard of review for administrative agency findings)
- Baier v. Job Service N.D., 673 N.W.2d 923 (2004 ND 27) (procedural/fair hearing and evidentiary considerations)