Paul GENTER, Claimant and Appellant v. WORKFORCE SAFETY & INSURANCE FUND, Appellee and Burleigh County, Respondent
No. 20060145
Supreme Court of North Dakota
Nov. 28, 2006
2006 ND 237
Lawrence A. Dopson, Special Assistant Attorney General, Bismarck, ND, for appellee.
VANDE WALLE, Chief Justice.
[¶ 1] Paul Genter appealed from a district court judgment affirming an order of Workforce Safety & Insurance (“WSI“) awarding partial disability benefits and requiring him to return to work part-time. Genter argues that WSI did not adequately consider his preexisting hearing loss in formulating his vocational rehabilitation plan. We affirm.
I
[¶ 2] In 1995, while working as an officer with the Burleigh County Sheriff‘s Department, Genter experienced chest pains that were later diagnosed as congestive heart failure. WSI accepted his claim and began paying total disability benefits. At the time of his work-related injury, Genter had been an employee of the Sheriff‘s Department for about 25 years. Throughout his employment as a deputy sheriff, Genter suffered from partial hearing loss, a problem which had arisen when he was a child. He began wearing hearing aids in both ears in the early 1980s and has worn them ever since then.
[¶ 3] In January 2002, WSI initiated vocational rehabilitation services and attempted to return Genter to work. Genter was eventually hired by DiCenzo Personnel Specialists and began work on August 27, 2002. In his position with DiCenzo, Genter worked from his home and conducted surveys over the telephone. In October 2002, DiCenzo sent Genter a letter evaluating his performance and informing him of the areas in which he could improve. The next communication from DiCenzo regarding Genter‘s work performance was a letter dated May 9, 2003. In this letter, DiCenzo notified Genter that he was not meeting performance standards and warned him that his employment was in “serious jeopardy.” DiCenzo ultimately fired Genter from this position in June 2003 because of his failure to meet call counts and time standards, to properly fill in lead sheets, and to work enough hours per week.
[¶ 5] Genter had numerous conversations with Clock-Olson in the course of his vocational rehabilitation, both in person and by telephone. On June 30, 2003, Clock-Olson called to arrange an initial meeting with Genter. At that first meeting, Genter informed Clock-Olson that he has had hearing problems since he was young and that he wears hearing aids in both ears. He also stated that he does not have problems hearing on a one-on-one basis in a quiet room. In her notes from this meeting, Clock-Olson observed that Genter did not have any problem hearing her.
[¶ 6] In late October 2003, Clock-Olson enrolled Genter in a keyboarding class at the Center for Technology and Business to upgrade his computer skills. Both Genter and Clock-Olson informed the instructor of Genter‘s hearing loss. When Clock-Olson contacted the instructor for a progress report, the instructor stated that she “spoke up” and that Genter did not have trouble hearing her or request that she repeat anything. In December 2003, Genter took an Introduction to Computers class from the same instructor at the Center. The instructor reported that Genter was having some difficulty seeing the computer monitor, but that he was able to keep up with the class and participated by asking good questions.
[¶ 7] On December 30, 2003, Clock-Olson called Genter to discuss another upcoming computer class. Genter was on the other line at the time and asked Clock-Olson if he could return her call later. Sometime later that day, Genter contacted Clock-Olson by telephone, and they discussed his file and the computer class. In January 2004, Clock-Olson contacted Genter by telephone regarding another computer class and noted in her status report that she had to speak louder than usual because Genter was not wearing his hearing aids. In February 2004, Genter called Clock-Olson, and they again spoke on the telephone regarding his file. On May 5, 2004, Clock-Olson conducted a vocational assessment appointment with Genter by telephone to discuss his skills, physical abilities, and job goals. Clock-Olson informed Genter that she would conduct the assessment appointment in person if he had any difficulty hearing or understanding, but Genter did not report having any problems.
[¶ 8] In the final vocational plan, dated August 5, 2004, Clock-Olson concluded that Genter could return to work as either a social services assistant or a security guard. WSI then notified Genter of its intention to reduce his disability benefits and require him to return to work part-time. Genter requested a hearing before an administrative law judge (“ALJ“), claiming that WSI had failed to consider his preexisting physical limitations, including hearing, vision, knee, and back problems, in formulating his vocational rehabilitation plan.
[¶ 9] At the administrative hearing, Genter testified regarding his hearing impairment. He observed that he cannot hear in crowded or noisy environments, and that high-pitched or soft-spoken voices
[¶ 10] Additionally, at the administrative hearing, Joyce Clock-Olson testified about the job goals of security guard and social services assistant that she had selected for Genter. As to the position of social services assistant, Clock-Olson stated that much of the work is done in person on a one-on-one basis, which complies with the hearing limitations Genter had described to her at their first meeting. With regard to the position of security guard, Clock-Olson testified that it would be similar to the type of work Genter successfully performed in law enforcement with his hearing loss. She also stated that security guard positions vary, with some involving group settings and others involving contact with people on an individualized basis.
[¶ 11] After considering the evidence presented at the administrative hearing, the ALJ made extensive findings of fact and conclusions of law, many of which pertained to Genter‘s hearing loss, including the following:
CorVel addressed Genter‘s “visual and hearing problems” with Ms. Clock-Olson‘s comments that those problems did not prevent him from performing his duties in law enforcement, that Genter acknowledged that “he does not have problems hearing people on an individual basis,” and that he did not report any difficulty for his transactions with her, including transactions using the telephone. . . .
But Ms. Clock-Olson‘s testimony of her investigation of the particular requirements and duties of the jobs of social services assistant and security guard specified by North Dakota employers and her evaluation of those requirements and duties in the light of her knowledge of Genter‘s multiple and diverse functional impairments and the advice of Ms. DeKrey and, for what it‘s worth, the advice of Dr. Bonet and Dr. Lazarow, is together substantial evidence showing that those jobs are, in the words of
N.D.C.C. § 65-05.1-01(3) , reasonably attainable in light of [his] injury, functional capacities, education, previous occupation, experience, and transferable skills. While it is considered that the complex and interrelated nature of Genter‘s multiple and diverse functional impairments required a more comprehensive and thorough investigation of employers’ requirements and the duties for particular jobs, on balance with the evidence offered by Genter her findings are sufficient, if just so, to support CorVel‘s conclusions for its vocational plan for Genter. . . .Genter‘s evidence is not that he was unable to meet the requirements and perform the duties of his work as a deputy sheriff, but that he “struggled and got by.” While that is obviously not the circumstance one seeks for a job, Genter worked in that circumstance some twenty years and many workers
must make their living struggling and getting by with the hope that they can do better. The question posed by the statute is whether Genter has the functional capacities and qualifications to compete for employment. The statute does not require that he have the functional capacities to easily perform the work required for a job or the qualifications to be considered well-qualified for a job. The statute requires that Genter have the functional capacities and qualifications such that employment is reasonably attainable. The evidence of record shows that Genter meets those requirements, albeit he may have to struggle and get by for some job for which he may be employed.
The ALJ concluded that the greater weight of the evidence showed that the vocational rehabilitation plan complied with
II
[¶ 12] On appeal, we review the decision of the administrative agency, not the district court, although the district court‘s analysis is entitled to respect. Toso v. Workforce Safety & Ins., 2006 ND 70, ¶ 7, 712 N.W.2d 312. Under
- The order is not in accordance with the law.
- The order is in violation of the constitutional rights of the appellant.
- The provisions of this chapter have not been complied with in proceedings before the agency.
- The rules or procedure of the agency have not afforded the appellant a fair hearing.
- The findings of fact made by the agency are not supported by a preponderance of the evidence.
- The conclusions of law and order of the agency are not supported by its findings of fact.
- The findings of fact made by the agency do not sufficiently address the evidence presented to the agency by the appellant.
- The conclusions of law and order of the agency do not sufficiently explain the agency‘s rationale for not adopting any contrary recommendations by a hearing officer or an administrative law judge.
III
[¶ 13] Genter argues that WSI failed to adequately consider his preexisting hearing loss in formulating his vocational rehabilitation plan. In particular, Genter con
[¶ 14] Chapter
It is the goal of vocational rehabilitation to return the disabled employee to substantial gainful employment with a minimum of retraining, as soon as possible after an injury occurs. “Substantial gainful employment” means bona fide work, for remuneration, which is reasonably attainable in light of the individual‘s injury, functional capacities, education, previous occupation, experience, and transferable skills. . . .
A rehabilitation plan is appropriate if it satisfies the requirements of
[¶ 15] With regard to his vocational rehabilitation plan, Genter claims that the plan does not meet all the requirements of Chapter
[¶ 16] Here, it is clear that WSI did take Genter‘s preexisting hearing loss into account when developing and approving the employment options in his vocational rehabilitation plan. Joyce Clock-Olson selected the positions of social services assistant and security guard based on Genter‘s prior experience working in law enforcement with his hearing loss, as well as Genter‘s own explanation of his hearing impairment. Genter stated that he could hear on an individualized basis in a quiet room, and Clock-Olson testified that some social services assistant and security guard positions are performed in this type of environment. Additionally, it was reasonable for Clock-Olson to take into account
[¶ 17] Furthermore, on the facts of this case, we conclude that WSI reasonably exercised its discretion under
[¶ 18] At the administrative hearing, Genter testified that his hearing impairment has worsened since his work-related injury in 1995, such that it prevents him from returning to work. Genter offered only the letter from Keith Telenga, the hearing aid specialist, in support of this claim. There is no medical evidence in the record regarding the alleged worsening of his preexisting hearing loss. Moreover, Genter claims that he was fired from his position with DiCenzo because he could not hear well enough to perform the required tasks. However, the record does not contain any other support for this statement. Genter did receive help with telephone accommodations from Joyce Clock-Olson, but he also worked for DiCenzo for a 6-month period during which there were no communications regarding deficient performance. Furthermore, there is no evidence that Genter ever attempted to explain to DiCenzo why he was having trouble meeting the performance standards, even after DiCenzo notified him in May 2003 that his employment was in serious jeopardy.
[¶ 19] Section
IV
[¶ 20] The district court judgment affirming WSI‘s order awarding partial disability benefits is affirmed.
[¶ 21] DALE V. SANDSTROM, DANIEL J. CROTHERS, and CAROL RONNING KAPSNER, JJ., concur.
MARING, Justice, dissenting.
[¶ 22] I respectfully dissent. I believe the majority has failed to follow this Court‘s own decision in Svedberg v. N.D. Workers Comp. Bureau, 1999 ND 181, 599 N.W.2d 323, and has misinterpreted the plain language of
[¶ 23] In Svedberg, Arlo Svedberg had worked for Community News since 1984 as a reporter, photographer, and advertising salesman. 1999 ND 181, ¶ 2, 599 N.W.2d 323. He also performed other tasks for the business, such as snow shoveling and newspaper delivery.
[¶ 24] CorVel Corporation, the Bureau‘s vocational consultant, was retained to create a vocational rehabilitation plan for Svedberg.
[¶ 25] Like Svedberg, Genter had medical conditions that preexisted the work-related injury that became the basis of his WSI claim. Both men had serious conditions that limited their abilities to engage in certain types of employment. Unfortunately, despite similar situations, Genter has not been given the same opportunity to have his preexisting functional limitations properly considered in the formation of his vocational rehabilitation plan. Therefore, I must dissent because Genter is not receiving the rights afforded him by Svedberg and
[¶ 26] In Svedberg, this Court stated, “[t]he crucial question presented in this case is whether a vocational rehabilitation plan must take into account all of the injured worker‘s functional limitations existing at the time of the injury, or only
[¶ 27] WSI, through the work of Joyce Clock-Olson, a rehabilitation consultant with CorVel, investigated and took into account Genter‘s functional limitations at the time of his injury when assessing his employment options. However, a rehabilitation consultant‘s apparent compliance with Svedberg does not satisfy WSI‘s responsibilities to an injured worker. WSI must also comply with
[¶ 28] Under
[¶ 29] The requirement to assess preexisting conditions and to take into account preexisting functional limitations when creating a vocational rehabilitation plan is not satisfied merely by having a rehabilitation consultant make observations about a claimant. In Svedberg, this Court did not end its analysis when it concluded preexisting functional limitations must be considered. 1999 ND 181, ¶ 15, 599 N.W.2d 323. We held that for WSI “to carry out the stated goals of the rehabilitation statutes,” it had to satisfy
[¶ 30] The majority, at ¶ 15, misinterprets
[¶ 31] A review of the legislative history of
Section 2, page 3, paragraph six, provides that the Bureau must establish medical assessment teams to assess the workers’ physical capabilities. Medical information is crucial to a determination of eligibility for vocational services. . . . Currently, each worker is evaluated by his own treating physician. This process results in wide divergence of eligibility determination depending upon the beneficence of the doctor. The Bureau seeks to obtain more fairness and equity by ensuring that workers are judged by the same criteria. Only through an independent assessment approach can we obtain uniformity. The assessment teams ought to be able to become proficient at evaluating workers for physical capabilities and ensure fairness and uniformity for similarly injured workers. Hearing on H.B. 1191 Before the Senate Committee on Industry, Business, and Labor, 51st N.D. Legis. Sess. (March 8, 1989) (testimony of Dean Haas, legal counsel for the Workers Comp. Bureau) (emphasis added).
[¶ 32] The majority, at ¶ 15, cites Thompson v. N.D. Workers’ Comp. Bureau, 490 N.W.2d 248 (N.D.1992), in support of its interpretation of
[¶ 33] “If the Bureau, the consultant, the medical assessment team, and the treating physician assess the claimant as a hypothetical ‘perfect’ individual with only the current work-related disability, and do not take the worker‘s actual whole-person functional capacities into account, any vocational rehabilitation plan based upon that assessment will be flawed and unworkable.” Svedberg, 1999 ND 181, ¶ 17, 599 N.W.2d 323. The majority notes, at ¶ 16, that WSI took into account Genter‘s preexisting hearing loss when developing his vocational rehabilitation plan. However, this was only done by a rehabilitation consultant, without a medi
[¶ 34] To support its holding that WSI considered Genter‘s preexisting functional limitations, the majority, at ¶ 17, gives credence to Clock-Olson‘s consideration of Genter‘s fifteen years of employment at the Burleigh County Sheriff‘s Department, during which he was wearing a hearing aid in each ear. Because he worked at the sheriff‘s department while suffering hearing loss, the majority reasons, it is reasonable to believe he can now work as a security guard, as Clock-Olson recommended. However, the record shows Genter worked at the sheriff‘s department for the last time in 1995. Perhaps his hearing loss did not prevent him from performing his duties at the sheriff‘s department in 1995, or perhaps he had been working there so long that he knew how to compensate for his hearing loss because of his experience on the job. I do not understand how the fact that Genter was able to work at the sheriff‘s department over ten years ago, despite a hearing problem, means that eleven years later he is therefore qualified to be a security guard. Clock-Olson‘s disproportionate reliance on a job Genter last performed in 1995, perhaps, indicates why the legislature required establishment of medical assessment teams at the request of the North Dakota Workers Compensation Bureau.
[¶ 35] The majority, at ¶ 18, points to a lack of medical evidence on the record that Genter‘s hearing has worsened since his injury in 1995. The lack of medical evidence is a direct result of WSI‘s failure to establish a medical assessment team. A medical assessment team would have been able to determine whether Genter‘s hearing has worsened or at least determine the current status of his hearing. A medical assessment team would make a much more authoritative finding on the condition of Genter‘s hearing than could Clock-Olson. Any uncertainties about Genter‘s preexisting functional limitations could have been addressed by a medical assessment team. Instead, WSI, and the majority, relied on the anecdotal observations of a rehabilitation consultant who is not qualified to make assessments about an individual‘s hearing loss or capacity, when approving the vocational rehabilitation plan.
[¶ 36] “We believe the legislature‘s intent was to create a process which leads to real rehabilitation and reemployment, not a theoretical rehabilitation which ignores the injured worker‘s actual situation. At some point the Bureau must recognize it is dealing with real people, not merely statistics and notations in a file.” Svedberg, 1999 ND 181, ¶ 19, 599 N.W.2d 323. By failing to enlist the services of a medical assessment team, as required by
[¶ 37] A medical assessment team may or may not reach a different conclusion than Clock-Olson. However, Genter is owed by statute the opportunity to have a medical assessment team established to assess his preexisting functional limitations. Genter was denied this right. In
[¶ 38] This case should be reversed and remanded so that WSI can establish a medical assessment team, amend the vocational rehabilitation plan based on the team‘s findings, and, if necessary, determine more appropriate employment options for Genter.
[¶ 39] Mary Muehlen Maring