Edwin HELD, Claimant and Appellant, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellee, and OK Tire Store, Respondent.
Civ. No. 950158
Supreme Court of North Dakota
Nov. 30, 1995
539 N.W.2d 168
We have repeatedly cautioned that more than “bare-bones” information must be presented to the magistrate and that bare conclusions are insufficient to establish probable cause to search. See, e.g., State v. Handtmann, 437 N.W.2d 830, 834 (N.D. 1989). But, as we have also explained:
“Although each bit of information ..., by itself, may not be enough to establish probable cause and some of the information may have an innocent explanation, ‘probable cause is the sum total of layers of information and the synthesis of what the police have heard, what they know, and what they observed as trained officers [which is not weighed in] individual layers but [in] the ‘laminated’ total.” United States v. Edwards, 577 F.2d 883, 895 (5th Cir.1978) (en banc), cert. denied, 439 U.S. 968, 99 S.Ct. 458, 58 L.Ed.2d 427 (1978), quoting Smith v. United States, 358 F.2d 833, 837 (U.S.App.D.C.1966), cert. denied, 386 U.S. 1008, 87 S.Ct. 1350, 18 L.Ed.2d 448 (1967).”
Ringquist, 433 N.W.2d at 215-16.
Here, Deputy Sheriff Steve Kilde of the Emmons County Sheriff‘s Department testified in support of his affidavit and application for the search warrant and stated that during an investigation at the butcher shop he and Sheriff Rueben Richter discovered two sets of footprints, tire tracks, and fabric fibers from blue jeans believed to belong to the criminal(s). They recognized one of the sets of footprints and believed that the footprints were made by boots belonging to Courtney Woehlhoff. Deputy Kilde explained that he was able to identify the footprints because they were made by a hiking-type boot with a very unique diamond-shaped tread. He testified that when Woehlhoff was previously incarcerated in the Emmons County jail that Woehlhoff had worn boots with the same diamond-shaped tread. In addition, Deputy Kilde testified that on the morning of February 19, 1993, he had gone to Woehlhoff‘s residence to serve the defendant with papers for another matter. Deputy Kilde testified that while at Woehlhoff‘s residence he saw footprints leading to Woehlhoff‘s garage and home which were the same size and shape as the footprints found outside of Bosch‘s Butcher Shop.
Deputy Kilde also testified that when the Emmons County Sheriff‘s Department had conducted a search of Woehlhoff‘s residence on another occasion that they had noticed that the pickup owned by Woehlhoff‘s father, but which was driven by Woehlhoff, had “General Ameri-way” tires. Using a tire tread guide, Deputy Kilde identified the tire tracks at the butcher shop as those made by “General Ameri-way” tires.
We conclude that the deputy‘s personal knowledge gained from his prior experiences involving the defendant and the deputy‘s observations at the crime scene and outside of Woehlhoff‘s residence provided the magistrate with a substantial basis to find probable cause to search Woehlhoff‘s premises.
The judgment of conviction is affirmed.
SANDSTROM, MESCHKE and NEUMANN, JJ., concur.
LEVINE, J., concurs in the result.
Kathryn L. Dietz (argued), of Dietz & Little, Bismarck, for claimant and appellant.
Lawrence A. Dopson (argued), Special Assistant Attorney General, of Zuger Kirmis & Smith, Bismarck, for appellee.
NEUMANN, Justice.
Held hurt his back in June 1990 while employed as an auto service technician at O.K. Tire Store in Bismarck. The Bureau accepted Held‘s claim and paid medical and disability benefits. Held returned to work but reinjured his back in October 1992. He was unable to return to his prior job. His treating physician recommended vocational rehabilitation services.
A vocational consultant recommended, as the first appropriate rehabilitation option, long-term retraining of 104 weeks or less under
Following a hearing, the hearing officer upheld the Bureau‘s order. The hearing officer noted that although Held “is unhappy with the Bureau‘s selection of the accounting program at IBC,” Held “is doing fairly well in the program.” The hearing officer found Held “has the functional capacity to complete the accounting program at IBC and ... to be employed in the accounting field” and that “a good job in the accounting field would come reasonably close to Held‘s physical restrictions and limitations.” The hearing officer further found “the accounting clerk field for which Held is being trained will likely have employment which will be reasonably attainable upon his graduation from IBC.” The hearing officer found “a reasonable expectation that employment will be available for Held either locally or statewide that will entail an earning capacity of at [least] $268.50” per week. The Bureau adopted the hearing officer‘s findings of fact and conclusions of law. Held appealed to the district court, which affirmed the Bureau‘s order.
Held claims on appeal that the rehabilitation plan ordered by the Bureau is invalid because it will not return him to “substantial gainful employment” under
We must affirm the Bureau‘s decision unless its findings of fact are not supported by a preponderance of the evidence, its conclusions of law are not supported by its findings of fact, its decision is not supported by its conclusions of law, or its decision is not in accordance with the law. Fischer v. Workers Comp. Bureau, 530 N.W.2d 344, 346 (N.D. 1995).
“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, medical limitations, age, education, previous occupation, experience, and transferable skills, and which offers an opportunity to restore the employee as soon as practical and as nearly as possible to the employee‘s average weekly earnings at the time of injury, or to seventy-five percent of the average weekly wage in this state on the date the rehabilitation consultant‘s report is issued under section 65-05.1-02.1, whichever is less. The purpose of defining substantial gainful employment in terms of earnings is to determine the first appropriate priority option under subsection 4 of section 65-05.1-04 which meets this income test.”1
A rehabilitation plan cannot guarantee an injured worker a job upon completing a retraining program. Thompson v. N.D. Workers’ Comp. Bureau, 490 N.W.2d 248, 254 (N.D.1992). Because factors outside the rehabilitation process affect the ultimate hiring decision,
Held asserts the IBC accounting clerk vocational plan approved by the Bureau failed to fulfill three requirements of
The record supports the Bureau‘s finding that the accounting clerk field for which Held is being trained at IBC will likely have employment which would be reasonably attainable upon his graduation. To support its position, the Bureau essentially relied on IBC employment placement statistics from 1990 through 1993, a Job Service North Dakota “B 96” report for the second half of 1993, and a Job Service North Dakota Job Order Index for a three-week period in March 1994. IBC accounting program placement statistics showed that nine of ten 1990 graduates, five of five 1991 graduates, five of five 1992 graduates who were available for employment, and seven of seven 1993 graduates, were all working in an accounting-related field. The “B 96” report indicated there were 44 openings for accounting clerks in North Dakota in the last half of 1993. The Job Order Index showed 23 available positions in accounting and bookkeeping. The vocational consultant further estimated the Job Service figures could be 20 percent higher because not all employers with job openings contact Job Service. We conclude the preponderance of the evidence supports the Bureau‘s finding.
Held‘s argument that the Bureau has not shown the jobs available to him after
Held misconstrues
That one IBC accounting graduate exceeded the $268.50 weekly amount alone suggests the job market will provide Held an opportunity to obtain a wage above that figure. Additional statistical data presented at the hearing also supports the Bureau‘s finding. The United States Department of Labor “Occupational Outlook Handbook” estimated the average weekly wage in 1991 for bookkeeping, accounting, and auditing clerks to be $338. The Job Order Index showed several accounting job openings providing a weekly salary higher than the $268.50 figure. The 1993 edition of the Bismarck-Mandan Wage and Benefit Survey indicated the average starting salary for accounting clerks was approximately $280 per week. A reasoning mind reasonably could have concluded from the evidence that the rehabilitation plan offers an opportunity to restore Held‘s wages as nearly as possible to $268.50 per week.
We also reject Held‘s attack on the Bureau‘s finding that he has the physical ability to be employed as an accounting clerk. Although Held‘s physician said Held could sit up to 30 minutes at a time and would then need to change positions, Held offered no evidence that this sitting restriction would affect his performance as an accounting clerk. Nor did Held present medical evidence that he would be unable to physically perform work as an accounting clerk. See Schiff v. N.D. Workers Comp. Bureau, 480 N.W.2d 732, 734-735 (N.D.1992). Indeed, Held‘s treating physician specifically approved the goal of becoming an accounting clerk. The Bureau‘s finding that Held could physically perform duties as an accounting clerk is supported by the preponderance of the evidence.
The Bureau‘s findings of fact are supported by a preponderance of the evidence, its conclusions of law are supported by its findings of fact, its decision is supported by its conclusions of law, and its decision is in accordance with the law. The judgment is affirmed.
VANDE WALLE, C.J., and LEVINE and MESCHKE, JJ., concur.
In an appeal from the decision of an administrative agency,
Held‘s boilerplate “specifications of error” are so general they could apply to any administrative agency appeal. They fail to specifically identify any error with any particularity. Because Held‘s specifications of error failed to identify any error with sufficient specificity, I would summarily affirm the agency.
VANDE WALLE, C.J., concurs.