dissenting.
[¶ 17] I, respectfully, dissent. Based on a review of this record, a reasoning mind could not have reasonably concluded that the rehabilitation plan would return Bishop to substantial gainful employment, which was reasonably attainable in light of her work-related injuries and her functional limitations resulting from those injuries.
[¶ 18] Under N.D.C.C. § 65-05.1-01, the purpose of rehabilitation services is clearly expressed:
1. The state of North Dakota exercising its police and sovereign powers declares that disability caused by injuries in the course of employment and disease fairly traceable to the employment create a burden upon the health and general welfare of the citizens of this state and upon the prosperity of this state and its citizens.
2. The purpose of this chapter is to ensure that injured employees covered by this title receive services, so far as possible, necessary to assist the employee and the employee’s family in the adjustments required by the injury to the end that the employee receives comprehensive rehabilitation services, including medical, psychological, economic, and social rehabilitation. (Emphasis added.)
The “goal” of vocational rehabilitation under N.D.C.C. § 65-05.1-01(3), is “to return the disabled employee to substantial gainful employment with a minimum of retraining, as soon as possible after an injury occurs.” Under the statute, “substantial gainful employment” means “bona fide work, ... which is reasonably attainable in light of the individual’s injury, functional capacities, education, previous occupation, experience, and transferable skills, ...” Id. (emphasis added). WSI initiated vocational rehabilitation services for Bishop under N.D.C.C. ch. 65-05.1 and hired Corvel Corporation as a vocational consultant to prepare a report that identified what employment options are most appropriate for Bishop based on her functional capacities and transferrable skills. The burden to establish that a vocational rehabilitation plan is appropriate is on WSI. Shotbolt v. N.D. Workforce Safety and Ins., 2010 ND 13, ¶ 20, 777 N.W.2d 853. The dispositive issue in this case is whether WSI’s vocational rehabilitation plan was appropriate under N.D.C.C. § 65-05.1-01. It is well-settled that WSI must take into account not only functional limitations caused by the work injuries, but also a claimant’s preexisting functional limitations when determining whether an employment option presents a realistic opportunity to return to work. Shotbolt, 2010 ND 13, ¶ 20, 777 N.W.2d 853; Genter v. Workforce Safety & Ins. Fund, 2006 ND 237, ¶ 14, 724 N.W.2d 132; Svedberg v. N.D. Workers Comp. Bureau, 1999 ND 181, ¶ 17, 599 N.W.2d 323.
[¶ 19] On September 30, 2008, when Bishop fell fourteen feet from the top of her truck as she was strapping down a load, she sustained a work injury to her head, cervical, and lumbar spine. At the time of these injuries, she was suffering from posttraumatic stress disorder and impulse control disorder. As a result of her work injuries on September 30, 2008, she suffered depression, anxiety, headaches, blurring of vision, short-term mem*264ory loss and pain in her neck, shoulders, back, hip, and torso which were diagnosed as myofascial pain syndrome. Dr. Haynes, a psychiatrist with Medcenter One Health Systems, has treated Bishop since 2004 approximately. Dr. Haynes’ medical record note dated January 20, 2010, states:
I believe that her impulse control problems, irritability and mood shifts are related to her postconcussion syndrome and that this syndrome is related to both her closed head injuries; the first in 2004, then another in 2008.
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I believe her most recent episodes of depression have been related to her on-the-job injuries.
On December 16, 2010, ALJ Seaworth found Bishop’s depression and anxiety were caused by her work injuries and ordered that Bishop was entitled to benefits. WSI did not appeal that order.
[¶ 20] On June 24, 2009, Bishop saw Dr. Brown, a psychologist with Medcenter One Health Systems on a referral by Dr. Haynes, for a neuropsychological evaluation of Bishop’s current cognitive and intellectual functioning. The results of Dr. Brown’s neuropsychological evaluation indicated:
[S]he is functioning in the overall Average range of intelligence. However, persistent impairment was noted on tasks of verbal fluency, mental tracking, visual analysis, and capacity to inhibit a competitive cognitive response set. Overall, the current findings are very consistent with past data by indicating persistent frontal lobe dysfunction, with greater right hemisphere brain involvement.
Certainly, Mrs. Bishop devoted a sincere and consistent effort to her performance during this cognitive evaluation. Clearly, her cognitive deficits are a result of the series of her head injuries. (Emphasis added.)
Despite Bishop’s well-documented cognitive deficits, WSI never inquired of any physician or Dr. Brown whether Bishop’s cognitive deficits impaired her ability to perform the jobs identified in the rehabilitation plan or even generally whether her cognitive deficits impaired her ability to work. The vocational consultant from Corvel Corporation testified she never asked Dr. Haynes or Sharon Brown, Bishop’s counselor, if Bishop was mentally capable of performing the jobs she identified in the rehabilitation plan. The attorney for WSI admitted during oral argument that Dr. Arazi was never asked about the impact of Bishop’s mental and cognitive limitations on her capacity to do the jobs identified. The vocational consultant testified she concluded Bishop was mentally capable of performing the jobs identified because Bishop was functioning in the average range of intelligence according to the neuropsychological testing done by Dr. Brown and Bishop’s impulse control had stabilized. The vocational rehabilitation consultant apparently ignored the other findings in the neuropsychological evaluation setting out Bishop’s significant cognitive deficits. The vocational consultant must assess the worker’s job options in light of the worker’s restrictions and limitations. Svedberg, 1999 ND 181, ¶ 15, 599 N.W.3d 323.
[¶ 21] Any reliance on the responses to questions posed by the vocational consultant to Dr. Arazi, a neurologist, to fill this gap in the evidence is misplaced. The record is clear that a physical therapist was hired by WSI to perform a functional capacities evaluation. That evaluation assessed Bishop’s physical limitations resulting from her physical impairments. The results placed Bishop in the light level of work, demonstrated she could lift 25 *265pounds occasionally and carry up to 20 pounds occasionally, demonstrated crawling, crouching, and stepladder climbing were not recommended and “sitting is frequent with occasional standing and walking.” Dr. Arazi was provided the results of the functional capacities evaluation and the job match comparison and asked the following questions to which he gave his responses by check marks:
1. Do you concur with the FCE results?
X yes_no
2. Do you concur with the job match comparison completed by Mr. Churchill, PT?
X yes_no
Dr. Arazi was only responding to whether he agreed with the physical limitations found by the physical therapist and that the jobs identified were within Bishop’s physical limitations.
[¶ 22] WSI failed to consider the impact of Bishop’s cognitive deficits and psychological limitations when it approved her return to work options. A reasoning mind could not reasonably conclude that Bishop could return to work as a dispatcher, customer service representative, information clerk or receptionist because the rehabilitation plan failed to take into consideration all of Bishop’s documented cognitive deficits and psychological limitations. WSI has failed in its burden of proof that this vocational rehabilitation plan is reasonable under N.D.C.C. § 65-05.1-01.
[¶ 28] I would reverse the judgment affirming WSI’s order and remand for reinstatement of Bishop’s disability and rehabilitation benefits.
[¶ 24] MARY MUEHLEN MARING.