Genter v. Workforce Safety & Insurance Fund

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 Sheriffs 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 Sheriffs Department for about 25 years. Throughout his employment as a deputy sheriff, Gen-ter 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.

*135[¶ 4] Shortly after this termination, WSI again initiated vocational rehabilitation services for Genter. Joyce Clock-Olson, a rehabilitation consultant with CorVel Corporation, was assigned to work with Genter. It is undisputed that Clock-Olson was aware of Genter’s hearing loss at the time she began working on his file. WSI’s referral report, which provided CorVel with information about Genter, listed “partial hearing loss” as one of Genter’s other medical conditions. Also, Clock-Olson had previously helped Genter with telephone accommodations for his work with DiCenzo.

[¶ 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, Gen-ter 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 Gen-ter 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 *136are difficult for him to hear. He also stated that telephone use poses a problem. In support of his testimony, Genter produced a letter from Keith Telenga, a hearing aid specialist at Medcenter One. Although Genter admitted that he used the telephone during his employment with Burleigh County, he explained that he found it difficult so he preferred to speak with people directly. Genter testified that he “struggled with it and got by.” He also claimed that his hearing problem has worsened in the last 10 years, since his employment as a deputy sheriff ended. Regarding his termination from employment with DiCenzo, Genter testified that he could not hear or understand over the telephone, which resulted in his inability to meet performance standards.

[¶ 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. Cloek-Ol-son’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.
[[Image here]]
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.
[[Image here]]
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 *137must 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 N.D.C.C. ch. 65-05.1 and recommended affirmance of WSI’s order. WSI adopted the ALJ’s findings of fact and conclusions of law and issued a final order awarding Genter partial disability benefits. Genter then appealed to the district court, which affirmed WSI’s decision.

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 N.D.C.C. § 28-32-49, we review the agency’s decision in the same manner as the district court. Ziesch v. Workforce Safety & Ins., 2006 ND 99, ¶ 8, 713 N.W.2d 525. The district court must affirm an order of an administrative agency unless it finds any of the following are present:

1. The order in not in accordance with the law.
2. The order is in violation of the constitutional rights of the appellant.
3. The provisions of this chapter have not been complied with in proceedings before the agency.
4. The rules or procedure of the agency have not afforded the appellant a fair hearing.
5. The findings of fact made by the agency are not supported by a preponderance of the evidence.
6. The conclusions of law and order of the agency are not supported by its findings of fact.
7. The findings of fact made by the agency do not sufficiently address the evidence presented to the agency by the appellant.
8. 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.

Id. (citing N.D.C.C. § 28-32-46). We exercise restraint in deciding whether WSI’s findings of fact are supported by a preponderance of the evidence, and we do not make independent findings or substitute our judgment for that of WSI. Paul v. Workforce Safety & Ins., 2003 ND 188, ¶ 11, 671 N.W.2d 795. Rather, we determine only whether a reasoning mind reasonably could have decided that WSI’s findings were proven by the weight of the evidence from the entire record. Id. Questions of law, including the interpretation of a statute, are fully reviewable on appeal from an administrative decision. Stein v. Workforce Safety & Ins., 2006 ND 34, ¶ 6, 710 N.W.2d 364.

Ill

[¶ 13] Genter argues that WSI failed to adequately consider his preexisting hearing loss in formulating his vocational rehabilitation plan. In particular, Genter con*138tends that WSI was required to establish a medical assessment team to evaluate his hearing loss under N.D.C.C. § 65-05.1-02.

[¶ 14] Chapter 65-05.1, N.D.C.C., governs WSI’s vocational rehabilitation services. Specifically, N.D.C.C. § 65-05.1-01(3) provides, in relevant part:

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 N.D.C.C. ch. 65-05.1 and gives the claimant a reasonable opportunity to obtain substantial gainful employment. Paul v. N.D. Workers Comp. Bureau, 2002 ND 96, ¶ 8, 644 N.W.2d 884. Under this Court’s decision in Svedberg v. N.D. Workers Comp. Bureau, 1999 ND 181, ¶ 14, 599 N.W.2d 323, WSI must take a claimant’s preexisting functional limitations into account when determining whether certain employment options present an opportunity for substantial gainful employment. The Legislature intended for claimants to be provided with actual rehabilitation, with a realistic opportunity to return to work, and not a theoretical rehabilitation on paper only. Paul, 2002 ND 96, ¶ 8, 644 N.W.2d 884 (citing Svedberg, 1999 ND 181, ¶ 17, 599 N.W.2d 323). WSI has the burden of establishing that a rehabilitation plan is appropriate. Hoffman v. N.D. Workers Comp. Bureau, 2002 ND 138, ¶ 15, 651 N.W.2d 601.

[¶ 15] With regard to his vocational rehabilitation plan, Genter claims that the plan does not meet all the requirements of Chapter 65-05.1. He points in particular to N.D.C.C. § 65-05.1-02(6) and argues that WSI failed to establish a medical assessment team to evaluate his hearing loss. Section 65-05.1-02(6) provides, in relevant part, that WSI shall “[establish medical assessment teams, the composition of which must be determined by the organization on a case-by-case basis, as the nature of the injury may require, for the purpose of assessing the worker’s physical restrictions and limitations” (emphasis added). The plain language of the statute gives WSI two discretionary decisions regarding the medical assessment team. First, WSI shall establish medical assessment teams as the nature of the injury may require. This is a threshold inquiry in which WSI must determine whether a medical assessment team is required in a particular case based on the nature of the claimed injury. Second, if a medical assessment team is required to evaluate an injury, the plain language of the statute allows WSI to determine the composition of that medical assessment team on a case-by-case basis. See Thompson v. N.D. Workers’ Comp. Bureau, 490 N.W.2d 248, 253 (N.D.1992).

[¶ 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 *139the fact that Genter had successfully held a position with the Burleigh County Sheriffs Department for about 15 years after he began wearing hearing aids in both ears. Based on Genter’s work history, Cloek-Olson concluded that the position of security guard would be appropriate despite his partial hearing loss. Therefore, WSI considered Genter’s preexisting functional limitations as required by this Court in Svedberg.

[¶ 17] Furthermore, on the facts of this case, we conclude that WSI reasonably exercised its discretion under N.D.C.C. § 65-05.1-02(6) when it determined that the nature of Genter’s hearing loss did not require the establishment of a medical assessment team to evaluate his physical restrictions and limitations. Based on the evidence before it, WSI was able to assess the limitations imposed by Genter’s hearing loss without establishing a medical assessment team. First, WSI relied on Genter’s description of the limitations imposed by his hearing impairment and selected the positions in light of that description. Second, the evidence indicates that Genter was consistently able to hear and communicate with others throughout the course of his vocational plan development. Cloek-Olson had multiple conversations with Genter, including many telephone conversations, and observed that Genter did not have any problems hearing her. Genter’s instructor at the Center for Technology and Business also observed that he participated in class by asking questions and did not complain of any hearing problems. Third, and perhaps most importantly, the evidence shows that Genter worked as a deputy sheriff for almost 25 years with his hearing loss, and he wore hearing aids in both ears for about 15 of those years. WSI reasonably took this work history into account when determining the nature of Genter’s hearing impairment and deciding whether to seek a medical opinion.

[¶ 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 Cloek-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 65-05.1-02(6), N.D.C.C., gives WSI the discretion to establish medical assessment teams as the nature of the injury may require. Furthermore, if a medical assessment team is required, the statute gives WSI the discretion to determine the composition of the team on a case-by-case basis. WSI is not automatically required to establish a medical assessment team and seek a medical opinion in every case in which a worker claims an injury or preexisting condition, regardless of the factual basis for the worker’s claim. In this case, we conclude that WSI acted reasonably and within its discretion when it assessed the limitations imposed by Genter’s hearing loss without *140establishing a medical assessment team. Based on Genter’s own description of his hearing loss, the observations of others regarding his hearing impairment, and Genter’s ability to work as a deputy sheriff for many years despite his hearing loss, WSI was able to sufficiently determine the nature of his preexisting hearing loss and select positions that provide him with a reasonable opportunity to obtain substantial gainful employment.

IV

[¶ 20] The district court judgment affirming WSI’s order awarding partial disability benefits is affirmed.

[If 21] DALE V. SANDSTROM, DANIEL J. CROTHERS, and CAROL RON-NING KAPSNER, JJ., concur.