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 N.D.C.C. § 65-05.1-02(6). Because I believe a medical assessment team should have been established to assess Genter’s preexisting hearing loss before WSI formulated his vocational rehabilitation plan, I would reverse and remand.
[¶ 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. Id. In 1995, Svedberg injured his right shoulder during work. Id. Surgery was needed to repair the injury. Id. The Workers Compensation Bureau (“Bureau”) accepted Svedberg’s claim and paid his benefits. Id. In 1969, while he was a firefighter in Grand Forks, Svedberg suffered a back injury that required surgery. Id. at ¶3. After twice reinjuring his back, Svedberg required two more surgeries. Id. Svedberg also suffered from personality disorders and panic attacks. Id. at ¶ 4.
[¶ 24] CorVel Corporation, the Bureau’s vocational consultant, was retained to create a vocational rehabilitation plan for Svedberg. Id. at ¶ 5. CorVel’s initial plan called for Svedberg to return to Community News, but in a modified position. Id. The Bureau rejected CorVel’s initial plan and directed CorVel to explore alternative options and amend the plan. Id. The Bureau approved CorVel’s amended vocational rehabilitation plan. Id. at ¶ 7. In creating the vocational rehabilitation plan, CorVel did not consider Svedberg’s prior back injuries and psychological problems when determining appropriate employment options. Id. at ¶ 9. Svedberg’s treating physician did not consider the pri- or injuries or problems when he approved the employment options in the plan. Id.
[¶ 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 N.D.C.C. § 65-05.1-02(6).
[¶ 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 *141those directly caused by the current work injury.” Id. at ¶ 10. “[Fjunctional limitations which existed at the time the claimant was performing the job are elements of the employee as the employer ‘found’ him, and are valid factors which should be taken into consideration when the Bureau determines whether certain employment options present an opportunity for ‘substantial gainful employment.’ ” Id. at ¶ 14.
[¶ 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 N.D.C.C. § 65-05.1-02(6) to meet the goals of rehabilitative services.
[¶ 28] Under N.D.C.C. § 65-05.1-02(6), 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.) In Svedberg, this Court made clear, “[i]n order to carry out the stated goals of the rehabilitation statutes, the Bureau is required to establish a medical assessment team on a case-by-case basis to assess ‘the worker’s physical restrictions and limitations.’ ” 1999 ND 181, ¶ 15, 599 N.W.2d 323 (emphasis added). “The vocational consultant must then assess the worker’s job options in light of those restrictions and limitations.” Id. at ¶ 15 (citing Johnson v. N.D. Workers’ Comp. Bureau, 539 N.W.2d 295, 298 (N.D.1995); N.D.C.C. § 65-05.1-02(7)).
[¶ 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 N.D.C.C. § 65-05.1-02(6). Svedberg, at ¶ 15. The plain language of N.D.C.C. § 65-05.1-02(6) indicates a medical assessment team shall be established. “Shall” means “[h]as a duty to; more broadly, is required to.... This is the mandatory sense that drafters typically intend and that courts typically uphold.” Black’s Law Dictionary 1407 (8th ed.2004). The North Dakota Legislative Drafting Manual provides: “Use shall when you are imposing a duty on a person or body that is the subject in the sentence. Use shall in a mandatory or imperative sense.” North Dakota Legislative Drafting Manual 97 (2005). The plain language of N.D.C.C. § 65-05.1-02(6) and case law makes clear WSI is required to establish a medical assessment team. The vocational consultant’s role of assessing the worker’s job options only begins after the medical assessment team has assessed the worker’s physical restrictions and limitations. Although required by statute, a medical assessment team was not established to review Genter’s preexisting functional limitations.
[¶ 30] The majority, at ¶ 15, misinterprets N.D.C.C. § 65-05.1-02(6) to mean that WSI has the option of establishing a medical assessment team. A precise reading of the statute indicates that WSI is required to establish medical assessment teams. WSI had the discretion to determine the composition of the team on a *142case-by-case basis depending on the nature of the injury. Each type of injury may dictate a different team composition. One injury may require five experts in a particular applicable field. Another may require three physical therapists. Such decisions as to the composition of the teams are to be made by WSI. However, the decision of whether to establish a medical assessment team is not within WSI’s discretion.
[¶ 31] A review of the legislative history of N.D.C.C. § 65-05.1-02 supports this view. In 1989, at the request of the Workers Compensation Bureau, the legislature, in H.B. 1191, amended section 65-05.1-02.1989 N.D. Sess. Laws ch. 771, § 2. Testifying in support of H.B. 1191, Dean Haas, legal counsel for the Workers Compensation Bureau, explained:
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 N.D.C.C. § 65-05.1-02(6). However, this support only applies to WSI’s discretion to determine the composition of the medical assessment team on a case-by-case basis. The majority does not provide any precedent or other support for deciding WSI has discretion to decide whether to establish a medical assessment team in the first place. In Thompson, we said: “Section 65-05.1-02(6), N.D.C.C., requires the Bureau to establish a medical assessment team on a case-by-case basis to determine the worker’s physical restrictions and limitations. The plain language of the statute allows the Bureau to determine the composition of the medical assessment team on a case-by-case basis.” 490 N.W.2d at 253 (emphasis added). There is no discretion whether to establish a medical assessment team. This is required by the statute. The only discretion allowed pertains to the composition of the team. Because a medical assessment team was not established, in violation of N.D.C.C. § 65-05.1-02(6), Genter’s preexisting functional limitations were not properly considered when creating his vocational rehabilitation plan.
[¶ 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*143cal assessment team assessing Genter’s physical limitations and restrictions. Consideration of the worker’s “actual whole-person functional capacities” must still be done properly. The fact that Clock-Olson considered Genter’s hearing loss is not persuasive because she is not a physician and is not qualified to make a determination of Genter’s functional limitations. Without a medical assessment team, WSI did not satisfactorily assess Genter’s preexisting functional limitations.
[¶ 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 Sheriffs Department, during which he was wearing a hearing aid in each ear. Because he worked at the sheriffs 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 Gen-ter worked at the sheriffs department for the last time in 1995. Perhaps his hearing loss did not prevent him from performing his duties at the sheriffs 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 sheriffs 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 N.D.C.C. § 65-05.1-02(6), WSI partially ignored Genter’s actual situation. Genter has hearing loss in both ears that may prevent him from performing the jobs Clock-Olson recommended. The only way to know for sure is by properly establishing a medical assessment team which will assess Gen-ter’s physical limitations and restrictions.
[¶ 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*144stead, WSI based its vocational rehabilitation plan on Clock-Olson’s observations and Genter’s own statements about his hearing condition. It is interesting to note that WSI relies on Genter’s testimony about situations in which he can hear, but then rejects Genter’s testimony that his hearing has worsened over the last eleven years. However, as the majority, at ¶ 14, points out, the burden is on WSI to establish that a vocational rehabilitation plan is appropriate. WSI, and the majority, reason that there is no medical evidence to support Genter’s testimony, yet there is no medical evidence to support WSI’s findings either.
[¶ 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