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Paul v. Workforce Safety and Insurance12/2/2003
AFFIRMED.
[ ] Ronald Paul appealed from a district court judgment, entered upon remand by this Court, affirming orders of February 13, 2001 and August 7, 2001 by Workforce Safety and Insurance ("WSI"), approving a vocational rehabilitation plan for Paul and denying him further disability and vocational rehabilitation benefits. We hold WSI's proceedings were in accordance with this Court's directions in remanding the case, its findings of fact are supported by the evidence, and its decisions are in accordance with the law. We, therefore, affirm the district court judgment upholding both WSI orders.
I.
[ ] Many of the relevant facts are set forth by this Court in Paul v. N.D. Workers Comp. Bureau, 2002 ND 96, 644 N.W.2d 884, and will be reiterated here only as necessary to an understanding of this appeal. In August 1985 Paul sustained a low back injury during the course of his employment as a construction worker . WSI accepted liability and paid disability benefits and medical expenses to him. He has not worked since his 1985 injury. Paul underwent a functional capacity evaluation which indicated his lifting capabilities were 17.5 pounds "rarely" and 12.5 pounds "occasionally." The results of this evaluation indicated Paul was qualified for sedentary and light categories of work as defined by the United States Department of Labor's Dictionary of Occupational Titles ("DOT").
[ ] Under N.D.C.C. ยง 65-05.1-01, WSI's vocational rehabilitation consultant developed a rehabilitation plan for Paul to return to work in the Phoenix area, where he currently resides. The rehabilitation consultant concluded there were sufficient job opportunities in the Phoenix area as a sales attendant, service establishment counter attendant, and automobile rental clerk which satisfied Paul's physical restrictions and the requirements of the statute. WSI accepted the rehabilitation consultant's plan and issued an order on February 13, 2001, denying Paul further disability and vocational rehabilitation benefits. Paul requested and received a formal hearing before an administrative law judge ("ALJ"). After holding a formal rehearing, the ALJ found the job descriptions for sales attendant, service establishment counter attendant, and automobile rental clerk required a person to lift up to 20 pounds, which exceeded Paul's lifting abilities. The ALJ stated that, because of the number of openings for those jobs in the Phoenix area and because the descriptions did not describe lifting as a principle or significant activity, it was presumed job opportunities existed for Paul and the burden was on him to show there were not. The ALJ concluded Paul had not met the necessary showing and, therefore, the rehabilitation plan was appropriate and Paul was not entitled to further disability benefits.
[ ] In Paul v. N.D. Workers Comp. Bureau, 2002 ND 96, 11-12, 644 N.W.2d 884, this Court rejected the ALJ's decision process:
The ALJ erroneously relied on a presumption there were sufficient job opportunities in the Phoenix area within Paul's physical limitations, and erroneously shifted the burden of proof to Paul to show there were not job opportunities. The presumption and burden shifting are not in accordance with the law and adversely impacted the Bureau's ultimate findings about the rehabilitation plan. The Bureau's decision must be based on evidence presented at the hearing which establishes a rehabilitation plan that provides Paul with a reasonable opportunity for employment within his restrictions and without the aid of a presumption or shifting the burden of proof to Paul. We conclude the Bureau's ultimate decision was affected by its erroneous reliance on the presumption that
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