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Svedberg v. North Dakota Workers Compensation Bureau9/8/1999
ive law Judge (ALJ) issued recommended findings of fact, Conclusions of law, and order on January 6, 1998, concluding the vocational rehabilitation plan was appropriate and recommending affirmance of the prior order denying further benefits. The Bureau adopted the ALJ's recommended findings, Conclusions, and order, and Svedberg appealed to the district court. The district court affirmed the Bureau's order, and Svedberg now appeals to this Court.
[ ] The dispositive issue in this case is whether the vocational rehabilitation plan adopted by the Bureau was appropriate under N.D.C.C. ยง 65-05.1-01, which provides in 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, and which offers an opportunity to restore the employee as soon as practical and as nearly as possible to ninety percent of the employee's average weekly earnings at the time of injury, or to sixty-six and two-thirds 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 which meets this income test set out above.
. The first appropriate option among the following, calculated to return the employee to substantial gainful employment, must be chosen for the employee:
. Return to the same position.
. Return to the same occupation, any employer.
. Return to a modified position.
. Return to a modified or alternative occupation, any employer.
. Return to an occupation within the local job pool of the locale in which the claimant was living at the date of injury or of the employee's current address which is suited to the employee's education, experience, and marketable skills.
. Return to an occupation in the statewide job pool which is suited to the employee's education, experience, and marketable skills.
. On-the-job training.
. Short-term retraining of fifty-two weeks or less.
. Long-term retraining of one hundred four weeks or less.
. Self-employment."
Interpretation of a statute is a question of law fully reviewable by this Court. Shiek v. North Dakota Workers Compensation Bureau, 1998 ND 139, 16, 582 N.W.2d 639. Our primary objective in construing a statute is to ascertain the intent of the legislature. Id.
[ ] The dispute in this case centers on the failure to consider Svedberg's prior back injuries and psychological problems when assessing appropriate employment options in the vocational rehabilitation plan. The record demonstrates CorVel did not consider Svedberg's back injuries or psychological problems when it developed the plan, and Dr. Clayburgh did not consider them when he approved the employment options in the plan. Greg Toutges from CorVel testified at the administrative hearing:
"Q. [by Mr. Little] . . . I think you said the purpose of CorVel's rehabilitation activities is to determine the claimant's functional limitations assessment and what they can do despite those limitations?
A. Correct.
Q. Okay. Thanks. Am I correct in thinking that when you conducted Mr. Svedberg's functional
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