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Svedberg v. North Dakota Workers Compensation Bureau9/8/1999
limitations you were concerned with his right shoulder?
A. Correct.
Q. Did you look at anything else, any other limitations?
A. Not that I'm aware of.
Q. Were you aware of any prior Workers Compensation injuries?
A. No.
Q. Okay. Aware of any, any permanent residuals from those injuries?
A. No.
Q. That's something that the Bureau didn't provide CorVel?
A. I doubt it, because I just noticed this thing about the back injuries when he was employed by the fire department.
Q. You just saw it right now?
A. Yeah.
Q. And with respect to the information given Dr. Clayburgh, then, for his approval of various types of jobs, that would have been limited to the shoulder injury , too?
A. I would assume so.
Q. Do you know what kinds of records Dr. Clayburgh had? Let's talk about what he got from CorVel. That would have been limited to the shoulder injury . Is that right?
A. I believe so."
When Toutges later commented on the effects of Svedberg's back injuries, the ALJ asked clarifying questions:
"THE COURT: You testified earlier that you were not aware of the fact that those injuries had taken place?
THE WITNESS: No, I wasn't aware of them.
THE COURT: So you were making that comment now, after the fact, and it was not considered at the time that the plan was developed. Is that correct?
THE WITNESS: That's correct."
[ ] The 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 those directly caused by the current work injury. The Bureau argues our decision in Holtz v. North Dakota Workers Compensation Bureau, 479 N.W.2d 469 (N.D. 1992), is dispositive of this issue.
[ ] In Holtz, the claimant had to leave her job after she contracted dermatitis while working as a beautician. She was granted temporary total disability benefits. A week after she left her job, she fell and severely fractured her elbow, requiring surgery. A few months later she suffered further injuries in an automobile accident. Holtz asserted the Bureau should have considered her physical limitations caused by these subsequent, non-work-related injuries when it assessed her eligibility for disability and rehabilitation benefits. We concluded that, in the context of subsequent non-work-related injuries, such disabilities were not "medical limitations" appropriate for consideration when assessing eligibility for disability benefits and developing a vocational rehabilitation plan under N.D.C.C. ยง 65-05.1-01(3). In so holding, we stated "we believe the intent of the legislature was for the Bureau to consider an individual's medical limitations at the time that individual sustained a work-related injury ." Holtz, 479 N.W.2d at 470-71 (emphasis added). It was precisely because Holtz's non-work-related injuries occurred after her work-related disability, when she was no longer working, that we held the physical disabilities caused by these subsequent injuries effectively superseded her work-related disability and should not be considered in assessing disability and rehabilitation benefits.
[ ] We applied Holtz in Bjerke v. North Dakota Workers Compensation Bureau, 1999 ND 180. Bjerke suffered from a congenital back problem and had surgery in June 1993. In December 1993 she applied for workers compensation benefits for work-related repetitive-motion injuries to her wrists and hands. The Bureau determined Bjer
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