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Svedberg v. North Dakota Workers Compensation Bureau9/8/1999
s, so far as possible, necessary to assist the employee and the employee's family in the adjustments required by the injury to the end that the employee receives comprehensive rehabilitation services including medical, psychological, economic, and social rehabilitation."
Subsection 3 of N.D.C.C. § 65-05.1-01 states:
"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."
In 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." N.D.C.C. § 65-05.1-02(6). The vocational consultant must then assess the worker's job options in light of those restrictions and limitations. Johnson v. North Dakota Workers' Compensation Bureau, 539 N.W.2d 295, 298 (N.D. 1995); N.D.C.C. § 65-05.1-02(7).
[ ] In light of the clearly expressed legislative intent underlying N.D.C.C. ch. 65-05.1, we have stated that " aving the worker back on the job contributing in a productive and meaningful way . . . provides real economic, social, and psychological benefit for society and for the individual worker." Baldock v. North Dakota Workers Compensation Bureau, 554 N.W.2d 441, 446 (N.D. 1996). In assessing the validity of a vocational rehabilitation plan, "the question is whether the plan, at the time, gave [the injured worker] a reasonable opportunity to obtain substantial gainful employment in the state." Lucier v. North Dakota Workers Compensation Bureau, 556 N.W.2d 56, 60 (N.D. 1996).
[ ] It is clear that the intent of N.D.C.C. ch. 65-05.1 is to rehabilitate the injured worker so he may return to substantial gainful employment. We have no doubt the legislature intended actual rehabilitation, with a realistic opportunity to return to work, and not a theoretical rehabilitation on paper only. 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. When the work-related injury makes return to the same job or occupation impossible, and the focus of rehabilitation turns to transferable skills and other occupations, common sense dictates that the worker's actual functional abilities must be considered if the vocational rehabilitation plan is to be meaningful.
[ ] We are also mindful of the absurd consequences which might result were we to adopt the Bureau's position. The result urged by the Bureau would apparently allow consideration of physically demanding jobs for Svedberg so long as they met Dr. Clayburgh's restrictions, based solely on the shoulder injury , of no repetitive pushing or pulling of the right arm or overhead lifting or reaching. The Bureau's position would allow it to consider as viable employment options, and base rehabilitation plans upon, jobs which the injured worker is clearly not capable of performing. We do not believe this falls within the letter or the spirit of the rehabilitation provisions of N.D.C.C. ch. 65-05.1.
[ ] Adopting the construction of N.D.C.C. § 65-05.1-01 urged by the Bureau would render the rehabilitation process a sham, designed not to actually return injured workers to substantial gainful employment but merely to "rehabilitate" them on paper so their benefits may be cut off. We believe the legislature's intent was to create a pr
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