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Shotbolt v. North Dakota Workforce Safety and Insurance

January 15, 2010

RICHARD J. SHOTBOLT, CLAIMANT AND APPELLANT
v.
NORTH DAKOTA WORKFORCE SAFETY AND INSURANCE, APPELLEE AND INDUSTRIAL CONTRACTORS, INC., RESPONDENT



Appeal from the District Court of Mercer County, South Central Judicial District, the Honorable Gail H. Hagerty, Judge.

The opinion of the court was delivered by: Maring, Justice.

AFFIRMED

[¶1] Richard Shotbolt appeals from a district court judgment affirming an order by Workforce Safety & Insurance ("WSI"), which denied Shotbolt further disability and vocational rehabilitation benefits and required him to return to work in the same occupation with any employer. Because we conclude a reasoning mind could reasonably conclude from the weight of the evidence that WSI's vocational rehabilitation plan requiring Shotbolt return to the same occupation with any employer under N.D.C.C. § 65-05.1-01(4)(b), was the first appropriate rehabilitation option for Shotbolt, we affirm.

I.

[¶2] In December 2005, Shotbolt submitted a claim for WSI benefits for a work injury to his left bicep, after he ruptured the distal bicep tendon of his left elbow while moving a piece of heavy equipment on December 8, 2005. Shotbolt was a journeyman electrician working for Industrial Contractors, Inc. at the Leland Olds power plant in Stanton, North Dakota. WSI accepted liability for the work injury on December 9, 2005. After the injury and initial medical treatment in Bismarck, Shotbolt returned home to Michigan and treated with Dr. Lawrence McMaster, who had been his treating physician since 2001. Dr. McMaster referred Shotbolt to Dr. Homer Linard, an orthopedic surgeon, who performed surgical repairs of Shotbolt's tendon rupture on December 22, 2005. Shotbolt's left arm was placed in a fiberglass cast after surgery and he was taken off work.

[¶3] In February 2006, Dr. Linard saw Shotbolt for a recheck of his left arm and removed and replaced the cast with a left arm sling with an elbow brace. Dr. Linard prescribed physical therapy and released Shotbolt to return to work "with restrictions of no use of the left arm." Between February and June 2006, Shotbolt attended 25 physical therapy sessions.

[¶4] In March 2006, WSI initiated vocational rehabilitation services for Shotbolt with CorVel after being advised that Shotbolt would not be asked to return to work with Industrial Contractors following his recovery. In April 2006, CorVel wrote a letter to Dr. Linard inquiring when Shotbolt would be medically able to return to work without any restrictions. Dr. Linard again examined Shotbolt in April 2006, observing he had "nearly full extension and full flexion" and that his strength was "slowly improving." Dr. Linard then recommended that Shotbolt be more aggressive with his rehabilitation and that he could return to work "with moderate use of the left arm, no lifting over 15 pounds."

[¶5] On May 5, 2006, Dr. Linard again examined Shotbolt and observed that he had a good range of motion of the left elbow, had some weakness of the biceps, but indicated this would improve over time. On that date, Dr. Linard released Shotbolt to work with no restrictions. After receipt of Dr. Linard's full work release, CorVel issued a vocational consultant's report that recommended the "return to same occupation, any employer" option. On May 23, 2006, WSI informed Shotbolt that it approved CorVel's recommended rehabilitation option. In June 2006, in response to an inquiry from WSI, Dr. Linard advised WSI that Shotbolt had reached maximum medical improvement and that Shotbolt had no permanent impairment to his left bicep as a result of the work injury.

[¶6] Meanwhile, on June 2, 2006, Dr. McMaster saw Shotbolt, who was complaining of left shoulder pain after injuring his left shoulder while wearing the cast on his arm following surgery. Dr. McMaster examined Shotbolt and observed the "[b]iceps area still is not as strong as the right." Dr. McMaster then prescribed physical therapy for the left shoulder and continued therapy for the left bicep. Between June and August 2006, Shotbolt attended 14 sessions of physical therapy.

[¶7] In October 2006, Shotbolt had surgery to repair an aortic and iliac aneurysm. In January 2007, Dr. McMaster again saw Shotbolt, who was complaining of left bicep weakness and pain and numbness in his left leg. Shotbolt told Dr. McMaster that he had been unable to work because of weakness in the bicep and continued to have left leg pain and numbness in his left foot since the October 2006 surgery. Dr. McMaster referred Shotbolt to the Physical Medicine and Rehabilitation Clinic for evaluation based on chronic left leg pain following the surgery and for Shotbolt's left upper arm.

[¶8] On January 17, 2007, Dr. Joseph Hornyak with the Physical Medicine and Rehabilitation Clinic evaluated Shotbolt. Dr. Hornyak noted Shotbolt's past medical history included peripheral vascular occlusive disease, an aortic and iliac aneurysm which was repaired in October 2006, a cerebral aneurysm "which was surgically clipped at an outside facility," and Reiter's syndrome "affecting mostly of the joints including the knees and ankles of lower extremity." Dr. Hornyak's examination of Shotbolt's left upper extremity revealed "bicep strength 4/5" and assessed Shotbolt with "chronic bicep weakness status post bicep rupture and repair in 2005 and left leg numbness positional symptoms consistent with diagnosed left-sided claudication and possible weakness in the left gastroc."

[¶9] On January 23, 2007, Shotbolt underwent an EMG. On February 7, 2007, Dr. Hornyak reviewed the EMG results with Shotbolt, which showed "chronic denervation, reinnernvation injury to the left biceps," however no evidence of "cervical radiculopathy, plexopathy, or neuropathy," and no evidence of "ongoing nerve damage." Dr. Hornyak stated regarding the left bicep weakness, that it was chronic and stable, was unlikely Shotbolt would gain any additional strength at that time, and that his strength was likely stable at the current functional level. Dr. Hornyak did not recommend any specific therapy or interventions and advised Shotbolt should continue with his normal activities as tolerated. Dr. Hornyak found the EMG of Shotbolt's left lower extremity was normal and advised Shotbolt to build exercise tolerance to reduce any pain in lower extremity claudication.

[¶10] In March 2007, Shotbolt returned to Dr. McMaster, who noted Shotbolt's continuing problems with his left leg and arm. Dr. McMaster noted that Shotbolt's physical examination was unchanged since his last visit. Dr. McMaster's assessment was "[c]hronic left upper extremity weakness" and left leg numbness, possibly due to claudication. On March 2, 2007, Dr. McMaster wrote a letter to advise that Shotbolt was "unable to return to work because of the arm injury."

[¶11] Based upon the conflicting medical opinions of Dr. McMaster and Dr. Linard, WSI ordered Shotbolt to undergo a functional capacity assessment ("FCA") to assist in ascertaining whether Shotbolt could perform the duties of a journeyman electrician, which was performed on June 22, 2007. WSI then provided the FCA results, a job description for an electrician, and Shotbolt's medical records to Dr. Gregory Peterson, WSI's medical consultant, for a medical opinion on whether the work injury would prevent Shotbolt from returning to work as an electrician.

[¶12] Dr. Peterson opined that the work injury would not prevent Shotbolt from performing the duties of an electrician. Dr. Peterson specifically disagreed with Dr. McMaster's opinion in his March 2, 2007, letter finding it to be conclusory and unsupported by objective findings. Dr. Peterson agreed with Dr. Linard's full work release on May 5, 2005. Dr. Peterson indicated that Dr. Linard's opinion was consistent with the "nature of Mr. Shotbolt's left arm condition, the expected natural history, the objective findings, and Dr. Linard's expertise as an orthopedic surgeon."

[¶13] In an April 7, 2008, letter, Dr. McMaster responded to Dr. Peterson's opinion, noting that Shotbolt continued to have left arm weakness, which according to Shotbolt, resulted in limitations. Although Dr. McMaster was "not able to see what Mr. Shotbolt's job entails," Dr. McMaster continued to opine that Shotbolt's injury prevented him from returning to his pre-injury work.

[¶14] In June 2006, WSI issued its formal order denying further disability and vocational rehabilitation benefits. In August 2006, Shotbolt requested reconsideration and a formal hearing. In May 2008, after several continuances, a hearing was held on Shotbolt's August 2006 request for reconsideration of WSI's order denying him further disability and vocational rehabilitation benefits and determining his first available rehabilitation option was returning to the same occupation with a different employer before an administrative law judge ("ALJ"). In July 2008, the ALJ issued his recommended findings of fact, conclusions of law, and order, affirming WSI's order denying further disability and vocational rehabilitation benefits. The ALJ concluded a preponderance of the evidence established that Shotbolt could work as an electrician and that WSI had correctly identified the first appropriate rehabilitation option that would provide Shotbolt with a reasonable opportunity for substantial gainful employment. WSI adopted the ALJ's recommendation and the district court affirmed WSI's order.

II.

[¶15] Courts exercise a limited review in appeals from administrative agency decisions under the Administrative Agencies Practice Act, N.D.C.C. ch. 28-32. Bergum v. North Dakota Workforce Safety & Ins., 2009 ND 52, ¶ 8, 764 N.W.2d 178. Under N.D.C.C. §§ 28-32-46 and 28-32-49, the district court, and this Court on further appeal, must affirm an administrative agency decision unless:

1. The order is not in accordance with the law.

2. The order is in violation of the constitutional rights of the appellant.

3. The provisions of [N.D.C.C. ch. 28-32] have not been complied with in the proceedings before the agency.

4. The rules or procedure of the agency have not afforded the appellant a fair hearing.

5. The findings of fact made by the agency are not supported by a preponderance of the evidence.

6. The conclusions of law and order of the agency are not supported by its findings of fact.

7. The findings of fact made by the agency do not sufficiently address the evidence presented to the agency by the appellant.

8. The conclusions of law and order of the agency do not sufficiently explain the agency's rationale for not adopting any contrary recommendations by a hearing officer or an administrative law judge.

On appeal from the district court's decision, we review the administrative agency's decision in the same manner as the district court, giving due respect to the district court's analysis and review. N.D.C.C. § 28-32-49; Von Ruden v. North Dakota Workforce Safety & Ins. Fund, 2008 ND 166, ¶ 8, 755 N.W.2d 885.

[¶16] This Court exercises restraint in deciding whether WSI's findings of fact are supported by a preponderance of the evidence, and we do not make independent findings or substitute our judgment for that of WSI. See Reopelle v. Workforce Safety & Ins., 2008 ND 98, ¶ 9, 748 N.W.2d 722. "On appeal, we determine whether a reasoning mind reasonably could have decided the agency's findings were proven by the weight of the evidence from the entire record, however, questions of law are fully reviewable." Von Ruden, 2008 ND 166, ¶ 8, 755 N.W.2d 885.

III.

[¶17] The dispositive issue in this case is whether WSI's vocational rehabilitation plan was appropriate under N.D.C.C. § 65-05.1-01, which endeavors to return an injured worker to substantial gainful employment as soon ...


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