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Collette Bishop v. North Dakota Workforce Safety and Insurance

October 23, 2012

COLLETTE BISHOP,
APPELLANT
v.
NORTH DAKOTA WORKFORCE SAFETY AND INSURANCE, APPELLEE AND 4 K'S TRANSPORTATION, LLC, RESPONDENT



Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Cynthia M. Feland, Judge.

The opinion of the court was delivered by: Crothers Justice.

N.D. Supreme CourtBishop v. WSI,

2012 ND 217

This opinion is subject to petition for rehearing. [Go to Documents]

[Download as WordPerfect] Dissent filed.

AFFIRMED.

Opinion of the Court by Crothers, Justice.

[¶1] Collette Bishop appealed from a district court judgment affirming an order of an administrative law judge ("ALJ") which affirmed an order of Workforce Safety and Insurance ("WSI") denying further vocational rehabilitation benefits and temporary total disability benefits to Bishop. We affirm, concluding the ALJ's finding that Bishop was capable of performing the return-to-work options identified in her vocational rehabilitation plan was supported by a preponderance of the evidence.

I

[¶2] Bishop sustained work-related injuries in 2004 and 2008 while employed as a truck driver. As a result, she suffered physical and psychological injuries, including depression, anxiety, memory loss, post-traumatic stress disorder and impulse control disorder. Following the 2008 injury, WSI paid Bishop medical benefits, vocational rehabilitation benefits and temporary total disability benefits. Bishop briefly returned to work driving truck, but suffered increased physical difficulties and was taken off work by her doctor. Bishop subsequently returned to work with her pre-injury employer in a temporary position doing office work up to four hours per day. No evidence existed that Bishop's psychological impairments affected her ability to perform the office work.

[¶3] In May 2009, WSI referred Bishop to Corvel Corporation for vocational rehabilitation services. In December 2009, Bishop completed a functional capacity evaluation ("FCE"), showing she was physically capable of performing full-time light duty work. Bishop's physical therapist completed a "job match" based on the FCE and identified various positions Bishop could perform, and the vocational consultant selected dispatcher, customer service representative and information clerk/receptionist as appropriate return-to-work options for Bishop.

[¶4] Based upon the consultant's report concluding Bishop was capable of returning to full-time employment in a light-duty position, WSI issued a notice of intention to discontinue benefits to Bishop on June 6, 2010. On August 13, 2010, WSI issued its order denying further vocational rehabilitation benefits or disability benefits. Bishop requested a formal hearing, alleging WSI failed to properly consider her cognitive and psychological limitations when it approved the return-to-work options. After a hearing, an independent ALJ issued final findings of fact, conclusions of law and order affirming WSI's order terminating benefits. Bishop appealed to the district court, which affirmed the ALJ's order.

II

[¶5] Courts exercise limited appellate review of decisions of an administrative agency under the Administrative Agencies Practice Act, N.D.C.C. ch. 28-32. Sloan v. North Dakota Workforce Safety & Ins., 2011 ND 194, ¶ 4, 804 N.W.2d 184; Workforce Safety & Ins. v. Auck, 2010 ND 126, ¶ 8, 785 N.W.2d 186. Under N.D.C.C. §§ 28-32-46 and ...


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