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Higginbotham v. Workforce Safety

Supreme Court of North Dakota

July 17, 2014

James Higginbotham, Appellant
v.
Workforce Safety and Insurance, Appellee and Industrial Contractors, Inc., Respondent

Appeal from the District Court of Morton County, South Central Judicial District, the Honorable Donald L. Jorgensen, Judge.

Stephen D. Little, Bismarck, ND, for appellant.

Douglas W. Gigler, Special Assistant Attorney General, Fargo, ND, for appellee.

Lawrence E. King (appeared), Bismarck, ND, for respondent.

Carol Ronning Kapsner, Lisa Fair McEvers, Daniel J. Crothers, Dale V. Sandstrom, Gerald W. VandeWalle, C.J.

OPINION

Kapsner, Justice.

Page 234

[¶1] James E. Higginbotham appeals a district court order for judgment and judgment and a district court order affirming an administrative law judge's (" ALJ" ) decision, which affirmed a Workforce Safety and Insurance (" WSI" ) order approving a rehabilitation plan and denying further disability benefits. We conclude the administrative order is in accordance with the law, and we affirm the district court judgment.

I

[¶2] Higginbotham, age 70, was employed by Industrial Contractors, Inc. (" ICI" ) as a welder and pipefitter in May 2010 when he sustained an injury to his left rotator cuff. The medical records demonstrated that Higginbotham's injury arose out of and in the course of his work for ICI. Prior to his injury, Higginbotham made $34.61 per hour, but only worked part time. He often traveled to work sites some distance from his home near Hazen, North Dakota, including a site north of Mandan. Since his injury, Higginbotham is no longer able to make the trip from Hazen to Bismarck without stopping, and he can no longer perform welding or pipefitting work.

[¶3] Higginbotham obtained a GED in 1970 and reached the level of Sargent in the United States Marine Corps. He later attended welding school and became a certified welder; he is also a gun smith. He worked as a pipefitter in the energy industry for thirty years, until his injury. Higginbotham owns and lives in a mobile home near Hazen, approximately 70 miles from Bismarck and 80 miles from Minot. Higginbotham lives with his wife, who is a manager at Alco. Prior to his injury, Higginbotham purchased a pickup truck, and a full tank of gas cost $52. He indicated he was having difficulty paying bills,

Page 235

which he did not have before the injury, and he wanted to maintain the lifestyle he had prior to his injury.

[¶4] Following left rotator cuff surgery, WSI referred Higginbotham to vocational rehabilitation with Kim Hornberger, a vocational rehabilitation consultant, who identified the first appropriate rehabilitation option for Higginbotham and developed a vocational consultant's report (" VCR" ). The VCR concluded that option f--return to an occupation in the statewide job pool which is suited to Higginbotham's education, experience, and marketable skills--was the appropriate option. The jobs identified were cashier, telephone sales representative, gaming dealer, and greeter, and the expected income of $332 per week exceeded 90% of Higginbotham's pre-injury income of $227 per week.

[¶5] WSI approved the vocational plan and notified Higginbotham that it intended to discontinue his benefits. Higginbotham requested reconsideration of WSI's decision, and WSI issued an order affirming the rehabilitation plan and denying further disability benefits. Higginbotham appealed, and an ALJ affirmed the WSI order. Higginbotham appealed the ALJ's decision, and the district court affirmed. Higginbotham now appeals the district court judgment.

II

[¶6] This Court exercises limited appellate review of administrative agency decisions under the Administrative Agencies Practice Act, N.D.C.C. ch. 28-32. Bishop v. Workforce Safety & Ins., 2012 ND 217, ¶ 5, 823 N.W.2d 257. On appeal, we are reviewing the decision of the administrative agency, and this Court, like the ...


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