Lucier v. N.D. Workers Comp., et al.

Lucier v. ND Workers Comp., et al., 556 N.W.2d 56 (N.D. 1996)

[Go to Documents]Filed Nov. 13, 1996[Go to main Opinion]IN THE SUPREME COURTSTATE OF NORTH DAKOTA

Stephen J. Lucier, Claimant and Appellant
v.
North Dakota Workers Compensation Bureau Appellee
and
Housing Industry Training, Inc., Respondent

Civil No. 960082

On Petitions for Rehearing from Opinion filed November 13, 1996.

In our main opinion, we did not suggest that Lucier's unsuccessful actual experience in applying for jobs selected in the vocational consultant's plan is totally irrelevant to any claim for further disability and rehabilitation benefits. Rather, we sought to clarify that later evidence of unsuccessful job searching is not relevant to the threshold question of whether the plan, at the outset, reasonably gave Lucier an opportunity for substantial gainful employment in the state. At oral argument, Lucier conceded that was the only issue considered at the administrative hearing.

Obviously, evidence of Lucier's unsuccessful job search will be crucial for further relief under NDCC 65-05.1-04(2) to prove that he "is unable to obtain substantial employment as a direct result of injury. . . ." See also Maginn v. N.D. Workers Comp. Bureau, 550 N.W.2d 412, 415 (N.D. 1996) (injured worker is required to make good faith work trial in a modified position option under NDCC 65-05.1-01(4)); NDCC 65-05-10(1) (for purposes of compensation for temporary partial disability resulting in decreased earning capacity, employee has burden "to show that the inability to obtain employment or to earn as much as the employee earned at the time of injury, is due to physical limitation related to the injury, and that any wage loss claimed is the result of the compensable injury"). Lucier's attorney informed us during oral arguments that an application for relief under NDCC 65-05.1-04 was still pending before the Bureau.

The petitions for rehearing are denied.

Herbert L. Meschke
Dale V. Sandstrom
William A. Neumann
Mary Muehlen Maring
Gerald W. VandeWalle, C.J.