                Filed 07/22/20 by Clerk of Supreme Court

                 IN THE SUPREME COURT
                 STATE OF NORTH DAKOTA

                                2020 ND 168

Gregory Beam,                                                    Appellee
  v.
North Dakota Workforce Safety
and Insurance Fund,                                             Appellant
  and
Gagnon, Inc.,                                                  Respondent



                                No. 20200067

Appeal from the District Court of Mercer County, South Central Judicial
District, the Honorable Bruce A. Romanick, Judge.

REVERSED AND          ADMINISTRATIVE           LAW   JUDGE’S   DECISION
REINSTATED.

Opinion of the Court by VandeWalle, Justice.

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

Jacqueline S. Anderson, Special Assistant Attorney General, Fargo, ND, for
appellant.
                                Beam v. WSI
                                No. 20200067

VandeWalle, Justice.

       North Dakota Workforce Safety and Insurance (WSI) appealed from a
district court judgment reversing an administrative law judge’s (ALJ) decision
terminating Gregory Beam’s benefits. We reverse the district court judgment
and reinstate the ALJ’s decision.

                                      I

      Beam was injured in 2016 while working for his employer, Gagnon, Inc.
(Gagnon), installing sheets of metal. Beam applied for workers compensation
benefits with WSI, and WSI accepted Beam’s claim. At the time Beam applied
for workers compensation benefits, Gagnon submitted a job description for
machinist as Beam’s position with the company at the time of his injuries.

      In 2018, Beam completed a “Functional Capacity Evaluation.” The
evaluation identified Beam could occasionally climb ladders and kneel, but was
unable to crouch or crawl. After completion of the evaluation, WSI identified
Beam’s transferable skills and physical capabilities. WSI determined Beam’s
pre-injury occupation was that of a sheet metal worker, not a machinist as
submitted by Gagnon. WSI forwarded a list of job descriptions to Beam’s
treating physician, Dr. Kelly, for approval. The descriptions sent to Dr. Kelly
were from the Dictionary of Occupational Titles (DOT). Included in the list of
jobs were machinist and sheet metal worker. The machinist description read:

      Set up and operate a variety of machine tools to produce precision
      parts and instruments. Includes precision instrument makers who
      fabricate, modify, or repair mechanical instruments. May also
      fabricate and modify parts to make or repair machine tools or
      maintain industrial machines, applying knowledge of mechanics,
      shop mathematics, metal properties, layout, and machining
      procedures.




                                      1
The description also stated the position required “[o]ccasional stooping,
kneeling and crouching.” The job description of a sheet metal worker as
provided in the DOT read:

      Fabricate, assemble, install, and repair sheet metal products and
      equipment, such as ducts, control boxes, drainpipes, and furnace
      casings. Work may involve any of the following: setting up and
      operating fabricating machines to cut, bend, and straighten sheet
      metal; shaping metal over anvils, blocks, or forms using hammer;
      operating soldering and welding equipment to join sheet metal
      parts; or inspecting, assembling, and smoothing seams and joints
      of burred surfaces. Includes sheet metal duct installers who install
      prefabricated sheet metal ducts used for heating, air conditioning,
      or other purposes.

The description stated the physical requirements of a sheet metal worker were
“[f]requent stooping, handling and reaching & occasional fingering.” Dr. Kelly
did not approve Beam returning to work as a machinist, stating, “I don’t think
the knee will tolerate the potential kneeling.” Dr. Kelly did approve Beam
returning to work as a sheet metal worker. Based on Dr. Kelly’s approval for
Beam to return to work as a sheet metal worker, WSI determined Beam could
return to work in the same occupation, any employer, and discontinued Beam’s
benefits.

      After a hearing was held, an ALJ issued findings of fact and conclusions
of law affirming WSI’s termination of Beam’s benefits. In finding of fact
thirteen, the ALJ found the job description of a machinist as stated in the DOT
did not match Beam’s pre-injury profession. Rather, the ALJ found the
preponderance of the evidence established Beam’s “occupation was that of
‘sheet metal worker’, as defined in the DOT.” The ALJ also found the
occupation of sheet metal worker did not require kneeling or climbing ladders,
and Beam possessed the necessary skills to perform the occupation of sheet
metal worker. The ALJ found the preponderance of the evidence established
Beam could return to the occupation of sheet metal worker, but could not
return to his pre-injury position with Gagnon. The ALJ concluded WSI met its
burden of proving Beam could return to the same occupation as a sheet metal
worker with any employer.

                                       2
       Beam appealed the ALJ’s decision to the district court. On appeal to the
district court, Beam argued the ALJ erred in relying on the DOT description of
sheet metal worker contending the description did not include an accurate list
of physical requirements of a sheet metal worker and the description had not
been updated since 1988. In his specification of error, Beam did not list the
ALJ’s finding of fact thirteen that Beam was a sheet metal worker and not a
machinist as error. The district court determined the ALJ’s findings of fact
were not supported by a preponderance of the evidence and reversed the ALJ’s
decision.

       On appeal, WSI argues the district court erred in reversing the ALJ’s
findings of fact and conclusions of law because the ALJ could reasonably
conclude Beam could return to work as a sheet metal worker in a position other
than his pre-injury position with Gagnon. WSI also argues the district court
erred by considering the ALJ’s finding of fact thirteen when the finding was
not listed in Beam’s specification of error.

                                        II

       The Administrative Agencies Practice Act requires a party who appeals
from an administrative hearing officer’s decision to file a notice of appeal and
specifications of error. N.D.C.C. § 28-32-42(4). A party appealing a hearing
officer’s decision must file “reasonably specific” specifications of error detailing
which matters are at issue, so as to alert the agency, other parties, and the
court of the particular errors claimed. Midthun v. N.D. Workforce Safety & Ins.,
2009 ND 22, ¶ 7, 761 N.W.2d 572. Boilerplate specifications of error which are
general enough to apply to any administrative agency appeal are not tolerated
by this Court, and are ripe for dismissal. Id. When a party does not enumerate
an issue in their specifications of error, we will not consider the issue on appeal.
Id.

      WSI argues that because Beam did not specify the ALJ’s finding of fact
thirteen as error, he could not challenge the DOT description of a sheet metal
worker. A careful reading of finding of fact thirteen does not support WSI’s
argument.



                                         3
      In finding of fact thirteen, the ALJ found:

      The job description for “machinist” provided by Gagnon, Inc. does
      not match what Mr. Beam said that he has done all of his career,
      including when working for Gagnon. Nor does the DOT description
      provided to Dr. Kelly by WSI. There is no evidence in the record
      that Mr. Beam was ever involved in producing precision parts and
      instruments. The preponderance of the evidence establishes that
      Mr. Beam’s occupation was that of “sheet metal worker”, as defined
      in the DOT.

      Finding thirteen does not discuss the physical requirements of either a
machinist or sheet metal worker. The finding merely references the duties
performed by a machinist and a sheet metal worker and states that the work
duties Beam performed with Gagnon aligned more with those of a sheet metal
worker than those of a machinist. This is best evidenced by the ALJ’s
statement that “[t]here is no evidence in the record that Mr. Beam was ever
involved in producing precision parts and instruments.” Finding thirteen
simply concludes Beam’s occupation was that of a sheet metal worker, based
on the described job duties in the DOT, and not a machinist.

       On appeal, Beam has stated he was not a machinist with Gagnon, and
agrees with finding of fact thirteen. Beam does not challenge the DOT
description of the duties of a sheet metal worker. Beam does, however,
challenge the physical requirements of a sheet metal worker as listed in the
DOT. Yet, WSI argues that because Beam did not specify finding of fact
thirteen in his specification of error, he cannot challenge the DOT description
in any manner on appeal. Beam agrees with the job duties of a sheet metal
worker as described in the DOT but disagrees with the physical requirements
of a sheet metal worker as described in the DOT. WSI has offered no compelling
argument why Beam cannot challenge the physical requirements of a sheet
metal worker as listed in the DOT without challenging the entire DOT
description.

      Furthermore, the district court did not rely on finding thirteen in
reversing the ALJ’s decision or conclude finding thirteen was not supported by
the evidence. The district court referred to Beam as a sheet metal worker

                                       4
throughout its order. The court’s reversal of the ALJ’s decision was based on
its belief that the physical requirements of a sheet metal worker as described
in the DOT were not supported by the evidence, not that Beam was not a sheet
metal worker or the job duties of a sheet metal worker as described in the DOT
were not supported by the evidence. By deciding not to challenge finding of fact
thirteen—referencing the job duties of a machinist and sheet metal worker—
in his specification of error, Beam did not waive his arguments challenging the
ALJ’s findings relating to the physical requirements of a sheet metal worker.

                                      III

     Courts exercise limited appellate review of decisions of an administrative
agency under the Administrative Agencies Practice Act, N.D.C.C. ch. 28-32.
Bishop v. N.D. Workforce Safety & Ins., 2012 ND 217, ¶ 5, 823 N.W.2d 257.
Under N.D.C.C. §§ 28-32-46 and 28-32-49, the district court and this Court
must affirm an order of an administrative agency 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 this chapter 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.

N.D.C.C. § 28-32-46. On appeal from a district court order reviewing the
decision of an ALJ, we review the decision of the ALJ and not that of the district
court. See N.D.C.C. § 28-32-49.

                                        5
      When reviewing an appeal from a final order issued by an independent
ALJ, courts apply the same deferential standard of review to the ALJ’s factual
findings as used for agency decisions. State ex rel. Workforce Safety & Ins. v.
Questar Energy Servs., Inc., 2017 ND 241, ¶ 7, 902 N.W.2d 757; Bishop, 2012
ND 217, ¶ 6, 823 N.W.2d 257. Recognizing the ALJ had “the opportunity to
observe witnesses and the ‘responsibility to assess the credibility of witnesses
and resolve conflicts in the evidence,’” in reviewing the ALJ’s findings of fact
we do not make independent findings or substitute our judgment for that of
the ALJ; we determine only whether a reasoning mind reasonably could have
determined the findings were proven by the weight of the evidence from the
entire record. Bishop, at ¶ 6 (quoting Workforce Safety & Ins. v. Auck, 2010 ND
126, ¶ 9, 785 N.W.2d 186). We do not, however, give deference to an
independent ALJ’s legal conclusions, and questions of law are fully reviewable
on appeal. Id.

       WSI argues the ALJ’s finding that Beam was capable of performing the
job of sheet metal worker identified in his vocational rehabilitation plan was
supported by a preponderance of the evidence. Vocational rehabilitation for
injured workers is governed by N.D.C.C. ch. 65-05.1, and the “goal of vocational
rehabilitation [is] to return the disabled employee to substantial gainful
employment with a minimum of retraining, as soon as possible after an injury
occurs.” N.D.C.C. § 65-05.1-01(3); Bishop, 2012 ND 217, ¶ 8, 823 N.W.2d 257.
A rehabilitation plan is appropriate if it meets the requirements of N.D.C.C.
ch. 65-05.1 and gives the injured worker a reasonable opportunity to obtain
substantial gainful employment. Bishop, at ¶ 8. “A rehabilitation plan need not
guarantee a claimant either a job or a predetermined weekly wage.” Welch v.
Workforce Safety & Ins., 2017 ND 210, ¶ 15, 900 N.W.2d 822. WSI has the
burden “to establish that a vocational rehabilitation plan is appropriate.”
Bishop, at ¶ 8 (quoting Shotbolt v. N.D. Workforce Safety & Ins., 2010 ND 13,
¶ 20, 777 N.W.2d 853). “Under this Court’s standard of review, WSI’s selection
of a vocational rehabilitation plan will not be reversed when there is ‘evidence
from which a reasoning mind could have reasonably concluded that the
rehabilitation plan would return [the injured worker] to substantial gainful
employment which was reasonably attainable in light of his injury and which


                                       6
would substantially rehabilitate his earning capacity.’” Id. (quoting Shotbolt,
at ¶ 21).

      The ALJ made the following findings of fact relating to the physical
requirements of a sheet metal worker and Beam’s ability to work as a sheet
metal worker:

      14.   The preponderance of the evidence establishes that Dr. Kelly
            did not approve of Mr. Beam returning to an occupation that
            required kneeling or climbing ladders. Neither of those
            physical requirements are listed in the DOT definition of
            “sheet metal worker”, and Dr. Kelly did approve of Mr. Beam
            returning to the position of “sheet metal worker” as defined
            by the DOT.
      15.   The preponderance of the evidence establishes that Mr.
            Beam possesses the skills to perform the occupation of “sheet
            metal worker” as defined in the DOT.
      16.   Although Mr. Beam credibly testified that many of his sheet
            metal jobs have required kneeling, the preponderance of the
            evidence establishes that “kneeling” is not a common
            requirement of the position of sheet metal worker, as defined
            in the DOT.
      17.   The preponderance of the evidence establishes that Mr.
            Beam is physically capable of returning to his pre-injury
            occupation of sheet metal worker, as defined in the DOT,
            although not with his employer at the time of injury because
            that particular position required too much kneeling.
      18.   The preponderance of the evidence establishes that the first
            appropriate vocational rehabilitation option for Mr. Beam is
            to return to the occupation of sheet metal worker, but not
            with Gagnon, Inc.

      After Beam completed a functional capacity evaluation, a list of DOT job
descriptions was sent to Dr. Kelly for his approval of which jobs Beam could
perform given his physical limitations. Both machinist and sheet metal worker
were included in the list. Dr. Kelly did not approve Beam to return to work as
a machinist, stating, “I don’t think the knee will tolerate the potential
kneeling.” Dr. Kelly did approve Beam to return to work as a sheet metal
worker. Finding of fact fourteen is supported by the evidence in the record.


                                      7
       Beam testified he completed a five-year apprenticeship program in
HVAC and architectural sheet metal work and had worked as a journeyman
sheet metal installer for more than thirty years. Both HVAC and architectural
sheet metal work were expressly described in the DOT sheet metal worker job
description. Given Beam’s extensive experience in the field, finding of fact
fifteen is supported by the evidence in the record.

      Beam argues the ALJ’s findings are not supported by the evidence in the
record because the ALJ relied on the physical requirements of a sheet metal
worker as stated in the DOT rather than relying on Beam’s testimony of what
the physical requirements of a sheet metal worker are based on Beam’s
experience. At the administrative hearing, Beam and Beam’s vocational case
manager, Zanthia Hagley Price, testified. Beam testified that the job he was
performing at the time of his injury involved extensive climbing, and the type
of work he performed prior to his injury generally involved extensive crawling,
kneeling, squatting, and climbing. Beam testified he was required to perform
those physical acts daily, and that he had not returned to work because he was
limited in performing those physical acts due to his injuries.

       Price testified about WSI’s determination that Beam could return to the
same occupation, any employer. In making its determination, WSI considered
the information provided in the DOT and the standard occupational
classification. Combining the information provided in these two sources, WSI
determined Beam could return to work as a sheet metal worker because the
DOT did not list kneeling as one of the physical requirements of a sheet metal
worker. Price testified that although Beam may not have been able to return
to work in his prior position with Gagnon, Beam had transferrable skills that
would allow him to work as a sheet metal worker in a different job that
required less kneeling.

      The ALJ considered Beam’s testimony, Price’s testimony, and the
physical requirements of a sheet metal worker as listed in the DOT. After
considering the evidence, the ALJ determined Beam could return to work as a
sheet metal worker in a position that did not require the extensive amount of
kneeling Beam was required to perform in his pre-injury position with Gagnon.


                                      8
The ALJ found kneeling was not a common requirement of a sheet metal
worker based on the DOT definition. Beam contends the ALJ’s reliance on the
DOT definition is misplaced because it was last updated in 1988 and Beam’s
testimony indicated kneeling was a regular requirement of a sheet metal
worker. Although Beam’s credible testimony indicated his pre-injury position
required kneeling, Beam did not testify that all sheet metal worker jobs require
kneeling. Nor did Beam testify how the physical requirements of a sheet metal
worker had changed since 1988. The ALJ did not err in relying on the DOT
description in determining Beam could return to work as a sheet metal worker
in a position other that his pre-injury position with Gagnon. Findings of fact
sixteen, seventeen, and eighteen are supported by the evidence in the record.

      We defer to the ALJ to resolve conflicts in the evidence. Beam may not
be able to work in the same capacity as he was prior to his injury with Gagnon,
but WSI’s rehabilitation plan need not guarantee Beam a job; it must only
provide Beam a reasonable opportunity to return to substantial gainful
employment reasonably attainable in light of Beam’s injury. Applying our
deferential standard of review, we conclude there is evidence in the record from
which a reasoning mind could have reasonably concluded WSI’s rehabilitation
plan would return Beam to substantial gainful employment.

                                      IV

      We reverse the district court judgment and reinstate the ALJ’s decision.

      Gerald W. VandeWalle
      Jerod E. Tufte
      Daniel J. Crothers
      Lisa Fair McEvers
      Jon J. Jensen, C.J.




                                       9
