Curran v. N.D. Workforce Safety & Ins.

791 N.W.2d 622

2010 ND 227

Kari CURRAN, Claimant and Appellee

v. NORTH DAKOTA WORKFORCE SAFETY & INSURANCE, AppellantandMeritCare Health System, Respondent.

No. 20090260.

Supreme Court of North Dakota.

Dec. 2, 2010.

Daniel Earl Phillips, Fargo, N.D., for claimant and appellee.

Douglas W. Gigler, Special Assistant Attorney General, Fargo, N.D., for appellant.

SANDSTROM, Justice.

[¶ 1] Kari Curran had suffered prior off-the-job injuries to her lower back and had degenerative disc disease. While on the job as a nurse, she bent over to pick up a band-aid from the floor and experienced significant lower back pain. Because a reasoning mind could have found as WSI did, that picking up the band-aid triggered a preexisting condition but did not substantially accelerate or worsen her condition, we reverse the district court judgment and reinstate the decision of Workforce Safety & Insurance ("WSI"). ¹

I

[¶ 2] In February 2007, Kari Curran submitted a claim to WSI for benefits, reporting that she had sustained a work injury to her mid-to-right lower back while employed as a nurse at MeritCare Health System in Fargo. While caring for a patient, Curran bent over quickly, twisting down toward the floor, to retrieve a used band-aid. She testified she experienced sudden lower back pain and had difficulty returning to an upright position because of the pain.

[¶ 3] Curran's medical records document chiropractic treatment for her lower spine prior to her work injury, following an automobile accident in February 2004. She sought treatment from Thomas Solien, D.C., a MeritCare chiropractor. Dr. Solien diagnosed her with "cervical lumbosacral pain/strain." Curran's medical records state she was experiencing pain in her lower back, which was exacerbated by lifting, sitting, and moving from a sitting to a standing position. According to her records, her pain level fluctuated throughout the next year and a half. At times she reported low pain, while at other times the pain became "insidiously more prominent" and she scored her pain level higher.

[¶ 4] WSI found that in November 2006, Curran made multiple visits to Dr. Solien to treat pain lingering at least in part from a June 2005 motorcycle accident. Her medical records show she complained of lower back pain, as well as sharp pains when bending and twisting. Dr. Solien noted there was no improvement in her lower back pain, and her attendant difficulties, such as sitting and sit-to-stand motion, were continuing. Prior to her February 2007 work injury, WSI found Curran received medical treatment for her back that included one emergency room visit and twelve chiropractic treatments.

[¶ 5] According to MeritCare records, Curran contacted its human resources department the day after she hurt her back picking up the band-aid. She was told about filing a WSI claim and whom to see for medical treatment. That same day, Curran's medical records reflect she went to MeritCare Occupational Health Center and received treatment from Robert Martino, M.D. Dr. Martino diagnosed lumbar pain and recommended a course of physical therapy, in addition to various medications. Dr. Martino released Curran to return to work with restrictions, including no repetitive lifting, no pushing or pulling over ten pounds, and no prolonged standing or walking. Curran's records reflect she began receiving physical therapy, during which her chief complaint was lower back pain. Over the course of the next year, her medical records show that she received numerous medical treatments for her lower back pain from multiple physicians and medical professionals.

[¶ 6] Curran's records show she again saw Dr. Martino on February 23, 2007, and he noted her pain had been improving, but she was now experiencing right leg pain with increased aching and burning. He referred her to the emergency room at her request, where she was seen by Paul Bilstad, M.D. Dr. Bilstad recorded she had acute back pain and noted her symptoms "could be an early disk." In March 2007, an MRI was performed on her lumbar spine, which showed mild disc degeneration and a small ring-shaped tear in one of her discs.

[¶ 7] Charles Koski, M.D., a neurosurgeon at MeritCare Occupational Health Center, evaluated Curran in March 2007. In his notes, he recorded the ring-shapedtear in her disc, but did not recommend surgery to repair it. Dr. Koski also acknowledged WSI was looking into the relationship between Curran's current symptoms and the 2004 automobile accident, but he opined it "most likely" was an independent event and that Curran's back pain was "reasonably related" to the tear shown on the MRI.

[¶ 8] In April 2007, WSI's medical director, Dr. Luis Vilella, reviewed a portion of Curran's records and opined that the disc degeneration of her lumbar spine found on the MRI preexisted the original work incident. He further concluded in his records that the disc degeneration resulted in the disc tear, which produced the pain symptoms she was experiencing. Dr. Vilella concluded the work incident was a mere trigger of the symptoms, which did not substantially accelerate or worsen the degenerative process.

[¶ 9] Dr. Solien provided a letter to WSI in September 2007 supporting Curran's claim for benefits. He had previously provided her chiropractic treatment for lower back symptoms in March 2005 and in November 2006 for right side lower back pain, particularly with bending and twisting activities. Dr. Solien noted Curran had preexisting problems with her lumbar spine, but opined the work incident resulted in the disc tear and herniation that produced the ongoing symptoms.

[¶ 10] In November 2007, Curran's records show she underwent a discogram of her lumbar spine, which indicated degenerative disc disease and the disc tear. In February 2008, Curran received treatment in Germany and underwent a disc replacement surgery. The reports from this procedure indicate her degenerative disc disease was both "chronic" and "severe."

[¶ 11] While Curran was in the midst of treating her lower back pain, WSI denied her claim for benefits in April 2007, citing a lack of objective medical evidence supporting a new injury to her lower back. The April 2007 notice of decision denying benefits stated Curran had a history of back problems dating back to her February 2004 automobile accident, noted she had received chiropractic treatment as recently as November 2006, and relied on Dr. Vilella's opinion that the workplace incident only triggered a previous condition. In June 2007, WSI issued a formal order dismissing her claim, and she requested an evidentiary hearing.

[¶ 12] The issue at the hearing was whether Curran suffered a compensable injury to her lumbar spine while at work. The administrative law judge ("ALJ") issued proposed findings of fact, conclusions of law, and an order affirming WSI's dismissal of Curran's claim. WSI adopted the ALJ's recommended decision as its final order. WSI's final order adopted the proposed findings of fact.

[¶ 13] WSI found it was "apparent that on February 13, 2007, Ms. Curran suffered some sort of back injury at work." WSI continued: "At the same time, however, it is equally obvious from analyzing Ms. Curran's medical records that when this injury occurred she had a preexisting back injury." "The question remains whether Ms. Curran has proved by the greater weight of the evidence that the work injury substantially accelerated or worsened the prior injury, or is it the case that the work injury only triggered symptoms of the preexisting injury."

[¶ 14] After comparing her treatment records before and after the work injury, along with consideration of the competing expert opinions, WSI found the greater weight of the evidence did not show that Curran's work injury substantially accelerated or worsened the severity of her degenerative disc disease or that her work asa nurse substantially contributed to her degenerative disc disease. WSI therefore concluded Curran was not entitled to benefits.

[¶ 15] In July 2008, Curran appealed WSI's final order to the district court. The district court issued a memorandum opinion and order reversing WSI's final order. In reversing WSI's final order, the district court held its findings were not supported by the preponderance of the evidence. WSI appeals from the district court's judgment.

[¶ 16] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. §§ 27-05-06, 65-10-01, and 28-32-42. WSI's appeal was timely under N.D.R.App.P. 4(a) and N.D.C.C. § 28-32-49. This Court has jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. § 28-32-49.

II

[¶ 17] On appeal from the district court, we review the administrative agency's decision in the same manner the district court reviewed the decision of the agency. N.D.C.C. § 28-32-49. We must affirm an administrative agency order 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. "WSI is responsible for weighing the credibility of witnesses and resolving conflicts in the evidence, and we do not make independent findings of fact or substitute our judgment for that of the agency." Tverberg v. Workforce Safety and Ins., 2006 ND 229, ¶ 8, 723 N.W.2d 676 (quotations omitted...