Albright v. Safety

Decision Date19 June 2013
Docket NumberNo. 20120298.,20120298.
Citation833 N.W.2d 1,2013 ND 97
CourtNorth Dakota Supreme Court
PartiesBrenda ALBRIGHT, Claimant and Appellee v. NORTH DAKOTA WORKFORCE SAFETY & INSURANCE, Appellant and Smurfit–Stone Container Corporation, Respondent.

OPINION TEXT STARTS HERE

Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Wickham Corwin, Judge.

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

Mark G. Schneider, Fargo, ND, and Mac J. Schneider, Grand Forks, ND, for appellee.

KAPSNER, Justice.

[¶ 1] Workforce Safety and Insurance (“WSI”) appeals from a district court judgment reversing the Administrative Law Judge's (“ALJ”) final order affirming WSI's denial of Brenda Albright's application for workers compensation benefits for a back injury and a judgment awarding attorney fees and costs. We reverse the judgments and reinstate WSI's order denying benefits, concluding the decision of the ALJ affirming the decision of WSI is supported by a preponderance of the evidence, WSI adequately established that Albright's treating physicians' opinions were inconsistent with other substantial record evidence under N.D.C.C. § 65–05–08.3, and the district court erred in awarding Albright attorney fees and costs under N.D.C.C. § 28–32–50(1).

I

[¶ 2] In June 2010, Albright submitted a benefits claim to WSI reporting a work-related back injury incurred after squatting down to pull a label off a roll of paper. Albright testified that as she stood up, she felt extreme pain in her back. Albright was taken to the emergency room, and an MRI confirmed a disk herniation at L1–L2.

[¶ 3] In 1991, Albright began working at Smurfit–Stone Container Corporation (“Smurfit”), a cardboard box manufacturer. Albright worked in various positions at Smurfit, and in 1994, she began working as a forklift operator. Her job as a forklift operator was physically demanding, she testified, because loading, transporting, and unloading items caused significant jarringand bouncing, and the forklift had little or no suspension. Albright also testified that once a load was secured on the front of the forklift, it was dangerous to drive forward because the load blocked her view; as a result, she delivered loads in reverse, causing her to rotate her trunk approximately 180 degrees as she maneuvered the forklift. Albright asserts the trunk rotation and jarring and bouncing took a toll on her back.

[¶ 4] Albright has a history of back problems going back to at least 2001, and she has had neck problems as well. In 2004, Albright treated with a physician's assistant, Heidi Olson–Fitzgerald, for acute onset of low back pain after she bent over to pick up some towels. Olson–Fitzgerald assessed Albright with: “1. Low back pain with left L5–S1 radicular symptoms; 2. Degenerative disk disease L5–S1; and 3. Degenerative cervical disk disease C3 through C7.” Olson–Fitzgerald noted that Albright's x-rays showed fairly severe degenerative changes in the cervical spine. An MRI was performed in November 2004, which was summarized as showing [m]ultilevel degenerative disease with broad-based disk changes at several levels, most prominent at L3–4.” In 2005, Olson–Fitzgerald noted that Albright had “degenerative cervical disk disease [and] lumbar degenerative disk disease....”

[¶ 5] Albright continued to have back problems, and a 2007 MRI revealed:

1) Degenerative cervical disk changes are most severe at C5–6 and C6–7, and to a lesser degree at C4–5. 2) At C5–6, a broad-based and right-sided disk herniation (disk protrusion) deforms the thecal sac, causes right-sided foraminal stenosis and possible impingement of the right C6 nerve root. Please correlate as to a possible right C6 radiculopathy. 3) At C6–7, broad-based posterior calcified disk protrusion and osteophyte causes thecal sac deformity more to the right of midline without cord compression or significant foraminal narrowing; 4) Mild posterior disk bulge at C4–5.

In 2007, Albright began treating with Dr. Marc Eichler, a neurosurgeon. In 2008, Dr. Eichler operated on Albright's neck, performing a corpectomy for spinal cord compression with bilateral C5–C6 and C6–C7 foraminotomies for decompression of the C6–C7 roots.

[¶ 6] On June 8, 2010, Albright reported that after squatting down to remove the label from a roll of paper, she felt pain in her right side and right back. She was treated at an emergency room. An MRI summary noted Albright had “multilevel degenerative disk disease” and herniation at L1–L2. On July 23, 2010, Dr. Eichler performed his second surgery on Albright's spine. This surgery consisted of “an L1–2 facetectomy on the right for removal of the intraforaminal disk herniation and decompression of right L1 nerve root, and ... an L1–2 fusion and stabilization secondary to the complete facetectomy on the right.” Prior to this surgery, Dr. Eichler noted Albright had mild lumbar spondylosis with a high intensity at L3–L4, and other disk bulges at L2–3, L3–4, and L4–5.

[¶ 7] Around the time of Albright's surgery, WSI had Dr. Gregory Peterson, a WSI medical consultant, review Albright's current and prior medical records to see if her claimed injury was work related. Dr. Peterson noted Albright has an “extensive prior history of cervical and lumbar spine problems” as the “MRI shows multi-level lumbar [degenerative disk disease] and a large right L1 disk protrusion. Dr. Peterson opined Albright had preexisting symptomatic multi-level degenerative disk disease, and [h]er condition was made symptomatic by her performing the trivial act of bending.” Dr. Peterson noted his opinion has a “significant exploitable weakness,” because if he defined her condition as L1 disk herniation rather than degenerative disk disease, he would not be able to demonstrate that specific condition as preexisting.

[¶ 8] In August 2010, Dr. Charles Burton, a neurosurgeon, conducted an independent medical records review of Albright's case. Dr. Burton opined that Albright's “well-documented multilevel degenerative disk pathology and multilevel segmental dysfunction” contributed to her June 8, 2010, incident. He further opined that the incident did not substantially accelerate Albright's preexisting condition because the herniation could have happened at any time or place. Dr. Burton stated Albright's underlying condition served to increase the likelihood of “mechanical” injuries, which are incurred from routine activities such as leaning forward, twisting, and standing up. According to Dr. Burton, Albright's “past history contains many examples of ... mechanical back pain episodes having occurred with bending and lifting.” Ultimately, Dr. Burton concluded Albright's bending action on June 8, 2010, was “the straw that broke the camel's back.” WSI wrote to Dr. Eichler to see if he agreed with Dr. Burton's opinion. In October 2010, Dr. Eichler responded, indicating he was not in complete agreement with Dr. Burton's opinion.

[¶ 9] After initially determining it had liability, WSI denied the claim, determining Albright had a preexisting condition, and the June 2010 incident had only triggered symptoms related to her condition. Albright requested reconsideration, and WSI denied her request. WSI's claim denial stated: Claimant's pre-existing lumbar spine condition includes multilevel degenerative changes throughout her lumbar spine, and retrolisthesis at multiple levels including L1–L2, and narrowing of the L5–S1 interspace, and mild interplate changes at L3–L4, and low back pain with left L5–S1 radicular symptoms.” Albright requested a formal hearing before an ALJ. At the hearing, Albright testified that while she previously had back problems, she has not had problems in the L1–L2 area. In support of her benefit claim, Albright presented documentary evidence consisting of letters from Olson–Fitzgerald, Dr. Eichler, and a chiropractor, Dr. Kevin Paape.

[¶ 10] Olson–Fitzgerald's letter opined Albright's preexisting degenerative disk disease was due to the demanding activities of her job, and Albright's condition placed her at risk for the June 8, 2010, injury. Dr. Paape's letter stated Albright's job duties are “most likely” the cause of her degenerative disk disease. Dr. Eichler wrote two letters on Albright's behalf. First, in response to Dr. Burton, Dr. Eichler opined that the June 8, 2010, work event caused the herniation. Dr. Eichler's second letter stated Albright's job operating a forklift “is known to lead to degenerative disk disease,” and her herniation at L1–L2 is probably related to her overall degenerative disk disease. He concluded by stating that he felt Albright's herniated disk at L1–L2 was directly related to a work injury. Olson–Fitzgerald, Dr. Eichler, and Dr. Paape did not testify at the hearing and were not deposed. Dr. Burton was deposed, and his deposition transcript was used at the hearing. In his deposition, Dr. Burton opined that Albright's underlying condition was not a result of her working conditions.

[¶ 11] The ALJ denied Albright's claim and issued Findings of Fact, Conclusions of Law, and an Order, concluding: “The cause of Albright's injury was not the result of a single incident occurring on June 8, 2010. Her work duties or work conditionsdid not substantially accelerate or substantially worsen her pre-existing condition.” The ALJ also concluded Albright's underlying condition was not caused by her working conditions. In November 2011, Albright petitioned the ALJ for reconsideration which was subsequently denied.

[¶ 12] Albright appealed to the district court. The district court reversed the ALJ's decision, concluding, “Albright clearly proved the unique loads and stresses incident to her work were at least a substantial contributing factor to the development of this pathology.” The court further concluded, “the record clearly establishes that the L1–2 disk herniation/compression was an acute event that occurred at work on June 8, 2010, which substantially...

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  • Parsons v. Workforce Safety & Ins. Fund
    • United States
    • North Dakota Supreme Court
    • December 19, 2013
    ... ... N.D.C.C. §§ 28–32–46 and 28–32–49.          [¶ 13] We review the agency's decision, and a court may not make independent findings of fact or substitute its judgment for the ALJ's findings. Albright v. North Dakota Workforce Safety and Ins., 2013 ND 97, ¶ 14, 833 N.W.2d 1. The court must consider the entire record and determine whether a reasoning mind could reasonably determine the findings were proven by the weight of the evidence. Id. The court gives deference to the ALJ's factual ... ...

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