Aga v. Worforce Safety and Ins.

• Decision Date: 13 December 2006
• Docket Number: No. 20060185.,20060185.
• Citation: 2006 ND 254,725 N.W.2d 204
• Parties: Arnold AGA, Claimant and Appellant v. WORFORCE SAFETY AND INSURANCE, Appellee and Barlow's Miracle Inc., Respondent.
• Court: North Dakota Supreme Court

Page 204

725 N.W.2d 204

2006 ND 254

Arnold AGA, Claimant and Appellant v. WORFORCE SAFETY AND INSURANCE, Appellee and Barlow's Miracle Inc., Respondent.

No. 20060185.

Supreme Court of North Dakota.

December 13, 2006.

Stephen D. Little, Dietz & Little Lawyers, Bismarck, ND, for claimant and appellant.

Lawrence A. Dopson, Special Assistant Attorney General, Bismarck, ND, for appellee.

MARING, Justice.

[¶ 1] Arnold Aga appeals from a district court judgment affirming a Workforce Safety and Insurance ("WSI") order denying his reapplication for disability benefits. We conclude WSI's finding that Aga had not sustained a significant change in his compensable medical condition is supported by a preponderance of the evidence, and we affirm.

I

[¶ 2] Aga suffered a work-related injury to his lower back in 1999, while employed as a bakery manager at Miracle Mart in Minot. WSI accepted Aga's claim for benefits and paid him associated medical and disability benefits. Aga received treatment for his back from a chiropractor, Dr. Paul Ellenbecker. Aga thereafter began experiencing hip and knee pain related to his work injury, and a January 2003, functional capacity evaluation stated Aga was able to work at a "medium" level. Aga ultimately had a right hip replacement by Dr. Dwight Woiteshek in July 2003. Dr. Woiteshek released Aga to return to full-time work with no restrictions, and Aga returned to full-time work at Miracle Mart on November 17, 2003.

[¶ 3] According to Aga, his condition worsened in January 2004. On January 7, 2004, Dr. Ellenbecker reported that Aga had indicated some hip and right low back pain. On February 25, 2004, Dr. Ellenbecker indicated that Aga had reported mild low back pain, pain in the right butt cheek, and a sore right hip. On March 2, 2004, Dr. Ellenbecker noted that Aga had reported immediate and constant low back pain after lifting a fifteen pound package. On March 17, 2004, Dr. Ellenbecker reported that Aga had indicated another episode of low back pain that has been gradually getting worse and his right hip felt like it was going to pop out of its socket. On March 22, 2004, Dr. Woiteshek reported Aga was experiencing "more and more trouble with his right hip," and a bone scan showed an inflammation of his right hip. On May 18, 2004, Dr. Ellenbecker noted that Aga had reported both sides of his low back were hurting and had been bothering him for a couple of weeks.

[¶ 4] On June 2, 2004, Dr. Ellenbecker asked WSI for approval of a functional capacity evaluation to determine Aga's work limitations, stating it was possible some of his residual hip and low back pain were secondary to his return to work as a baker. On June 11, 2004, Dr. Ellenbecker noted that Aga reported his right hip felt "loose" and he had intermittent low back pain. On July 1, 2004, Dr. Ellenbecker noted that Aga reported constant low back pain for the past three to four days. On July 12, 2004, Aga wrote to WSI, inquiring about the status of the requested functional capacity evaluation and seeking authorization to see another doctor about the pain in his hip. On July 19, 2004, WSI denied Aga's request for a functional capacity evaluation and told Aga to get a referral from Dr. Woiteshek to see another physician for his hip. On July 21, 2004, Dr. Ellenbecker noted that Aga reported he had not been feeling badly since has last treatment.

[¶ 5] On July 29, 2004, Dr. Ellenbecker wrote WSI, asking for a permanent partial impairment rating for Aga:

Mr. Aga continues experiencing right hip dysfunction, which has worsened beginning with his return to full-time work activities on November 17, 2003. The right hip pain has progressively worsened over the past several months, where the patient is exhibiting limited flexion of the hip, as well as internal hip pain and referral pain down the anterior thigh. A follow up evaluation by his surgeon, Dr. Dwight Woiteshek in March/April 2004 seemed to indicate this was normal, even though it is worse than following surgery and that he would have to live with it.

This pattern does not seem common following hip surgery, as other patients who have had hip replacement surgery do not have these findings. Therefore, I would like to get a second opinion evaluation by orthopedic surgeon Dr. Ernie Godfread in Bismarck. I feel this is necessary before a permanent partial impairment rating is scheduled.

[¶ 6] On August 3, 2004, without obtaining a work restriction from either of his doctors, Aga quit his job at Miracle Mart, effective August 8, 2004, informing his employer:

I can't keep working for you because the job is to [sic] hard on my back and hip. I have talked this over with Dr. Ellenbecker and we agree that I would be better off with a less physical job. We had tried to get Workers Comp. to agree to a Functional Capacity Test so I would know what my limitations were, but they wouldn't let me have one. Without that test, I can't keep working at Miracle Mart because I feel the job makes my condition worse.

[¶ 7] In September 2004, Aga reapplied for disability benefits, checking a box on the reapplication form which indicated he "quit" work, rather than that he was "unable to work." In October 2004, WSI denied Aga's reapplication, finding he was not eligible for disability benefits because he had voluntarily limited his income by resigning from his job at Miracle Mart. Aga requested reconsideration. In December 2004, WSI denied Aga's reapplication, finding he had not sustained a significant change in his medical condition and he had not suffered an actual wage loss because he voluntarily quit his job. Aga requested a formal hearing. In March 2005, Aga underwent a second functional capacity evaluation which indicated he could perform sedentary full-time work.

[¶ 8] At a September 2005, formal hearing, neither Dr. Ellenbecker nor Dr. Woiteshek testified. Rather, Aga introduced August 2005, letters to his attorney from Dr. Ellenbecker and Dr. Woiteshek. Dr. Ellenbecker's letter responded to questions from Aga's attorney and provided:

Is it more likely than not that he is disabled as a baker and has been since August 8, 2004? Yes.

Do you believe that the March 10-11, 2005, FCE is an accurate indicator of Mr. Aga's functional capacity? Yes.

If so, is it more likely than not that his functional capacity on August 8, 2004 was substantially similar to that indicated in his 2005 FCE? Yes.

Finally, do Dr. Woiteshek's November 17, 2003, work release and Mr. Aga's March 10-11, 2005, FCE represent a significant change in his medical condition? Yes.

Dr. Woiteshek's letter provided:

It is likely that the patient is disabled as a baker and has been disabled since August 8, 2004. His diagnosis is status post right total hip.

I felt that the functional capacity examination done on March 10-11, 2005 is a very accurate description of his functional capacity and I felt that his functional capacity on August 8, 2004 was similar to that indicated on the FCE of 2005.

I feel my work release on November 17, 2003 and Mr. Aga's March 10-11, 2005 FCE were basically the same in his medical condition.

My logic here is he tried going back to work in November 2003 and he had a failure to do this and his condition was the same.

[¶ 9] An administrative law judge ("ALJ") recommended denying Aga's reapplication for disability benefits, finding he had not sustained a significant change in his compensable medical condition either at the time he quit his job in August 2004, or as he claimed in January 2004, and he had not sustained an actual wage loss caused by a significant change in his medical condition because he voluntarily limited his income by quitting his job. The ALJ specifically rejected the opinions in the letters from Dr. Ellenbecker and Dr. Woiteshek:

Dr. Ellenbecker's opinion is not entirely supported by the medical records and is contradicted by the fact that he failed to provide Mr. Aga with any restrictions or remove him from work in August 2004. He did before, in April 2003. And why do his medical notes indicate that Mr. Aga's condition was stable, consistent, and persistent, if he now believes Mr. Aga sustained a significant change in his condition? While Dr. Ellenbecker did, at times, note diminishing function and increased pain in Mr. Aga's right hip, that he did not remove Mr. Aga from work or order restrictions at the time of Mr. Aga's resignation is significant and indicates that Mr. Aga had not sustained such a significant change in his condition to warrant additional restrictions or removal from work.

33. Dr. Woiteshek's opinion regarding whether Mr. Aga sustained a significant change in his compensable condition is confusing. He states that it is likely Mr. Aga is disabled as a baker and has been since August 8, 2004. But, he says, Mr. Aga's functional capacity, as measured by the 2005 FCE, is basically the same and coincides with his release of Mr. Aga on November 17, 2003. In other words, according to Dr. Woiteshek, Mr. Aga's condition has not changed. It is the same now as it was in 2003.

34. The greater weight of the evidence does not indicate that Mr. Aga sustained a significant change in his compensable medical condition. The medical records do not show a significant change in Mr. Aga's medical condition in January 2004 when Mr. Aga says his condition became worse, or at the time of his resignation from employment at Miracle Mart. He had the same symptoms before and after his hip replacement surgery and his release to work on November 17, 2003. And as Dr. Ellenbecker noted, Mr. Aga's symptoms and objective findings were persistent and consistent. While Dr. Ellenbecker now says that Mr. Aga suffered a significant change in his compensable medical condition, his opinion is not entirely supported by the medical records and he was not called as a witness to explain his opinion in light of the fact that he frequently noted that Mr. Aga's "symptoms persist and remain consistent,"...