Bergum v. Nd Workforce Safety and Ins.

• Citation: 2009 ND 52,764 N.W.2d 178
• Decision Date: 06 April 2009
• Docket Number: No. 20080097.,20080097.
• Parties: William BERGUM, Claimant and Appellant, v. NORTH DAKOTA WORKFORCE SAFETY AND INSURANCE, Appellee and Development Homes, Inc., Respondent.
• Court: United States State Supreme Court of North Dakota

764 N.W.2d 178

2009 ND 52

William BERGUM, Claimant and Appellant, v. NORTH DAKOTA WORKFORCE SAFETY AND INSURANCE, Appellee and Development Homes, Inc., Respondent.

No. 20080097.

Supreme Court of North Dakota.

April 6, 2009.

Alice R. Senechal, Robert Vogel Law Office, P.C., Grand Forks, for claimant and appellant.

Jacqueline Sue Anderson, Special Assistant Attorney General, Fargo, for appellee.

MARING, Justice.

[¶ 1] William Bergum appeals from a district court judgment affirming a Workforce Safety & Insurance ("WSI") final order, which dismissed his application for benefits. Because we conclude a reasoning mind reasonably could have found that Bergum failed to establish by a preponderance of the evidence that his January 6, 2006, work incident substantially accelerated the progression of, or substantially worsened the severity of, Bergum's preexisting condition of chronic low back pain, we affirm.

I

[¶ 2] The record reflects that Bergum has had a long history of treatment for back pain dating back to 1990, and there is no dispute that Bergum has a preexisting condition of chronic low back pain. In August 1990, Bergum submitted a claim for workers compensation benefits for low back strain after lifting a generator while working as a plumber. In February 1992, Bergum submitted a claim for benefits for low back pain after moving a cabinet at work, and a chiropractor diagnosed Bergum with lumbar strain and lumbar subluxation. In April 1994, Bergum submitted another claim for low back strain after working, but it was not related to any specific incident. In August 1996, Bergum submitted a claim for low back pain and again sought medical care for pain following work, which again was not related to a specific incident. Around that time, Bergum was placed on permanent medium work restrictions limiting lifting to 50 pounds and bending to nine times per hour, with instructions to maintain back precautions. Bergum testified that he was aware of the 50-pound weight restriction, but not the bending restriction.

[¶ 3] Since May 2001, Bergum's treating physician has been Dr. Yvonne Gomez, a board certified family practitioner. Bergum's medical records indicate Bergum sought medical treatment for temporary worsening of his back pain from non-work related activity in 2001, due to an exacerbation brought on by standing after sitting, and in 2004, after using a pressure washer in a garage. Bergum also sought medical attention for low back pain in December 2003, and although the records do not indicate any specific precipitating incident, the low back pain is described as chronic, recurrent, and flaring. In January 2004, Dr. Gomez diagnosed Bergum with recurrent lumbar strain and recommended an MRI. A January 2004 MRI revealed arthritic changes and degeneration in Bergum's back, along with some disc bulging, but no disc herniation or other acute injuries.

[¶ 4] Bergum submitted a claim for benefits with WSI in January 2006, alleging he injured his left hip and back during the course of his employment at Development Homes, Inc., in Grand Forks. Bergum had worked at Development Homes as an operations maintenance worker for almost six years. On January 6, 2006, Bergum and a co-worker were disassembling an old hospital bed, which involved bending, twisting, and lifting pieces weighing approximately 50 pounds. Bergum reported feeling pain on the left side of his lower back and notified his supervisor. Bergum sought medical treatment for his low back from Dr. Gomez on January 9, 2006.

[¶ 5] In March 2006, WSI denied Bergum's claim for benefits, concluding Bergum had failed to prove he had sustained a compensable injury. WSI concluded that the January 6, 2006, work-related incident "was a trigger of [Bergum's] pre-existing condition but it did not substantially speed up the worsening of that condition or aggravate the severity of that condition." Bergum requested reconsideration of WSI's denial, and in April 2006, WSI dismissed his claim. WSI found the greater weight of the evidence did not indicate Bergum's employment activity on January 6, 2006, was more than a trigger that produced symptoms from his preexisting, underlying low back condition that would have progressed similarly absent the employment and, further, that the employment activity did not substantially accelerate the progression of, or substantially worsen the severity of, Bergum's preexisting underlying low back condition.

[¶ 6] In September 2006, Bergum requested a formal hearing on WSI's final order. In March 2007, an administrative law judge ("ALJ") held a hearing on Bergum's claim. The issue specified for the ALJ's consideration was whether Bergum had sustained a compensable injury to his lumbar spine on January 6, 2006. In July 2007, the ALJ issued its recommended findings of fact, conclusions of law, and order, and recommended that WSI's final order dismissing Bergum's claim be affirmed. The ALJ found that Bergum had failed to establish by a preponderance of the evidence that his work activity substantially accelerated the progression of, or substantially worsened the severity of, his preexisting condition of chronic low back pain.

[¶ 7] WSI adopted the ALJ's recommended findings of fact, conclusions of law, and order. In August 2007, Bergum appealed WSI's decision to the district court, which affirmed WSI's final order.

II

[¶ 8] Courts exercise only a limited review in appeals from administrative agency decisions under the Administrative Agencies Practice Act, N.D.C.C. ch. 28-32. Olson v. Workforce Safety & Ins., 2008 ND 59, ¶ 8, 747 N.W.2d 71. Under N.D.C.C. §§ 28-32-46 and 28-32-49, the district court, and this Court on further appeal, must affirm an administrative agency decision 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 [N.D.C.C. ch. 28-32] 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.

On appeal from the district court's decision, we review the administrative agency's decision in the same manner as the district court, giving due respect to the district court's analysis and review. N.D.C.C. § 28-32-49; Von Ruden v. North Dakota Workforce Safety & Ins. Fund, 2008 ND 166, ¶ 8, 755 N.W.2d 885; Reopelle v. Workforce Safety & Ins., 2008 ND 98, ¶ 9, 748 N.W.2d 722; Swenson v. Workforce Safety & Ins. Fund, 2007 ND 149, ¶ 21, 738 N.W.2d 892.

[¶ 9] This Court exercises restraint in deciding whether WSI's findings of fact are supported by a preponderance of the evidence and does not make independent findings or substitute its judgment for that of WSI. Reopelle, 2008 ND 98, ¶ 9, 748 N.W.2d 722. "On appeal, we determine whether a reasoning mind reasonably could have decided the agency's findings were proven by the weight of the evidence from the entire record, however, questions of law are fully reviewable." Von Ruden, 2008 ND 166, ¶ 8, 755 N.W.2d 885.

III

[¶ 10] There is no dispute that Bergum has a preexisting condition of chronic low back pain. The only dispute is whether Bergum's January 6, 2006, work incident substantially worsened the severity of, or substantially accelerated the progression of, Bergum's preexisting condition of chronic low back pain. Bergum argues that WSI erred in determining that his increased pain, increased need for medical care, and increased need for medication did not constitute a substantial worsening or acceleration of his preexisting condition under N.D.C.C. § 65-01-02(10)(b)(7).

[¶ 11] A claimant seeking workforce safety and insurance benefits has the burden of proving by a preponderance of the evidence that the claimant has suffered a compensable injury and is entitled to benefits. N.D.C.C. § 65-01-11; Manske v. Workforce Safety & Ins., 2008 ND 79, ¶ 9, 748 N.W.2d 394. To carry this burden, a claimant must prove by a preponderance of the evidence that the medical condition for which benefits are sought is causally related to a work injury. Manske, ¶ 9; Swenson, 2007 ND 149, ¶ 24, 738 N.W.2d 892.

[¶ 12] Under N.D.C.C. § 65-01-02(10), a compensable injury "must be established by medical evidence supported by objective medical findings." Section 65-01-02(10)(b), N.D.C.C., excludes preexisting injuries from what is defined as a "compensable injury," stating in part:

10. "Compensable injury" means an injury by accident arising out of and in the course of hazardous employment which must be established by medical evidence supported by objective medical findings.

. . . .

b. The term does not include:

. . . .

(7) Injuries attributable to a preexisting injury, disease, or other condition, including when the employment acts as a trigger to produce symptoms in the preexisting injury, disease, or other condition unless the employment substantially accelerates its progression or substantially worsens its severity.

(Emphasis added.) Thus, under N.D.C.C. § 65-01-02(10)(b)(7), unless a claimant's employment "substantially accelerates" the progression of, or "substantially worsens" the severity of, a preexisting injury, disease, or other condition, it is not a "compensable injury" when the claimant's employment merely acts to trigger symptoms in the preexisting injury, disease, or other condition.

A

[¶ 13] Bergum argues that although a worsening of his preexisting condition is not apparent on...