Brockel v. N. Dakota Workforce Safety & Ins.

Decision Date13 February 2014
Docket NumberNo. 20130166.,20130166.
Citation2014 ND 26,843 N.W.2d 15
CourtNorth Dakota Supreme Court


Dean J. Haas, Bismarck, N.D., for appellant.

Mitchell D. Armstrong and Brian Schmidt, Special Assistant Attorneys General, Bismarck, N.D., for appellee.

KAPSNER, Justice.

[¶ 1] Rick Brockel appeals from a judgment affirming an order of Workforce Safety and Insurance (“WSI”) denying him medical benefits and terminating his disability benefits. We conclude WSI's finding that Brockel's right vertebral artery occlusion is not causally related to his work injury is supported by a preponderance of the evidence. We also conclude Brockel was denied a fair hearing because he was not provided notice that one of the grounds for terminating his disability benefits would be the failure to submit medical verification of his disability. We further conclude WSI's finding that Brockel failed to show his wage loss was the result of his compensable injury is not in accordance with the law. We affirm in part, reverse in part, and remand for retroactive reinstatement of Brockel's disability benefits and for further proceedings.


[¶ 2] On September 27, 2010, Brockel sustained a work-related injury to his left shoulder, cervical spine, and left ribs when he was involved in a motor vehicle accident. WSI accepted liability and paid medical and disability benefits. WSI later accepted liability for a head injury and cervical myelomalacia related to Brockel's cervical spine injury. Brockel's primary physician placed Brockel under work restrictions requiring “one handed work only ... no pushing, pulling, and lifting greater than 5 lb.

[¶ 3] Brockel complained of instances of dizziness and light-headedness, and he was referred to the Mayo Clinic where his evaluation and care were managed by Dr. Russell Gelfman. Doctors there noted Brockel's left shoulder injury had not resolved, and an MRI revealed the nonunion of a fracture. Doctors also diagnosed a right vertebral artery occlusion which limits the flow of blood when Brockel rotates his head to the right. A doctor noted the nonunion of Brockel's left shoulder fracture would require surgery to repair, but concluded surgery was “fraught with risk” because Brockel's right vertebral artery occlusion might “shut off” the right carotid artery and cause a stroke during the surgical procedure. When WSI asked Dr. Gelfman whether Brockel could participate in a functional capacity assessment (“FCA”), the doctor responded that Brockel's tolerance could be tested but he might need “additional restrictions,” such as to not “look over his shoulder.”

[¶ 4] WSI asked Dr. Gelfman whether the motor vehicle accident was “a substantial and contributing factor to the diagnosis of” Brockel's right vertebral artery occlusion, and the doctor checked “No” on the form. Three months later, Dr. Gelfman clarified that because of the complexity of the case he had consulted the neurosurgeon who had made the initial diagnosis and “it is our belief that this can reasonably be attributed to a traumatic cause; therefore, the motor vehicle accident of 9–27–2010 would represent a substantial and contributing factor.”

[¶ 5] WSI obtained an independent medical examination (“IME”) from Dr. Mark Larkins who opined that the right vertebral artery occlusion “appears to predate Mr. Brockel's motor vehicle accident” and “there is not enough evidence to support a relationship between Mr. Brockel's motor vehicle accident and the right vertebral artery occlusion.” Dr. Larkins stated that it would be difficult for Brockel to return to work without surgery because of the danger involved. Brockel had another IME performed by Dr. Thomas Nelson. Upon examination, Dr. Nelson concluded Brockel had no permanent orthopedic disability or impairment from the accident, but he would benefit from surgery on his left shoulder. Dr. Nelson understood concerns about the surgery because of the right vertebral artery occlusion, but believed the surgery could be performed “with careful positioning of Mr. Brockel's head.” Dr. Nelson said Brockel continued to require activity restrictions:

At the current time, Mr. Brockel does require activity restrictions with respect to his left arm. Specifically, I would allow lifting from floor to waist at 20 pounds, from waist to shoulder level of 10 pounds, and no lifting overhead. Other than that, he requires no other work or activity restrictions.

[¶ 6] On March 12, 2012, WSI sent Brockel a “notice of decision denying medical condition” informing him it was not liable for the right vertebral artery occlusion because this condition “was not caused by the motor vehicle accident, but was there prior to the accident.” On the same date, WSI sent Brockel a “notice of intention to discontinue/reduce benefits” informing him:

Due to your right vertebral artery occlusion condition, you are unable to participate in Vocational Rehabilitation services, nor are you released to return to work. Since the Right Vertebral Artery Occlusion is your primary disabling factor, and WSI has no liability for that non work related condition, wage loss benefits must be terminated.

[¶ 7] Brockel requested a hearing, during which he testified on his own behalf and Dr. Larkins testified on behalf of WSI. Following the hearing, the administrative law judge (“ALJ”) affirmed WSI's decision denying medical and disability benefits, reasoning:

1. A “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. Section 65–01–02(10), N.D.C.C. A claimant has the burden of proving by a preponderance of the evidence that he has suffered a compensable injury and is entitled to benefits. Section 65–01–11, N.D.C.C. Mr. Brockel has the burden of proving that his right vertebral artery compression is substantially related to his work injury. Mr. Brockel has right vertebral artery occlusion at C5–6 which he claims is substantially related to his September 27, 2010 motor vehicle accident. The greater weight of the evidence does not show that the right vertebral artery occlusion is substantially related to an acute injury suffered in the motor vehicle accident and no doctor has opined that Mr. Brockel's vertebral artery occlusion would not have progressed similarly in the absence of the work injury. Mr. Brockel argues that he didn't have symptoms related to vertebral artery occlusion before his work injury, but that is not enough to establish causation. Compensability may not rest on surmise or conjecture. Inglis v. North Dakota [W]orkmen's Comp. Bureau, 312 N.W.2d 318 (N.D.1981). The most credible medical opinions in his case support a finding that the vertebral artery occlusion is not substantially related to the motor vehicle accident, as Mr. Brockel claims. There are no credible medical opinions ascribing this condition to any other work-related traumatic event. On this record, it cannot be said that Mr. Brockel has sustained his burden to show that the right vertebral artery occlusion is substantially related to his work injury.

2. An injured employee's doctor shall certify the period of disability and the extent of the injured worker's abilities and restrictions. N.D.C.C. § 65–05–08.1. The only evidence in the record regarding Mr. Brockel's disability is that he has work restrictions related to his left arm. There is no certification from any doctor removing Mr. Brockel from work. In fact, Dr. Nelson says that Mr. Brockel has no permanent orthopedic disability or impairment from the work injury. Mr. Brockel does require work restrictions, but there is no evidence that a doctor has certified that Mr. Brockel is unable to work because of his work injury. Accordingly, Mr. Brockel has failed to establish the requirements for verifying disability.

3. It is the burden of the employee to show that the inability to obtain employment or to earn as much as the employee earned at the time of injury is due to physical limitation related to the injury, and that any wage loss claimed is the result of the compensable injury. N.D.C.C. § 65–05–08(6). The evidence shows that Mr. Brockel requires activity restrictions with respect to his left arm, but he is not unable to work. Mr. Brockel does have non-work-related vertebral artery occlusion, which according to Dr. Larkins, makes it dangerous to work, and according to Dr. Gelfman, requires work that does not require Mr. Brockel to look over his right shoulder. If Mr. Brockel is unable to obtain employment because of the vertebral artery occlusion, or understandably determines not to pursue employment because of the risks associated with his condition, the wage loss is not the result of the compensable injury.

The district court affirmed WSI's decision.


[¶ 8] Brockel argues WSI erred in denying him medical and disability benefits.

[¶ 9] In Carlson v. Workforce Safety & Ins., 2012 ND 203, ¶¶ 11–12, 821 N.W.2d 760, we explained:

Courts exercise limited review in appeals from decisions by an administrative agency under the Administrative Agencies Practice Act, N.D.C.C. ch. 28–32. Sloan v. North Dakota Workforce Safety & Ins., 2011 ND 194, ¶ 4, 804 N.W.2d 184. Under N.D.C.C. § 28–32–46, a district court 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...

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  • Lechner v. N. Dakota Workforce Safety & Ins.
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    • North Dakota Supreme Court
    • December 6, 2018
    ...a decision of an administrative agency is limited under the Administrative Agencies Practice Act, N.D.C.C. ch. 28-32. Brockel v. N.D. Workforce Safety & Ins. , 2014 ND 26, ¶ 9, 843 N.W.2d 15. The agency's order must be affirmed unless one of the following is established:1. The order is not ......

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