Davenport v. Safety

• Decision Date: 18 July 2013
• Docket Number: No. 20120449.,20120449.
• Parties: Allen DAVENPORT, Appellant v. WORKFORCE SAFETY AND INSURANCE FUND, Appellee.
• Court: North Dakota Supreme Court

833 N.W.2d 500

2013 ND 118

Allen DAVENPORT, Appellant

v.WORKFORCE SAFETY AND INSURANCE FUND, Appellee.

No. 20120449.

Supreme Court of North Dakota.

July 18, 2013.

Steven L. Latham, Bismarck, N.D., for appellant.

Mitchell D. Armstrong, Bismarck, N.D., for appellee.

CROTHERS, Justice.

[¶ 1] Allen Davenport appeals from a judgment affirming a Workforce Safety and Insurance (“WSI”) decision terminating benefits on his claim for treatment of his cervical spine and left shoulder and denying his claims for benefits for treatment of his anxiety and depression and lower back condition. He argues his anxiety and depression and his cervical spine, left shoulder and back conditions are “compensable injuries” under N.D.C.C. § 65–01–02(10). We conclude a reasoning mind reasonably could conclude Davenport failed to establish by a preponderance of the evidence that the September and December 2010 work incidents substantially accelerated the progression of, or substantially worsened the severity of, his existing conditions and that his physical injury caused at least 50 percent of his anxiety and depression. We affirm.

I

[¶ 2] Davenport's job as a truck driver for Food Services of America required him to load and unload 50 to 110 pound packages of meat and canned goods from his truck. On September 9, 2010, he incurred upper chest injuries and a fractured rib during the course of employment when the wind blew his truck door into him. At the time of the injury, Davenport was 51 years old and had been employed by Food Services for seven years. WSI accepted Davenport's claim for benefits for a “[c]ontusion of chest wall,” and he received medical treatment from Dr. Anthony Johnson. Davenport returned to work with restrictions on September 27, 2010 and was released to return to work without restrictions on December 21, 2010.

[¶ 3] On December 24, 2010, Davenport was injured when he slipped and fell while pulling a ramp out of his truck during the course of employment, and he received treatment from Dr. Johnson. On December 28, 2010, Dr. Johnson reported “some upper and mid neck pain extending down into the shoulder through into the left hand area with some numbness [and] tingling.” WSI accepted Davenport's claim for a sprain and strain to his left shoulder and upper arm and for a sprain and strain of his neck and cervical spine. After the December injury, Dr. Johnson restricted Davenport's work activity, and on February 8, 2011, Davenport began working at a modified position through Food Services.

[¶ 4] In February 2011, Davenport received treatment for anxiety and depression. Davenport claimed his supervisor's failure to fully accommodate his injury when he returned to work at the modified position caused him stress and required treatment for anxiety and depression. Davenport's medical records indicate he received treatment for anxiety and depression in 2004, relating to legal issues about custody of his wife's granddaughters, which was resolved in 2004. In February 2011, Dr. Thomas Thorson noted Davenport was self-conscious about his work restrictions and his employer was not sympathetic, and he diagnosed Davenport with anxiety and depression “secondary to work related injury and associated stressors.” Dr. Johnson reported Davenport was “dealing with depression/stress that had developed in dealings” with his supervisor and opined “the depression [Davenport] developed was definitely related to his work injuries and his inability to work.” WSI denied Davenport's claim for treatment of his anxiety and depression.

[¶ 5] Dr. Johnson provided Davenport with continuing medical treatment in the ensuing months. An MRI of Davenport's neck showed “[n]eural foraminal stenosis at multiple levels, predominately worse on the left” and a “[f]ocal disc bulge in the left paramidline, worsening laterally at C3–4.” Davenport was referred to Dr. Gregory Peterson for an electrodiagnostic study, which indicated “[m]ild, left greater than right, ulnar neuropathies” with “[m]ild underlying peripheral neuropathy.” Dr. Peterson reported the “nature of the findings [did] not indicate a causal relationship to a specific injury” and there was “no indication that ... Davenport [had] any cervical spine etiology for his arm symptoms.” In March 2011, Davenport saw neurosurgeon Dr. Alan Van Norman, who reported Davenport's x-rays and MRI revealed “multi-level disk degeneration” and also indicated “ulnar neuropathy” and “cervical spondylosis.” Dr. Van Norman reported Davenport had “mild neck discomfort for the last year, or so.” Dr. Johnson also noted a neck problem dating back to 2001. Dr. Van Norman reported it was “probable—not certain” that Davenport had a preexisting condition contributing to his current condition and checked “probably” on a form in response to a WSI question whether Davenport's “work injury made the pre-existing condition symptomatic but did not significantly worsen the condition.” In April, Dr. Van Norman referred Davenport to a hand surgeon, Dr. Walker Wynkoop, for the tingling in Davenport's left arm. Dr. Wynkoop performed an anterior nerve transposition and a release from the cubital tunnel fascia on Davenport's left elbow in May 2011, and Dr. Wynkoop's notes state the surgery was to address nerve compression in Davenport's elbow. WSI denied Davenport's claim for treatment of his left elbow and ulnar neuropathy, concluding those conditions were unrelated to his work injury.

[¶ 6] In April 2011, Davenport received medical treatment for his lower back. Davenport's medical records reflected he received treatment for his lower back in 2004 and in 2007. In 2004, he was treated for a muscle strain with no objective signs of injury other than tenderness in the paraspinal muscles. In 2007, he was treated for neck and shoulder pain and low back pain after his truck door slammed into him. An April 2007 MRI showed a narrowing of disc space between L4 and L5 and neuropathy spurring. WSI denied coverage for Davenport's medical treatment in 2007. WSI also denied Davenport's claim for medical treatment for his lower back in 2011, concluding no objective evidence established his lower back condition was caused by either 2010 work injury.

[¶ 7] In June 2011, Dr. Charles Burton performed an independent examination of Davenport and reported:

“There is no indication that any of Mr. Davenport's present complaints continue to have any relationship to a December 24, 2010 work incident, as described in this report. Mr. Davenport's chronic complaints of neck and back pain have reflected multilevel degenerative disc disease, made worse by Mr. Davenport's having been, and continuing to be, a chronic smoker. Mr. Davenport's left ulnar neuropathy does not appear to have any relationship to the December 24, 2010 work incident. While the December 24, 2010 work incident may very well have aggravated Mr. Davenport's quite significant multilevel cervical spondylosis, there was no objective evidence of injury, either neurologically or on imagingstudies, and typically such an aggravation would have been temporary in nature and resolved with conservative therapy within a period of 8 to 12 weeks.”

Dr. Burton's report recommended:

“It is well documented that individuals with multilevel degenerative spondylosis of the spine self-heal and self-stabilize their spines with appropriate conservative therapy if they are nonsmokers. Mr. Davenport's continued smoking has sped up the degenerative process to the point where his conservative therapy is of only short-term benefit. The most significant treatment need for Mr. Davenport is for him to become a nonsmoker and to have this certified by nicotine testing. Following this, it is my opinion that Mr. Davenport's chronic and longstanding clinical complaints of cervicogenic pain might be effectively then addressed by conservative care, such as medial branch injections and medial branch blocks.”

[¶ 8] Dr. Van Norman reviewed Dr. Burton's report and agreed with Dr. Burton's conclusions. WSI terminated Davenport's benefits for treatment of his cervical spine and left shoulder injuries after July 14, 2011, concluding the objective medical evidence did not show his December 2010 injury was a substantial contributing factor to the condition of his cervical spine and left shoulder after that date.

[¶ 9] Davenport requested a hearing on all his claims, and an independent administrative law judge (“ALJ”) was designated under N.D.C.C. § 65–02–22.1 to issue a final decision on those claims. After an evidentiary hearing, the ALJ issued a final order sustaining WSI's termination of benefits for Davenport's left shoulder and cervical spine injuries and WSI's denial of benefits for his anxiety and depression, his lower back condition and his left elbow and ulnar neuropathy. The ALJ found a preponderance of the evidence established Davenport's current cervical spine and left shoulder conditions resulted from preexisting degenerative disc disease and not from his work injuries. The ALJ found the greater weight of the evidence established Davenport's December 2010 work injury neither substantially accelerated the progression of his degenerative disc disease nor substantially worsened its severity; that Davenport's conflict with his employer was the primary cause of his anxiety and depression and his physical work injury was not at least 50 percent of the cause of his anxiety and depression; and that Davenport failed to establish his bilateral cubital tunnel syndrome and ulnar neuropathy arose out of and in the course of his employment because neuropathy was present to some extent in all his extremities and was a degenerative condition not caused by an acute injury in September 2010, or in December 2010. The ALJ found Davenport had degenerative disc disease in his lower back and, although evidence established a decline in his capabilities after the December 2010 injury, the cause of the decline was not delineated. The ALJ determined...