Frith v. N. Dakota Workforce Safety & Ins.

• Decision Date: 26 June 2014
• Docket Number: No. 20130240.,20130240.
• Citation: 2014 ND 93,845 N.W.2d 892
• Court: North Dakota Supreme Court
• Parties: Roger FRITH, Appellant v. NORTH DAKOTA WORKFORCE SAFETY AND INSURANCE, Appellee and DMI Industries, Inc., Respondent.

845 N.W.2d 892

2014 ND 93

Roger FRITH, Appellant

v.NORTH DAKOTA WORKFORCE SAFETY AND INSURANCE, AppelleeandDMI Industries, Inc., Respondent.

No. 20130240.

Supreme Court of North Dakota.

May 2, 2014.

Rehearing Denied June 26, 2014.

Roger Frith, self-represented, Fargo, N.D., appellant.

Jacqueline S. Anderson, Fargo, N.D., for appellee.

SANDSTROM, Justice.

[¶ 1]Roger Frith appeals from a district court judgment affirming an order of Workforce Safety and Insurance (“WSI”) denying him medical benefits.We affirm, concluding a reasoning mind could have reasonably concluded Frith failed to show his work activities substantially accelerated the progression or substantially worsened the severity of a preexisting condition.

I

[¶ 2] In September 2010, Frith filed a claim for a work injury with WSI.He alleged that on August 18th or 19th he hurt his back at work while lifting and moving a large desk backwards up some stairs.Frith was working for DMI Industries.In June 2011, WSI denied Frith's claim for benefits, concluding he had not proven that his condition was causally related to a work injury or that his work activities substantially accelerated the progression or substantially worsened the severity of his preexisting spine condition.WSI found the medical records reflected a pre-existing condition which exhibited symptoms well before Frith alleged he injured his back at work.

[¶ 3] Frith requested a hearing.Greg Peterson, M.D., a physician specializing in physical medicine and rehabilitation, testified at the hearing that Frith's disk bulge in his spine in 2009 and 2010 was the manifestation of a degenerative condition.Dr. Peterson testified he did not believe Frith's preexisting condition was caused by work.In answering why he concluded Frith's preexisting condition was not substantially accelerated or worsened by Frith's work injury and general work at DMI, Dr. Peterson testified that, among other things, there is evidence Frith had substantial back pain radiating into his right hip and leg prior to beginning work at DMI.

[¶ 4] According to medical records, in March 2007 Frith went to the emergency room complaining of back pain.Troy Schaff, M.D., reported, “[Frith] states approximately a month ago after doing some heavy lifting, moving carpeting rolls, he had the onset of pain in his lower back.[Frith] states that 2 days later he slipped and fell on some ice, landing primarily on his left lower mid back region....He states that he has had persistent pain since that time.”Dr. Schaff noted Frith had x-rays of his lower spine, which showed good alignment without evidence of fracture, dislocation, or other acute-appearing abnormality.After a few sessions of physical therapy, Frith's physical therapist stated that Frith reported his pain was much improved and that he had only mild intermittent pain.The record shows Frith began working at DMI Industries a few months later, around July 2007.

[¶ 5] After an annual exam in January 2009, Eunah Fischer, M.D., reported Frith has had “intermittent low back pain, not as severe as back in 2005, but [occasionally associated] with numbness in left lower leg.”An MRI was completed on February 1, 2009.Jason Asheim, M.D., stated, “There is mild degenerative disc and facet disease.Findings are most significant at L4–L5 where a small ... disc protrusion is abutting the ... L5 nerve root in the lateral recess[.]”Dr. Fischer wrote a letter to Frith explaining that the MRI revealed he has “minor arthritis in all of [his] lumbar discs, and it is most noticeable at the L4–L5 level.At this level, the disc is protruding slightly, however there is no significant disc herniation.”

[¶ 6] On August 13, 2010, Frith saw Dr. Fischer again for questions regarding his “chronic low back pain.”Dr. Fischer reported, “[Frith] is frustrated that he never feels completely well.More recently, he feels that he's had an exacerbation of his symptoms in his right lower extremity.”Another MRI was performed on August 17, 2010.Steven Mitchell, M.D., reported, “There are degenerative changes particularly at L4–5 on the right as is evident on the earlier study.”Frith's alleged injury at DMI occurred a day or two later, August 18 or 19, 2010.

[¶ 7] After the evidentiary hearing, the administrative law judge (“ALJ”) affirmed WSI's order denying benefits, finding:

1.On or about August 18, 2010, Frith injured his back while moving a piece of desk furniture at DMI.

2.The greater weight of the evidence showed that Frith had a preexisting lumbar spine condition at the time of the injury.

3.The greater weight of the evidence showed that Frith's symptoms before and after the work injury were substantially similar, indicating no significant change in the underlying degenerative condition.

4.The greater weight of the evidence showed the injury triggered symptoms in the underlying condition, but did not substantially accelerate the progression or substantially worsen the severity of the preexisting condition.

[¶ 8]The district court affirmed the ALJ's decision.

[¶ 9]The district court had jurisdiction under N.D. Const. art. VI, § 8, andN.D.C.C. §§ 27–05–06,65–10–01, and28–32–42.Frith's appeal was timely under N.D.R.App.P. 4(a)andN.D.C.C. § 28–32–49.This Court has jurisdiction under N.D. Const. art. VI, §§ 2and6, andN.D.C.C. § 28–32–49.

II

[¶ 10]This Court's standard of review for WSI and other administrative agency decisions is well-established:

[W]e do not make independent findings of fact or substitute our judgment for that of the agency.We determine only whether a reasoning mind reasonably could have determined that the factual conclusions reached were proved by the weight of the evidence from the entire record.In so doing we conclude that we are not exercising a nonjudicial function as prohibited by Section 94 of the North Dakota Constitution, nor are we violating any separation-of-powers doctrine inherent in the North Dakota Constitution.

Power Fuels, Inc. v. Elkin,283 N.W.2d 214, 220–21(N.D.1979).

III

[¶ 11] Frith initially argues, “Could A reasonable person with A reasoning mind conclude that Frith proved that his work injury is compensable?”Frith misstates the standard of review.The question on appeal is not whether a reasoning mind could conclude Frith proved his work injury is compensable, but instead whether a reasoning mind could have determined WSI's findings were proven by the weight of the evidence.Seeid.

[¶ 12]Section 65–01–02(10), N.D.C.C., defines compensable injury as “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.” “ ‘[O]bjective medical evidence may include a physician's medical opinion based on an examination, a patient's medical history, and the physician's education and experience.’ ”Kershaw v. WSI,2013 ND 186, ¶ 13, 838 N.W.2d 429(quotingSwenson v. Workforce Safety & Ins. Fund,2007 ND 149, ¶ 25, 738 N.W.2d 892).“A compensable injury does not include ‘[i]njuries attributable to a preexisting injury, ... including when the employment acts as a trigger to produce symptoms in the preexisting injury, ... unless the employment substantially accelerates its progression or substantially worsens its severity.’ ”Kershaw,at ¶ 13(quotingN.D.C.C. § 65–01–02(10)(b)(7)).“It is the ALJ's duty to weigh evidence and resolve conflicting medical opinions in making its findings.”Id.

[¶ 13] In this case, the ALJ examined the record, weighed conflicting medical opinions, and made the following findings:

1.On or about August 18, 2010, Frith injured his back while moving a piece of desk furniture at DMI.

2.The greater weight of the evidence showed that Frith had a preexisting lumbar spine condition at the time of the injury.

3.The greater weight of the evidence showed that Frith's symptoms before and after the work injury were substantially similar, indicating no significant change in the underlying degenerative condition.

4.The greater weight of the evidence showed the injury triggered symptoms in the underlying condition, but did not substantially accelerate the progression or substantially worsen the severity of the preexisting condition.

[¶ 14] The ALJ's findings are supported by the evidence.Dr. Peterson testified at the administrative hearing that Frith's disk bulge in his spine in 2009 and 2010 was the manifestation of a degenerative condition.Dr. Peterson testified he does not believe Frith's preexisting condition was caused by work.In answering why he concluded Frith's preexisting condition was not substantially accelerated or worsened by his work injury and general work at DMI, Dr. Peterson testified that evidence showed Frith had substantial back pain radiating into his right hip and leg prior to beginning work at DMI and that when he had back pain in August 2010, it was substantially similar to prior times, including the time before he started working.Although Frith's treating physician, Dr. Fillmore, gave a contradictory opinion, Dr. Peterson testified he does not agree with Dr. Fillmore's opinion because “[h]e doesn't provide any evidence or reasoning to support an opinion that there was no preexisting condition.In fact, the information that he had is directly contrary to that.It doesn't resolve that discrepancy.”

[¶ 15] In addressing the conflicting medical opinions, the ALJ found:

WSI asked Dr. Fillmore whether he agreed with Dr. Peterson that a) Frith had a preexisting lumbar spine condition at the time of his alleged work injury, and b) there was no evidence the work injury worsened his preexisting condition.Dr. Fillmore responded that he had no opinion on the matter and suggested WSI ask Dr. Fischer, a clear sign that he had abandoned his earlier opinion [that the work injury significantly accelerated the preexisting condition], or at least was not prepared to defend it.

[¶ 16]“It is the ALJ's duty to...