Mikkelson v. ND Workers Comp. Bureau

• Decision Date: 05 April 2000
• Docket Number: No. 990309.,990309.
• Citation: Mikkelson v. ND Workers Comp. Bureau, 609 N.W.2d 74, 2000 ND 67 (N.D. 2000)
• Parties: Diane MIKKELSON, Claimant and Appellant, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellee, and Garrison Public School, Respondent.
• Court: North Dakota Supreme Court

609 N.W.2d 74

2000 ND 67

Diane MIKKELSON, Claimant and Appellant, v.NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellee, andGarrison Public School, Respondent.

No. 990309.

Supreme Court of North Dakota.

April 5, 2000.

Rehearing Denied May 11, 2000.

Dean J. Haas, Dietz, Little & Haas, Bismarck, N.D., for claimant and appellant.

Lawrence E. King, Special Assistant Attorney General, Bismarck, N.D., for appellee.

VANDE WALLE, Chief Justice.

[¶ 1]Diane Mikkelson appealed from a judgment affirming a Workers Compensation Bureau order awarding her benefits on a 50 percent aggravation basis, and denying disability benefits after October 27, 1997.We conclude the Bureau correctly applied the aggravation statute, N.D.C.C. § 65-05-15, and did not err in limiting her disability benefits.We affirm.

I

[¶ 2] Mikkelson applied for workers compensation benefits in connection with an October 6, 1997 back and neck injury she suffered when lifting a developmentally disabled child from a wheelchair while employed as a teacher's aide by the Garrison Public School District.A chiropractor who treated Mikkelson on October 10, 1997, advised her to not work from October 10 until October 20, 1997, but said she could return to work from October 20 until October 27, 1997, provided she perform only "[l]ight [m]edium [w]ork" during that period of time with no work restriction thereafter.On October 24, 1997, Mikkelson resigned from her position with the Garrison Public School District because of her "recent injury ... and the nature of the job I must do...."In November 1997, Mikkelson was diagnosed with "[u]pper thoracic back pains" and was referred for physical therapy treatments.

[¶ 3] In a prior injury questionnaire, Mikkelson stated she had injured her neck and back in a June 1993 car accident.The Bureau referred Mikkelson to Dr. Gary Dilla, a physical medicine specialist, for an independent medical evaluation.From his January 15, 1998 evaluation, Dr. Dilla found Mikkelson's "[c]urrent history and examination findings [are] highly consistent with diagnosis of possible fibromyalgia."Dr. Dilla described Mikkelson's complaints as "diffuse," including achiness between her shoulder blades and pain radiating "into the neck and shoulder region bilaterally" and into her low back.Mikkelson also reported occasional pain into her right forearm and into the left medial knee to the ankle.Dr. Dilla said "the thoracic strain suffered by [Mikkelson] would be consistent with the type of lifting injury she describes dated 10/06/97."

[¶ 4] Dr. Dilla also reviewed Mikkelson's prior medical records relating to her June 1993 car accident.Mikkelson's symptoms at the time "included neck pain, particularly on the right side, pain in the thoracic area, muscle spasms in the thoracic area which is the most painful area to her, [and] pain in the lumbar spine which is constant and bilateral."Physical therapy notes from 1993 indicated "a lot of modalities were being given to treat multiple trigger points throughout the cervical, thoracic and lumbar area."Physical therapy notes from January through May 4, 1994 also indicated "[t]here were a lot of treatments being given into the upper trapezius area and also the parascapular area between the shoulder blades."Dr. Dilla said "the condition which [Mikkelson] currently has was at least in some fashion pre-existent to the 10/06/97 date."

[¶ 5] The Bureau ordered payment of "reasonable and necessary medical expenses directly related to treatment of [Mikkelson's]October 6, 1997, thoracic strain/sprain" and found she was entitled to disability benefits from October 10 through October 27, 1997.The Bureau also concluded, however, Mikkelson failed to prove "her problems with her neck, low back, [and] fibromyalgia ... are related to her October 6, 1997, injury...."Mikkelson requested a formal hearing.

[¶ 6] Following the hearing, the Administrative Law Judge ("ALJ") recommended finding Mikkelson sustained an injury arising out of and in the course of her employment on October 6, 1997, involving "a thoracic sprain/strain and the acceleration of [her] pre-existing condition into fibromyalgia;" Mikkelson's pre-existing condition had been aggravated by the work injury, entitling her to benefits on a 50 percent aggravation basis; and Mikkelson failed to establish any entitlement to disability benefits after October 27, 1997.The ALJ recommended remanding to the Bureau for further evidentiary development and decision on "whether [Mikkelson] is still in the period of acute care, or whether that time period ended sometime between January 15, 1998, and the present...."The Bureau adopted the ALJ's recommended findings and conclusions, and the district court affirmed the Bureau's order.

II

[¶ 7] On appeal, we review the Bureau's decision, not the district court's decision.Hein v. North Dakota Workers Compensation Bureau,1999 ND 200, ¶ 13, 601 N.W.2d 576.Under N.D.C.C. §§ 28-32-19and28-32-21, we must affirm the Bureau's decision unless its findings of fact are not supported by a preponderance of the evidence, its conclusions of law are not supported by its findings of fact, its decision is not supported by its conclusions of law, its decision is not in accordance with the law or violates the claimant's constitutional rights, or its rules or procedure deprived the claimant of a fair hearing.Saakian v. North Dakota Workers Compensation Bureau,1998 ND 227, ¶ 9, 587 N.W.2d 166.In determining whether the Bureau's findings of fact are supported by a preponderance of the evidence, we exercise restraint and do not make independent findings or substitute our judgment for that of the Bureau, but determine only whether a reasoning mind reasonably could have determined the findings were proven by the weight of the evidence from the entire record.Renault v. North Dakota Workers Compensation Bureau,1999 ND 187, ¶ 16, 601 N.W.2d 580.

A

[¶ 8] Mikkelson argues the Bureau erred in applying the aggravation statute, now codified at N.D.C.C. § 65-05-15, to her claim for benefits.

[¶ 9]This Court has for many years dealt with various versions of the aggravation statute.When originally enacted in 1931, the aggravation statute allowed compensation in the case of preexisting diseases "only for such proportion of the disability due to the aggravation of such prior disease as may reasonably be attributable to the injury."1931 N.D. Sess. Laws ch. 312, § 1.The statute remained essentially the same for almost 50 years.This Court construed the early version of the statute to apply only when the injured worker suffered "disability" from the preexisting disease or injury and not when a dormant preexisting disease or injury was present.SeeWolf v. North Dakota Workmen's Compensation Bureau,267 N.W.2d 785, 789(N.D.1978);Gullickson v. North Dakota Workmen's Compensation Bureau,83 N.W.2d 826, 832(N.D.1957);Tweten v. North Dakota Workmen's Compensation Bureau,69 N.D. 369, 381-82, 287 N.W. 304, 310-11(1939).

[¶ 10] In 1977, the Legislature amended the aggravation statute to say "[c]ompensation shall not be paid for any condition which existed prior to the happening of a compensable injury nor for any disability chargeable to such condition," and set 50 percent as the percentage award "[i]f the degree of aggravation cannot be determined...."1977 N.D. Sess. Laws ch. 579, § 14.The statute continued to allow an aggravation award "only for such proportion of the disability, death benefits, or expense arising from the aggravation of such prior condition as reasonably may be attributable to such compensable injury."Id.In a series of cases, this Court and the Court of Appeal held this version of the aggravation statute could be used to apportion benefits only if the preexisting condition was known in advance of the work-related injury and resulted in an actual disability that significantly impaired the work capacity of the claimant.SeeSloan v. North Dakota Workers Compensation Bureau,462 N.W.2d 638, 643(N.D.1990);Elliott v. North Dakota Workers Compensation Bureau,435 N.W.2d 695, 697-98(N.D.1989);Balliet v. North Dakota Workmen's Compensation Bureau,297 N.W.2d 791, 794-95(N.D.1980);Jepson v. North Dakota Workmen's Compensation Bureau,417 N.W.2d 184, 185(N.D.Ct.App.1987).

[¶ 11] In 1989, the Legislature amended the aggravation statute by completely revising the previous statutory language and providing for an aggravation award in the case of a "preexisting condition," which was specifically defined to mean "disability or impairment known in advance of the work injury.It is sufficient to invoke the aggravation statute if the preexisting condition is active at the time of the work injury, evidenced by work restriction (active disability) or interference with function (active impairment)."1989 N.D. Sess. Laws ch. 766, § 5.In Bruns v. North Dakota Workers Compensation Bureau,1999 ND 116, ¶¶ 12-21, 595 N.W.2d 298, this Court held, under the 1989 version of the statute, an aggravation award is proper when a new work injury combines with and aggravates a preexisting condition, and the preexisting condition which is active at the time of the work injury can be evidenced by impairment less severe than loss of or loss of use of a member of the body.

[¶ 12] In 1997, the Legislature again amended and revised the aggravation statute.1997 N.D. Sess. Laws ch. 544, § 1.Mikkelson's case is governed by the 1997 version of N.D.C.C. § 65-05-15, which provides in part:

When a compensable injury combines with a noncompensable injury, disease, or other condition, the bureau shall award benefits on an aggravation basis, on the following terms:

1.In cases of a prior injury, disease, or other condition, known in advance of the work injury, which has caused previous work restriction or interference with physical function the progression of which is substantially accelerated by, or the severity of which is substantially...