Negaard-Cooley v. ND Workers Comp. Bureau

• Decision Date: 08 June 2000
• Docket Number: No. 990341.,990341.
• Citation: 2000 ND 122,611 N.W.2d 898
• Parties: Barbara NEGAARD-COOLEY, Claimant and Appellant, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellee, and Farstad Oil, Inc., Respondent.
• Court: North Dakota Supreme Court

611 N.W.2d 898

2000 ND 122

Barbara NEGAARD-COOLEY, Claimant and Appellant, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellee, and Farstad Oil, Inc., Respondent.

No. 990341.

Supreme Court of North Dakota.

June 8, 2000.

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

Lawrence A. Dopson, Special Assistant Attorney General, Bismarck, for appellee. VANDE WALLE, Chief Justice.

[¶ 1] Barbara Negaard-Cooley appealed from a judgment affirming a Workers Compensation Bureau order denying her medical benefits after October 23, 1997, for psychiatric treatment of clinical depression. Because the Bureau failed to explain internal discrepancies in a medical report it relied on to deny Negaard-Cooley's claim, we reverse the judgment and remand to the Bureau for further proceedings to clarify those discrepancies.

I

[¶ 2] Negaard-Cooley filed a claim for workers compensation benefits in connection with an injury to her left upper extremity on July 16, 1993, while employed as a waitress at Perkins Restaurant in Minot. She had a ganglion cyst removed from her left wrist, a carpal tunnel release, and received physical therapy and injections for a rotator cuff syndrome. Negaard-Cooley was also diagnosed with reflex sympathetic dystrophy ("RSD") and was given a series of treatments to attempt to alleviate the pain associated with this condition. The Bureau accepted her claim and Negaard-Cooley received total disability benefits until she returned to employment in February 1994.

[¶ 3] Negaard-Cooley filed a second claim in connection with an injury to her right upper extremity on April 18, 1995, while employed as a telemarketer at the Dacotah Marketing Division of Farstad Oil, Inc., in Minot. Negaard-Cooley was diagnosed with right carpal tunnel syndrome and underwent unsuccessful treatments for chronic pain. During this period of time, Negaard-Cooley's physician began prescribing medication for her depression. Negaard-Cooley's physician advised her to discontinue working in September 1995. The Bureau accepted Negaard-Cooley's claim, and reinstated her total disability benefits, which she continues to receive.

[¶ 4] Negaard-Cooley did not receive formal counseling for psychiatric problems until June 1997, following an altercation resulting in her incarceration for assault. She has been receiving psychological counseling and psychiatric treatment since then, and is currently diagnosed with clinical depression. The Bureau accepted responsibility for treatment of Negaard-Cooley's depression following her work injury until October 23, 1997.

[¶ 5] After Negaard-Cooley underwent an independent medical examination ("IME") by a psychologist in March 1998, the Bureau issued an order discontinuing any benefits in connection with her depression beyond October 23, 1997, because "the evidence does not indicate that claimant's continued problem with depression is related to her April 18, 1995, work injury." Negaard-Cooley has experienced a series of traumatic personal events since her birth in 1952, including a history of spousal abuse, divorce, loss of custody of her children, and the deaths of several loved ones. The Bureau took the position these life experiences of Negaard-Cooley caused her depression, not her work injuries. Negaard-Cooley argued chronic pain from her work injuries was a substantial contributing factor to her clinical depression, for which the Bureau was responsible. Following a hearing on the issue, the administrative law judge ("ALJ") upheld the Bureau's order. The ALJ found:

Negaard-Cooley has failed to prove a cause and effect relationship between her current depression condition and her work injury. Her current depression condition is due to a pre-existing condition which would have progressed similarly in the absence of her April 18, 1995 work injury.... Negaard-Cooley's current condition is due to a natural progression of her depression condition.

The Bureau adopted the ALJ's recommended decision, and the district court affirmed the Bureau's decision.

II

[¶ 6] Negaard-Cooley contends the Bureau's findings are not supported by the evidence because the Bureau failed to adequately explain the grounds for crediting the opinion of the psychologist who performed the IME, and discrediting the opinions of her treating doctors; and because the Bureau did not adequately evaluate the parts of the IME report favorable to her.

[¶ 7] On appeal, we review the Bureau's decision. Siewert v. North Dakota Workers Compensation Bureau, 2000 ND 33, ¶ 18, 606 N.W.2d 501. Under N.D.C.C. §§ 28-32-19 and 28-32-21, 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. Mikkelson v. North Dakota Workers Compensation Bureau, 2000 ND 67, ¶ 7, 609 N.W.2d 74. 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.

[¶ 8] Negaard-Cooley had the burden of proving by a preponderance of the evidence her depression was causally related to her work injury. See N.D.C.C. § 65-01-11; Siewert, 2000 ND 33, ¶¶ 15, 20, 606 N.W.2d 501; Kackman v. North Dakota Workers Compensation Bureau, 488 N.W.2d 623, 624-26 (N.D.1992). To establish that causal connection, a claimant need not prove her employment was the sole cause of injury, and it is sufficient if the work condition is a substantial contributing factor to the injury. See Elter v. North Dakota Workers Compensation Bureau, 1999 ND 179, ¶ 15, 599 N.W.2d 315

; McDaniel v. North Dakota Workers Compensation Bureau, 1997 ND 154, ¶ 12, 567 N.W.2d 833. The Bureau was presented with several medical opinions about the possible cause of Negaard-Cooley's clinical depression. These opinions were rendered by Dr. Melissa Ray, an osteopath who treated Negaard-Cooley from 1995 until March 1998; Dr. Barry Greenspan, a psychologist who treated her from June 1997 until June 1998; Dr. John Garofalo, a psychiatrist who treated her from September 1997 until February 1998; Dr. Thomas Eick, a psychiatrist who has treated her since April 1998; and Dr. John Hung, the IME psychologist who examined Negaard-Cooley and her medical records on March 24, 1998.

[¶ 9] Dr. Ray noted that Negaard-Cooley's problems with her upper extremities caused severe daily pain and were impacting her activities. On March 16, 1995, Dr. Ray reported, "[a]s a result of this injury, this patient reports that she experiences insomnia secondary to pain and depression secondary to her limitations." Dr. Ray first prescribed an antidepressant drug for Negaard-Cooley in August 1995. Dr. Ray was unable to assist Negaard-Cooley with her physical problems, and advised her in March 1996 to enter a chronic pain program to help her live with those problems. After referring her for psychological counseling in June 1997, Dr. Ray noted Negaard-Cooley's "depression is more or less a personal condition. Her depression is, in part, relating to her physical pain as well, but there is certainly a fairly good amount of a personal component at present here."

[¶ 10] Dr. Greenspan first saw Negaard-Cooley in June 1997, and noted one of her problems was "[d]epression, [a]nxiety, and pain due to RSD." Dr. Greenspan's notes indicate several sessions were spent focusing on her chronic pain, the limited use of her hands, and visualizing to cope with the pain. Dr. Greenspan further noted in an individual readmission assessment that Negaard-Cooley "is experiencing ongoing depression and anxiety. There are apparently some issues from her past that need to be dealt with, namely, her two previous marriages and loss of custody of her children." In a July 15, 1997 session note, Dr. Greenspan also indicated Negaard-Cooley was "overwhelmed at [one and a half years of age], both for her own surgery [to remove a growth on her back], her father's death, and how her mother impacted upon Barbara in dealing with her own stresses and anxieties."

[¶ 11] Dr. Garofalo reported on September 4, 1997, that Negaard-Cooley described a "depressed mood for approximately 25 years, which has gotten increasingly worse since her injury happened four years ago." Negaard-Cooley had seen a psychiatrist a few times nine years earlier but quit because she did not like the person. Dr. Garofalo noted several problem areas the pain program needed to address: "[i]neffective individual coping, disturbed support network;" "[l]ack of post treatment support for healthy psychosocial functioning;" "[d]epression;" "[d]isturbed interpersonal relationships;" and "[a]nxiety/panic disorder." Dr. Garofalo diagnosed Negaard-Cooley with "[d]epressive disorder, secondary to chronic pain" and suspected "a somewhat passive-dependent personality disorder." In February 1998, Dr. Garofalo listed her diagnosis as "[d]epressive disorder, not otherwise specified, secondary to chronic pain."

[¶ 12] In June 1998, Dr. Eick noted Negaard-Cooley had "Adjustment Disorder w/Depressed and Anxious Features (chronic in nature) Secondary to her chronic illness." In a June 1998 letter to the Bureau, Dr. Eick said "I do feel that her depression is secondary and directly related to her chronic medical and physical problems. This would also include the chronic pain that she deals with as well."

[¶ 13] On the advice of Dr. Ray and Dr. Garofalo, the Bureau had Negaard-Cooley...