Spangler v. North Dakota Workers Compensation Bureau

• Decision Date: 18 July 1994
• Docket Number: No. 940070,940070
• Citation: 519 N.W.2d 576
• Parties: William SPANGLER, Appellant, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellee. Civ.
• Court: North Dakota Supreme Court

Page 576

519 N.W.2d 576

William SPANGLER, Appellant, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellee.

Civ. No. 940070.

Supreme Court of North Dakota.

July 18, 1994.

Wheeler Wolf, Bismarck, for appellant; argued by Steven L. Latham.

Dean J. Haas (argued), Asst. Atty. Gen., North Dakota Workers Compensation Bureau, Bismarck, for appellee.

MESCHKE, Justice.

William Spangler appeals from a district court judgment affirming an order by the North Dakota Workers Compensation Bureau denying him benefits. We reverse the judgment and remand to the Bureau for further proceedings.

Spangler, working as a cross-country truck driver, hurt his back on September 20, 1990 while unloading a truck in California. Spangler had finished unloading and was returning to North Dakota when he "couldn't go any farther" and was hospitalized in Wyoming by Dr. Anthony. Spangler had a "very positive straight leg raising test on the left side." Despite a negative radiologist's report, Dr. Anthony noted on September 25 that the myelogram of Spangler's back showed a small herniation. Spangler was discharged the next day after being diagnosed with a lumbar strain and small herniated disc at L5-S1. The Bureau accepted liability for Spangler's work-related injury and paid benefits for the time he was hospitalized. Spangler continued working as a truck driver until quitting on January 1, 1991.

From May until August 1991, Spangler drove for another company but did not have to unload the truck. He could not find work after attending nursing school and began driving again in December 1991. At that time, Spangler began feeling continual pain in his left leg and was hospitalized by Dr. Tolner on January 13, 1992. An MRI of Spangler's back on January 14 showed a small to mid-sized L5-S1 disc herniation on the left side. A myelogram on January 17 was negative, but a CT scan the same day confirmed the herniation. Spangler reapplied to the Bureau for benefits in February. Dr. Moskowitz operated on his herniated disc in August.

The Bureau referred Spangler to Dr. Draper for an examination after receiving his claim for benefits. Dr. Draper initially believed Spangler's herniated disc was caused by the 1990 injury, but changed his mind after receiving the negative 1990 myelogram report. Dr. Moskowitz indicated that a myelogram by itself is a limited diagnostic tool and concluded "since Mr. Spangler was symptomatic from the moment of his [1990] injury in the same exact manner that he has at the point where he had a confirmed herniated disc that there is a significant cause and effect relationship between the two." After a hearing, the Bureau agreed with Dr. Draper's opinion, rejected Dr. Anthony's diagnosis and Dr. Moskowitz's opinion, and denied benefits. The district court affirmed the decision, and Spangler appeals.

"The provisions of the Workers' Compensation Act are to be liberally construed in favor of the injured worker.... However, the claimant bears the burden of establishing the right to participate in benefits from the workers' compensation fund. NDCC Sec. 65-01-11." Halseth v. North Dakota Workers Compensation Bureau, 514 N.W.2d 371, 372 (N.D.1994) (citations omitted). To receive benefits, the claimant must prove by a preponderance of the evidence that their injury is causally related to their employment. NDCC 65-01-11; Wherry v. North Dakota State Hospital, 498 N.W.2d 136, 139 (N.D.1993). "[I]t is within the province of the ... [Bureau] to weigh conflicting medical opinions and to resolve these conflicts." Id. (quotation omitted). However, as we said in Weber v. North Dakota Workmen's Compensation Bureau, 377 N.W.2d 571, 574 (N.D.1985), the authority to selectively rely on conflicting opinions "is not freedom to pick and choose in an unreasoned manner."

The Bureau acts as both a fact-finder and an advocate when considering a worker's claim for benefits, so it "must not place itself in a full adversary position to the claimant." Hayes v. North Dakota Workers Compensation Bureau, 425 N.W.2d 356, 357 (N.D.1988). Instead, the Bureau must consider the entire record, clarify inconsistencies, and adequately explain its reason for disregarding medical evidence favorable to the worker. Id. As we summarized in Wherry, 498 N.W.2d at 139, this requirement applies to conflicting statements in the same medical report, inconsistent reports from the same physician, and conflicting reports from two different physicians.

Under NDCC 28-32-19 and 28-32-21, we will affirm the Bureau's decision unless a preponderance of the evidence does not support its findings of fact, its findings do not support its conclusions of law, its conclusions do not support its decision, or its decision is not in accordance with the law. Halseth, 514 N.W.2d at 373; Wherry, 498 N.W.2d at 139. When deciding if a preponderance of the evidence supports the Bureau's findings, we will not reweigh the evidence or substitute our judgment for that of the Bureau. Rooks v. North Dakota Workers' Compensation Bureau, 506 N.W.2d 78, 80 (N.D.1993). We only determine whether the Bureau's findings adequately explain its decision and are reasonably supported by the greater weight of all the evidence. Id.

There are several relevant inconsistencies between Dr. Draper's opinion and the medical evidence supporting Spangler's claim. Spangler argues on appeal that the Bureau's findings do not adequately explain Dr. Draper's inconsistent conclusions or the conflicts between his opinion and those of Dr. Moskowitz and Dr. Anthony. Spangler urges that the Bureau could not reasonably decide from the greater weight of this conflicting medical evidence that his herniated disc was not caused by his 1990 injury. The Bureau claims that its findings are reasonably supported by the greater weight of the evidence and reasonably explain its rejection of inconsistent medical evidence. We disagree.

For Spangler to be entitled to benefits, he must link his herniated disc in 1992 to his work-related back injury in 1990. To furnish this link, Spangler presented his 1990 discharge summary to the Bureau, in which he was diagnosed by Dr. Anthony as having a "lumbar strain with small herniated nucleus pulposus [at] L5-S1." This evidence was supplemented with the opinion of Dr. Moskowitz, who "strongly" believed that Spangler's herniated disc at L5-S1 was caused by the injury in 1990. Based on this evidence, Spangler argued to the Bureau that his hospitalization and surgery in 1992 was caused by a disc that was herniated in his 1990 accident. ¹

To rebut this evidence, the Bureau attempted to prove through its examination of Dr. Draper that Dr. Anthony's "discharge summary is not supported by the evidence of the myelogram at the time of that hospitalization," and that his diagnosis was "in error" and "dictated very rapidly." However, Dr. Anthony's "mistaken" diagnosis is also supported in his progress notes from September 25 saying the "myelogram today shows small herniation," not just a bulging disc at L4-5. ² Two years later, without looking at the actual myelogram, Dr. Draper rediagnosed Spangler as not having a herniated disc in 1990.

We are not going to reweigh the medical evidence and conclude Dr. Draper's diagnosis is wrong and Dr. Anthony's is right. However, judges are not medical experts, so the Bureau's selective rejection of medical evidence must be adequately explained for appellate review. See Kopp v. North Dakota Workers Compensation Bureau, 462 N.W.2d 132, 135 (N.D.1990). Like our rules of procedure, we not do not expect our "adequate explanation" requirement to be treated by the Bureau as "empty noise." See Matter of Estate of Raketti, 340 N.W.2d 894, 898 (N.D.1983). As Justice Frankfurter discussed in Universal Camera Corp. v. National Labor Relations Board:

The Board's findings are entitled to respect; but they must nonetheless be set aside when the record before a Court of Appeals clearly precludes the Board's decision from being justified by a fair estimate of the worth of the testimony of witnesses or its informed judgment on matters within its special competence or both.

340 U.S. 474, 490, 71 S.Ct. 456, 466, 95 L.Ed. 456 (1951) (substantial evidence standard under Administrative Procedure Act). We too have critically examined evidence and concluded that the Bureau's decision was not supported by the greater weight of the evidence. See Diegel v. North Dakota Workers Compensation Bureau, 469 N.W.2d 151 (N.D.1991); DeChandt v. North Dakota Workers Compensation Bureau, 452 N.W.2d 82 (N.D.1990). Thus, we will hold the Bureau's findings up to "the light that the record in its entirety furnishes," Universal Camera, 340 U.S. at 488, 71 S.Ct. at 465, to see if their explanation of inconsistent medical evidence is adequate when applied to the evidence in the record.

Here, the Bureau simply accepted Dr. Draper's conclusion that the myelogram was negative and misquotes Dr. Anthony as diagnosing Spangler "with a possibility of a small herniated nucleus pulposus at L5-S1." (emphasis added). The Bureau's findings do not explain at all, much less adequately, why it disregarded Dr. Anthony's opinion that the 1990 myelogram indicated Spangler's disc was herniated. ³ Without an adequate explanation, we cannot conclude that the Bureau's "correction" of Spangler's medical records two years after his injury is supported by the greater weight of the evidence.

Even if the 1990 myelogram was negative and Spangler was misdiagnosed, as Dr. Draper assumes from the radiologist's report, there are other inconsistencies in the medical opinions that were also inadequately explained or overlooked in the Bureau's findings.

Based on the medical records forwarded by the Bureau and on Spangler's "subsequent history and documentation of his L5-S1 disc herniation which is apparently worsened," Dr. Draper originally concluded that Spangler's "L5-S1 disc herniation is the direct result of the accident dated 9-20-90." Howev...