State by and through Workforce Safety and Insurance v. Sandberg

• Decision Date: 30 July 2019
• Docket Number: No. 20180442,20180442
• Citation: 931 N.W.2d 488
• Parties: STATE of North Dakota, BY AND THROUGH WORKFORCE SAFETY AND INSURANCE, Appellant v. John SANDBERG, Appellee and Park Construction, Respondent
• Court: North Dakota Supreme Court

931 N.W.2d 488

STATE of North Dakota, BY AND THROUGH WORKFORCE SAFETY AND INSURANCE, Appellant

v. John SANDBERG, AppelleeandPark Construction, Respondent

No. 20180442

Supreme Court of North Dakota.

Filed July 30, 2019

Sean F. Marrin, Special Assistant Attorney General, Grand Forks, ND, for appellant.

Dean J. Haas, Bismarck, ND, for appellee.

McEvers, Justice.

[¶1] Workforce Safety and Insurance ("WSI") appeals from a judgment affirming an administrative law judge’s ("ALJ") decision that John Sandberg sustained a compensable injury because his repetitive work activities substantially worsened the severity of his preexisting degenerative disc condition. We conclude the ALJ’s findings are not sufficient to understand the basis for the decision, and we reverse and remand for further proceedings.

I

[¶2] Sandberg worked as a truck driver in the oil industry in the 1970s and 1980s, and he began operating heavy equipment for various construction companies in the 1980s and 1990s. Sandberg testified he operated heavy equipment as a seasonal employee for Park Construction from 2002 through September 28, 2015. According to Sandberg, he primarily operated a track hoe to unload and place rip rap along raised railroad grade. Sandberg testified that while operating the track hoe, he was required to wear a seatbelt holding him in a seat consisting of a board covered with a piece of half-inch foam, that he sat at an angle while operating the track hoe and maneuvering large irregularly shaped rocks into place over uneven terrain, and that there was frequent jarring, slipping, and twisting when he moved the track hoe over the rocks while manipulating the controls and rotating to see around the machine.

[¶3] Sandberg’s medical history included treatment for a non-work related incident resulting in a sore right neck and right lower back in March 1998, and a contemporaneous x-ray disclosed mild degenerative arthritis

in his cervical spine. Sandberg also sought medical care for upper back and neck pain after a non-work related car accident in a parking lot in April 2006, and he was diagnosed with a soft tissue injury, consisting of an upper back and neck sprain.

[¶4] In July 2003, Sandberg saw Dr. Michael Remmick for chiropractic adjustments for a stiff neck, pain down his right shoulder and arm, and numbness in his fingertips. Dr. Remmick’s treatment notes stated that Sandberg reported jarring and twisting from operating a track hoe at work. Sandberg received several adjustments from Dr. Remmick into September 2003, and after the last adjustment, Dr. Remmick noted Sandberg had responded favorably to the treatment and should return for further treatment only if needed.

[¶5] In November 2011, Sandberg again sought chiropractic treatment from Dr. Remmick, describing his work on heavy equipment and complaining of pain and discomfort in his upper back, neck, left shoulder, and arm, and numbness in his left hand. Dr. Remmick performed a series of chiropractic adjustments between November 2011 and September 2012. Sandberg also saw Dr. Remmick for a series of chiropractic adjustments between March and September 2015. According to Sandberg, he could no longer perform his job for Park Construction because of back pain and he took an early seasonal layoff on September 28, 2015, which was his last day of work for Park Construction.

[¶6] In May 2016, Sandberg reported complaints of neck and upper back pain during a preoperative evaluation for cataract surgery

, and x-rays and MRIs revealed multilevel degenerative disc disease. In July 2016, Sandberg filed a claim with WSI for a "[c]ervical (neck)" injury, identifying his last day of work with Park Construction on September 28, 2015, as the injury date. Sandberg’s claim described how the injury occurred:

unloading and placing rock with excavator with continuous bouncing, slimming [sic], due to ruff [sic] terrain, with repetitive movement, arms and head continuous movement over long periods of time, arms at my side, hands running joysticks, head moving side to side, up and down, resulting in extreme neck, back and shoulder pain, with numbing in both arms and hands.

[¶7] WSI denied Sandberg’s claim and his request for reconsideration, determining that his upper and middle back issues were a preexisting condition of degenerative disc disease

and that his employment acted only as a trigger to produce symptoms in the preexisting condition and did not cause or increase the risk of his cervical degenerative disc disease. WSI determined Sandberg’s work activities did not substantially accelerate the progression or substantially worsen his preexisting condition.

[¶8] Sandberg requested an administrative hearing. An independent ALJ identified the issues for resolution at the hearing as whether Sandberg proved by a preponderance of evidence that his repetitive work activities: (1) were a substantial contributing factor to his cervical and thoracic degenerative conditions; or (2) substantially accelerated or worsened his preexisting cervical spine and thoracic spinal conditions.

[¶9] At the hearing, Sandberg relied on testimony and a letter from Dr. Remmick and a letter from another treating physician, Dr. Steven Schoneberg, to support his claim that his repetitive work activities substantially accelerated the progression or substantially worsened the severity of his preexisting cervical and thoracic condition. Dr. Remmick testified there was more than just pain from a preexisting degenerative disc disease

and there was an "accumulative trauma type effect" to Sandberg’s soft tissues, supportive structures, and joint structures from his repetitive activities. Dr. Remmick testified there was a progression of significant physiological change in x-ray imaging from 2003 through the latest imaging. Dr. Schoneberg opined that Sandberg’s work could have substantially contributed to the development and gradual worsening of his condition and likely contributed to his chronic neck and mid-back pain. WSI’s medical consultant, Dr. Gregory Peterson, testified there was no significant clinical evidence demonstrating that Sandberg’s work activities accelerated changes in his condition or that his condition was caused by his work activities. Dr. Peterson opined that Sandberg’s work acted as a trigger to produce symptoms in his preexisting condition but did not cause or substantially accelerate the progression of his degenerative disc disease.

[¶10] The ALJ issued a decision stating Dr. Peterson’s opinion that Sandberg’s work did not cause or substantially accelerate his condition was in conflict with the opinions of Dr. Remmick and Dr. Schoneberg and finding Dr. Peterson’s opinion was more persuasive. The ALJ determined that Sandberg’s employment did not cause or substantially accelerate the progression of his degenerative disc disease

. However, the ALJ also found that Sandberg’s employment substantially increased the severity of his pain and did not merely trigger symptoms but substantially worsened the severity of his degenerative disc disease. The ALJ decided Sandberg had met his burden of proving he sustained a compensable injury. The district court affirmed the ALJ’s decision.

II

[¶11] Under the Administrative Agencies Practice Act, N.D.C.C. ch. 28-32, courts exercise limited appellate review of a final order by an administrative agency. Davenport v. Workforce Safety & Ins. Fund , 2013 ND 118, ¶ 10, 833 N.W.2d 500 ; Mickelson v. N.D. Workforce Safety & Ins. , 2012 ND 164, ¶ 7, 820 N.W.2d 333. Under N.D.C.C. §§ 28-32-46 and 28-32-49, the district court and this Court must affirm an order by an administrative agency unless:

1. The order is not in accordance with the law.

2. The order is in violation of the constitutional rights of the appellant.

3. The provisions of this chapter have not been complied with in the proceedings before the agency.

4. The rules or procedure of the agency have not afforded the appellant a fair hearing.

5. The findings of fact made by the agency are not supported by a preponderance of the evidence.

6. The conclusions of law and order of the agency are not supported by its findings of fact.

7. The findings of fact made by the agency do not sufficiently address the evidence presented to the agency by the appellant.

8. The conclusions of law and order of the agency do not sufficiently explain the agency’s rationale for not adopting any contrary recommendations by a hearing officer or an administrative law judge.

N.D.C.C. § 28-32-46.

[¶12] In reviewing an administrative agency’s factual findings, a court may not make independent findings of fact or substitute its judgment for the agency’s findings; rather, a court must determine only whether a reasoning mind reasonably could have determined the findings were proven by the weight of the evidence from the entire record. Davenport , 2013 ND 118, ¶ 11, 833 N.W.2d 500. When reviewing an appeal from an independent ALJ’s final order, similar deference is given to the ALJ’s factual findings because the ALJ had the opportunity to observe witnesses and the responsibility to assess the credibility of witnesses and resolve conflicts in the evidence. Id. Similar deference is not given to an independent ALJ’s legal conclusions, however, and a court fully reviews an ALJ’s legal conclusions on questions of law, including the interpretation of a statute. Id. Under N.D.C.C. § 28-32-39(1), an administrative agency "shall make and state concisely and explicitly its findings of fact." We have said an agency’s findings are adequate if they enable a reviewing court to understand the agency’s decision. Pleinis v. N.D. Workers Comp. Bureau , 472 N.W.2d 459, 462 (N.D. 1991) ; F.O.E. Aerie 2337 v. N.D. Workers Comp. Bureau , 464 N.W.2d 197, 199-200 (N.D. 1990).

III

[¶13] WSI argues the ALJ’s decision misapplied the law, utilized inappropriate speculative evidence, is not supported by credible objective medical evidence, and is contrary to the ALJ’s prior finding about the persuasiveness of Dr....