State v. Sandberg

• Citation: 956 N.W.2d 342
• Decision Date: 03 March 2021
• Docket Number: No. 20200174,20200174
• Parties: STATE of North Dakota, BY AND THROUGH WORKFORCE SAFETY AND INSURANCE, Appellant v. John SANDBERG, Appellee and Park Construction, Respondent
• Court: United States State Supreme Court of North Dakota

956 N.W.2d 342

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

v.John SANDBERG, AppelleeandPark Construction, Respondent

No. 20200174

Supreme Court of North Dakota.

FILED MARCH 3, 2021

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 district court judgment affirming an ALJ's revised order on remand, entered after our decision in State by & through Workforce Safety & Ins. v. Sandberg , 2019 ND 198, ¶ 26, 931 N.W.2d 488 (" Sandberg I "). The ALJ's revised order made additional findings of fact and conclusions of law, and again found John Sandberg had sustained a compensable injury and is entitled to benefits. Under our deferential standard of review, we affirm in part; however, in light of the ALJ's revised order, we remand the case to WSI for further proceedings on whether benefits must be awarded on an aggravation basis and the proper calculation of those benefits under N.D.C.C. § 65-05-15.

I

[¶2] Our decision in Sandberg I , 2019 ND 198, ¶¶ 2-10, 931 N.W.2d 488, sets forth the relevant facts and prior proceedings in this case, which we repeat here only to the extent necessary to decide this appeal after remand.

[¶3] 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, and describing how his injury occurred as follows:

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.

Sandberg I , 2019 ND 198, ¶ 6, 931 N.W.2d 488. In August 2016, WSI issued a notice of decision denying benefits for his claimed injury to his cervical (neck) and thoracic (middle back) spine that "occurred while working as a heavy equipment operator over time." Sandberg requested reconsideration.

[¶4] In its September 2016 order, WSI denied Sandberg's claim and his request for reconsideration. WSI determined "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." Sandberg I , 2019 ND 198, ¶ 7, 931 N.W.2d 488. "WSI determined Sandberg's work activities did not substantially accelerate the progression or substantially worsen his preexisting condition." Id. Sandberg requested an administrative hearing.

[¶5] In November 2017, a hearing was held before an independent ALJ. As we previously summarized:

At the hearing, Sandberg relied on testimony and a letter from Dr. [Michael] 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.

Sandberg I , 2019 ND 198, ¶ 9, 931 N.W.2d 488.

[¶6] After the hearing, the ALJ issued a decision finding Dr. Peterson's opinion that Sandberg's work did not cause or substantially accelerate his condition was in conflict with Dr. Remmick's and Dr. Schoneberg's opinions and finding that Dr. Peterson's opinion was more persuasive. Sandberg I , 2019 ND 198, ¶ 10, 931 N.W.2d 488. The ALJ determined Sandberg's employment "did not cause or substantially accelerate the progression of his degenerative disc disease

." Id. However, the ALJ also found 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.

[¶7] Because the ALJ had made conflicting and insufficient findings to support the finding that Sandberg's claim was compensable, we were "unable to reconcile the ALJ's decision with the statutory requirements for medical evidence supported by objective medical findings for a compensable injury in N.D.C.C. § 65-01-02(10)." Sandberg I , 2019 ND 198, ¶¶ 25-26, 931 N.W.2d 488. We reversed and remanded to the ALJ for findings under the statutory requirements to decide whether Sandberg had sustained a compensable injury. Id. at ¶ 26.

[¶8] On remand, the ALJ allowed the parties to submit further briefing and thereafter entered the ALJ's "Revised Findings of Fact, Conclusions of Law, and Order on Remand." In the revised order, the ALJ made additional findings and again held that Sandberg met his burden of proving by a preponderance of the evidence that he had sustained a compensable injury and that Sandberg's repetitive work activities did not merely trigger symptoms in a pre-existing condition, but rather "substantially contributed" to the development of "soft tissue injuries" in the cervical and thoracic areas of his back. WSI appealed to the district court, which affirmed the ALJ's order on remand.

II

[¶9] Courts exercise limited appellate review of a final order by an administrative agency under the Administrative Agencies Practice Act, N.D.C.C. ch. 28-32. Sandberg I , 2019 ND 198, ¶ 11, 931 N.W.2d 488 ; see also Davenport v. Workforce Safety & Ins. Fund , 2013 ND 118, ¶ 10, 833 N.W.2d 500 ; Mickelson 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 administrative agency's order 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.

[¶10] In reviewing an agency's factual findings, a court may not make independent findings of fact or substitute its judgment for the agency's findings; rather, the court must decide only whether a reasoning mind reasonably could have determined the findings were proven by the weight of the evidence from the entire record. Sandberg I , 2019 ND 198, ¶ 12, 931 N.W.2d 488 (citing Davenport , 2013 ND 118, ¶ 11, 833 N.W.2d 500 ). Similar deference is given to the ALJ's factual findings when reviewing an appeal from an independent ALJ's final order "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. An independent ALJ's legal conclusions, however, are fully reviewable on appeal, including interpretation of a statute. Id.

[¶11] Section 28-32-39(1), N.D.C.C., provides that an administrative agency "shall make and state concisely and explicitly its findings of fact." An agency's findings are adequate when they enable a reviewing court to understand the agency's decision. Sandberg I , 2019 ND 198, ¶ 12, 931 N.W.2d 488 (citing 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

[¶12] At the time relevant to this case, N.D.C.C. § 65-01-02(10) defined a "compensable injury" for purposes of workers’ compensation law, stating in relevant part:

"Compensable injury" means 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.

....

b. The term does not include:

....

(7) Injuries attributable to a pre-existing injury, disease, or other condition, including when the employment acts as a trigger to produce symptoms in the pre-existing injury, disease, or other condition unless the employment substantially accelerates its progression or substantially worsens its severity. Pain is a symptom and may be considered in determining whether there is a substantial acceleration or substantial worsening of a pre-existing injury, disease, or other condition, but pain alone is not a substantial acceleration or a substantial

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