Swenson v. Workforce Safety & Ins. Fund

• Citation: 738 N.W.2d 892,2007 ND 149
• Decision Date: 05 September 2007
• Docket Number: No. 20070049.,20070049.
• Parties: Timothy R. SWENSON, Claimant and Appellant, v. WORKFORCE SAFETY & INSURANCE FUND, Appellee, and Nabors Drilling, USA, Inc., Respondent.
• Court: United States State Supreme Court of North Dakota

738 N.W.2d 892

2007 ND 149

Timothy R. SWENSON, Claimant and Appellant, v. WORKFORCE SAFETY & INSURANCE FUND, Appellee, and Nabors Drilling, USA, Inc., Respondent.

No. 20070049.

Supreme Court of North Dakota.

September 5, 2007.

Stephen D. Little, Dietz & Little Lawyers, Bismarck, ND, for claimant and appellant.

Leo F.J. Wilking, Special Assistant Attorney General, Fargo, ND, for appellee.

VANDE WALLE, Chief Justice.

[¶ 1] Timothy R. Swenson appealed from a district court judgment affirming an order of Workforce Safety & Insurance ("WSI") denying him benefits for the treatment of his cervical and thoracic spine. Because the administrative law judge ("ALJ") did not apply the correct standard when evaluating the medical opinions in this case, we reverse and remand for further proceedings.

I

[¶ 2] On May 15, 1997, Swenson injured his lower back while employed as a motorman for Nabors Drilling. Swenson was thirty-seven years old at the time of the incident. WSI accepted his claim for a work-related injury to his lower back and began paying benefits, including reasonable and necessary medical expenses for treatment directly related to that injury.

[¶ 3] Since his work-related injury in 1997, Swenson has undergone extensive treatment on his back and spine, including multiple surgeries and visits with many different doctors. Dr. Darryl Espeland examined Swenson in Baker, Montana, on the date of his injury in 1997 and diagnosed him with acute muscular strain in the right lower back with possible tearing. About two months later, Swenson was still feeling pain in the area and was referred to Dr. Thomas Jacobsen in Bowman, North Dakota, for a second opinion. Dr. Jacobsen determined that Swenson's lower back pain was possibly related to a protruding lumbar disc. WSI then requested that Swenson consult with Dr. Gregory Peterson at Medcenter One in Bismarck. An MRI revealed that Swenson had a herniated disc at L3-L4 on the right and at L4-L5 on the left. In August 1997, Swenson had a partial hemilaminectomy on these two levels of his lumbar spine to remove the extruded discs.

[¶ 4] As a result of this surgery, Swenson's condition temporarily improved. But about June 1998, he began to experience increasing pain in his lower back which radiated into both of his legs. In 1999, he consulted several times with Dr. Peterson about this pain. Dr. Peterson concluded he had "failed spine surgery syndrome." Dr. Peterson also noted there was some miscommunication about the levels of the lumbar spine involved in the previous operation because Swenson had an extra sixth lumbar vertebrae. Therefore, his surgery was actually at L4-L5 on the right and at L5-L6 on the left. In August 1999, Dr. Peterson referred Swenson to a specialist to consider the risks and benefits of a lumbar spine fusion.

[¶ 5] In October 1999, Swenson began treating with Dr. Timothy Garvey at the Twin Cities Spine Center in Minneapolis. On his initial visit patient questionnaire, Swenson indicated he was concerned about pain or numbness in his lower back, neck, legs, feet, and hands. Like Dr. Peterson, Dr. Garvey also noted the presence of an extra lumbar vertebrae, and he used the terminology L4-L5 and L5-S1 to describe the location of Swenson's prior operation. Dr. Garvey recommended Swenson undergo surgery on his lumbar spine to relieve some of the pain. In February 2000, Swenson had a revision decompression and an anterior posterior fusion from L4-L5 and L5-S 1. As a result of the second surgery, Swenson's condition improved for some time. About six months after this operation, in September 2000, Swenson reported to Dr. Garvey that he had also been having problems with his cervical spine. Eventually Swenson's lumbar pain began to increase again, and in March 2001 he had a third operation, this time a lumbosacral decompression and fusion for unilateral spondylolysis at S1-S2, just below his previous two-level fusion. By June 2001 Swenson reported an increase in pain in his back, neck, and legs, and numbness in his left hand.

[¶ 6] In July 2001, Dr. Garvey ordered an MRI on Swenson's cervical spine in order to diagnose his neck pain. On August 31, 2001, WSI denied payment on this bill, stating Swenson had not proved that his cervical problems were the direct result of his 1997 work injury. On October 25, 2001, WSI denied liability for Swenson's cervical spine problems.

[¶ 7] Swenson continued to treat with Dr. Garvey. In October and December of 2001, Dr. Garvey noted in follow-up visits that Swenson was not making good progress after his last surgery. Dr. Garvey concluded Swenson appeared to have pseudoarthrosis at S1-S2. In April 2002, Swenson had a fourth operation on his back, a revision lumbar decompression and fusion at S1-S2. After this surgery, Swenson had a three-level lumbar fusion, from L4-L5, L5-S1, and S 1-S2. In his appointments following the 2002 surgery, Swenson continued to report cervical pain to Dr. Garvey, and he also began reporting thoracic pain.

[¶ 8] In early 2003, Dr. Garvey referred Swenson to Dr. Shelley Killen, a specialist in physical medicine and rehabilitation at St. Alexius in Bismarck, for nonsurgical treatment of his spine. Swenson's first appointment with Dr. Killen was on May 30, 2003. He reported pain in all three areas of his spine, including constant pain in his thoracic spine and tightness and limited range of motion in his cervical spine. Dr. Killen diagnosed him with failed back syndrome from the multiple lower back surgeries with continued neuropathic pain, myofascial pain of the entire spine secondary to the lumbar problems and the thoracic problems as a result of extensive fusion below that, and urinary difficulties secondary to lumbar surgery. In December 2003, Swenson's counsel sent a letter to Dr. Killen inquiring whether his cervical and thoracic conditions were causally related to his approximately fifteen years of work as an oil field laborer. Dr. Killen replied that in her opinion, both conditions were more likely than not related to his fifteen years of heavy oil field work.

[¶ 9] On February 5, 2004, Swenson filed a new claim for a progressive injury to his entire spinal column as a result of his years of work as a rig hand and motorman on oil field drilling rigs. He listed the date of injury as "1978-2004."

[¶ 10] Swenson continued to seek non-surgical treatment from Dr. Killen. He reported upper back and thoracic pain, in addition to his ongoing lumbar problems. Swenson also requested a referral back to Dr. Garvey at the Twin Cities Spine Center to discuss further possible surgical options. In September 2004, Dr. Garvey ordered MRIs of Swenson's entire spine. The MRI of the cervical spine showed moderate to advanced spondylosis at C5-C6, and spondylosis at C6-C7. The MRI of his thoracic spine showed symptoms consistent with thoracic spondylosis, including areas of mild disc bulging. Swenson also had three-level degeneration in his lumbar spine above his previous fusion. In January 2005, Swenson had yet another operation on his back, for upper lumbar decompression and removal of segmental fixation. At a follow-up visit with Dr. Garvey in March 2005, Swenson reported that he felt somewhat better, but that he still had symptoms in his cervical and thoracic spine. Swenson reported the same problems to Dr. Killen at his multiple appointments with her in 2005.

[¶ 11] On April 20, 2005, WSI issued an order denying any liability for Swenson's cervical or thoracic spine, although it continued to accept his claim for a lumbar spine injury. In the order, WSI concluded that his cervical and thoracic problems were not related to the 1997 work injury. WSI did not address Swenson's claim of a progressive work-related injury to his entire spine. Swenson requested a rehearing before an ALJ on the order denying him benefits. The ALJ specified the issue to be resolved at the hearing as "whether Timothy R. Swenson has sustained a compensable injury of his cervical and thoracic spine."

[¶ 12] On February 2, 2006, WSI took an oral deposition of Dr. Killen in preparation for the administrative hearing on Swenson's claim of a progressive injury to his entire spinal column. Dr. Killen testified that Swenson's lumbar fusion was at least partially a cause of his cervical and thoracic problems. She stated, "When you lose all of that range of motion due to a fusion, you've got to pick up the motion someplace else. There's no place—it can't go down any further so then it translates up to the thoracic spine." When WSI's counsel asked if that could occur all the way up the neck, Dr. Killen responded:

Yes. Probably one of the most common things I see is a complaint of neck pain and the problem isn't their neck. They've done something to a shoulder, they've done something to an arm and they've held that arm in a position of comfort for so long that everything tightened up and they're having neck problems. It's similar. The lower part hurts, you hold it, you hold it literally so you don't let it move, and that just translates up, so with time your entire spine becomes involved rather than just the segment that was originally the problem. If it's for one segment, you're probably not going to see the entire spine, but when you take out the whole, entire lumbar portion, I think you can develop myofascial problems all the way up.

Throughout her testimony, Dr. Killen mistakenly thought that Swenson's entire lumbar spine was fused, while he actually had a three-level lumbar fusion. She stressed the importance of the entire lumbar spine being fused several times.

[¶ 13] When questioned by WSI's counsel about a 2004 MRI of Swenson's thoracic spine, Dr. Killen stated that she does not see those type of thoracic degenerative changes until a person is very old, unless they do manual labor. As to the cervical spine MRI, Dr. Killen testified that she would be surprised to see the same type of degeneration in a person at age...