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James Mickelson v. North Dakota Workforce Safety and Insurance

August 16, 2012


Appeal from the District Court of McLean County, South Central Judicial District, the Honorable Bruce A. Romanick, Judge.

The opinion of the court was delivered by: Kapsner, Justice.

N.D. Supreme Court

Mickelson v. Workforce Safety and Insurance, 2012 ND 164

This opinion is subject to petition for rehearing.

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Concurrence & Concurring and dissenting opinion filed.


Opinion of the Court by Kapsner, Justice.

[¶1] James Mickelson appeals from a judgment affirming a Workforce Safety and Insurance ("WSI") decision denying his claim for workers' compensation benefits. He argues WSI erred in deciding he did not suffer a compensable injury. We conclude WSI misapplied the definition of a compensable injury, and we reverse and remand for further proceedings.


[¶2] On December 17, 2009, Mickelson applied to WSI for workers' compensation benefits, claiming he "developed soreness in lower back due to repetitive motion over time using foot pedal and driving over rough terrain" on August 30, 2009, while employed as an equipment operator for Gratech Company, Ltd. According to Mickelson, he began working for Gratech on July 29, 2009, as an equipment operator, and he generally worked twelve-hour days, sitting in a pay loader and operating it with his right foot. Mickelson reported he operated the pay loader over rough terrain, which resulted in significant jarring and jolting. He claimed that before working for Gratech, he had not had any lower back pain, or pain radiating into his right leg. According to Gratech, Mickelson did not miss any work because of an injury from July 29 through December 3, 2009, when he was laid off, and he did not report the injury to Gratech until December 14, 2009.

[¶3] On August 30, 2009, Mickelson saw Dr. Matthew Goehner, a chiropractor, and Dr. Goehner's contemporaneous office note stated Mickelson had "pain across the lower back and pain/numbness into the right thigh and calf to foot" and diagnosed "[l]umbosacral region dysfunction with associated soft tissue damage causing nerve root irritation, lumbosacral strain from repetitive foot control use." Mickelson did not seek further treatment from Dr. Goehner until December 7, 2009, and he also saw Dr. Goehner for treatment five more times in December 2009, and once in January 2010. Dr. Goehner's notes state Mickelson reported low back pain with right leg numbness after standing for ten minutes and describe a decreased range in motion. In January 2010, Mickelson received treatment from Linda Regan, a physician assistant. An x-ray indicated "[m]ild degenerative changes of the lumbar spine," and Regan's preliminary report stated "[n]o degenerative joint disease seen" and "[l]umbar strain with right radiculopathy on standing." A January 2010 MRI of Mickelson's lumbosacral spine revealed "moderate to severe degenerative disk disease with a central disk protrusion at L5-S1." Regan later wrote a letter "to whom it may concern," stating that because Mickelson did not have back pain before operating the pay loader, "the combination of the rough terrain, using heavy equipment, sitting in one position for several hours at a time and also only using his right leg has caused the back pain with right leg radiculopathy for which he originally sought care." Mickelson also received treatment from Julie Schulz, a physical therapist, and she wrote a letter "to whom it may concern," stating Mickelson's "injury is directly related to his work situation. He did not have prior back pain. This is a reasonable mechanism of injury for this problem."

[¶4] In April 2010, Dr. Goehner also wrote a letter "[t]o whom it may concern," stating Mickelson had not presented with any lower back problems prior to 8/30/09. [His] injury is directly related to his job duties at work which included repetitive foot control use which caused stress to the muscles, ligaments, and joints of the lower back and pelvis. Following the injuries to the lower back [Mickelson] was diagnosed with degenerative disk disease. As you know, degenerative disk disease is a condition that develops over time and is a normal part of the aging process. Mr. Mickelson did not have any of the symptoms of degenerative disk disease prior to performing his job duty of repetitively using the foot controls and driving over rough terrain.

[¶5] Meanwhile, in February 2010, WSI initially denied Mickelson's claim for benefits, stating the January 2010 MRI revealed pre-existing degenerative conditions or arthritis and concluding his "one month employment with Gratech triggered symptoms of [his] pre-existing degeneration but did not cause the condition and [he] did not report an injury to Gratech until 12/14/2009." Mickelson requested reconsideration, claiming his work substantially worsened his condition and he had never had prior lumbar spine problems. In March 2010, Dr. Gregory Peterson, a WSI medical consultant, conducted a record review and reported Mickelson's condition of "lumbar degenerative disc disease [was] not caused by his reported work injury. Repetitive motion on rough ground while operating a loader may trigger symptoms associated with lumbar degenerative disc disease, but not cause, substantially worsen, or substantially accelerate the condition." In March 2010, WSI again denied Mickelson's claim, relying on Dr. Peterson's review and concluding Mickelson had "not proven that his work activities substantially accelerated the progression of or substantially worsened the severity of his lumbar spine condition."

[¶6] Mickelson sought a formal administrative hearing, and an administrative law judge ("ALJ") was designated to issue a final decision on his claim. See N.D.C.C. § 65-02-22.1. After an administrative hearing, the ALJ affirmed WSI's denial of benefits, concluding Mickelson failed to establish he suffered a compensable injury during the course of his employment. The ALJ explained Mickelson had pre-existing degenerative disc disease and his low-back pain and right leg pain and numbness were symptoms of his degenerative disc disease. The ALJ said Mickelson's employment triggered his symptoms of degenerative disc disease, but there was no evidence his employment substantially accelerated the progression or substantially worsened the severity of the degenerative disc disease. The ALJ rejected Mickelson's argument that triggering of symptoms constitutes a substantial worsening of his degenerative disc disease, concluding that interpretation would render the "trigger" language of N.D.C.C. § 65-01-02(10)(b)(7) meaningless. The ALJ also rejected Dr. Goehner's assessment of a lumbosacral strain from repetitive foot control use, concluding his assessment was not consistent with his later opinion that Mickelson's symptoms stem from degenerative disc disease. The district court affirmed the ALJ's decision.


[¶7] 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. Workforce Safety & Ins. v. Auck, 2010 ND 126, ¶ 8, 785 N.W.2d 186. 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.

[¶8] In reviewing an ALJ's factual findings, a court may not make independent findings of fact or substitute its judgment for the ALJ'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. Auck, 2010 ND 126, ¶ 9, 785 N.W.2d 186. When reviewing an appeal from a final order by an independent ALJ, similar deference is given to the ALJ's factual findings, because the ALJ has 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 reviews an ALJ's legal conclusions in the same manner as legal conclusions generally. Id. Questions of law, including the interpretation of a statute, are fully reviewable on appeal. Id.


[¶9] Mickelson argues he suffered a compensable injury, because his employment caused a substantial worsening of the symptoms of his previously asymptomatic degenerative disc disease. He argues pain can be a substantial worsening of his condition and the triggering of degenerative disc disease from no symptoms to a disabling condition that requires medical care is compensable as a significant worsening of the clinical picture of his condition.

[¶10] The parties agree the provisions for aggravation in N.D.C.C. § 65-05-15 are not applicable to Mickelson's claim, because the language of that statute applies to "a prior injury, disease, or other condition, known in advance of the work injury," or to the "progression of a prior compensable injury." N.D.C.C. § 65-05-15(1) and (2). See Mikkelson v. North Dakota Workers Comp. Bureau, 2000 ND 67, ¶¶ 12-17, 609 N.W.2d 74. There is no evidence in this record that Mickelson knew about his lower back injury, disease, or other condition before he operated the loader for Gratech, and the ALJ found "there is no evidence . . . Mickelson had these symptoms [of ...

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