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Parsons v. Workforce Safety and Ins. Fund

Supreme Court of North Dakota

December 19, 2013

Warren PARSONS, Appellant

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[Copyrighted Material Omitted]

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Dean J. Haas, Bismarck, N.D., for appellant.

Lolita G. Hartl Romanick, Grand Forks, N.D., for appellee.

MARING, Justice.

[¶ 1] Warren Parsons appeals from a judgment affirming a Workforce Safety and Insurance Fund (" WSI" ) decision denying his claim for workers' compensation benefits. Parsons argues his cervical spine and left shoulder injuries are " compensable injuries" under N.D.C.C. § 65-01-02(10). We conclude WSI erred in determining Parsons' injury was not a compensable injury and denying his claim for benefits. We reverse the judgment and remand the case to WSI for further proceedings consistent with this opinion.


[¶ 2] On November 17, 2010, Parsons applied for workers' compensation benefits from WSI, alleging he sustained an injury to his left shoulder and neck while working for Ames Construction on October 12, 2010. Parsons worked for Ames Construction as a truck driver, driving a dump truck and hauling loads of clay used to build dikes. He claimed he developed pain at the base of his neck and into his left shoulder from hitting the seat belt repeatedly while driving the dump truck on rough roads.

[¶ 3] On October 14, 2010, Parsons saw Dr. Paul Fleissner for treatment. Fleissner diagnosed Parsons with cervical sprain and left shoulder strain and recommended physical therapy. On October 19, 2010, Parsons began seeing Jana Zwilling, NP, for physical therapy and she diagnosed Parsons with cervical and left shoulder strain.

[¶ 4] On November 22, 2010, Parsons saw Zwilling and reported that his condition had been improving but he started having pain again in his left shoulder and some numbness in his left arm after driving over more rough roads at work. Zwilling ordered an EMG (electromyogram) of the left upper extremity. The EMG showed no evidence of cervical radiculopathy or left brachial plexopathy, but was consistent with mild carpal tunnel syndrome, severe left ulnar neuropathy, and suggested underlying sensory peripheral polyneuropathy.

[¶ 5] On December 9, 2010, Parsons saw Fleissner with discomfort in his left shoulder. He told Fleissner he knew about the ulnar neuropathy and carpal tunnel syndrome and they were preexisting conditions. Fleissner recommended an MRI (magnetic resonance imaging) of the cervical spine. The MRI showed Parsons had chronic mild disc degeneration, with hypertrophic arthritic changes in the mid-cervical spine.

[¶ 6] On January 6, 2011, Parsons saw Dr. Vikram Podduturu, a physiatrist. Parsons reported variable pain on the left side of his shoulder and the scapular area, with radiation to the left upper extremity. Podduturu diagnosed Parsons with myofascial

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pain, which is pain in the muscles and fascia, cervical degenerative disc disease, numbness of the arm, and neck sprain and strain. Podduturu discussed the differentials to Parsons' pain, including discogenic and myofascial pain, and prescribed Flexeril.

[¶ 7] Parsons continued to see Fleissner and Podduturu for treatment until March 29, 2011, when Parsons told Fleissner he would like to terminate care. Fleissner's impression was " left shoulder strain with radiation to the cervical spine and degenerative changes in the cervical spine." He concluded that Parsons could return to work and had reached maximum medical improvement. In June 2011, Parsons saw Zwelling and reported he still had some pain at the base of the neck and across the back of the shoulder, which would not fully go away. Zwilling's impression was myofascial pain in the trapezius distribution. Parsons began seeing Fleissner again and continued to report persistent pain in his left shoulder and neck. Parsons saw Fleissner multiple times in 2011 and once in January 2012. Fleissner diagnosed persistent left shoulder pain after Parsons' work injury.

[¶ 8] Meanwhile, on January 10, 2011, WSI sent Parsons notice of its decision to deny his application for workers' compensation benefits, finding there was no evidence of a work injury resulting from any employment activities. Parsons requested reconsideration. On May 16, 2011, WSI entered an order denying Parsons' claim, finding Parsons has a preexisting degenerative condition, his condition is not attributable to his work injury, and Parsons did not meet his burden of proving he is entitled to benefits.

[¶ 9] Parsons requested a hearing, which was held on March 6, 2012. Parsons and Dr. Christopher Janssen, who performed an independent medical exam at WSI's request, testified at the hearing. On May 2, 2012, the Administrative Law Judge (" ALJ" ) affirmed WSI's decision, holding Parsons' work injury was not a compensable injury, he has a preexisting degenerative condition of cervical degenerative disc disease, and the work injury triggered symptoms of his preexisting condition but did not substantially accelerate the progression or substantially worsen the severity of the condition.

[¶ 10] Parsons appealed to the district court. On October 1, 2012, the district court remanded the case to the ALJ to consider the record and make findings about whether Parsons' preexisting condition would have progressed similarly in the absence of his employment and whether Parsons' employment substantially accelerated the progression or substantially worsened the severity of the condition.

[¶ 11] On remand, the ALJ entered an order incorporating its previous decision and holding that its decision remained the same. The ALJ found Parsons was injured while working on October 12, 2010, and the work injury caused a cervical strain and a microscopic tear to his disc resulting in discogenic and myofascial pain. The ALJ further found Parsons had a preexisting condition at the time of the work injury, the preexisting condition made him vulnerable to the work injury, Parsons continues to have pain as the result of damage to his disc, and the work injury did not cause significant damage to his disc. The ALJ held the work injury did not substantially accelerate the progression or substantially worsen the severity of the preexisting degenerative disc disease. The ALJ found Parsons failed to show that his preexisting condition would likely not have progressed similarly in the absence of the work injury. The ALJ ruled Parsons' work injury was not a compensable injury and he is not entitled to

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workers' compensation benefits. The district court affirmed the ALJ's decision.


[¶ 12] 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. Davenport v. Workforce Safety and Ins. Fund, 2013 ND 118, ¶ 10, 833 N.W.2d 500. This Court reviews an administrative agency's decision in the same manner as the district court and must affirm the agency's decision 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 [N.D.C.C. ch. 28-32] 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 ...

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