State of North Dakota, by and through Workforce Safety and Insurance, Appellant
John Sandberg, Appellee and Park Construction, Respondent
from the District Court of Ramsey County, Northeast Judicial
District, the Honorable Donovan J. Foughty, Judge.
F. Marrin, Special Assistant Attorney General, Grand Forks,
ND, for appellant.
J. Haas, Bismarck, ND, for appellee.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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 ...