Clark v. North Dakota Workforce Safety & Insurance Fund

2008 ND 192, 757 N.W.2d 39, 2008 N.D. LEXIS 191, 2008 WL 4682489
CourtNorth Dakota Supreme Court
DecidedOctober 24, 2008
Docket20080089
StatusPublished
Cited by1 cases

This text of 2008 ND 192 (Clark v. North Dakota Workforce Safety & Insurance Fund) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Clark v. North Dakota Workforce Safety & Insurance Fund, 2008 ND 192, 757 N.W.2d 39, 2008 N.D. LEXIS 191, 2008 WL 4682489 (N.D. 2008).

Opinion

VANDE WALLE, Chief Justice.

[¶ 1] Rory Clark appealed from a district court judgment affirming a Workforce Safety and Insurance (“WSI”) order awarding him workers compensation benefits on an aggravation basis of 50 percent. We affirm.

I.

[¶ 2] On April 5, 2006, Rory Clark filed an application for workers’ compensation benefits with WSI. The application was filed in connection with an injury sustained to his lower back on October 12, 2005. The injury occurred at Rory Clark’s place of employment, where he was working as a driller for a company in Williston.

[¶ 3] Rory Clark has stated he has had lower back pain “off and on during most of his life,” and has attributed it to an incident when, as a teenager, he was knocked out by sheep running over a cattle gate. In 1992 he again injured his lower back in a demolition derby, which also caused him to lose sensation in his legs for a brief period of time.

[¶ 4] For the better part of the last decade, Rory Clark has received treatment for recurring lower back pain from Dr. Dean Redington, a chiropractor. Rory Clark’s first visit to Dr. Redington was in September of 1999, when he was treated for lower back pain he experienced after lifting an auger. After this injury, he received treatments through October of 1999. Rory Clark made further visits to Dr. Redington from May through September of 2000, complaining of lower back *41 pain. Dr. Redington noted these visits had not been precipitated by any specific injury, but did note that Rory Clark “does a lot of heavy work” which likely contributed to his back problems. Rory Clark’s next visit to Dr. Redington came in December of 2000 for acute pain in his lower back which resulted from an eight mile snowmobile ride over rough terrain. This incident also caused some tingling in his feet. Rory Clark visited Dr. Redington a few times for this injury, and saw improvement over the month of December. However, Rory Clark returned to Dr. Reding-ton in January of 2001 for lower back pain, which the doctor concluded resulted from heavy lifting at work. Treatments for this incident continued throughout the month. Between May of 2001 and September of 2005, Rory Clark was a fairly frequent patient of Dr. Redington’s, as he continually sought relief for lower back pain, which was occasionally accompanied by numbness in his legs. After many of these appointments, Dr. Redington noted that the back problems had not stemmed from any specific injury. However, on one occasion, Rory Clark stated that he had hurt his back after lifting a 75 pound weight. During his October 9, 2001 visit, Rory Clark admitted “to aggravating [his back] from time to time.”

[¶ 5] On October 12, 2005, Rory Clark twisted his back while at work, sustaining the injury at issue in this matter. This particular injury caused increased pain in his lower back and numbness in both legs. Rory Clark visited Dr. Redington the following day, and kept five additional appointments throughout October for treatment of the injury. Rory Clark appeared to be improving as these appointments progressed; on October 24, Dr. Redington noted that Rory Clark was “not as bad as he was,” and on October 31, Dr. Redington wrote that Rory Clark was “very pleased with his progress.”

[¶ 6] However, on November 7, Rory Clark returned to Dr. Redington, stating that he had aggravated his back by “lifting about 100 pounds on a rig.” After starting to recover from this incident, on November 18 “he sneezed and this precipitated an additional problem.” Additional visits followed in November, and in February and March of 2006. That March, Dr. Reding-ton ordered an MRI, which revealed a herniated disc in Rory Clark’s lower back, along with degeneration of the lower lumbar discs. Dr. Redington’s final analysis of Rory Clark’s back problem stressed that there were “substantive pre-existing problems in the same area where he injured his back in October of 2005.” Dr. Redington concluded that the October 12 injury “aggravated a documented pre-ex-isting problem in [Rory Clark’s] lower back.”

[¶ 7] On March 20, 2006, Rory Clark had a coughing spell which caused “such severe exacerbation of pain that he could not get out of bed.” He was taken by ambulance to the emergency room of Trinity Hospital in Minot. He told the physician at Trinity that this incident found him in “the worst severe pain he has ever had in his life.” On March 22, Rory Clark underwent a partial hemilaminectomy LS-S1 left and removal of herniated nucleus pulposus.

[¶ 8] On April 5, 2006, Rory Clark filed an application for WSI benefits. His claim was reviewed by Dr. Robert Cooper, who determined that Rory Clark had a “long history of recurrent, non-radiating, primarily right sided low back pain from injuries sustained in the remote past.” Later, Dr. Cooper would testify that he did not believe that Rory Clark’s herniated disc and pain was caused by a new injury sustained on October 12, but rather felt it fit with Rory Clark’s general history of back *42 pain. Determining that the October 12 injury was “a trigger of preexisting condition,” WSI denied Rory Clark’s claim for benefits. Rory Clark’s motion for reconsideration was dismissed on May 11, 2006.

[¶ 9] In July of 2006, Rory Clark visited Dr. Shelley Killen at St. Alexius Medical Center for a consultation. Rory Clark complained of “tingling in his left foot and lateral calf, and occasional charley horses in the left calf,” as well as “constant pain” in his lower back. Dr. Killen felt the injuries were related to Rory Clark’s employment, and his recent surgeries were only necessitated by the October 12 injury, which she believed had produced a “new onset” of radiculopathy.

[¶ 10] On July 31, 2006, Rory Clark demanded a formal hearing for reconsideration of his workers compensation benefits request. The administrative law judge (“ALJ”) weighed the opinions of Dr. Cooper, Dr. Redington, and Dr. Killen in making her decision. Specifically, the ALJ noted Dr. Redington and Dr. Killen had both agreed that Rory Clark’s work injury was a substantial factor in his current lower back problem, while Dr. Cooper believed Rory Clark’s herniation was caused by a non-work related event subsequent to the October 12 incident. The ALJ concluded “the greater weight of the medical evidence is that Mr. Clark’s disk herniation resulted from work induced trauma and not from a spontaneously occurring herniation.” The ALJ found Rory Clark had suffered a compensable injury, and WSI adopted the ALJ’s findings.

[¶ 11] WSI later remanded back to the ALJ for the sole issue of whether Rory Clark’s benefits should be awarded on an aggravation basis pursuant to N.D.C.C. § 65-05-15(1). The ALJ found that, “The preponderance of the evidence shows that Mr. Clark’s long history of back pain has finally caught up with him.” While again noting that the October 12 incident aggravated a preexisting condition that “interfered with his physical function,” the ALJ concluded that Rory Clark had not shown by clear and convincing evidence that “the aggravation to his preexisting condition was greater than 50 percent.” WSI again adopted the ALJ’s findings. Benefits were then awarded to Rory Clark on an aggravation basis of 50 percent.

[¶ 12] Rory Clark appealed WSI’s decision to the district court, arguing his benefits should not be awarded on an aggravation basis.

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Bluebook (online)
2008 ND 192, 757 N.W.2d 39, 2008 N.D. LEXIS 191, 2008 WL 4682489, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clark-v-north-dakota-workforce-safety-insurance-fund-nd-2008.