Hein v. North Dakota Workers Compensation Bureau

1999 ND 200, 601 N.W.2d 576, 1999 N.D. LEXIS 208, 1999 WL 956523
CourtNorth Dakota Supreme Court
DecidedOctober 20, 1999
Docket990137
StatusPublished
Cited by6 cases

This text of 1999 ND 200 (Hein v. North Dakota Workers Compensation Bureau) 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
Hein v. North Dakota Workers Compensation Bureau, 1999 ND 200, 601 N.W.2d 576, 1999 N.D. LEXIS 208, 1999 WL 956523 (N.D. 1999).

Opinion

SANDSTROM, Justice.

[¶ 1] Cindy Hein appeals from the district court’s judgment affirming a Workers Compensation Bureau order denying benefits for injury to her cervical and trapezius regions, upper back, shoulder, upper arm, upper extremity, and lower extremity. We affirm.

I

[¶ 2] On October 9, 1995, while working at Super Pumper gas station and convenience store, Hein slipped and fell on a wet floor. She was taken to the United Hospital emergency room for pain in the back of her head and coccyx, and was diagnosed *577 ■with a coccyx sprain. Hein filed for workers compensation benefits, which she was awarded from October 9, 1995, through October 28, 1995. She returned to work on October 24, 1995, but later left her job to move out of state.

[¶ 3] Hein began to have left shoulder and arm pain in December of 1995. On February 15, 1996, in Missouri, she was treated for pain in her neck, left arm, and left shoulder. Degenerative changes in Hein’s cervical spine, borderline degenerative changes in her thoracic and lumbar spine, and minimal scoliosis were discovered at that time. Narrowing of disk space in Hein’s cervical spine was noted.

[¶ 4] Hein returned to North Dakota in May of 1996 and was treated by Dr. Patrick Emery, who concluded the etiology of her neck, shoulder, and extremity pain was unknown. Dr. Emery told Hein he was not able to write a letter to the Bureau stating her pain was related to her fall.

[¶ 5] Dr. Emery referred Hein to Dr. Daniel Schmelka, a neurosurgeon. Dr. Schmelka diagnosed her with two to three slipped disks, and he recommended surgery consisting of a two-level diskectomy with fusion. In an October 31, 1996, report to the Bureau, Dr. Schmelka indicated her work injury had “started the sequence of events” leading to her current condition. Dr. Schmelka noted he was “concerned about the time lapse” between the injury and her complaints, but Hein had sought treatment in the interim and “has been unable to work” due to her pain.

[¶6] On December 3, 1996, Dr. Ralph Kilzer, a medical consultant for the Bureau, reviewed Hein’s records and concluded her degenerative disk disease was not related to the fall. Dr. Kilzer stated Hein’s degenerative disk disease would have resulted in the need for surgery, regardless of her work injury.

[¶ 7] On December 5, 1996, Dr. Robert Fielden conducted an independent medical evaluation of Hein. He also noted degenerative disks throughout her spine and concluded her pain was related to the underlying stress problem of her cervical condition. He stated the “symptomatic muscular findings are more likely due to stress and tension and other factors than they are to the injury and they certainly were not triggered by the injury.” Dr. Fielden stated he agreed with Dr. Kilzer’s opinion. He reported there was no evidence Hein’s neck was affected by the fall and her neck pain was “totally unrelated” to her accident.

[¶ 8] On February 17, 1997, Dr. Schmel-ka recanted his October 31, 1996, opinion in response to an inquiry from the Bureau. He stated it was unlikely Hein’s fall caused her current complaints. Dr. Schmelka responded he agreed with Dr. Fielden and two of Hein’s treating doctors in their conclusions that surgery was not appropriate.

[¶ 9] In an April 18, 1997, order, the Bureau refused to pay for the diskectomy surgery because it claimed Hein’s trapezi-us, cervical, left upper back, left hand and arm, left shoulder, left upper and lower extremity, and leg conditions were a result of a degenerative disk disease that would have eventually required surgery, regardless of her work injury. Subsequently, Hein consulted Dr. Gary Gasser on July 31, 1997. Dr. Gasser stated he agreed with Dr. Schmelka’s October 31, 1996, conclusion that her work injury caused a “sequence of events that led up to the disk bulge and herniations by loosening the ligaments,” based on the fact she had not had “cervical pain syndrome prior to this and these are definitely disk bulges and not bony spurs.” Dr. Gasser asserted disk bulges are consistent with a fall. However, Dr. Gasser noted Hein had degenerative changes in her cervical spine.

[¶ 10] On October 8, 1997, the claim was heard before a temporary Administrative Law Judge. The record was left open for clarification of Drs. Gasser and Schmelka’s opinions. On November 6, 1997, the Bureau requested Dr. Gasser consider the opinions of Drs. Schmelka, Kilzer, and *578 Fielden. Dr. Gasser responded he did not agree with Dr. Schmelka’s second conclusion that the fall was not likely responsible for Hein’s condition. Dr. Gasser explained his position by simply referring the Bureau back to his original opinion.

[¶ 11] The ALJ found Hein’s cervical, upper back, and left shoulder and arm pain was related to a compensable work injury. The Bureau requested reconsideration, which was denied. The Bureau did not adopt the ALJ’s recommended order and issued a final order denying Hein benefits on April 16, 1998. Hein appealed to the district court, which upheld the Bureau’s order. She appealed to this Court on May 15,1999.

[¶ 12] The appeal was timely under N.D.RApp.P. 4(a) and N.D.C.C. § 28-32-21. The district court had jurisdiction under N.D.C.C. § 28-32-19. This Court has jurisdiction under N.D. Const, art. VI, § 6, and N.D.C.C. §§ 28-27-01 and 28-32-21.

II

[¶ 13] On appeal, we review the Bureau’s decision, not the district court’s decision. Hopfauf v. North Dakota Workers Compensation Bureau, 1998 ND 40, ¶ 8, 575 N.W.2d 436. Under N.D.C.C. §§ 28-32-19 and 28-32-21, this Court affirms an administrative agency decision:

unless the agency’s findings of fact are not supported by a preponderance of the evidence, the conclusions of law are not supported by the findings of fact, the decision is not supported by the conclusions of law, the decision is not in accordance with the law or violates the appellant’s constitutional rights, or the agency’s rules or procedures deprived the appellant of a fair hearing.

Vraa v. North Dakota Workers Compensation Bureau, 1999 ND 6, ¶ 8, 588 N.W.2d 857 (citing Sprunk v. North Dakota Workers Compensation Bureau, 1998 ND 93, ¶ 4, 576 N.W.2d 861). Our review of the Bureau’s findings “is limited to determining if a reasoning mind reasonably could have determined the findings were proven by the weight of the evidence from the entire record.” Feist v. North Dakota Workers Compensation Bureau, 1997 ND 177, ¶ 8, 569 N.W.2d 1 (citation omitted).

A

[f 14] Hein argues the Bureau’s order improperly clarified the inconsistencies in the medical evidence presented, ignored medical evidence favorable to her, and thus was not supported by a preponderance of the evidence. “The claimant has the burden of establishing his or her right to participate in benefits from the Workers Compensation fund.” Hayes v. North Dakota Workers Compensation Bureau, 425 N.W.2d 356, 357 (N.D.1988) (citing Steele v. North Dakota Workmen’s Compensation Bureau, 273 N.W.2d 692, 698 (N.D.1978)).

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Bluebook (online)
1999 ND 200, 601 N.W.2d 576, 1999 N.D. LEXIS 208, 1999 WL 956523, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hein-v-north-dakota-workers-compensation-bureau-nd-1999.