Symington v. North Dakota Workers Compensation Bureau

545 N.W.2d 806, 1996 N.D. LEXIS 108, 1996 WL 159825
CourtNorth Dakota Supreme Court
DecidedApril 8, 1996
DocketCivil 950312
StatusPublished
Cited by18 cases

This text of 545 N.W.2d 806 (Symington 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
Symington v. North Dakota Workers Compensation Bureau, 545 N.W.2d 806, 1996 N.D. LEXIS 108, 1996 WL 159825 (N.D. 1996).

Opinion

SANDSTROM, Justice.

Phyllis Symington appealed from a district court judgment affirming a Workers Compensation Bureau order denying benefits for a shoulder injury. We conclude a reasoning mind reasonably could have found, as the Bureau did, that Symington’s shoulder problem was not related to a work injury, and we affirm.

I

On October 22, 1991, Symington, a dietary aide at Pembina County Memorial Hospital, filed a claim for benefits with the Bureau. Symington said she injured her right knee in a fall in a walk-in freezer on September 8, 1991. The Bureau accepted liability for the knee injury and awarded benefits. Dr. Robert Askew performed surgery on Syming-ton’s knee on December 20,1991.

On May 13, 1992, Symington participated in a work-tolerance assessment. The assessing therapist’s report stated Symington “had some significant -problems noted with her right shoulder for which there is no diagnosis available.” The Bureau had Symington examined by Dr. Paul Larsen on November 11, 1992, to determine if she could return to light duty. Dr. Larsen stated in his report:

“The patient states that for the past two months she has had pain in her right shoulder. This pain is very focal in the lateral aspect of the shoulder, but she states that this pain was present many, many years ago and has recurred since. *808 There appears to be absolutely no relationship between this pain and her accident of 1991.”

Dr. Larsen’s report also said Symington’s shoulder tenderness was “consistent with right bicipital bursitis.”

When Symington saw Dr. Askew about her knee on December 8, 1992, she asked Askew “to look at her neck and shoulder which she relates injuring at the same time as the fall which injured her knee.” Askew prescribed physical therapy for the shoulder. In May 1993, Symington requested the Bureau to accept liability for shoulder therapy. On January 11,1994, Askew performed shoulder surgery to repair a torn rotator cuff. In a letter of May 12,1994, Dr. Askew stated: “In my opinion, her diagnosis of rotator cuff tear is associated with the trauma received in the fall and the subsequent need for surgery was directly related to the injury that she suffered.”

The Bureau rejected Dr. Askew’s opinion and credited Dr. Larsen’s opinion that Sym-ington’s shoulder pain was unrelated to the 1991 fall. The Bureau denied benefits for Symington’s shoulder because she “failed to prove that it is work related.” Symington appealed to the district court, which affirmed the Bureau’s order. Symington appealed to this Court, contending the Bureau erred in denying liability for the injury to her shoulder.

The district court had jurisdiction under Art. VI, § 8, N.D. Const., N.D.C.C. §§ 27-05-06, 28-32-15, and 65-10-01. This Court has jurisdiction under Art. VI, §§ 2 and 6, N.D. Const., and N.D.C.C. § 28-32-21. The appeal was timely under Rule 4(a), N.D.R.App.P., and N.D.C.C. § 28-32-21.

II

Our review of the Bureau’s decision is governed by N.D.C.C. § 28-32-19. We review the decision of the agency, not the decision of the district court. N.D.C.C. § 28-32-21; Lambott v. Job Service North Dakota, 498 N.W.2d 157, 158 (N.D.1993). We affirm the Bureau’s decision unless its findings of fact are not supported by a preponderance of the evidence, its conclusions of law are not supported by its findings of fact, its decision is not supported by its conclusions of law, or its decision is not in accordance with the law. Otto v. North Dakota Workers Compensation Bureau, 533 N.W.2d 703, 706 (N.D.1995). In considezing whether the Bureau’s findings of fact are supported by a preponderance of the evidence, we exercise restraint and do not make independent findings of fact or substitute our judgment for the Bureau’s determination. Wherry v. North Dakota State Hospital, 498 N.W.2d 136, 139 (N.D.1993). Our review of the Bureau’s findings of fact is limited to whether a reasoning mind could have reasonably decided the factual findings were proven by the weight of the evidence from the entire record. Wherry at 139; Power Fuels, Inc. v. Elkin, 283 N.W.2d 214, 220 (N.D.1979).

To participate in the workers compensation fund, a claimant must prove a compensa-ble injury by a preponderance of the evidence. N.D.C.C. § 65-01-11; Wherry at 139. In reconciling the claimant’s burden of proof with our standard of review of a decision based upon conflicting medical evidence, we require the Bureau to clarify inconsistencies and adequately explain its rationale for disregarding medical evidence favorable to the claimant. Wherry at 139.

Ill

Symington contends the Bureau unreasonably chose Dr. Larsen’s opinion that Symington’s shoulder pain was not caused by her 1991 fall, rather than Dr. Askew’s opinion that Symington’s rotator cuff tear was caused by the 1991 fall. The Bureau found:

“Dr. Askew has, apparently, based his opinion that claimant’s shoulder condition is related to her injury based upon the history that claimant gave to him.... However, the claimant’s statements are not consistent and somewhat contradictory.... Claimant’s failure to tell doctors at the Memorial County Hospital, Dr. Larsen, Dr. Adams, initially Dr. Askew, and the HCX nurse, indicates that claimant was not having significant right shoulder problems as she claims.... She did not report anything about shoulder pain or jamming her shoulder in the fall in the *809 claim form. I conclude that Dr. Askew’s opinion that claimant’s shoulder condition is related to her fall is based upon claimant’s history, which is not supported by any other evidence. I therefore reject that opinion and credit Dr. Larsen’s opinion that claimant’s right shoulder problem is not related to her work injury of September 8,1991.”

The district court analyzed Dr. Askew’s opinion:

“While Dr. Askew’s opinion is not medically inconsistent with the possibility that Symington’s history may be correct, considering the lack of documentation of her problem in earlier records, and further considering that his opinion of causation is dependent upon Symington’s history, the opinion does not support the probability that the condition was caused by the accident.”

In her initial claim for benefits, Symington did not assert any injury to her shoulder in her fall on September 8, 1991. Between September 8, 1991, and November 17, 1992, Symington was examined by at least five doctors — Dr. K. Crawford, Dr. E.J. Larson, Dr. Edward L. Adams, Dr. Robert Askew, and Dr. Paul Larsen — on fourteen separate occasions (September 8, 13, 20 and 27, 1991; October 4 and 10, 1991; November 25, 1991; December 12, 17 and 20, 1991; February 25, 1992; April 7, 1992; June 19, 1992; and November 17, 1992).

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Bluebook (online)
545 N.W.2d 806, 1996 N.D. LEXIS 108, 1996 WL 159825, Counsel Stack Legal Research, https://law.counselstack.com/opinion/symington-v-north-dakota-workers-compensation-bureau-nd-1996.