TABLE OF AUTHORITIES
State Cases
Blanchard v. North Dakota Workers Compensation Bureau,
1997 ND 118, 565 N.W.2d 485 (N.D. 1997) 17
Feist v. North Dakota Workers Compensation Bureau,
1997 ND 177, 569 N.W.2d 1 (N.D. 1997) 11
Fuhrman v. North Dakota Workers Compensation Bureau,
1997 ND 91, 569 N.W.2d 269 (N.D. 1997) 11
Geck v. North Dakota Workers Compensation Bureau,
1998 ND 158, 583 N.W.2d 621 (N.D. 1998) 12, 16
Grotte v. North Dakota Workers Compensation Bureau,
489 N.W.2d 875 (N.D. 1992) 12
Hibl v. North Dakota Workers Compensation Bureau,
1998 ND 198; 586 N.W.2d 167 (N.D. 1998) 11
Howes v. Workers Compensation Bureau,
429 N.W.2d 730 (N.D. 1988) 12
Johnson v. North Dakota Workers Compensation Bureau,
496 N.W.2d 562 (N.D. 1993) 12, 16
Loberg v. North Dakota Workers Comp. Bureau,
1998 ND 64, 575 N.W.2d 221 (N.D. 1998) 12
Nemec v. North Dakota Workers Compensation Bureau,
543 N.W.2d 233 (N.D. 1996) 13
Ollom v. North Dakota Workers Compensation Bureau,
529 N.W.2d 876 (N.D. 1995) 13
Otto v. North Dakota Workers Compensation Bureau,
533 N.W.2d 703 (N.D. 1995) 13
Pleinis v. North Dakota Workers Compensation Bureau,
472 N.W.2d 459 (N.D. 1992) 12
Sherman v. North Dakota Workers Compensation Bureau,
1998 ND 97, 578 N.W.2d 517 (N.D. 1998) 11
Symington v. North Dakota Workers Compensation Bureau
,
545 N.W.2d 806 (N.D. 1996) 17, 20
State Statutes
N.D. Cent. Code § 65-01-02(9) 13, 15, 20
STATEMENT OF THE ISSUE
Whether Cindy Hein, has proven by a preponderance of the evidence that her cervical, left upper back, left shoulder and trapezius region, left upper extremity and hand and left lower extremity problems are related to her compensable October 9, 1995, work injury.
STATEMENT OF THE CASE
Cindy Hein, (hereinafter referred to as "Hein"), filed an application for Workers Compensation benefits in connection with an injury sustained on October 9, 1995, while employed by Superpumper in Emerado, North Dakota, as a gas station clerk. AA 1.(1) Hein sustained an injury to her coccyx (tailbone) and the back of her head when she slipped on a wet floor while assisting a customer. Id. The North Dakota Workers Compensation Bureau, (hereinafter referred to as "Bureau"), accepted liability for Hein's head and tailbone injury and awarded ongoing medical benefits, together with temporary total disability benefits from October 9, 1995, through October 23, 1995. AA 2. Hein's disability benefits were discontinued on October 23, 1995, as she returned to work on October 24, 1995. AA 3.
By Order Denying Specific Benefits dated April 18, 1997, the Bureau denied liability for treatment of Hein's cervical, left upper back, left shoulder and trapezius region, left upper extremity and hand and left lower extremity problems. AA 4-14. Hein appealed the Bureau's Order by letter dated July 16, 1997, by specifically requesting a formal hearing. SA 2.(2) An administrative hearing was conducted pursuant to notice on October 8, 1997, Administrative Law Judge Paul R. Oppegard presiding. C.R. 153.(3)
Administrative Law Judge Oppegard issued Recommended Findings of Fact, Conclusions of Law and Order dated December 22, 1997, wherein he recommended that Hein be awarded benefits for her cervical, upper back, left upper arm and shoulder conditions. AA 22-27. The Bureau reviewed the Administrative Law Judge's recommended decision and requested reconsideration pursuant to motion dated January 27, 1998. SA 4-7. The Administrative Law Judge considered and denied the Bureau's Motion for Reconsideration on February 17, 1998. SA 8-10. The Bureau modified the Administrative Law Judge's Recommended Findings of Fact and Conclusions of Law and rejected his Recommended Order by issuing its Final Order on April 16, 1998. AA 28-32. Hein appealed the Bureau's April 16, 1998, Final Order to the Grand Forks County District Court by Notice of Appeal and Specification of Error dated May 15, 1998, contending the Bureau erred by not adopting the Administrative Law Judge's Recommended Order. However, Grand Forks County District Judge Joel E. Medd rejected Hein's argument and affirmed the Bureau's April 16, 1998, Order by Memorandum Decision and Order Affirming the North Dakota Workers Compensation Bureau's Findings of Fact, Conclusions of Law and Order dated March 16, 1999. AA 42-52.
Hein appealed Judge Medd's Decision to this Court by Notice of Appeal dated May 13, 1999. AA 54-55. The North Dakota Workers Compensation Bureau respectfully requests that this Court affirm the Grand Forks County District Court's decision and the Bureau's April 16, 1998, Final Order.
STATEMENT OF THE FACTS
Hein filed an application for Workers Compensation benefits dated October 13, 1995, for an injury to the back of her head and tailbone while employed by Superpumper, Emerado, North Dakota, as a clerk. AA 1. Hein sustained this injury on October 9, 1995, when she slipped and fell on a wet floor. Id. Hein went to United Hospital emergency room on the day of the fall where she was diagnosed with a coccyx sprain and possible fracture. AA 56. Dr. Debra Nyquist treated her with pain medication and released her to return to work on October 12, 1995, without restrictions.(4) AA 56 & 59. The emergency room examination did not reveal any other injury to her head, neck, back or legs. CR17-23. Dr. Fasbender followed up with Hein by phone two days after the fall and Hein indicated she was feeling much better, although she still had pain at the tip of her coccyx. AA 58.
Hein was evaluated by Joel J. Johnson, M.D. on October 12, 1995. AA 77. Dr. Johnson noted Hein had a history of a fall with pain in the coccyx region and prescribed more pain medication. Id. He instructed her to follow up with him in a "couple of weeks if the symptoms do not resolve." Id. Hein did not follow up with Dr. Johnson within the prescribed time frame. In fact, Hein did not treat with Dr. Johnson again until May 20, 1996. AA 78. When she saw Dr. Johnson in May of 1996 he noted "Hein's coccyx pain had resolved." Id. She saw Dr. Johnson not for the work injury to her coccyx but because she had developed pain in her left shoulder in January of 1996. Id. Hein, not Dr. Johnson, subjectively attributed this pain to her fall. Id.(5)
It was Dr. Johnson's May 20, 1996, impression that Hein had shoulder pain which, after further examination, was totally unremarkable for any pathology. AA 78. However, Dr. Johnson opined the origin of her pain was most likely referred from her neck. Id. His diagnosis was confirmed by contemporaneous x-rays of her cervical spine which revealed degenerative changes. SA 11. To treat Hein's degenerative problems, Dr. Johnson prescribed physical therapy. AA 78. She underwent nine sessions of physical therapy at the Rehab in Grand Forks between May 23, 1996, and June 24, 1996. AA 64-74.
After completing her physical therapy, Hein had an EMG performed on her left arm on July 3, 1996, which yielded normal results. AA 81. Dr. Johnson referred Hein to Doctors Emery and Pettit at Red River Neurology Clinic, Ltd., Grand Forks, North Dakota, for a neurologic consult. AA 79-80. It was Dr. Emery's impression, after examining Hein and taking an oral history from her, that she had: 1) left neck, shoulder and arm discomfort with unknown etiology, and 2) no neurological etiology, i.e., carpal tunnel syndrome or cervical radiculopathy. AA 80. Dr. Pettit also reviewed Hein's medical history and reexamined her. Id. He did not feel that Hein's "findings are due to an identifiable neurologic problem." Id. She continued treating with pain medication and trigger point injections from July through September of 1996 without relief. AA 82-85. Dr. Emery ordered an MRI of Hein's cervical spine on September 26, 1996. AA 85 & 89. The MRI revealed Hein suffers from a cervical curvature at the C4-C5 level secondary to ligamental laxity or degenerative changes. AA 86-89.
Dr. Emery referred Hein to Dr. Schmelka on October 3, 1996, for a surgical consult. AA 86. Dr. Schmelka ordered x-rays of Hein's cervical spine, which revealed degenerative changes at C4-C5 and C5-C6. AA 101. Dr. Schmelka wrote to the Bureau on October 17, 1996, and opined, "Whether there is causality between her fall and what's occurring now? I cannot truthfully answer this, as there is an ongoing process." SA 12. In his next letter to the Bureau dated October 31, 1996, Dr. Schmelka opined, "Do I think that the fall produced the sequence of events that occurred? I think the fall started the sequence of events." AA 102. Dr. Schmelka also indicated that he advocates surgery with fusion at the C4-C5 and C5-C6 levels. Id. However, he wanted the opinion of Dr. Rice before going ahead with surgical intervention. AA 102 & SA 13.
Dr. Rice saw Hein in January of 1997. AA 61-63. Hein told Dr. Rice that she had suffered two herniated discs in her cervical spine in 1995 while working at Superpumper. AA 61. This statement to Dr. Rice was incorrect. She was neither diagnosed with a cervical spine injury following her fall at Superpumper, nor did she complain of such injury. Instead, she suffered an injured coccyx and was returned to work following a brief convalescence. SA 14, 56-63.
In approximately the same timeframe that Dr. Schmelka was seeking Dr. Rice's opinion, the Bureau referred the claim to its internal medical consultant, Dr. Ralph Kilzer. AA 75. Dr. Kilzer issued his report on December 3, 1996, in which he stated he "disagree[s] with those who somehow associate her degenerative disc disease with her injury to the back of her head. There is no proof her degenerative disc disease resulted from her injury. In fact, the recommendations for the two levels of C4-C5 and C5-C6 probably resulted from degenerative disc disease rather than from a direct blow to the back of the skull." AA 76. Further, Dr. Kilzer opined, "even though she [Hein] is very symptomatic, this level of symptomatology does not establish causality. Her degenerative disc disease, sooner or later, would have resulted in the need for surgery, with or without the injury." Id.
In addition to Dr. Kilzer's review, the Bureau scheduled an independent medical evaluation with Dr. Fielden on December 5, 1996. AA 92-100. Dr. Fielden took an oral history from Hein, examined her medical records, and performed a physical examination. AA 94-100. Dr. Fielden opined that there was no causal relationship between Hein's October 9, 1995, work injury and Dr. Schmelka's current diagnosis. AA 99. He also opines that he agrees with Dr. Kilzer's assessment found in his memo. Id. Finally, Dr. Fielden opines that there is no indication there was a cervical spine injury in October of 1996, or that Hein's neck was ever affected by her fall. Id. He concludes that there is no relationship between the October 1995 accident and her neck pain in 1996. Id.
After reviewing the opinions of Doctors Fielden, Guernsey(6) and Rice, Dr. Schmelka wrote to the Bureau on February 17, 1997, stating, "I have to conclude that their summation of findings are reasonable findings and do not support, at this time, surgical intervention for her particular problem. … In terms of agreeing with their subjective findings, which are important here, I do agree with them." AA 103. He also opined, "The next question that has to be answered is, do I think the fall which occurred was responsible for this. Although it is possible to suggest that these things occurred because of her fall, it is not likely that they are responsible for her complaints at the present time." Id. (Emphasis added.)
After analyzing the medical opinions presented in this case, the Bureau issued its Order Denying Specific Benefits on April 18, 1997, concluding that Hein had not proven with reasonable medical certainty that her cervical, left upper back, left shoulder and trapezius region, left upper extremity and hand and left lower extremity problems are related to her work injury of October 9, 1995, and, therefore, denied liability for these body parts. AA 4-14. On July 16, 1997, Hein appealed this Order and requested a hearing. SA 2.
On the advice of her former attorney, and on July 31, 1997, Hein sought a supporting opinion. SA 3. This explains why she saw Dr. Gasser, who indicated that he is, "in complete agreement with Dr. Schmelka in that I believe the fall did cause a sequence of events that lead up to the disc bulge and herniations by loosening the ligaments and weakening annulus's, etc. This is based on the fact that she had no cervical pain syndrome prior to this, and these are definitely disc bulges and not bony spurs, etc., which are more consistent of degenerative changes." AA 120. Dr. Schmelka's opinion with which Dr. Gasser agrees is set forth in Dr Schmelka's October 31, 1996, letter. AA 102. However, when presented with Dr. Schmelka's February 17, 1997, retreat from his October 31, 1996, opinion, and when confronted by the contrary opinions of Doctors Kilzer and Fielden, Dr. Gasser refused to retreat from his opinion and simply referred to his October 7, 1997, note. SA 15-16.
An administrative hearing was held pursuant to notice on October 8, 1997, Administrative Law Judge Paul R. Oppegard presiding. CR 153 p. 1-70. The Administrative Law Judge issued his Recommended Findings of Fact, Conclusions of Law and Order on December 22, 1997. AA 22-27. This decision recommended the reversal of the Bureau's April 16, 1997, Order Denying Specific Benefits. Id. The Bureau respectfully requested the Administrative Law Judge reconsider his December 22, 1997, recommended decision. SA 4-7. However, the Administrative Law Judge declined to do so by Order Denying Petition for Reconsideration and Amended Findings of Fact and Conclusions of Law dated February 17, 1998. SA 8-10.
The Bureau reviewed the evidence, together with the Administrative Law Judge's recommended decision, and adopted and modified the Recommended Findings of Fact while rejecting the Recommended Conclusions of Law and Recommended Order by Final Order dated April 16, 1998. AA 28-32. On May 15, 1998, Hein appealed the Bureau's final decision to the Grand Forks County District Court. Grand Forks County District Court Judge Joel E. Medd reviewed the certified record on appeal and considered the written briefs of both Hein and the Bureau, and affirmed the Bureau's April 16, 1998, Final Order by Memorandum Decision dated March 16, 1999. AA 42-52. In his Memorandum Opinion, Judge Medd correctly found that the Bureau's Findings of Fact are supported by a preponderance of the evidence and the Bureau adequately explained its rationale for rejecting the Administrative Law Judge's recommendation and Dr. Gasser's opinion. Id. Hein challenged the District Court opinion by filing her Notice of Appeal to this Court on May 13, 1999. AA 54-55.
SUMMARY OF THE ARGUMENT
The Bureau's April 16, 1998, Final Order and the Grand Forks County District Court's affirmation of the Final Order is proper. The medical evidence clearly supports the Bureau's position that Hein's injuries to her cervical, upper back, left upper arm, left shoulder, trapezius region, left upper extremity, left hand, and left lower extremity are not related to and do not arise out of her employment at Superpumper. The Bureau adequately explained how it weighed the credibility of the medical evidence in modifying and rejecting the recommended decision of the Administrative Law Judge and the lone opinion of Dr. Gary Gasser.
LAW AND ARGUMENT
Standard of Review
.
On appeal, this Court reviews the decision of the Bureau, not that of the District Court. Hibl v. North Dakota Workers Compensation Bureau, 1998 N.D. 198, ¶ 7; 586 N.W.2d 167 (N.D. 1998); Fuhrman v. North Dakota Workers Compensation Bureau, 1997 N.D. 91, ¶ 6, 569 N.W.2d 269, 271 (N.D. 1997). However, the "district court's analysis is entitled to respect if its reasoning is sound and because the legislatively mandated review by the district court cannot be ineffectual." Sherman v. North Dakota Workers Compensation Bureau, 1998 N.D. 97 ¶ 7, 578 N.W.2d 517, 519 (N.D. 1998), citing Feist v. North Dakota Workers Compensation Bureau, 1997 N.D. 177 ¶ 8, 569 N.W.2d 1, 3 (1997). The Court must "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, its 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." Geck v. North Dakota Workers Compensation Bureau, 1998 N.D. 158, ¶ 5, 583 N.W.2d 621, 622 (N.D. 1998), citing Loberg v. North Dakota Workers Comp. Bureau, 1998 N.D. 64, ¶ 5, 575 N.W.2d 221 (N.D. 1998). The North Dakota Supreme Court has repeatedly held that in determining whether or not an agency's findings of fact are supported by a preponderance of the evidence, reviewing courts should not make independent findings of fact or substitute their judgment for that of the agency. Grotte v. North Dakota Workers Compensation Bureau, 489 N.W.2d 875, 878 (N.D. 1992); Howes v. Workers Compensation Bureau, 429 N.W.2d 730, 734 (N.D. 1988). Rather, this Court need determine "only whether or not a reasoning mind could have reasonably determined that the Bureau's factual determinations were supported by the evidence." Johnson v. North Dakota Workers Compensation Bureau, 496 N.W.2d 562, 564 (N.D. 1993); Pleinis v. North Dakota Workers Compensation Bureau, 472 N.W.2d 459, 462 (N.D. 1992).
As noted by the Supreme Court in numerous decisions:
In determining whether the Bureau's findings of fact are supported by a preponderance of the evidence, we exercise restraint and do not make independent findings or substitute our judgment for that of the Bureau, but determine only whether a reasoning mind reasonably could have determined the findings were proven by the weight of the evidence from the entire record.
Nemec v. North Dakota Workers Compensation Bureau, 543 N.W.2d 233, 237 (N.D. 1996). See also, Otto v. North Dakota Workers Compensation Bureau, 533 N.W.2d 703, 706 (N.D. 1995); Ollom v. North Dakota Workers Compensation Bureau, 529 N.W.2d 876, 878 (N.D. 1995).
II. Hein's cervical, left upper back, left shoulder and trapezius region, left upper extremity and hand and left lower extremity problems are not related to her October 9, 1995, work injury.
Hein's injury is not compensable under 65-01-02(9), which defines a "compensable injury" as an injury arising out of and in the course of employment which must be established by medical evidence supported by objective medical findings. Hein has produced no objective medical evidence linking her complaints to her employment. Rather, the objective medical evidence reveals Hein's degenerative problems in her spine, which have led to complaints in her neck, upper back, left shoulder and trapezius region and left upper extremity and hand and lower extremity, are not related to her work injury.
When she fell on October 9, 1995, she injured her coccyx and the back of her head. AA 56-63 This is precisely the injury she treated for in the United Hospital emergency room on October 9, 1995, as well as the basis of her October 13, 1995, application for benefits. AA 1 & 56-63. When reporting to the Bureau, her treating doctor, Joel J. Johnson, M.D., diagnosed a coccyx sprain and took Hein off work for two weeks. SA 14. Based on Hein's release to return to work, her temporary total disability benefits were discontinued on October 23, 1995. AA 2. Subsequent to October 1995, Hein did not treat for her coccyx pain other than taking prescribed pain medication and ibuprofen. CR45. When she next visited Dr. Johnson, six months after her fall, on May 20, 1996, he opined that her coccyx injury had resolved. AA 77.
In February of 1996 she briefly treated at the Swope Parkway Health Center in Kansas City, Missouri. AA 90-91; SA 19-20. An x-ray taken at that time showed degenerative changes to her entire spine and minimal scoliosis and no recent bone trauma or destruction. AA 90. There is nothing in the Swope Parkway Health Center medical records offering objective medical proof or opinion that her cervical problems are related to her coccyx injury two months earlier. AA 90-91; SA 19-20. Neither Doctor Johnson, Emery nor Pettit has opined that the relationship between the October 1995 work injury and the symptoms she was experiencing in 1996 exists. Instead, Dr. Emery, who was fully aware of Hein's October 1995 injury, stated that the etiology for Hein's neck, shoulder and extremity complaints is unknown. AA 79-80.
The Bureau referred her records to Dr. Ralph Kilzer, to assess Hein's medical status. AA 75. Dr. Kilzer opined there was no relationship between Hein's degenerative disc disease and the October 1995 injury. AA 76. He further stated that Hein's degenerative disease sooner or later would have resulted in the need for surgery, with or without injury. Id. This unrefuted opinion proves that even if there was a relationship between the October 1995 work injury and her cervical disease, it would be a non-compensable trigger under 65-01-02(9)(b)(6).(7)
To further assess Hein's medical status in the ongoing analysis of her claim, she was referred to Dr. Fielden for an independent medical examination on November 29, 1996. AA 99. In his report, Dr. Fielden specifically opines that there is no causal relationship between the October 9, 1995, work injury and Dr. Schmelka's diagnosis. AA 99. Rather, her cervical condition was an underlying stress problem and the neck symptoms show no specific relationship to the degenerative problems Hein was experiencing. Id. He also concurred with Dr. Kilzer and summed up by saying that there was no relationship between her neck pain and her accident. AA 99-100.
At Dr. Schmelka's request, Hein also was examined by Dr. Rice on January 27, 1997. AA 61-63 & SA 13. Dr. Rice took an oral history from the Hein when he saw her in January of 1997. AA 63. She reported she slipped and fell and immediately began suffering from severe neck and left arm pain. (Emphasis added.) Id. This history, as given to Dr. Rice, is blatantly inconsistent with her treatment records made at the time of the fall. AA 56-63. It is also inconsistent with the injury Hein reported in her application for benefits. AA 1. She initially complained of tailbone pain. AA 56-63. Despite her complaints to Dr. Rice, he stated, "There is no surgical option available to her", and advised her to consult with a chronic pain specialist. AA 63. After reviewing the opinions of Doctors Fielden and Rice, Dr. Schmelka opined that it was not likely that her fall was responsible for her present complaints. AA 103.
As the Grand Forks County District Court found, the Bureau's April 16, 1998, Final Order is consistent with the opinions of all but one reviewing doctor, and Dr. Schmelka the treating physician as well. Based on the medical evidence associated with Hein's claim, a reasoning mind could have reasonably determined that the Bureau's decision is supported by the evidence. Johnson v. North Dakota Workers Compensation Bureau, 496 N.W.2d 562 (N.D. 1993). Further, the medical evidence supports the Bureau's findings of fact which underpin its conclusions of law and support its decision. The decision itself is in accordance with law and violates neither Hein's constitutional rights nor the agency's rules or procedures, and provided Hein with a fair hearing. Geck v. North Dakota Workers Compensation Bureau, 583 N.W.2d 621 (N.D. 1998).
III. The Bureau adequately explained its rationale for rejecting the Administrative Law Judge's recommendations and Dr. Gasser's opinion.
The Bureau must adequately explain its reasons for rejecting an administrative law judge's recommendations. Blanchard v. North Dakota Workers Compensation Bureau, 1997 ND 118, 565 N.W.2d 485 (N.D. 1997). When presented with conflicting medical evidence, the Bureau has a duty to weigh the credibility of the evidence. Symington v. North Dakota Workers Compensation Bureau, 545 N.W.2d 806 (N.D. 1996). In Symington, the Court found the Bureau must consider the entire record, clarify inconsistencies and explain its reasons for disregarding medical evidence favorable to Hein. In her Statement of Issues, Hein challenges the adequacy of the Bureau's clarification of inconsistent medical evidence. Appellant's Brief at 1. The Bureau rejected the Administrative Law Judge's recommended finding of fact number 20, which read, "Dr. Schmelka and Dr. Emery's opinions that the October 1995, fall may or may not have caused the claimant's condition are equivocal." The Bureau also rejected the recommended conclusions that Claimant has produced objective medical evidence that her cervical, upper back, left upper arm and shoulder problems are a compensable injury and that her cervical, upper back, left upper arm and shoulder problems are fairly traceable to her October 1995 work injury or that her work injury substantially accelerated the progression of her degenerative condition. AA 22-27. The Bureau has clearly explained why it chose to disregard the Administrative Law Judge's recommendations Dr. Gasser's opinion in its Final Order at Finding of Fact 21. AA 29.(8) In his Memorandum Decision, Judge Medd agreed the Bureau had in fact adequately explained its rationale for rejecting the Administrative Law Judge's recommendation, together with Dr. Gasser's opinion. AA 42-52.
The lone supporting opinion which Hein offers is Dr. Gasser's concurrence with Dr. Schmelka's outdated cryptic October 31, 1996, statement that he believes
"the fall started the sequence of events." AA 102 & 120-122. The fact that Dr. Schmelka had clearly retreated from this opinion did not change Dr. Gasser's mind. SA 15-16. Hein saw Dr. Gasser strictly for an opinion to use in her upcoming litigation. SA 3. Otherwise, there is no doctor reporting a relationship between her cervical problems and the October 1995 coccyx injury. Dr. Gasser's opinion is incredible, especially considering that Hein did not complain of or sustain any injury to her cervical area in October of 1995. She injured her coccyx. Further, she did not treat or complain of any cervical pain until she saw Dr. Johnson on May 20, 1996. This treatment came after the resolution of her coccyx injury. Even Dr. Gasser admits that Hein has degenerative changes in her cervical spine. AA 120.
Dr. Gasser's opinion is at odds with every other doctor who has offered an opinion and/or treated Hein in this matter. His opinion is not objectively supported. This is succinctly set forth in the Bureau's Finding of Fact 21. AA 29. Dr. Schmelka is most familiar with Hein's treatment. He opined that it is not likely her fall caused her complaints. This is supported by the opinions on independent review of Dr. Fielden and Dr. Kilzer. Hein's suggestion that Dr. Gasser's lone opinion should somehow out weigh the consistent opinions of Doctors Kilzer, Fielden and Schmelka is not credible.
Contrary to the Administrative Law Judge's recommended conclusion, even Dr. Gasser has not opined that the employment injury caused or substantially accelerated the progression of Hein's underlying condition of degenerative disc disease. However, 65-01-02(9)(b)(6) clearly requires proof by this type of supported medical opinion to award compensation. As Dr. Fielden precisely opines, Hein's neck pain progressed subsequent to the injuries and was not triggered by the injuries. AA 99. Rather, she experienced degenerative changes having no relationship to the work injury. Id. Consequently, there was no substantial acceleration as required by 65-01-02(9)(b)(6), much less any credible evidence linking her cervical problems to her work injury. By adequately explaining its reasons for rejecting Administrative Law Judge Oppegard's recommendations, and weighing the credibility of the medical evidence, the Bureau has satisfied its duty set forth in both Blanchard and Symington.
CONCLUSION
Based upon all evidence introduced in this matter, the Bureau has properly rejected Administrative Law Judge Oppegard's recommended decision as Hein did not sustain a "compensable injury", as statutorily defined by North Dakota Century Code Section 65-01-02(9), beyond the injury to her coccyx and back of her head. Therefore, for the foregoing reasons and based upon the record herein, the Bureau respectfully requests that its Final Order dated April 16, 1998, be in all things affirmed, and Hein's appeal from that Order be in all things denied.
Respectfully submitted this 14th day of July, 1999.
_________________________________
John C. Simonson (ND ID # 05097)
Spec. Asst. Attorney General
for ND Workers Comp. Bureau
NILLES, HANSEN & DAVIES, LTD.
1800 Radisson Tower
201 North 5th Street
P. O. Box 2626
Fargo, North Dakota 58108-2626
Phone: (701) 237-5544
Fax: (701) 280-0762
ATTORNEYS FOR APPELLEE
1. 1 AA refers to Appellant's Appendix.
2. 2 SA refers to the North Dakota Workers Compensation Bureau's Supplemental Appendix.
3. 3 C.R. refers to Grand Forks County District Court Certified Record.
4. 4 Dr. Nyquist's October 12, 1995, release to return to work date, as found in the emergency room record at AA 56, and the doctor's report of injury to employer at AA 59 conflicts with Dr. Johnson's two-week excuse from work. SA 14. The Bureau paid total temporary disability benefits in accordance with Dr. Johnson's two-week excuse. AA 3.
5. 5 At the May 20, 1996, visit, Hein told Dr. Johnson that she based this conclusion on the opinion of a physician in Kansas City. AA 78. The corresponding records are from the Swope Parkway Health Center in Kansas City. AA 90-91; SA 19-20. They do not corroborate Hein's conclusion relayed to Dr. Johnson on May 20, 1996. Rather, the February 21, 1996, radiology report revealed degenerative changes in Hein's lumbar thoracic and cervical spine. SA 11. She did report a left shoulder injury in September of 1995 to the doctor at Swope Parkway Health Center. AA 91. That injury predated the October 1995 coccyx injury which Dr. Johnson opined had resolved. Additionally, if she reported left shoulder injury to the doctor at Swope, she provided him with inaccurate information because she did not treat a left shoulder injury in October of 1995.
6. 6 Dr. Guernsey is a pain specialist at the Grand Forks Clinic to whom the Hein was referred for pain management in February of 1997.
7. 7 North Dakota Century Code Section 65-01-02(9)(b)(6) reads, in the relevant part, as follows: "It is insufficient, however, to afford compensation under this title solely because the employment acted as a trigger to produce symptoms in a latent and underlying condition if the underlying condition would likely have progressed similarly in the absence of the employment trigger, unless the employment trigger is determined to be a substantial aggravating or accelerating factor.
8. 8The Bureau explained its rationale for disregarding Dr. Gasser's opinion in Finding of 21 of its Final Order, which reads as follows: On August 31, 1997, upon the prompting of her then attorney and in anticipation of upcoming litigation, Ms. Hein sought the opinion of Dr. Gary Gasser. Dr. Gasser opined that the October 1995 fall did cause the sequence of events that led to the disc bulge and herniations by loosening the ligaments and weakening the annulus's, etc. He based his opinion on Claimant's lack of prior cervical pain syndrome and that she had disc bulges rather than bony spurs which are more consistent of degenerative changes. Dr. Gasser stated that the disc bulges were more consistent with the fall.
Dr. Kilzer's opinion is consistent with the opinions of Dr. Schmelka and Fielden. Dr. Gasser has submitted the lone opinion in support of the Claimant. The opinions of Drs. Schmelka, Fielden and Kilzer are more consistent and credible than the opinion offered by Dr. Gasser. Dr. Schmelka is the most familiar with Claimant's treatment. Drs. Fielden and Kilzer, upon independent review, concur with his conclusions.