Curran v. North Dakota Workforce Safety & Insurance

SANDSTROM, Justice.

[¶ 1] Kari Curran had suffered prior off-the-job injuries to her lower back and had degenerative disc disease. While on the job as a nurse, she bent over to pick up a band-aid from the floor and experienced significant lower back pain. Because a reasoning mind could have found as WSI did, that picking up the band-aid triggered a preexisting condition but did not substantially accelerate or worsen her condition, we reverse the district court judgment and reinstate the decision of Workforce Safety & Insurance (“WSI”).1

*623I

[¶ 2] In February 2007, Kari Curran submitted a claim to WSI for benefits, reporting that she had sustained a work injury to her mid-to-right lower back while employed as a nurse at MeritCare Health System in Fargo. While caring for a patient, Curran bent over quickly, twisting down toward the floor, to retrieve a used band-aid. She testified she experienced sudden lower back pain and had difficulty returning to an upright position because of the pain.

[¶ 3] Curran’s medical records document chiropractic treatment for her lower spine prior to her work injury, following an automobile accident in February 2004. She sought treatment from Thomas Solien, D.C., a MeritCare chiropractor. Dr. Sol-ien diagnosed her with “cervical lumbosa-cral pain/strain.” Curran’s medical records state she was experiencing pain in her lower back, which was exacerbated by lifting, sitting, and moving from a sitting to a standing position. According to her records, her pain level fluctuated throughout the next year and a half. At times she reported low pain, while at other times the pain became “insidiously more prominent” and she scored her pain level higher.

[¶ 4] WSI found that in November 2006, Curran made multiple visits to Dr. Solien to treat pain lingering at least in part from a June 2005 motorcycle accident. Her medical records show she complained of lower back pain, as well as sharp pains when bending and twisting. Dr. Solien noted there was no improvement in her lower back pain, and her attendant difficulties, such as sitting and sit-to-stand motion, were continuing. Prior to her February 2007 work injury, WSI found Curran received medical treatment for her back that included one emergency room visit and twelve chiropractic treatments.

[¶ 5] According to MeritCare records, Curran contacted its human resources department the day after she hurt her back picking up the band-aid. She was told about filing a WSI claim and whom to see for medical treatment. That same day, Curran’s medical records reflect she went to MeritCare Occupational Health Center and received treatment from Robert Mar-tino, M.D. Dr. Martino diagnosed lumbar pain and recommended a course of physical therapy, in addition to various medications. Dr. Martino released Curran to return to work with restrictions, including no repetitive lifting, no pushing or pulling over ten pounds, and no prolonged standing or walking. Curran’s records reflect she began receiving physical therapy, during which her chief complaint was lower back pain. Over the course of the next year, her medical records show that she received numerous medical treatments for her lower back pain from multiple physicians and- medical professionals.

[¶ 6] Curran’s records show she again saw Dr. Martino on February 23, 2007, and he noted her pain had been improving, but she was now experiencing right leg pain with increased aching and burning. He referred her to the emergency room at her request, where she was seen by Paul Bilstad, M.D. Dr. Bilstad recorded she had acute back pain and noted her symptoms “could be an early disk.” In March 2007, an MRI was performed on her lumbar spine, which showed mild disc degeneration and a small ring-shaped tear in one of her discs.

[¶ 7] Charles Koski, M.D., a neurosurgeon at MeritCare Occupational Health Center, evaluated Curran in March 2007. In his notes, he recorded the ring-shaped *624tear in her disc, but did not recommend surgery to repair it. Dr. Koski also acknowledged WSI was looking into the relationship between Curran’s current symptoms and the 2004 automobile accident, but he opined it “most likely” was an independent event and that Curran’s back pain was “reasonably related” to the tear shown on the MRI.

[¶ 8] In April 2007, WSI’s medical director, Dr. Luis Vilella, reviewed a portion of Curran’s records and opined that the disc degeneration of her lumbar spine found on the MRI preexisted the original work incident. He further concluded in his records that the disc degeneration resulted in the disc tear, which produced the pain symptoms she was experiencing. Dr. Vilella concluded the work incident was a mere trigger of the symptoms, which did not substantially accelerate or worsen the degenerative process.

[¶ 9] Dr. Solien provided a letter to WSI in September 2007 supporting Cur-ran’s claim for benefits. He had previously provided her chiropractic treatment for lower back symptoms in March 2005 and in November 2006 for right side lower back pain, particularly with bending and twisting activities. Dr. Solien noted Cur-ran had preexisting problems with her lumbar spine, but opined the work incident resulted in the disc tear and herniation that produced the ongoing symptoms.

[¶ 10] In November 2007, Curran’s records show she underwent a discogram of her lumbar spine, which indicated degenerative disc disease and the disc tear. In February 2008, Curran received treatment in Germany and underwent a disc replacement surgery. The reports from this procedure indicate her degenerative disc disease was both “chronic” and “severe.”

[¶ 11] While Curran was in the midst of treating her lower back pain, WSI denied her claim for benefits in April 2007, citing a lack of objective medical evidence supporting a new injury to her lower back. The April 2007 notice of decision denying benefits stated Curran had a history of back problems dating back to her February 2004 automobile accident, noted she had received chiropractic treatment as recently as November 2006, and relied on Dr. Vilella’s opinion that the workplace incident only triggered a previous condition. In June 2007, WSI issued a formal order dismissing her claim, and she requested an evidentiary hearing.

[¶ 12] The issue at the hearing was whether Curran suffered a compensable injury to her lumbar spine while at work. The administrative law judge (“ALJ”) issued proposed findings of fact, conclusions of law, and an order affirming WSI’s dismissal of Curran’s claim. WSI adopted the ALJ’s recommended decision as its final order. WSI’s final order adopted the proposed findings of fact.

[¶ 13] WSI found it was “apparent that on February 13, 2007, Ms. Curran suffered some sort of back injury at work.” WSI continued: “At the same time, however, it is equally obvious from analyzing Ms. Cur-ran’s medical records that when this injury occurred she had a preexisting back injury.” “The question remains whether Ms. Curran has proved by the greater weight of the evidence that the work injury substantially accelerated or worsened the pri- or injury, or is it the case that the work injury only triggered symptoms of the preexisting injury.”

[¶ 14] After comparing her treatment records before and after the work injury, along with consideration of the competing expert opinions, WSI found the greater weight of the evidence did not show that Curran’s work injury substantially accelerated or worsened the severity of her degenerative disc disease or that her work as *625a nurse substantially contributed to her degenerative disc disease. WSI therefore concluded Curran was not entitled to benefits.

[¶ 15] In July 2008, Curran appealed WSI’s final order to the district court. The district court issued a memorandum opinion and order reversing WSI’s final order. In reversing WSI’s final order, the district court held its findings were not supported by the preponderance of the evidence. WSI appeals from the district court’s judgment.

[¶ 16] The district court had jurisdiction under N.D. Const, art. VI, § 8, and' N.D.C.C. §§ 27-05-06, 65-10-01, and 28-32-42. WSI’s appeal was timely under N.D.R.App.P. 4(a) and N.D.C.C. § 28-32-49. This Court has jurisdiction under N.D. Const, art. VI, §§ 2 and 6, and N.D.C.C. § 28-32-49.

II

[¶ 17] On appeal from the district court, we review the administrative agency’s decision in the same manner the district court reviewed the decision of the agency. N.D.C.C. § 28-32-49. We must affirm an administrative agency order unless:

1. The order is not in accordance with the law.
2. The order is in violation of the constitutional rights of the appellant.
3. The provisions of this chapter have not been complied with in the proceedings before the agency.
4. The rules or procedure of the agency have not afforded the appellant a fair hearing.
5. The findings of fact made by the agency are not supported by a preponderance of the evidence.
6. The conclusions of law and order of the agency are not supported by its findings of fact.
7. The findings of fact made by the agency do not sufficiently address the evidence presented to the agency by the appellant.
8. The conclusions of law and order of the agency do not sufficiently explain the agency’s rationale for not adopting any contrary recommendations by a hearing officer or an administrative law judge.

N.D.C.C. § 28-32^6. “WSI is responsible for weighing the credibility of witnesses and resolving conflicts in the evidence, and we do not make independent findings of fact or substitute our judgment for that of the agency.” Tverberg v. Workforce Safety and Ins., 2006 ND 229, ¶ 8, 723 N.W.2d 676 (quotations omitted). “We determine only whether a reasoning mind reasonably could have determined that the factual conclusions reached were proved by the weight of the evidence from the entire record.” Id. (quoting Power Fuels, Inc. v. Elkin, 283 N.W.2d 214, 220 (N.D.1979)).

A

[¶ 18] The dispositive issue on appeal is whether a reasoning mind reasonably could have found that Curran did not prove by the weight of the evidence that she suffered a compensable injury to her lumbar spine while picking up a band-aid at work.

[¶ 19] In seeking WSI benefits, a claimant has the burden of proving by a preponderance of the evidence that the claimant has suffered a compensable injury and is entitled to benefits. N.D.C.C. § 65-01-11; Bergum v. N.D. Workforce Safety & Ins., 2009 ND 52, ¶ 11, 764 N.W.2d 178. “To carry this burden, a claimant must prove by a preponderance *626of the evidence that the medical condition for which benefits are sought is causally related to a work injury.” Id.; see Manske v. Workforce Safety & Ins., 2008 ND 79, ¶ 9, 748 N.W.2d 394.

[¶ 20] Under N.D.C.C. § 65-01-02(10)(b), preexisting injuries are generally excluded from the definition of compensa-ble injury:

10. “Compensable injury” means an injury by accident arising out of and in the course of hazardous employment which must be established by medical evidence supported by objective medical findings.
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b. The term does not include:
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(7) Injuries attributable to a preexisting injury, disease, or other condition, including when the employment acts as a trigger to produce symptoms in the preexisting injury, disease, or other condition unless the employment substantially accelerates its progression or substantially worsens its severity.

[¶ 21] On the basis of this statutory language, we have explained that although it is not necessary to show the employment was the sole cause of the injury, to establish a causal connection the claimant must demonstrate his employment was a substantial contributing factor to the disease or injury. Bruder v. Workforce Safety & Ins., 2009 ND 23, ¶ 8, 761 N.W.2d 588. In reaching its decision, WSI must weigh any conflicts in medical evidence and explain adequately any reasons for rejecting evidence favorable to the claimant. See N.D.C.C. § 28-32-46(7); Thomas v. Workforce Safety & Ins., 2005 ND 52, ¶ 9, 692 N.W.2d 901; Barnes v. Workforce Safety & Ins., 2003 ND 141, ¶ 20, 668 N.W.2d 290.

WSI has the responsibility to weigh the credibility of medical evidence and resolve conflicting medical opinions. When confronted with a classic “battle of the experts,” a fact-finder may rely upon either party’s expert witness. Although WSI may resolve conflicts between medical opinions, the authority to reject medical evidence selectively does not permit WSI to pick and choose in an unreasoned manner. WSI must consider the entire record, clarify inconsistencies, and adequately explain its reasons for disregarding medical evidence favorable to the claimant.

Huwe v. Workforce Safety & Ins., 2008 ND 47, ¶ 10, 746 N.W.2d 158 (citations omitted).

B

[¶22] WSI argues it could have reasonably concluded Curran failed to prove she suffered a compensable work injury to her lumbar spine in February 2007, and the district court, rather than following the proper standard of review, reweighed the evidence in reaching its own conclusion. WSI also argues it adequately explained why medical evidence favorable to Curran was rejected.

[¶ 23] In reversing WSI’s order, the district court placed great emphasis on the documented medical opinions presented by Curran. Dr. Solien, the chiropractor who treated Curran after her 2004 automobile accident and after the February 2007 work incident, believed Curran suffered a disc tear and herniation as a result of her work injury. JaNyne Aker, D.C., another treating chiropractor, noted in her records that Curran suffered a disc tear and herniation, which constituted a new and separate injury, and this work injury “substantially” changed the character of her preexisting degenerative disc disease. Dr. Koski, a neurosurgeon, opined that Curran had suffered a disc tear and herniation related to *627her February 2007 work incident. Michael Martire, M.D., who also evaluated Curran, opined she had developed right side pain and the acute disc protrusion as a result of the work injury.

[¶ 24] We remain mindful that it is the province of the agency, not this Court, to weigh the credibility of witnesses and resolve conflicts in the evidence. Tverberg, 2006 ND 229, ¶ 8, 728 N.W.2d 676. WSI’s final order found that on the basis of Cur-ran’s medical records, it was “apparent” that she suffered “some sort of a back injury” at work in February 2007. It was “equally obvious,” however, that “when this injury occurred she had a preexisting back injury.” WSI further found this work injury acted only to “trigger[ ] symptoms” in Curran’s preexisting degenerative disc disease, but did not substantially aggravate or worsen her condition. WSI found “[t]he greater weight of the evidence, however, does not show that her work injury substantially accelerated or substantially worsened her preexisting injury.”

[¶ 25] A reasoning mind could reasonably reach the same conclusion as WSI. WSI noted the striking similarities between Curran’s symptoms after the February 2007 work incident and the February 2004 automobile accident. Her numerous chiropractic visits in the interim illustrate the similarities in her ailments and the prolonged pain she was experiencing in her lower back. She experienced aching and burning in her lower back as well as similar symptoms in her right leg, which were exacerbated by a motorcycle accident in June 2005. WSI highlighted the fact that Curran was complaining of the same lower back and right side pain following this incident and that she was continuing to have difficulties sitting and moving to stand up.

[¶ 26] In addition to the symptomatic similarities, WSI found that degenerative disc disease played a major role in Cur-ran’s disability. While it was Dr. Koski’s opinion that Curran was suffering only from mild disc degeneration, the surgeons who operated on Curran were convinced otherwise. These surgeons, who performed disc replacement surgery, reported that Curran had advanced degenerative disc disease, which they characterized as “severe” and “chronic.” WSI concluded, “It is certainly persuasive that the doctors who operated on Ms. Curran and actually saw her lumbar spine attributed her condition and need for surgery to an advanced and progressive degenerative disc disease rather than an acute event.” It was reasonable for WSI to rely on the opinion of surgeons who operated on Curran. Likewise, we conclude WSI was reasonable in its conclusions of fact relating to Curran’s condition.

[¶27] WSI also fairly considered the evidence favorable to Curran and adequately explained the reasons for rejecting it. For example, WSI compared the testimony of Dr. Aker with the records of Curran’s visits to Dr. Solien. Curran’s complaints following the work injury about lower back pain were similar to those she raised after her automobile accident. In visits before and after the work injury, Curran complained of sharp pains connected to bending and twisting activities, and Solien also noted tenderness and pain in the lower back (“L5 spinous process”). WSI drew the reasonable inference that the “degenerative disc disease exhibited in Ms. Curran’s March 2007 MRI was producing symptoms in November 2006 that were consistent with a small annular tear,” thus reinforcing “Dr. Vilella’s opinion that Ms. Curran’s work injury was the natural result of an underlying degenerative disc disease that was getting progressively worse:

*628[¶ 28] WSI considered the opinions of Curran’s other practitioners. While Cur-ran introduced numerous expert opinions in her favor, WSI logically and methodically explained why each was rejected. Dr. Koski’s opinion that Curran’s degenerative disc disease was mild was largely rejected because it was contrary to the conclusions of her surgeons, who actually operated on her spine. WSI found Dr. Solien’s letter was not dispositive, because “whether Ms. Curran’s herniation and annular tear are more related to her work injury or longstanding degenerative back condition” was not addressed. Similarly, Dr. Martire’s opinion was insufficient because it did not address whether the work injury substantially accelerated or worsened Curran’s preexisting condition. WSI also rejected an opinion from Ryan Ortman, D.C., because it was “based entirely on an abridged medical history given by Ms. Curran” and “seem[ed] to have been obtained solely in anticipation of litigation.” These explanations reflect a thoughtful consideration of the evidence and an adequate basis for relying on certain expert opinions rather than others.

C

[¶ 29] After reviewing the entire record, we conclude WSI adequately explained its reasoning in rejecting medical evidence favorable to Curran. A reasoning mind could reasonably conclude the weight of the entire record supports WSI’s factual conclusions. Accordingly, WSI’s conclusions were supported by a preponderance of the evidence, and its order should have been affirmed.

Ill

[¶ 30] Any remaining issues and arguments not addressed are unnecessary to our decision. The district court judgment is reversed, and WSI’s final order denying benefits is reinstated.

[¶ 31] GERALD W. VANDE WALLE, C.J., and DANIEL J. CROTHERS, J., concur.

. This case predates the enactment of N.D.C.C. § 65-02-22.1. Therefore, this appeal *623comes from the final decision of WSI, not the administrative law judge.