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He says work made his back problem worse: Does he get workers’ comp?

An employee says repetitive work substantially worsened the severity of his preexisting degenerative disc condition. Was that the case, and if so, does that qualify him for workers’ comp benefits? 

John Sandberg worked for Park Construction in North Dakota from 2002 through Sept. 28, 2015, operating heavy equipment, primarily a track hoe used to move rocks.

Sandberg says operating the track hoe required him to:

  • wear a seatbelt holding him in a seat consisting of a board covered with a piece of half-inch foam
  • sit at an angle while maneuvering large, irregularly shaped rocks into place over uneven terrain, and
  • experience frequent jarring, slipping and twisting when he moved the track hoe over the rocks while manipulating the controls and rotating to see around the machine.

His medical history includes a sore right neck and right lower back dating back to March 1998. An x-ray at that time showed mild degenerative arthritis in his cervical spine.

In July 2003, Sandberg saw a chiropractic doctor for a stiff neck, pain down his right shoulder and arm and numbness in his fingertips. The doctor’s treatment notes say Sandberg reported jarring and twisting from operating a track hoe at work.

Stops working, files claim

Sandberg sought treatment from the doctor again in 2011 and from March to September 2015, when he was no longer able to perform his job for Park because of back pain. Sandberg took an early seasonal layoff at that time. He hasn’t worked for Park or done this type of work since.

In May 2016, x-rays and MRIs revealed multilevel degenerative disc disease. In July 2016, Sandberg filed a claim with Workforce Safety and Insurance (North Dakota’s sole provider and administrator of workers’ comp) for a cervical injury.

WSI denied Sandberg’s claim, determining his back issues were a preexisting condition and employment acted only as a trigger to produce symptoms and didn’t cause or increase the risk of his cervical degenerative disease. Sandberg appealed to an independent administrative law judge (ALJ).

Sandberg relied on testimony from his doctor who said there was more than just pain from a preexisting degenerative disc disease with an “accumulative trauma type effect.”

His doctor also said there was significant physiological change in x-rays from 2003 through 2016.

WSI’s medical consultant testified there was no significant evidence showing Sandberg’s work accelerated changes in his condition or that it was caused by work. This doctor said work acted only as a trigger.

The ALJ said the WSI doctor was more persuasive and found:

  • Sandberg’s employment didn’t cause or substantially accelerate the progression of his degenerative disc disease, however
  • his employment substantially increased the severity of his pain, therefore
  • Sandberg had met his burden of proving he suffered a compensable injury.

Park Construction appealed. The North Dakota Supreme Court recently issued a decision.

Pain is just one factor

North Dakota’s workers’ comp law draws a line between work that merely triggers pain in a preexisting condition (not compensable) and work that substantially accelerates the progression or substantially worsens the severity of a preexisting condition (compensable).

The law also says:

“pain is a symptom and may be considered in determining whether there is a substantial acceleration or substantial worsening of a preexisting injury, disease, or other condition, but pain alone is not a substantial acceleration or a substantial worsening.”

The North Dakota Supreme Court noted the ALJ found Sandberg’s work increased the severity of his pain from his preexisting degenerative disc disease. However, under the state’s workers’ comp law, that’s not enough: A compensable injury must be proven through medical evidence.

The court noted the ALJ didn’t cite any medical evidence to support that Sandberg’s repetitive work substantially worsened the severity of his degenerative condition, and didn’t merely trigger it.

Sandberg’s case isn’t over yet. The state’s highest court reversed the ruling but remanded the case to the ALJ to make a decision based on the requirements of North Dakota’s workers’ comp law.

(State of North Dakota v. John SandbergSupreme Court of ND, No. 2019 ND 198, 7/30/19)

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