Burrows v. North Dakota Workers' Compensation Bureau

• Decision Date: 05 January 1994
• Docket Number: No. 930176,930176
• Citation: 510 N.W.2d 617
• Parties: Dorothy BURROWS, Appellee, v. NORTH DAKOTA WORKERS' COMPENSATION BUREAU, Appellant, and The City of Sheyenne, North Dakota, Respondent. Civ.
• Court: North Dakota Supreme Court

Page 617

510 N.W.2d 617

Dorothy BURROWS, Appellee, v. NORTH DAKOTA WORKERS' COMPENSATION BUREAU, Appellant and The City of Sheyenne, North Dakota, Respondent.

Civ. No. 930176.

Supreme Court of North Dakota.

Jan. 5, 1994.

Dean J. Haas, Asst. Atty. Gen., North Dakota Workers' Compensation Bureau, Bismarck, for appellant.

Mike Miller of Solberg, Stewart, Boulger, Miller & Johnson, Fargo, for appellee.

SANDSTROM, Justice.

James Burrows, a 31-year law enforcement officer and a 40-year smoker, died of lung cancer. The North Dakota Workers Compensation Bureau denied death benefits because the lung cancer was caused by smoking and not law enforcement work.

The district court reversed the bureau, holding the bureau had to prove Burrows had lung cancer before he entered law enforcement. We reverse the district court decision and hold: (1) the bureau's medical evidence was sufficient to overcome the statutory presumption that Burrows' cancer was occupational, and (2) the bureau was not required to prove Burrows' cancer preexisted employment.

I

In August 1989, James Burrows was diagnosed as suffering from small cell lung carcinoma. He died from lung cancer on March 8, 1990. Prior to his death, he was employed as Chief of Police in Sheyenne, North Dakota, for over thirty-one years. He had smoked one and one-half packs of cigarettes a day for forty years.

After the death of her husband, Dorothy Burrows filed an application for death benefits with the bureau. The bureau dismissed the application. Dorothy Burrows timely petitioned for rehearing. The bureau's administrative hearing officer held Chief Burrows was a full-time paid law enforcement officer entitled to the N.D.C.C. Sec. 65-01-02(17)(d) (Supp.1989) presumption: ¹

"[A]ny condition or impairment of health of a full-time paid fireman or law enforcement officer caused by lung or respiratory disease, ... resulting in total or partial disability or death is presumed to have been suffered in the line of duty. The condition or impairment of health may not be attributed to any disease existing before that total or partial disability or death unless the contrary is shown by competent evidence."

The hearing officer concluded the bureau successfully rebutted the statutory presumption and dismissed Dorothy Burrows' application for death benefits.

Dorothy Burrows appealed to the district court. The district court held the evidence was sufficient to rebut the statutory presumption Chief Burrows' cancer was due to employment. The district court, however, reversed the bureau's denial of benefits. The court held under N.D.C.C. Sec. 65-01-02(17)(d) the bureau must prove Chief Burrows' disease preexisted his employment. The bureau could not prove and did not claim the cancer was preexisting.

II

Skjefte v. Job Service North Dakota, 392 N.W.2d 815 (N.D.1986), sets the appropriate standard of review:

"When we consider an appeal from a judgment of the district court reviewing the decision of an administrative agency, we review the decision of the agency, not the decision of the district court. Our review of administrative decisions is governed by Section 28-32-19, N.D.C.C., and that review requires us to determine: (1) if the findings of fact are supported by a preponderance of the evidence; (2) if the conclusions of law are sustained by the findings of fact; and (3) if the agency decision is supported by the conclusions of law. The standards we use in making such a determination have been summarized as follows:

"1. We do not make independent findings of fact or substitute our judgment for that of the agency, but determine only whether a reasoning mind could have reasonably determined that the factual conclusions were supported by the weight of the evidence.

"2. We exercise restraint when we review administrative agency findings.

"3. It is not the function of the judiciary to act as a super board when reviewing administrative agency determinations.

"4. We will not substitute our judgment for that of the qualified experts in the administrative agencies."

Skjefte at 817-18 (citations omitted, footnote omitted).

III

In Sunderland v. N.D. Workmen's Comp. Bureau, 370 N.W.2d 549, 552 (N.D.1985), we explained the effect of the N.D.C.C. Sec. 65-01-02(17)(d) presumption in favor of firefighters and law enforcement officers:

"Procedurally, the presumption operates to shift the burden of proof from the claimant to the Bureau. There are two components of the burden of proof: (1) the burden of going forward with proof, and (2) the burden of persuasion. In North Dakota, presumptions operate to shift both the burden of going forward with evidence and the burden of persuasion. Under this theory, referred to as the Morgan view of presumptions, the party against whom the presumption is directed bears the burden of proving that the nonexistence of the presumed fact is more probable than its existence." (Citations omitted.)

Citing Sunderland, Dorothy Burrows contends the bureau has not presented sufficient evidence to rebut the statutory presumption. In Sunderland, the claimant sought death benefits for her husband who had been employed as a police officer for thirty-six years. Clarence Sunderland died of lung cancer after being a one pack-a-day smoker for forty years. The bureau denied benefits, claiming carcinoma of the lung was not included in the statutory presumption as a "respiratory disease;" the evidence showed Clarence Sunderland's cancer was in no way related to his occupation; and a causal connection between his employment and his injury was not established.

In Sunderland, we reversed the bureau's decision. We held lung cancer is a respiratory disease under the statute and the weight of the evidence did not support the bureau's finding that the cancer was not occupational. We held, as a matter of law, the bureau erred in concluding it was the claimant's burden to establish a link between the employment and the cancer. We held the burden is on the bureau to prove the lung cancer was more probably caused by smoking, rather than by work as a police officer.

The record in this case is distinguishable from Sunderland. In Sunderland, the bureau relied on a letter from a doctor, stating the cancer was not caused by the occupation. The doctor concluded:

" 'This carcinoma of the lung was not caused...