Claim of Bromley, 9878

• Decision Date: 25 March 1981
• Docket Number: No. 9878,9878
• Citation: 304 N.W.2d 412
• Parties: In the Matter of the Claim of Maynard L. BROMLEY for Compensation from the North Dakota Workmen's Compensation Fund. Maynard L. BROMLEY, Appellant, v. NORTH DAKOTA WORKMEN'S COMPENSATION BUREAU, Appellee. Civ.
• Court: North Dakota Supreme Court

Page 412

304 N.W.2d 412

In the Matter of the Claim of Maynard L. BROMLEY for Compensation from the North Dakota Workmen's Compensation Fund Maynard L. BROMLEY, Appellant, v. NORTH DAKOTA WORKMEN'S COMPENSATION BUREAU, Appellee.

Civ. No. 9878.

Supreme Court of North Dakota.

March 25, 1981.

John J. Tebelius, Harvey, for appellant.

Richard J. Gross, Sp. Asst. Atty. Gen., Bismarck, for appellee.

SAND, Justice.

This is an appeal by the claimant, Maynard L. Bromley (Bromley), from district court judgment affirming an order of the Workmen's Compensation Bureau (Bureau) dismissing Bromley's claim for disability and medical benefits resulting from injuries allegedly incurred in the course of Bromley's employment at the Pioneer Bar in Harvey, North Dakota.

It is undisputed that Bromley was hospitalized from 22 Mar. 1978 through 7 April 1978 for treatment of thrombophlebitis in his left leg. But whether or not Bromley's injury arose out of and in the course of his employment is disputed.

Bromley's claim to the Bureau stated that the injury which caused the thrombophlebitis occurred on 22 Mar. 1978 when, during the course of restocking a cooler at the Pioneer Bar, one of the beverage cases he was carrying slipped and hit his left leg on the inner side of his thigh. The employer agreed with this statement. Bromley also asserts that when he was admitted to the hospital on 22 March 1978 he told his attending physician, Dr. Ching, about the accident.

The Bureau's decision relied upon Dr. Ching's initial history and physical (history) and part of the attending physician's report to the Bureau (report). The history taken by Dr. Ching in part states that Bromley "had been in recently good health until one week prior to admission when he had the onset of left thigh pain." Furthermore, Dr. Ching's report to the Bureau states in pertinent part as follows:

"Are you satisfied there is no misrepresentation or malingering in this case? No.

"Re: Misrepresentation: The patient mentioned nothing about injuring himself at work until 4 days prior to discharge from the hospital."

However, we also note that the report to the Bureau contains the following pertinent question and response by Dr. Ching:

"Is present disability due to an occupational disease or injury?

"Yes."

The Bureau, after considering the claim and after examining all of the evidence, files, records, and correspondence relating to the claim, made its findings of fact and conclusions of law without a formal hearing and issued an order dismissing the claim on 13 June 1978. The claimant petitioned for a rehearing as provided for by law and as a result the bureau set the matter for a formal hearing.

After a formal hearing on 20 Nov. 1978, the Bureau again entered an order dismissing Bromley's claim because it found that his injury had not occurred in the course of his employment. Bromley appealed from that order to the district court. The district court affirmed the Bureau's order and judgment was entered. Bromley appealed to this Court.

Bromley asserts that the Bureau erred in finding that his injury did not occur in the course of his employment, and, therefore, erred in denying his claim for disability and medical benefits.

Pursuant to § 65-10-01, North Dakota Century Code, appeals from decisions of the Bureau may be taken to the district court in the manner provided in the Administrative Agencies Practice Act, Ch. 28-32, NDCC. The district court's judgment in such a case may be appealed to this Court pursuant to § 28-32-21, NDCC, which provides that this Court is to review an agency's decision as provided by § 28-32-19, NDCC. Accordingly, we review the findings of fact, conclusions of law, and order made by the Bureau rather than the findings by the district court. Steele v. North Dakota Workmen's Compensation Bureau, 273 N.W.2d 692 (N.D.1978). On appeal of an administrative agency's decision the Civil Rules and Rule 52(a), NDRCivP, do not apply. Rule 81(b) NDRCivP. Reliance Ins. Co. v. Public Service Commission, 250 N.W.2d 918 (N.D.1977).

Pursuant to § 28-32-19, NDCC, this Court shall affirm the decision of the Bureau unless we find that:

"1. The decision or determination is not in accordance with the law.

"2. The decision is in violation of the constitutional rights of the appellant.

"3. 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 the preponderance of the evidence.

"6. The conclusions and decision of the agency are not supported by its findings of fact."

We have said that our review of an administrative agency decision is three-fold:

(1) Are the findings of fact supported by a preponderance of the evidence?

(2) Are the conclusions of law sustained by the findings of fact?

(3) Is the agency decision supported by the conclusions of law?

Asbridge v. North Dakota Highway Commissioner, 291 N.W.2d 739, 743 (N.D.1980).

Furthermore, in Power Fuels, Inc. v. Elkin, 283 N.W.2d 214, 220 (N.D.1979), we said:

"In construing the 'preponderance of the evidence' standard to permit us to apply the weight-of-the-evidence test to the factual findings of an administrative agency, we do not make independent findings of fact or substitute our judgment for that of the agency. 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."

In reviewing the entire record, we must keep in mind that a claimant seeking benefits from the Workmen's Compensation Fund has the burden of establishing his right to participate therein. Section 65-01-11, NDCC; Steele v. North Dakota Workmen's Compensation Bureau, supra. Additionally, there must be positive evidence showing that the disability was fairly traceable to the injury suffered by the employee and that the injury actually had to be in the course of employment. Kuntz v. North Dakota Workmen's Compensation Bureau, 139 N.W.2d 525 (N.D.1966).

We must also remember that the Workmen's Compensation Act is to be construed liberally with the view of extending its benefit provisions to all who can fairly be brought within them. Morel v. Thompson, 225 N.W.2d 584 (N.D.1975); Boettner v. Twin City Construction Co., 214 N.W.2d 635 (N.D.1974); Brown v. North Dakota Workmen's Compensation Bureau, 152 N.W.2d 799 (N.D.1967).

In this instance there is a conflict between some of the information contained in Dr. Ching's history and the testimony given at the formal hearing by Bromley and Dr. Marvin J. Towarnicky (Towarnicky). Additionally, there are internal discrepancies in the attending physician's report submitted to the Bureau by Dr. Ching. The resolution of these conflicts and discrepancies is the critical issue in this case.

Bromley asserts that these conflicts and discrepancies should have been resolved in his favor because Dr. Ching's history is "confused, deficient, and incomplete." At the formal hearing Bromley relied heavily on testimony by Towarnicky to explain the "confusion" created by Dr. Ching's history. ¹

Towarnicky testified that thrombophlebitis is a condition in which blood clots form inside a vein. Towarnicky further testified that thrombophlebitis can be caused by varicose veins due to incompetent valves within the vein; cancer; dehydration; complications with delivery; pelvic surgery; and injury or trauma to the vein. Based on Towarnicky's testimony, it is apparent that a person with varicose veins, such as Bromley, could develop thrombophlebitis as a result of being hit with an object. However, Towarnicky also testified that he treated Bromley two months after Dr. Ching, and that at that time he could not tell the cause of Bromley's thrombophlebitis.

Towarnicky then testified that Dr. Ching's initial history was deficient because it did not contain notations relating to "negative" findings concerning causes for thrombophlebitis. Towarnicky testified that a "negative" finding referred to possible causes of thrombophlebitis which were not present with a particular patient.

Because Dr. Ching's report does not contain "negative" findings as to whether or not Bromley's thrombophlebitis resulted from being hit with an object, it leaves uncertainties and suggests that Dr. Ching either failed to inquire in detail concerning this possible cause of Bromley's injury, or to insert the information in his history.

Bromley asserts that the reference in Dr. Ching's history to Bromley's "good health until one week prior to admission" is confusing and incomplete because it is inconsistent with Bromley's testimony that he told Dr. Ching about the accident on 22 Mar. 1978. Bromley asserts that there is further "confusion" in Dr. Ching's initial history physical because the addendum to the history states in part as follows:

²

Although each party has offered their explanation of this entry, neither side has satisfactorily explained the entry.

We have also noted earlier herein the reference in Dr. Ching's attending physician's report to the Bureau on the question whether or not Bromley's disability was due to an occupational disease or injury and his response, which is inconsistent with other parts of the same report.

Because of the discrepancies in the same report by Dr. Ching, and lack of findings in Dr. Ching's history relating to "negative" findings, ³ we believe some comments on the Bureau's function in receiving and making initial determinations on a claim are appropriate.

In Steele v. North Dakota Workmen's Compensation Bureau, supra at 702, we stated:

"We believe the adversary concept employed in our judicial system has only limited application to claims for benefits. The Bureau in carrying out its statutory duties acts in a quasi-judicial capacity and should be primarily concerned with the proper, fair,...