Elter v. North Dakota Workers Comp. Bureau

• Decision Date: 02 September 1999
• Docket Number: No. 990007, No. 990012.
• Parties: Herbert ELTER, Claimant and Appellant, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellee, and North Dakota Highway Patrol, Respondent.
• Court: North Dakota Supreme Court

599 N.W.2d 315

1999 ND 179

Herbert ELTER, Claimant and Appellant, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellee, and North Dakota Highway Patrol, Respondent.

Nos. 990007, 990012.

Supreme Court of North Dakota.

September 2, 1999.

Dean J. Haas (argued), Dietz, Little & Haas, Bismarck, N.D., for claimant and appellant.

Joseph F. Larson II, Larson Law Firm, Jamestown, N.D., for claimant and appellant.

Lawrence A. Dopson, Special Assistant Attorney General, Bismarck, N.D., for appellee.

MARING, Justice.

[¶ 1] Irene Elter ("Elter") appeals from judgments of the district court affirming the Bureau's denial of survival benefits for her husband's lung cancer she claims was presumptively caused by his work as a highway patrolman, and denying her motion for attorney fees and costs associated with a preliminary appeal in which she prevailed. We affirm the judgment affirming the Bureau's denial of Elter's claim for survivor benefits, but we reverse the judgment denying Elter's motion for attorney fees, and remand to the district court for determination of that amount.

I

[¶ 2] Herbert Elter was employed with the North Dakota Highway Patrol from 1959 until his retirement in 1989. Herbert smoked a pack to a pack and a half of cigarettes a day for a period of approximately 30 years. He was diagnosed with lung cancer in 1992 and died from ensuing complications on June 29, 1994. At the time he was diagnosed with lung cancer, Herbert had not smoked for approximately 15 years. On March 1, 1995, Herbert Elter's widow, Irene Elter, filed a survivor's claim with the Bureau, claiming Herbert Elter's lung cancer was caused by exposure to the radar gun in his patrol car.

[¶ 3] In correspondence to the Bureau dated May 2, 1995, Dr. Pedro Mendoza, a pulmonologist and one of Herbert Elter's treating physicians, opined that the medical literature did not support the contention exposure to a radar gun causes lung cancer. Mendoza further observed "most of the etiology in his lung carcinoma" was caused by Herbert Elter's 30-year history of cigarette use. The Bureau dismissed the claim by Order dated May 22, 1995. Elter requested a formal hearing.

[¶ 4] Prior to the hearing, Elter advanced two new theories as to the cause of her husband's lung cancer. She claimed the cancer may have been caused by his exposure to asbestos and radon during his employment as a highway patrol officer. Elter supported her radon exposure claim by submitting two affidavits which stated the Ward County Courthouse was tested for radon in 1995 and a varying but low level of radon was found in three areas of the basement; and Herbert Elter frequently worked in the courthouse between 1963 and 1966. Elter supported her asbestos exposure claim with an affidavit which stated the Renville County Courthouse contained certain amounts of asbestos in 1996. Elter testified because Renville County was within his unit, Herbert Elter would have visited the courthouse frequently between 1959 and 1963.

[¶ 5] Dr. Brindle, a radiation oncologist and one of Herbert Elter's treating physicians, testified at the formal hearing held on May 6, 1996. Dr. Brindle testified that after a 15-year lapse in smoking, the risk of a former smoker developing lung cancer is "very close to no additional risk versus the non-smoking population." Brindle figured the risk of lung cancer would be only twice that of the nonsmoking population after a 15-year cessation. He opined "a two-fold increase of risk over that of lifelong non-smokers is not sufficient to state that Mr. Elter's past smoking caused his lung carcinoma." Brindle acknowledged, however, his conclusions were based on studies provided to him by Elter. Upon questioning by the Bureau regarding studies showing a much greater incidence of lung cancer among ex-smokers, Brindle acknowledged the medical studies vary as to an ex-smoker's risk of cancer after extended cessation periods; the risk ranging from two to eight times that of a lifelong nonsmoker, and ultimately concluded an ex-smoker's risk of lung cancer remains elevated over that of a lifelong nonsmoker. Brindle concluded it was more probable that Mr. Elter's lung cancer was caused by smoking than by his occupation.

[¶ 6] After the hearing, the administrative law judge ("ALJ") left the record open for the purpose of obtaining the depositions of Dr. Schenker, the Bureau's expert, and Dr. Mendoza.

[¶ 7] Dr. Mendoza agreed periods of smoking cessation lower the risk of developing lung cancer; however, Mendoza testified the risk of lung cancer among former smokers nevertheless remained elevated above nonsmokers even after long periods of abstinence. Dr. Mendoza testified there is "no documented literature that says even a hint that radar waves would cause lung cancer." He similarly ruled out asbestos exposure as a cause of Herbert Elter's lung cancer, testifying "on Herbert's [lung] tissue ... there was no indication of asbestos fibers in the lung ... he most probably did not have asbestosis." With regard to possible exposure to radon, Mendoza testified that because there is no safe level of radon exposure, any such exposure coupled with smoking could be a co-factor in the development of lung cancer. Mendoza further opined, however, even assuming Herbert Elter was exposed to radon at the levels he alleges, cigarette smoking was still the most probable cause of his lung cancer.

[¶ 8] Dr. Schenker, the Bureau's expert, testified that about 90 percent of all lung cancer is attributable to cigarette smoking, while radon and asbestos exposure account for only a few percent. Schenker opined Herbert Elter's lung cancer was caused by his smoking even though he had quit some 15 years earlier. As to the radon argument, Schenker opined that such exposure would require a lifetime duration to be significant, and that the radon concentration he may have been exposed to was not at levels considered clinically significant. Schenker also agreed with Dr. Mendoza that the absence of asbestos fibers in Herbert Elter's lungs belied the claim his cancer was caused by asbestos exposure.

[¶ 9] On February 6, 1997, the ALJ recommended the Bureau's order be affirmed, concluding the Bureau rebutted the presumption under N.D.C.C. § 65-01-02(18)(d), and, once rebutted, Elter failed to establish the validity of her claim. The Bureau adopted the recommendation.

[¶ 10] Elter appealed to the district court, arguing she was denied a fair hearing because she was not allowed to recall Herbert Elter's treating physician to rebut Dr. Schenker's testimony. The district court vacated the Bureau's order and remanded the matter "so as to allow the testimony of Dr. Brindle as a rebuttal witness." Dr. Brindle's second deposition was taken March 30, 1998.

[¶ 11] The second deposition of Dr. Brindle focused primarily on Herbert Elter's exposure to radon in the early 1960's. Brindle testified the medical literature shows that while either smoking or radon exposure can independently increase the risk of cancer, exposure to both greatly enhances that risk. Brindle characterized the combination of radon exposure and smoking as having a "multiplicative" or "synergistic" effect, thereby increasing one's risk of developing lung cancer. When asked whether Herbert Elter's exposure to radon was a significant contributing cause to his lung cancer, however, Brindle testified "that question implies that I have some handle on his total radon exposure and smoking history, and I don't have that information ... so I don't really have the ability to say one way or the other on that."

[¶ 12] On July 1, 1998, the ALJ affirmed again the Bureau's order denying Elter's survivor claim, concluding:

In this case, the Bureau introduced evidence of non work related causation. The claimant's medical records and the testimony of his own treating physicians demonstrate claimant's long history of cigarette smoking and establish that claimant's lung cancer was significantly more likely to be caused by smoking than by any other factor. Further, the evidence shows that claimant's employment (and alleged exposure to radon, radar, and asbestos) was not a significant contributing factor to his lung cancer. Thus, the Bureau has overcome the presumption that Mr. Elter's lung cancer was work related.

The Bureau adopted the ALJ's recommendation. Elter appealed to the district court. The district court affirmed and Elter's timely appeal to this Court followed.

[¶ 13] Elter has another appeal before the Court. After her initial appeal to the district court, Elter submitted to the Bureau an itemized billing for $16,803.43. This amount reflected attorney's fees and costs incurred since the claim was filed. Elter demanded payment of the entire bill pursuant to N.D.C.C. § 65-10-03 (1993), contending the district court's initial order vacating the Bureau's order and remanding to allow rebuttal testimony constituted a "remand" under that statute. The Bureau refused, prompting Elter to file a motion with the district court seeking payment of the entire $16,803.43 bill, plus $402 for fees incurred in making the motion. In its response to the motion, the Bureau agreed to pay all fees and costs incurred for the initial appeal to the district court, approximately $2,000, but refused to do so until Elter had certified the precise amount of those fees. The district court nevertheless denied Elter's motion, reasoning the request for attorney fees was premature because the remand was not based, and Elter had not prevailed, on any issue relating to the merits of her claim. Elter appealed. The appeals have been consolidated.

II

[¶ 14] Our review of a Bureau decision denying benefits is governed by N.D.C.C. § 28-32-19. Burrows v. North Dakota Workers' Comp. Bureau, 510 N.W.2d 617, 618 (N.D.1994). We review the record and decision of the Bureau rather than the district court's decision. Sunderland v. North Dakota Workmen's Comp. Bureau, 370 N.W.2d 549, 552 (N.D.1985)...