Geo. E. Haggart, Inc. v. North Dakota Workmen's Compensation Bureau

• Decision Date: 26 September 1969
• Docket Number: No. 8531,8531
• Citation: 171 N.W.2d 104
• Parties: GEO. E. HAGGART, INC., Appellant, v. NORTH DAKOTA WORKMEN'S COMPENSATION BUREAU and Melvin Ziegler, Respondents.
• Court: North Dakota Supreme Court

Page 104

171 N.W.2d 104

GEO. E. HAGGART, INC., Appellant, v. NORTH DAKOTA WORKMEN'S COMPENSATION BUREAU and Melvin

Ziegler, Respondents.

No. 8531.

Supreme Court of North Dakota.

Sept. 26, 1969.

Syllabus by the Court

1. If the original claim for workmen's compensation has been made within the time specified in N.D.C.C. § 65--05--01, the Workmen's Compensation Bureau at any time, on its own motion or on application, may review the award, and in accordance with the facts found on such review, may end, diminish. or increase the compensation previously awarded, or, if compensation has been refused or discontinued, may award compensation; and this authority to review is not limited to a consideration of a change in the claimant's condition. N.D.C.C. § 65--05--04.

2. The trial de novo in the district court on the record made before an administrative agency and in the Supreme Court on an appeal from the district court in an administrative agency proceeding, as it relates to a determination of the facts, is limited to determining whether there is substantial evidence to support the administrative agency's findings of fact.

3. Having reviewed the evidence in this case upon the record made before the Workmen's Compensation Bureau, we find substantial evidence to support the findings of fact of the Bureau and accordingly affirm the decision of the district court affirming the decision of the Workmen's Compensation Bureau based upon those facts.

Nilles, Oehlert, Hansen, Selbo & Magill, Fargo, for appellant.

David L. Evans, Asst. Atty. Gen., Bismarck, for respondent North Dakota Workmen's Compensation Bureau.

Robert A. Alphson, Grand Forks, for respondent Melvin Ziegler.

ERICKSTAD, Judge (on reassignment).

George E. Haggart, Inc., hereafter referred to as Haggart, appeals from a judgment of the District Court of Grand Forks County dated March 2, 1966, affirming an order of the Workmen's Compensation Bureau of November 9, 1964, which determined that the claimant, Melvin Ziegler, was permanently and totally disabled.

Before this award and judgment the Bureau, by order dated September 27, 1962, had awarded Mr. Ziegler $2,900.31, of which $2,214 represented temporary total disability payments for 52 weeks and 5 days. This award arose from the same employment and claim as that involved in the order and judgment of November 9, 1964.

In Mr. Ziegler's initial claim with the Workmen's Compensation Bureau dated November 7, 1961, he asserted that while employed by Haggart on July 14, 1961, he worked inside a large pipe 16 feet deep in the ground; that there was a cold draft coming through the pipe; that there was a great difference in temperature between the surface of the ground, where he worked part of the time, and the pipe, in which he worked part of the time; and that from this difference in temperature he acquired a severe case of pneumonia which later brought on thrombophlebitis of the right leg.

On September 16, 1963, the Bureau determined that Mr. Ziegler was permanently and totally disabled. When Haggart was informed of this decision, it demanded and obtained a rehearing.

In its application for a complete rehearing Haggart sought a rehearing on (1) whether the pneumonia was fairly traceable to Mr. Ziegler's employment; (2) whether the thrombophlebitis was fairly traceable to the pneumonia or fairly traceable to his employment; and (3) whether they were preexisting conditions.

At the rehearing Haggart contended that the pneumonia which first hospitalized Mr. Ziegler was not caused by his employment; that from the first hospitalization for pneumonia he suffered no thrombophlebitis; and that only after a second hospitalization for pneumonia did he suffer from thrombophlebitis and only then was he disabled. Notwithstanding this contention and evidence submitted in an attempt to prove it, the Bureau reaffirmed its decision that Mr. Ziegler was permanently totally disabled and that his injuries were received in the course and scope of his employment by Haggart. The trial court affirmed the decision of the Bureau, and it is from the judgment entered on the trial court's order that Haggart appeals, demanding trial de novo.

Haggart does not deny that Mr. Ziegler is permanently totally disabled. It does, however, contend on this appeal, as it did before the Bureau and the trial court, that Mr. Ziegler's disability did not arise from his employment by Haggart.

A part of our Administrative Agencies Practice Act which relates to this appeal reads:

28--32--15. Appeal from determination of agency--Time to appeal--How appeal taken.--Any party to any proceeding heard by an administrative agency, except in cases where the decision of the administrative agency is declared final by any other statute, may appeal from such decision within thirty days after notice thereof has been given, or if a rehearing has been requested as provided herein and denied, within thirty days after notice of such denial has been mailed to him. * * *

North Dakota Century Code.

Section 65--05--03 provides that the decisions of the Workmen's Compensation Bureau within its jurisdiction are final except as provided in chapter 65--10. The pertinent part of that section reads:

The bureau shall have full power and authority to hear and determine all questions within its jurisdiction, and its decisions, except as provided in chapter 65--10, shall be final and shall be entitled to the same faith and credit as a judgment of a court of record.

In 1961 chapter 65--10 provided only for an appeal by the claimant. The pertinent parts of § 65--10--01 then read:

65--10--01. Appeal from decision of bureau.--If the final action of the bureau denies the right of the claimant to participate at all in the fund on the ground that the injury was self-inflicted, or on the ground that the accident did not arise in the course of employment, or upon any other ground going to the basis of the claimant's right, or if the bureau allows the claimant to participate in the fund to a lesser degree than that claimed by the claimant, if such allowance is less than the maximum allowance provided by this title, the claimant may appeal to the district court of the county wherein the injury was inflicted. * * * Such appeal shall be taken in the manner provided in chapter 28--32 of the title Judicial Procedure, Civil. * * *

North Dakota Century Code.

It is interesting that even in 1961 § 65--09--03 provided for an appeal by an uninsured employer, but it was not until 1963 that the legislature permitted the insured employer to appeal a decision of the Bureau. See Laws of North Dakota 1963, ch. 427, § 3. As Haggart was an insured employer, it did not have the right to appeal from the September 27, 1962, award.

It is Mr. Ziegler's position that the 1962 decision of the Bureau is res judicata of the nature of the injury and its work-connection. It is his view that, although the order described the nature of the injury merely as pneumonia, the use of the term Pneumonia was merely to indicate the initial disabling cause, as evidence submitted at the hearing discloses that if he was disabled for the 52-plus weeks as the order finds, it was not from the pneumonia alone but also from its aftereffect, thrombophlebitis, and thus that the 1962 decision established that he suffered from pneumonia and thrombophlebitis as the result of his employment by Haggart.

In support of his position he refers us to a statement in Arthur Larson's work on the law of workmen's compensation:

In a reopening proceeding, the issue before the board is sharply restricted to the question of extent of improvement or worsening of the injury on which the original award was based. If the original award held that there was no connection between the accident and claimant's permanent disability, there is nothing to reopen, and claimant cannot retry the issue of work-connection through the device of a reopening petition. Conversely, when the employee reopens to show increased disability, the insurance carrier cannot raise the basic issue of liability. * * *

2 A. Larson, The Law of Workmen's Compensation § 81.32, at 333 (1968) (footnotes omitted).

Haggart, however, contends that § 65--05--04 prevents any decision of the Bureau from ever becoming res judicata of any issue. That section reads:

65--05--04. Bureau has continuing jurisdiction over claims properly filed.--If the original claim for compensation has been made within the time specified in section 65--05--01, the bureau at any time, on its own motion or on application, may review the award, and in accordance with the facts found on such review, may end, diminish, or increase the compensation previously awarded, or, if compensation has been refused or discontinued, may award compensation.

North Dakota Century Code.

In support of its position it refers us to the following statement in American Jurisprudence:

Moreover, where a compensation commission is invested with continuing jurisdiction over claims, it has been held that it may revoke an award theretofore made, upon ascertainment of any facts going to the basis of the claimant's right, whenever in its opinion such revocation is justified.

58 Am.Jur. Workmen's Compensation § 508 (1948) (footnote omitted).

The case cited in support of this reference is that of Industrial Commission v. Dell, 104 Ohio St. 389, 135 N.E. 669, 34 A.L.R. 422 (1922).

In this respect we note that Chief Justice Christianson, speaking for our court only seven years after our workmen's compensation act was passed, pointed out that many of the sections of that act were taken from the Ohio workmen's compensation act. Crandall v. North Dakota Workmen's Compensation Bureau, 53 N.D. 636, 207 N.W. 551 (1926).

It would serve little purpose for us to cite the many decisions of this court in which it has been held that the Workmen's Compensation Bureau has continuing jurisdiction to modify its awards, but it should be noted that as recently as 1963...