Inglis v. North Dakota Workmen's Compensation Bureau

• Decision Date: 12 November 1981
• Docket Number: No. 10026,10026
• Citation: 312 N.W.2d 318
• Parties: Gerald R. INGLIS, Appellant, v. NORTH DAKOTA WORKMEN'S COMPENSATION BUREAU, Appellee. Civ.
• Court: North Dakota Supreme Court

Page 318

312 N.W.2d 318

Gerald R. INGLIS, Appellant, v. NORTH DAKOTA WORKMEN'S COMPENSATION BUREAU, Appellee.

Civ. No. 10026.

Supreme Court of North Dakota.

Nov. 12, 1981.

Chapman & Chapman, Bismarck, for appellant; argued by Daniel J. Chapman, Bismarck.

Richard J. Gross, Asst. Atty. Gen., N. D. Workmen's Compensation Bureau, Bismarck, for appellee.

PEDERSON, Justice.

Gerald Inglis sought compensation from the Workmen's Compensation Bureau for a back injury allegedly sustained while he was working for the Bechtel Power Corporation in Beulah. The Bureau denied his claim ¹ and the district court affirmed the Bureau's order. This appeal followed. We affirm.

THE EVIDENCE

The Claimant's History of Back Problems

Inglis has had back problems for several years. He hurt his back in 1972 while he was playing pool. In 1974, he "twisted wrong while chipping out old cement from a mixer." Inglis received workmen's compensation benefits for this back injury. At the end of his treatment for this particular injury, Inglis's doctor gave him a clean bill of health.

Two years later (June 14, 1976) Inglis sought help from a chiropractor, Dr. Wutzke. He told the doctor that he "felt a sharp pain in his right low back." Inglis received several chiropractic treatments during 1976. In December of 1977, Inglis returned to the chiropractor complaining of pain in the left pyriformis and L5 level. According to Dr. Wutzke, "(by January 7, 1978 Inglis) didn't have any problems and had gone back to work." On January 26, 1978 Inglis was back in Dr. Wutzke's office plagued by a "constant dull ache that would radiate pain down the left posterior leg to the toes when he coughed."

The Alleged Injury and the Date

There is conflicting evidence concerning the date of Inglis's alleged injury.

Inglis first contacted the Bureau in early March of 1978 while he was hospitalized at St. Alexius for back problems. On March 9, 1978, a Bureau field representative, Bill Mitzel, visited Inglis in the hospital and helped him complete his claim form. On the claim form the date of injury is listed as February 13, 1978. The injury is described as follows:

"Putting re-bar in place, bent over to tie re-bar into place my back locked. Had been lifting bar prior to that."

Mitzel's report of his visit with Inglis states that Inglis was injured "on the same day that he started work" and that he worked until February 15, 1978.

At his hearing, Inglis testified that he was injured on February 16, 1978. He said that his injury occurred at midnight, "just before quitting time," while he was lifting a re-bar with three or four other men. Inglis stated, "I just picked up a piece (of re-bar) ... and I got a sharp pain in my back and it started shooting down my leg." Except for completing his shift, Inglis testified that he did not work after his injury.

At the hearing, Inglis offered an explanation for the discrepancies between his testimony concerning the date of the injury (February 16) and the date listed in his claim form and Mitzel's report (February 13, "the same day he started work"). Inglis explained that he did "have some pain" on his first day of work but that he "just kept on working," having surmised that "it's just a regular backache." He continued, "day after day it just got worse and worse; and then the day on or about the 16th, wherever it was there when I went to lift, that's when it really hurt my back."

After his claim had been dismissed, Inglis stopped by the Bureau's office and informed them that the date of injury was February 16. He later telephoned the Bureau and "insist(ed) that he injured his back on February 13, 1978."

A letter from Bechtel to the Bureau, questioning the validity of Inglis's claim, states that it "had no indication of (Inglis's) injury until receiving the claim form on March 14, 1978." This letter identifies February 15, 1978 as the day of injury. It also recites Inglis's work history at Bechtel: he was employed from February 13 to February 22, 1978 and worked for three days during this period (February 13, 9 hours; February 15, 9 hours; and February 16, 10 hours). "Mr. Inglis was terminated because of absenteeism."

The Co-Worker's Testimony

In April of 1978, Inglis told the Bureau that there were two witnesses to his injury, Van Johnson and Lee Massine.

In a statement dated July 23, 1979, Van Johnson stated that Inglis injured his back on February 17, 1978 while the two men were working together. Johnson thought that Inglis "missed a day or two before he was able to come back." Johnson's statement says: "When he came back, he told me that he had a terrible time getting home the night he was hurt because of the terrible pain in his back."

At the hearing, Johnson confirmed the above statement although he said he was not certain about the date of the injury or when Inglis returned to work. Johnson was certain that Inglis injured himself while the two men were working. He remembered Inglis saying, "Oh, oh. I did it." Johnson said, "you could see the man was hurting by looking in his eyes and the expression on his face that he had hurt himself." On cross-examination, Johnson stated that he had written an earlier statement which "got lost somehow or other." The hearing day was the first time Johnson learned of Inglis's prior back problems.

In a statement taken on September 10, 1979, Lee Massine, a job foreman, said that Inglis approached him on the evening shift of February 16, 1978 and "said that he thought that he had hurt or dislocated his back."

The "Reporting" of the Alleged Injury

There is some confusion in this evidence. As Van Johnson explained, the confusion seems to stem, in part, from the fact that when the workers "talk about reporting an injury, ... we're talking about reporting it to the nurse." The letter from Bechtel, noted above, states that "there was no report of injury made to our medical facility until (March 14, 1978)."

Mitzel's report states that Inglis reported his injury to his supervisor, Hank Siers, twice.

At the hearing, Inglis testified that he did not report his injury because it was near quitting time and he was in so much pain that he wanted to get home and see the doctor. Inglis responded in the same manner when he was asked why he did not inform the company nurse of the injury. Lee Massine stated that he informed the general foreman, Hank Siers, of Inglis's injury. Van Johnson stated that Siers knew Inglis had hurt his back. He was not certain who informed the foreman.

Post-employment Medical Evidence

Inglis sought medical attention from Dr. Gruby on February 17, 1978. The doctor's records for that day state:

"This is a 32-year-old, caucasian male who has had a severe history of low back pain. However, over the last six months he has had a tingling electrical like shock go down his leg on the left side and to his big toe. This happened on several occasions. It has become much more painful."

From March 8 through March 11, 1978 Inglis was hospitalized under Dr. Gruby's care. The medical records compiled during this stay provide:

"This is a 32 year-old Caucasian male who has had a sudden snap develop in his back while working. He has had some pain radiation from the back down to his leg and toes, great toe area on the left side."

Inglis's condition was diagnosed as a protrusion of the L4-5 disc with L5 radiculopathy, left side. Ultimately, Inglis had surgery for a ruptured disc.

The record does not contain any medical testimony indicating that Inglis's disability was caused by lifting or tying a re-bar.

THE BUREAU'S DECISION

The findings of fact made by the Bureau, for the most part, pertain to Inglis's prior history of back troubles and treatment, and to the discrepancies in the testimony concerning the date and reporting of the injury. ² The Bureau also found "that the claimant's statements relative to his injury and his preexisting back problems were inconsistent, evasive, and contradictory and are not credible." As a matter of law the Bureau concluded: (1) that the claimant has failed to prove that he suffered an injury by accident arising out of and in the course of his employment; (2) that the claimant has failed to prove that his condition is causally related to an employment injury; and (3) that the claimant has failed to prove that he is entitled to benefits in connection with his condition.

THE APPLICABLE PRINCIPLES OF LAW

We review the findings of fact, conclusions of law, and order made by the Bureau, not the findings of the district court. Claim of Bromley, 304 N.W.2d 412, 414 (N.D.1981). The claimant's entire file, containing all claims, correspondence, and medical records filed with the Bureau, plus the testimony presented at the hearing, is scrutinized. See Gramling v. North Dakota Workmen's Comp. Bur., 303 N.W.2d 323, 327 (N.D.1981).

We are bound to affirm the decision of the Bureau unless its findings of fact are not supported by the preponderance of the evidence or its conclusions of law are not supported by its findings of fact. Section 28-32-19, NDCC. The controlling "preponderance of the evidence" standard has been defined as "evidence more worthy of belief" or "the greater weight of the evidence," or "testimony that brings the greater conviction of truth." Gramling v. North Dakota Workmen's Comp. Bur., supra, 303 N.W.2d at 328. In Power Fuels, Inc. v. Elkin, 283 N.W.2d 214, 220 (N.D.1979), we rejected the contention that the "preponderance of evidence" standard authorized us to unconstitutionally find facts or substitute our judgment for that of the agency. To the contrary, under the "preponderance of the evidence" standard, "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." Power Fuels, supra. In discussing judicial review of administrative decisions, we have said:

"Where an issue involving the application of expertise...