McDaniel v. North Dakota Workers Compensation Bureau

• Decision Date: 11 August 1997
• Docket Number: No. 960383,960383
• Citation: 567 N.W.2d 833
• Parties: Gary McDANIEL, Claimant and Appellant, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellee, and City of Minot, Respondent and Appellee. Civil
• Court: North Dakota Supreme Court

Page 833

567 N.W.2d 833

1997 ND 154

Gary McDANIEL, Claimant and Appellant, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellee, and City of Minot, Respondent and Appellee.

Civil No. 960383.

Supreme Court of North Dakota.

Aug. 11, 1997.

Lamont and Skowronek, Shari M. Gianarelli (argued), Minot, for claimant and appellant. John C. Skowronek (on brief).

Brent J. Edison, Special Assistant Attorney General (argued), Bismarck, for appellee North Dakota Workers Compensation Bureau. Tracy Lynn Vignes Kolb, Special Assistant Attorney General (on brief).

Robert J. Slorby (appeared), Eaton, Van de Streek & Ward, Minot, for appellee City of Minot. On brief.

MESCHKE, Justice.

¶1 Gary McDaniel appealed a judgment affirming the Workers Compensation Bureau's denial of benefits for his bladder cancer that he claims was presumptively caused by his work as a firefighter. We reverse and remand for further fact-finding on why substantial medical evidence favorable to McDaniel was ignored, and to apply the correct law of causation.

¶2 McDaniel, a fireman for the City of Minot for over twenty-seven years, fought an average of fifty to one hundred active fires each year. Those fires, he asserts, exposed him to a significant amount of toxic fumes and smoke containing polycyclical aromatic hydrocarbons, carcinogens associated with bladder cancer. McDaniel has also smoked between one-half and two packs of cigarettes a day for over thirty years.

¶3 In November 1992, doctors diagnosed McDaniel with bladder cancer, and he had several surgical operations to remove the cancer. He applied for worker's compensation for his medical treatment.

¶4 The Bureau had Dr. Robert Brownlee perform an independent medical examination. In his 1993 report, Brownlee concluded McDaniel's smoking more likely caused his cancer: "It would be difficult to separate the exposure from cigarette smoking and the possible exposure from firefighting but I would think in this case that the evidence would lean towards the use of cigarettes being a factor rather than significant exposure in the work place." The Bureau found bladder cancer was not an occupational cancer for firefighters and, even if it was, McDaniel's smoking more likely caused the cancer. The Bureau denied his claim, and McDaniel sought reconsideration.

¶5 In a 1995 deposition, Brownlee testified smokers are twice as likely to get bladder cancer as non-smokers. He was not aware of studies connecting bladder cancer to firefighting, but believed such a relationship was logical: "I would think that it would be common sense to assume that, if you add toxic exposure to the toxins that we understand from cigarette smoke, ... the damage would be greater than for either one by itself." Contrary to his 1993 letter, Brownlee conceded he could not say whether McDaniel's smoking or his job exposures played a more significant role in causing his bladder cancer.

¶6 Dr. Michael McGrail, Jr., testified by deposition to a reasonable degree of medical certainty that bladder cancer is an occupational cancer for firefighters. He relied on several studies and emphasized two that show a three times greater risk of bladder cancer for firefighters. McGrail testified a doctor must evaluate a firefighter's work history to address his level of risk, and concluded McDaniel's smoke exposure from firefighting placed him at risk. McGrail agreed smoking is the greatest risk factor for bladder cancer, but was unable to agree that it more likely caused McDaniel's cancer:

[W]e could say that the data supports an argument that at least 50 percent of the risk for bladder cancer was occupational. Although this may be true, it is not always applicable to the real world, where malignancies rarely present [themselves] in 50 percent increments. Perhaps a more realistic question is, would the individual have developed the cancer if it were not for the occupational exposure.

McGrail concluded, even with McDaniel's smoking history, his firefighting added to his risk of bladder cancer: "I do not feel that I can say that without the possibility of occupational exposures that Mr. McDaniel would have developed bladder cancer on the basis of his smoking alone."

¶7 Dr. Marc Schenker testified by deposition about the established link between smoking and bladder cancer. He also testified, in his opinion, bladder cancer is not an occupational cancer for firefighters, and he attacked studies connecting firefighting to bladder cancer. With his opinion that firefighting is not an established risk factor for bladder cancer, Schenker believed firefighting would not be a contributing factor to McDaniel's cancer. Even if he accepted the association between bladder cancer and firefighting, Schenker asserted "the risks would be less than two and would not be a more probable than not contributing factor." He concluded "[McDaniel's] bladder cancer is more probably related to his history of cigarette smoking."

¶8 In addition to medical testimony, the hearing officer received into evidence several published studies linking bladder cancer to firefighting. E.g., Tee L. Guidotti, Occupational Mortality Among Firefighters: Assessing the Association, 37 J. Occupational & Envtl. Med. 1348, 1354 (1995)(firefighters are twice as likely to die from bladder cancer); Susan R. Sama et al., Cancer Incidence Among Massachusetts Firefighters, 1982-1986, 18 Am. J. Indus. Med. 47, 47 (1990)(1.59 times greater risk); John E. Vena & Roger C. Fiedler, Mortality of a Municipal-Worker Cohort: Fire Fighters, 11 Am. J. Indus. Med. 671, 671 (1987)(2.86 times greater risk). The hearing officer found bladder cancer to be an occupational cancer for firefighters, raising the presumption that McDaniel's cancer was fairly traceable to his job. Neither McDaniel's employer, nor the Bureau dispute this finding on appeal, and the evidence clearly supported the presumption that McDaniel's cancer was fairly traceable to his job.

¶9 However, the hearing officer found that the Bureau had rebutted the presumption, and that smoking more likely caused the cancer:

By the greater weight of the evidence, the Bureau has effectively rebutted [McDaniel's] contention of entitlement by reason of the presumption clause. Testimony revealed that polyairomatic hydrocarbons and other carcinogens are evident in cigarette smoke and cigarette smoking is a known cause of bladder cancer. Dr. Brownlee states that [McDaniel's] bladder cancer was more probably attributable to heavy cigarette exposure as opposed to occupational smoke and fumes.

"A consistent relationship has been demonstrated between cigarette smoking and bladder cancer, and the rate of bladder cancer is twice as high in people who smoke as in people who do not smoke." ( [Dr. Brownlee's testimony], pg.14).

"... he ( [McDaniel] ) is more likely to develop bladder cancer because of exposure to cigarette smoke." ( [Dr. Brownlee's testimony], pg.17).

"My opinion is that his ( [McDaniel's] ) bladder cancer is more probably related to his history of cigarette smoking." ( [Dr. Schenker's testimony], pg.19).

See, also, Exhibits B5 and B14 as demonstrating the link between cigarette exposure and [McDaniel's] bladder cancer.

The hearing officer recommended denial of McDaniel's claim, and the Bureau adopted this recommendation. McDaniel appealed. The district court summarily affirmed the Bureau, and McDaniel appealed to this Court.

¶10 McDaniel argues the hearing officer erred in finding the Bureau rebutted the presumption that traced his cancer to his firefighting work. He asserts the Bureau had the dual burden of showing that a non-work condition caused his cancer and that it was the more likely cause. McDaniel argues the hearing officer only required the Bureau to show a non-work-related condition contributed to his cancer to conclude the Bureau had rebutted the presumption. He argues the hearing officer erred in relying on experts who did not consider firefighting to be a cause of bladder cancer, and in failing to explain why it disregarded expert testimony linking bladder cancer to firefighting. McDaniel urges that the occupational cancer presumption relieves him of the impossible burden of proving the exact cause of his cancer.

¶11 Appellate review of a Bureau decision to deny benefits is governed by NDCC 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). We affirm the Bureau decision if a preponderance of the evidence supports the Bureau's findings of fact, its findings of fact support its conclusions of law, its conclusions of law support its decision, and its decision is in accordance with the law. Spangler v. North Dakota Workers Comp. Bureau, 519 N.W.2d 576, 577 (N.D.1994). Here, we disagree with the Bureau's application of the workers' compensation law on causation.

¶12 A compensable injury includes any disease fairly traceable to the worker's employment. NDCC 65-01-02(9)(a)(1). A disease is fairly traceable to employment if there is a direct causal connection between work conditions and the disease. NDCC 65-01-02(18)(a). A worker's employment need not be the sole cause of the disease, and it is sufficient if a work condition is a substantial contributing factor to the disease. Christianson v. North Dakota Workers Comp. Bureau, 470 N.W.2d 613, 615 (N.D.1991); Syverson v. North Dakota Workmen's Comp. Bureau, 406 N.W.2d 688 690 (N.D.1987). As we explained in Satrom v. North Dakota Workmen's Comp. Bureau, 328 N.W.2d 824, 831 (N.D.1982), just because personal habits make a worker more prone to certain injuries does not mean the Bureau can deny a claim when the evidence indicates with reasonable medical certainty that work conditions are causally connected to the particular injury.

¶13 The Workers Compensation Act creates a...