Nelson v. North Dakota Workmen's Compensation Bureau, 10079

• Decision Date: 11 March 1982
• Docket Number: No. 10079,10079
• Citation: 316 N.W.2d 790
• Parties: Delores NELSON, Claimant and Appellee, v. NORTH DAKOTA WORKMEN'S COMPENSATION BUREAU, Respondent and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 790

316 N.W.2d 790

Delores NELSON, Claimant and Appellee, v. NORTH DAKOTA WORKMEN'S COMPENSATION BUREAU, Respondent and Appellant.

Civ. No. 10079.

Supreme Court of North Dakota.

March 11, 1982.

Jack G. Marcil of Tenneson, Serkland, Lundberg, Erickson & Marcil, Fargo, for claimant and appellee.

Richard J. Gross, Sp. Asst. Atty. Gen., Bismarck, for respondent and appellant North Dakota Workmen's Compensation Bureau.

VANDE WALLE, Justice.

The North Dakota Workmen's Compensation Bureau (hereinafter "Bureau") appealed from a decision of the district court of Cass County ordering the Bureau to make an award to Delores Nelson, the wife of Aldean Nelson, deceased. We reverse the decision of the district court and remand with directions that a judgment be entered affirming the order of the Bureau denying the claim.

Aldean Nelson was employed by Burlington-Northern Transport Co. as a lead driver. In that position Nelson was responsible for directing the activities of his fellow employees as well as having driving duties. He prepared the paper work directing other employees as to the tasks they were to perform. After issuing these directions he engaged in the physical labor required of the other workers. On November 9, 1979, Nelson was hooking up the air hoses on his tractor-trailer, which he had just driven from Grandin, North Dakota, with a load of seed. The decedent intended to take a few minutes' break for a sandwich before returning to Grandin. At that time he dropped to the ground and died. Delores Nelson, Aldean's wife, filed a claim for death benefits with the Bureau, in which she stated the injury was "unusual stress caused heart attack and death." The Bureau denied the claim and Delores petitioned for a rehearing. The rehearing, apparently by agreement between counsel for the Bureau and counsel for Delores, included depositions of Delores, Kermit Engstrom, a friend and fellow worker of Aldean, and Dr. Kana, a physician who had treated Aldean in previous years and to whom Aldean went every two years for a physical examination required by Burlington-Northern Transport Co. In addition, medical records involving hospitalization of Aldean for repair of a wrist injury were submitted at the rehearing. Following the submission of the depositions and other evidence the Bureau issued an order affirming the dismissal of Delores's claim. The Bureau in its order found:

"FINDINGS OF FACT

I.

"That on the 23rd day of January, 1980, the claimant above named filed a claim with this Bureau for death benefits resulting from the death of Aldean C. Nelson on November 9, 1979.

"II.

"That the decedent, on the 9th day of November, 1979, was an employee of B. N. Transport, Fargo, North Dakota, and the occupation of the decedent was dispatcher.

"III.

"That the deceased died while hooking up air hoses on a trailer in the course of his employment on November 9, 1979.

"IV.

"That the only substantiation as to a possible cause of death is found on the death certificate which indicates 'apparent acute myocardial infarction.'

"V.

"That where a claim for death benefits has been filed, a death certificate can only be considered as evidence of death and cannot be used to establish the cause of death.

"VI.

"That the decedent's attending physician, Dr. Kana, is in family practice, did not examine the decedent after his death and, in fact, has not seen him since December of 1977.

"VII.

"That the decedent had been hypertensive and on hypertensive medications and had a long-term prior history of heavy smoking.

"VIII.

"That decedent's physician stated that he had no prior knowledge of any emotional stress on the decedent.

"IX.

"That the decedent's treating physician indicated that it is not any less likely that he suffered from a ruptured aneurism than that he suffered from a heart attack.

"X.

"That the decedent's treating physician indicated that 'if conditions were right, where the vessels were going to be closed off, certainly, you know, but stress might have tipped the balance' but that a history of smoking and hypertension alone could have caused a heart attack, if the decedent had a heart attack.

"XI.

"That the deceased was performing the normal duties of his occupation at the time of the incident which caused his death.

"XII.

"That all medical evidence, even as to the cause of death, is speculative and conjectural; and the Bureau may not accept claims based upon speculation, conjecture, or surmise."

On the basis of these findings the Bureau, in its order, made the following conclusions of law:

"CONCLUSIONS OF LAW

"I.

"That the claimant has failed to prove that the decedent suffered an injury by accident arising out of and in the course of his employment.

"II.

"That the claimant has failed to prove that the heart attack, if it was a heart attack, sustained by the decedent was precipitated by unusual stress in the course of his employment.

"III.

"That the claimant has failed to prove that the heart attack, if it was a heart attack, of the decedent was causally related to his employment with reasonable medical certainty.

"IV.

"That the claimant has failed to prove that she is entitled to any benefits under the North Dakota Workmen's Compensation Act in connection with the death of the decedent."

Delores appealed the order affirming the dismissal of her claim to district court.

The district court, apparently in reliance upon Dr. Kana's testimony, determined that Delores proved that Aldean's heart attack was precipitated by unusual stress in the course of his employment and that the heart attack was causally related to his employment with reasonable medical certainty. The district court ordered that the case be remanded to the Bureau for further proceedings and modification. ¹

Appeals from Bureau decisions are governed by Chapter 28-32, N.D.C.C., the Administrative Agencies Practice Act. Sec. 65-10-01, N.D.C.C. Our review in these matters is limited and involves a three-step process: (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? Sec. 28-32-19, N.D.C.C.; Asbridge v. North Dakota State Highway Comr., 291 N.W.2d 739 (N.D.1980). Upon reviewing the evidence, this court must look to the record compiled before the administrative agency rather than to the findings of the district court. North Dakota Real Estate Commission v. Allen, 271 N.W.2d 593 (N.D.1978). We have also recognized that in reviewing the findings of an administrative agency we must exercise restraint and that under the "preponderance of the evidence" standard we do not make independent findings of fact or substitute our judgment for that of the agency; rather, we determine only whether a reasoning mind could have determined that the factual conclusions reached were proved by the weight of the evidence from the entire record. Power Fuels, Inc. v. Elkin, 283 N.W.2d 214 (N.D.1979). In reviewing the record we are also aware that the claimant seeking benefits from the Bureau has the burden of establishing his right to participate in the Workmen's Compensation Fund. Sec. 65-01-11, N.D.C.C.; Claim of Bromley, 304 N.W.2d 412 (N.D.1981).

Section 65-05-05, N.D.C.C., provides for the payment of compensation and other benefits to employees, or to their dependents in case death has ensued, who have "been injured in the course of their employment." The term "injury" as used in Section 65-05-05 is defined by Section 65-01-02(8), N.D.C.C. For the purposes of this case the portion of the definition which controls reads:

"If an injury is due to a heart attack or stroke, such heart attack or stroke must be causally related to the worker's employment, with reasonable medical certainty, and must have been precipitated by unusual stress." ²

The Bureau, on appeal from the order of the district court, contends that Aldean did not suffer a heart attack which was causally related to his employment with reasonable medical certainty and was precipitated by unusual stress. It is the Bureau's position that its decision is supported by a preponderance of evidence.

The Bureau initially argues that the evidence is not sufficient to indicate that Aldean died from a heart attack. This is the provision of the Bureau's findings which the district court found contrary to the evidence. In support of its position the Bureau notes that the only medical evidence introduced by Delores was the deposition of Dr. Kana, who had not seen nor examined Aldean for a two-year period preceding his death and that Dr. Kana, on examination, stated that Aldean's death could have been caused by a stroke or an aneurysm as well as a heart attack. The Bureau also points out that the death certificate indicates the cause of death as "apparent" acute myocardial infarction, and that the death certificate is not itself conclusive evidence of the cause of death. We do not find the Bureau's position convincing insofar as the cause of death is concerned. Section 65-01-11, N.D.C.C., does provide that in the event of a claim for death benefits the official death certificate may not be used to establish the cause of death but shall be considered only as evidence of death. It is also true that Dr. Kana did testify that death "could" have been caused by a stroke or an aneurysm as well as a heart attack. However, Dr. Kana also testified that he believed the cause of death was a heart attack because of the suddenness of death after Aldean collapsed. Thus, while Dr. Kana testified that the cause of death "could" have been a stroke or an aneurysm rather than a heart attack, his opinion was that the cause of death was a heart attack. If our statute required absolute medical certainty as to the cause of death, the Bureau's position might be well taken. We do not so construe it. Reasonable medical certainty is sufficient to establish the cause of death,...