Roberts v. North Dakota Workmen's Compensation Bureau, 10213

• Decision Date: 24 November 1982
• Docket Number: No. 10213,10213
• Citation: 326 N.W.2d 702
• Parties: Dolly M. ROBERTS, Appellee, v. NORTH DAKOTA WORKMEN'S COMPENSATION BUREAU, Appellant. Civ.
• Court: North Dakota Supreme Court

Page 702

326 N.W.2d 702

Dolly M. ROBERTS, Appellee, v. NORTH DAKOTA WORKMEN'S COMPENSATION BUREAU, Appellant.

Civ. No. 10213.

Supreme Court of North Dakota.

Nov. 24, 1982.

Ella Van Berkom, Minot, N.D., for appellee; argued by Ella Van Berkom, Minot, N.D.

Joseph F. Larson, II., Asst. Atty. Gen., North Dakota Workmen's Compensation Bureau, Bismarck, N.D., for appellant; argued by Joseph F. Larson, II, Asst. Atty. Gen., Bismarck, N.D.

ERICKSTAD, Chief Justice.

This is an appeal by the North Dakota Workmen's Compensation Bureau (the Bureau) from a judgment of the District Court of Benson County, dated March 9, 1982, reversing the Bureau's order, dated January 26, 1981, which denied Dolly M. Roberts' claim for benefits. We affirm the judgment of the district court.

Dolly commenced employment as a carpenter's helper for Everett Krohnke, owner of the Serve and Save Lumber Company at Drake, North Dakota, during April, 1978. During the week of May 5, 1978, Krohnke instructed Dolly to insert fiberglass insulation around window sills located in an apartment building which Krohnke owned and was at that time refurbishing. Krohnke showed Dolly how to tear the fiberglass insulation with her hands and then stuff it between the window sill and the framing. While performing this task, Dolly wore no protective clothing or gloves.

There is a dispute as to the duration of Dolly's work with the fiberglass insulation. Dolly testified that she worked one day with the fiberglass for approximately six hours. In a letter written to the Bureau, Krohnke stated that Dolly worked only one day for approximately one and one-half hours with the fiberglass. The Bureau made no finding of fact as to the amount of time that Dolly worked with the insulation.

Dolly testified that she worked in a small, enclosed room with the fiberglass and that she soon started to cough. She testified that she would leave the room in an attempt to relieve her coughing and then return again. She also testified that the fiberglass caused her skin to break out and that "I itched so bad day and night, and I hadn't slept for three days."

On the day Dolly worked with the fiberglass she went home at approximately 2:30 p.m. Although Dolly returned to work for the following two days, she no longer worked with the fiberglass insulation, but rather she assisted in placing shingles on the roof of and in carrying old plaster from the apartment building. Dolly testified that it was very dusty working around the plaster, and she stated that during those two days following her work with the insulation she felt sick and continued to cough and itch. She testified, "I told Everett [employer], 'I cannot sleep for itching.' And he kept telling me when I returned to work each day to put on--take cold showers and then hot showers." Dolly testified that on approximately May 10, 1978, she told Krohnke that she was "so sick" she would not come back to work.

On May 13, 1978, Dolly sought medical treatment from Dr. W.J. Turkula, M.D., at the Lake Region Clinic in Devils Lake. She explained to Dr. Turkula that she had been exposed to fiberglass insulation while at work. Upon examining Dolly, Dr. Turkula diagnosed her as having "tracheobronchitis, persistent, subsequent to fiberglass exposure," and he gave her medication.

On May 15, 1978, Dolly again went to the Lake Region Clinic where she was examined by Dr. D.A. Rada for, in the doctor's words, "what appeared like laryngotracheitis with hoarse voice, and dry brassy coughing."

Dolly again sought medical attention at the clinic from T.C. Corbett on May 18, 1978, complaining that, in spite of medication, her cough persisted, it was worse particularly in the evenings, and that she was producing small amounts of greenish phlegm from her throat when she coughed. Dr. Corbett admitted Dolly to the Mercy Hospital at Devils Lake on that date with a diagnosis of "persistent tracheobronchitis subsequent to fiberglass exposure." Dolly was treated at the hospital with medication for her condition, and she improved sufficiently within four days to be discharged from the hospital on May 21, 1978, at which time she was sent home with instructions to continue taking medication for the tracheobronchitis.

Dolly was again examined by Dr. Turkula on May 30, 1978. In his written report, Dr. Turkula states that he advised Dolly to not return to her former job and also advised her that it could take an additional two or three weeks for her condition to "clear up." In that written report, to the question, "Is present disability due to an occupational disease or injury?", Dr. Turkula responded, "Yes." To the question, "Are you satisfied there is no misrepresentation or malingering in this case?", Dr. Turkula also responded, "Yes."

On June 8, 1978, Dolly filed a claim with the Bureau seeking compensation for losses resulting from her tracheobronchitis condition. The Bureau dismissed her claim during August, 1978, and a hearing was held on the matter on April 17, 1980. Subsequent to the hearing, the Bureau entered its order, dated January 26, 1981, through which it denied Dolly's claim for benefits. The Bureau found that Dolly had failed to prove that her tracheobronchitis condition was causally related to her employment with Serve and Save Lumber Company. The Bureau partially based its denial of Dolly's claim upon its finding that Dolly is not credible because she has been diagnosed as having a hysterical personality with hypochondriacal neurosis through which she has "somatic concerns and injuries which originate from her own mind."

Dolly appealed the Bureau's decision to the district court which reversed the Bureau's order. The court held that the Bureau's finding that Dolly's tracheobronchitis condition was not causally related to her employment was not supported by a preponderance of the evidence. The Bureau has appealed from the district court's judgment and on appeal has raised the sole issue of whether or not the Bureau's findings of fact upon which it dismissed Dolly's claim are supported by a preponderance of the evidence.

The standard this Court must use in reviewing a judgment of the district court in an appeal from a decision of an administrative agency is provided under Section 28-32-19, N.D.C.C., which states in part relevant to this case:

"[T]he court shall affirm the decision of the agency unless it shall find that .... The findings of fact made by the agency are not supported by a preponderance of the evidence."

In Power Fuels, Inc. v. Elkin, 283 N.W.2d 214 (N.D.1979), this Court clarified its scope of review under the "preponderance of the evidence" standard "... we do not make independent findings of fact or substitute our judgment for that of the agency. 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." 283 N.W.2d at 220.

Pursuant to Section 65-01-11, N.D.C.C., any claimant against the North Dakota Workmen's Compensation fund has the burden of proving by a preponderance of the evidence the existence of an injury for which she is entitled to participate in the fund. Pursuant to Subsection 65-01-02(8)(a), N.D.C.C., the definition of injury includes:

"Any disease which can be fairly traceable to the employment. Ordinary diseases of life to which the general public outside of the employment is exposed shall not be compensable except where the disease follows as an incident to, and in its inception is caused by a hazard to which an employee is subjected in the course of his employment. The disease must be incidental to the character of the business and not independent of the relation of employer and employee."

Upon reviewing the record in this case, we conclude that a reasoning mind could not have determined, as did the Bureau, that the greater weight of the evidence is that Dolly's injuries were not causally related to her employment. The Bureau made a finding that Dolly's tracheobronchitis was a "condition common to the general public" which, the Bureau's counsel explained at oral argument, means that the general public can contract tracheobronchitis by means unrelated to any particular employment environment. We further conclude that in this case a reasoning mind could only find that the greater weight of the evidence is that Dolly's injury, her tracheobronchitis condition, is fairly traceable to her employment with Serve and Save Lumber Company and, more specifically, through her work with fiberglass insulation and plaster.

The evidence is undisputed that prior to working with the fiberglass insulation Dolly felt well and that it wasn't until she began to work with the insulation that she started to cough and her skin began to break out and itch.

Dolly's symptoms are consistent with those that can be caused by working with fiberglass materials according to the Good Practice Manual for Insulation Installers written in August, 1977, by the U.S. Department of Health, Education and Welfare. This manual, which was submitted for the record by Dolly's counsel, provides in relevant part:

"Fiberglass is one of the materials that can be highly irritating to your skin. It causes itching wherever it touches you. The tenderer the skin area, the more it will itch.

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"The tiny fibers from fiberglass break off and stick into your skin. You can't see them, but you know they are there because they hurt or itch.

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"Respiratory irritants are those which bother your nose, throat, and lungs. Some irritants make them itch and burn. Materials like dust and small fibers from glass or mineral wool can make your nose and throat sore. Also, dusts from other materials like vermiculite, perlite, and cellulose make you sneeze and cough."

The Bureau asserts that a short-term exposure to fiberglass insulation could not cause the symptoms suffered by Dolly, and in support of that assertion the...