Roggenbuck v. North Dakota Workers Compensation Bureau

• Decision Date: 03 March 1992
• Docket Number: No. 910328,910328
• Citation: 481 N.W.2d 599
• Parties: Diane ROGGENBUCK, Appellee, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellant, and Orange Julius, Defendant. Civ.
• Court: North Dakota Supreme Court

Page 599

481 N.W.2d 599

Diane ROGGENBUCK, Appellee, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellant and Orange Julius, Defendant.

Civ. No. 910328.

Supreme Court of North Dakota.

March 3, 1992.

Ken R. Sorenson (argued), Asst. Atty. Gen., Bismarck, for appellant.

Dietz & Little Law Firm, Bismarck, for appellee; argued by Stephen D. Little, Bismarck.

ERICKSTAD, Chief Justice.

The North Dakota Workers Compensation Bureau appeals from the judgment of the District Court for Burleigh County reversing the Bureau's decision which awarded Diane Roggenbuck benefits only on a fifty percent aggravation basis. We affirm the district court and remand to the Bureau for an appropriate determination of benefits.

On October 20, 1988, Roggenbuck was injured when she fell in the Kirkwood Mall parking lot after leaving her place of employment at Orange Julius. At that time, she was diagnosed, by Ralph Aas, D.C., as suffering from cervical subluxation, cervical cranial syndrome, sacroiliac subluxation, and sprain or strain. On October 24, 1988, Roggenbuck applied for workers' compensation benefits for those injuries arising out of that fall at work. The Bureau accepted liability and paid the associated medical expenses. ¹

Subsequent to the incident in the Kirkwood Mall, Roggenbuck continued to receive chiropractic treatment from Dr. Aas. Although the treatments resolved some of Roggenbuck's symptoms, her symptoms generally worsened over time. Eventually, Aas concluded that Roggenbuck had a disk problem and on August 29, 1989, he referred her to an orthopedic surgeon.

On September 3, 1989, Roggenbuck, and a neighbor of hers, lifted a gas stove into a child's wagon so it could be taken to the neighbor's place to be pressure cleaned. While in the process of pulling the wagon, the neighbor slipped and Roggenbuck tried to "catch" or "steady" the stove to keep it from falling. Apparently, this act of "steadying" the stove caused Roggenbuck to experience some increased pain in her back. The next morning, Roggenbuck went to work as usual, but approximately four hours later, the pain became so intense that she went to the emergency room of St. Alexius Medical Center where she was admitted. An MRI scan revealed that Roggenbuck had a large herniated disk. On September 6, 1989, Roggenbuck underwent surgery to correct the disk problem.

In early September, 1989, Roggenbuck informed the Bureau of the surgery and of post-operative disability. On September 19, 1989, Roggenbuck made a claim for benefits in conjunction with the October 20, 1988, incident. The Bureau thereafter contacted Roger Kennedy, M.D., the physician who treated Roggenbuck for the disk herniation, and Ralph Aas, D.C., for medical records and opinions as to the relationship between the 1988 slip and fall incident, the 1989 steadying of the stove, and the subsequent surgery. On April 2, 1990, the Bureau sent a letter to Dr. Kennedy, asking him to apportion percentages of causation between the nonwork-related stove moving incident and the prior work-related slip and fall incident. Dr. Kennedy responded that he could not apportion the percentages of the injuries on the basis of the work- and nonwork-related incidents. The Bureau, subsequently, on May 15, 1990, awarded benefits for a nonemployment aggravation of an employment injury on a fifty percent aggravation basis pursuant to section 65-05-15(4), N.D.C.C. ²

Roggenbuck thereafter made a request for administrative review. An administrative hearing was held on March 4, 1991. The hearing officer, in his findings of fact, conclusions of law, and order of May 16, 1991, affirmed the Bureau's prior decision, holding that "[c]laimant's non-employment injury of September 3, 1989, acted upon claimant's prior compensable injury and substantially contributed to the need for medical attention and disabling claimant from employment." Roggenbuck then appealed to the district court which reversed the decision of the Bureau holding that the Bureau had improperly invoked the aggravation statute. This appeal followed. ³

Initially, we note that when an administrative agency decision is appealed to this Court, we review the decision of the agency and not that of the district court. White v. North Dakota Workers Compensation Bureau, 441 N.W.2d 908, 909 (N.D.1989). We limit our review to the record before the agency and do not consider the finding of the district court. Asbridge v. North Dakota State Highway Commissioner, 291 N.W.2d 739, 743 (N.D.1980).

Under sections 28-32-19 and 28-32-21, N.D.C.C., we will affirm an administrative agency decision unless one of the six enumerated reasons listed in section 28-32-19, N.D.C.C., is found to exist. In re Annexation of Part of Donnybrook Public School District No. 24, 365 N.W.2d 514, 519 (N.D.1985).

We have noted that our review of administrative agency decisions under section 28-32-19, N.D.C.C., essentially 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? Tobias v. North Dakota Department of Human Services, 448 N.W.2d 175, 178 (N.D.1989); Falcon v. Williams County Social Service Board, 430 N.W.2d 569, 571 (N.D.1988).

In determining whether or not an agency's factual findings are supported by a preponderance of the evidence, "we do not make independent findings of fact or substitute our judgment for that of the agency, but determine only whether a reasoning mind could reasonably have determined that the factual conclusions were supported by the weight of the evidence." Tobias, 448 N.W.2d at 178; see also Power Fuels, Inc. v. Elkin, 283 N.W.2d 214 (N.D.1979). "This court exercises restraint and will not act as a 'super board' when reviewing administrative findings and decisions." Midwest Property Recovery v. Job Service, 475 N.W.2d 918, 921 (N.D.1991); Matter of Boschee, 347 N.W.2d 331, 335 (N.D.1984).

In this case, the Bureau awarded benefits to Roggenbuck pursuant to section 65-05-15(3), N.D.C.C., which provides:

"In case of aggravation of a prior compensable injury by a nonemployment injury, the aggravation statute may be invoked where the nonemployment injury acts upon the prior compensable injury, and substantially contributes to the severity, acceleration, or progression of the final result, or, if it acts as a trigger to produce recurrent symptoms, and the trigger is itself a substantial aggravating or accelerating factor. All benefits may be apportioned when the aggravation statute is invoked under this subsection. The aggravation statute may not be invoked if the result is but a natural progression of the compensable injury. [Emphasis added.]"

Thus, the issue before us is whether or not the Bureau properly invoked this provision. More specifically, the issue is whether or not a reasoning mind could have reasonably concluded that the greater weight of the evidence indicated that the nonemployment related injury, of September 3, 1989, substantially contributed to the severity, acceleration or progression of Roggenbuck's condition, or if it acted as a trigger to produce recurrent symptoms when the trigger itself was a substantial aggravating or accelerating factor. In essence, the issue is two-fold, i.e.: (1) Whether or not this injury substantially contributed to Roggenbuck's condition; and (2) Whether or not the result is but a natural progression of the compensable injury. In considering these questions, we recognize that it is for the Bureau to initially answer these questions, and in reviewing its findings, we keep in mind our past decisions.

In light of the ambiguity resulting from the amendments to section 65-05-15, N.D.C.C., we believe it appropriate to consider legislative history and to consider the amendments in light of the previous statutory provisions, to aid us in determining the intent or objective of those amendments. See State v. Mees, 272 N.W.2d 61, 65 (N.D.1978) ("[a]ny amendment or repeal of any part of a statute must also be considered in determining the true subsequent intent and objective of the legislature"); and Blackburn, Nickels & Smith, Inc. v. National Farmers Union Property & Casualty Company, 452 N.W.2d 319, 322 (N.D.1990) ("[w]hen interpreting an ambiguous statute, the court may consider its legislative history and the circumstances under which the statute was enacted.")

Previously, section 65-05-15, N.D.C.C., read:

"65-05-15. Aggravation of injury or disease--Compensation and benefits not paid for preexisting condition. Compensation shall not be paid for any condition which existed prior to the happening of a compensable injury nor for any disability chargeable to such condition. In case of aggravation of a condition existing prior to a compensable injury and in case of the aggravation of a compensable injury by a nonemployment injury, compensation, medical or hospital expenses, or death benefits, shall be allowed by the bureau and paid from the fund only for such proportion of the disability, death benefits, or expense arising from the aggravation of such prior condition as reasonably may be attributable to such compensable injury. If the degree of aggravation cannot be determined, the percentage award shall be fifty percent of total benefits recoverable if one hundred percent of the injury had been the result of employment. But any compensation paid on the basis of aggravation shall not be less than ten dollars per week unless the actual wages of claimant shall be less than ten dollars, in which event the actual wages shall be paid in compensation. However, in case of death due to an employment-aggravated condition, burial expenses and special benefits shall be paid in full pursuant to sections 65-05-17 and 65-05-26."

Our limited review of the legislative history surrounding the amendments to section 65-05-15, N.D.C.C., reveals little which might...