Satrom v. North Dakota Workmen's Compensation Bureau, 10255

• Decision Date: 30 December 1982
• Docket Number: No. 10255,10255
• Citation: 328 N.W.2d 824
• Parties: Debbra K. SATROM, Appellant, v. NORTH DAKOTA WORKMEN'S COMPENSATION BUREAU and Sandie Werlinger, d/b/a Hair Shack, Appellees. Civ.
• Court: North Dakota Supreme Court

Page 824

328 N.W.2d 824

Debbra K. SATROM, Appellant, v. NORTH DAKOTA WORKMEN'S COMPENSATION BUREAU and Sandie Werlinger, d/b/a Hair Shack, Appellees.

Civ. No. 10255.

Supreme Court of North Dakota.

Dec. 30, 1982.

Ohnstad, Twichell, Breitling, Arntson & Hagen, West Fargo, for appellant; argued by Michael D. Nelson, West Fargo.

Joseph F. Larson, II, Asst. Atty. Gen., Bismarck, for appellees.

PAULSON, Justice.

This is an appeal by Debbra K. Satrom from a judgment of the District Court of Cass County, dated May 11, 1982, affirming an order of the North Dakota Workmen's Compensation Bureau [Bureau], which denied Satrom's claim for benefits. We reverse the judgment of the district court and remand the case to the Bureau for further proceedings consistent with this opinion.

Satrom is a hairdresser who was formerly employed for a period of approximately six years at the Hair Shack in Fargo. Her work duties included cutting, styling, and shampooing hair as well as giving permanents and "tints" to clientele of the salon. These activities required some lifting, and repeated bending, twisting, and turning of the lower back. Most of these movements were associated with working on patrons' hair over a sink located at Satrom's station at the salon.

While working at the salon on the morning of July 24, 1980, Satrom experienced severe back pains and was then transported and admitted to the hospital. She had also suffered less extreme back pains on the evening of the previous day--which was a non-work day--and she also admitted having had back pains on prior occasions.

Her attending physician diagnosed Satrom to be suffering from an acute disc syndrome, and, pursuant to the doctor's advice, she did not return to work for a period of fourteen weeks.

Satrom filed a claim with the Bureau on August 6, 1980, seeking medical expenses and disability benefits and alleging in the Bureau's Compensation and Medical Expense Claim form that her back injury was caused by her job-related duties of "shampooing and setting hair, then doing a perm. Bending over at times and standing on hard cement floor". The Bureau dismissed her claim on October 3, 1980. She then requested a formal hearing, which was held on April 23, 1981. Satrom, a co-worker, and the owner of the Hair Shack, were present and testified at the formal hearing. Dr. William T. Ferguson, an orthopedic surgeon and Satrom's attending physician, also testified through deposition. The Bureau issued its findings of fact, conclusions of law, and order affirming dismissal on June 1, 1981. The Bureau made the following findings of fact and conclusions of law:

"FINDINGS OF FACT

"I.

"That on the 6th day of August, 1980, the claimant above named filed a claim with this Bureau for compensation and/or medical expenses resulting from an alleged injury sustained on July 24, 1980.

"II.

"That on July 24, 1980, the claimant was an employee of the Hair Shack, in Fargo, North Dakota, and the occupation of the claimant was hairdresser.

"III.

"That the claimant alleges she suffered an injury to her back due to the bending and standing on a hard floor while performing the duties of her occupation on July 24, 1980.

"IV.

"That the claimant does not document an injury by accident.

"V.

"That the claimant's back pain began on July 23, 1980, the day prior to the alleged date of injury, without any known trauma.

"VI.

"That the claimant had been gardening on the evening of July 23, 1980, and began to experience significant problems immediately afterwards.

"VII.

"That the claimant had not even engaged in employment activities for five days prior to the onset of her back problem.

"VIII.

"That the claimant's activities at home--such as, caring for her children, gardening and cleaning--were of greater significance in terms of the stress to her back, the length of time involved and the events immediately preceding her back pain then [sic ] any employment activities.

"CONCLUSIONS OF LAW

"I.

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

"II.

"That the claimant has failed to prove that her condition was causally related to an employment injury.

"III.

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

On July 8, 1981, Satrom appealed the Bureau's order to the District Court of Cass County. The district court entered its memorandum opinion upholding the Bureau's order on April 28, 1982, and judgment was entered on May 11, 1982.

Satrom in her appeal from this judgment raises the following issue for review:

Are the Bureau's findings of fact supported by a preponderance of the evidence?

Before addressing the specific issue as set forth by Satrom, we believe it necessary to initially determine whether or not the type of injury alleged in this case is compensable under the North Dakota Workmen's Compensation Act. The Bureau, during oral arguments before this court, took the position that in order to satisfy the "injury by accident" requirement of Sec. 65-01-02(8) of the North Dakota Century Code, a claimant must be able to point to a sudden, unexpected, unforeseen, or unusual traumatic occurrence resulting in physical damage or harm, traceable to a definite time, place, or circumstance. This is not the law in our State.

In order to prove a right to participate in benefits available from the Bureau, the claimant must establish by a preponderance of the evidence that he or she was injured in the course of employment and that the resulting disability is causally connected to that employment. Reynolds v. North Dakota Workmen's Compensation Bureau, 328 N.W.2d 247, 248 (N.D.1982); Robert v. N.D. Workmen's Comp. Bureau, 321 N.W.2d 501 (N.D.1982), and cases cited therein; Sec. 65-01-11, N.D.C.C. "Injury" is defined in Sec. 65-01-02(8), N.D.C.C.:

"8. 'Injury' shall mean an injury by accident arising out of and in the course of employment including an injury caused by the willful act of a third person directed against an employee because of his employment, but such term shall not include an injury caused by the employee's willful intention to injure himself or to injure another, nor any injury received because of the use of narcotics or intoxicants while in the course of the employment. If an injury is due to 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. Such term, in addition to an injury by accident, shall include:

a. 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. The disease includes impairment and effects from radiation fairly traceable to the employment. It need not have been foreseen or expected, but after it is contracted, it must appear to have had its origin in a risk connected with the employment and to have flowed from that source as a rational consequence.

b. An injury to artificial members."

In Stout v. N.D. Workmen's Compensation Bureau, 236 N.W.2d 889, 894 (N.D.1975), this court opted to follow a majority of jurisdictions and adopted the so-called "usual exertion" rule in workmen's compensation cases, stating that "a claim, if otherwise within the terms of the workmen's compensation Acts, is compensable even though the cause is routine and not accidental, if the result is not foreseen, intended, or anticipated". In Stout, supra 236 N.W.2d at 894, we quoted with approval from Larson, Workmen's Compensation Law, Sec. 38.00, at 7-9 [currently found at page 7-18 in the 1980 edition thereof]:

"The 'by accident' requirement is now deemed satisfied in most jurisdictions either if the cause was of an accidental character or if the effect was the unexpected result of the routine performance of the claimant's duties. Accordingly, if strain of claimant's usual exertions causes collapse from heart weakness, back weakness, hernia, and the like, the injury is held accidental. A very substantial minority of jurisdictions require a showing that the exertion was in some way unusual, or make other reservations, but this line of decision causes difficulty because of the constant necessity of drawing distinctions between usual and unusual strains." [Emphasis added.]

Granted, Stout involved a claim for death benefits due to a heart attack and thus the above-quoted language relating to back weakness can be considered obiter dictum. Nevertheless, the underlying rationale of our decision in Stout leads us to the inescapable conclusion that back injuries, such as the injury alleged in the instant case, may satisfy the "injury by accident" requirement of Sec. 65-01-02(8), N.D.C.C., and thus become compensable, not only if the cause was of accidental character, but also if the cause is routine and the result is not foreseen, intended, or anticipated.

We are cognizant of the fact that the Legislative Assembly's amendment of Sec. 65-01-02(8), N.D.C.C., to require "unusual exertion" in cases of heart attack or stroke [see Sec. 2, Ch. 579, 1977 S.L.] came about as a direct result of this court's decision in Stout. Nelson v. North Dakota Workmen's Comp. Bureau, 316 N.W.2d 790, 793 n. 2 (N.D.1982). However, because the Legislature specifically limited its amendment of Sec. 65-01-02(8) ¹ to cases of heart attack and stroke, and because this court since the date of the 1977 amendment of Sec. 65-01-02(8) has recognized the continued validity of our decision in Stout [s...