Schmalz v. North Dakota Workers Compensation Bureau

• Decision Date: 20 December 1989
• Docket Number: No. 890269,890269
• Citation: 449 N.W.2d 817
• Parties: Lee M. SCHMALZ, Appellant, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellee. Civ.
• Court: North Dakota Supreme Court

Page 817

449 N.W.2d 817

Lee M. SCHMALZ, Appellant, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellee.

Civ. No. 890269.

Supreme Court of North Dakota.

Dec. 20, 1989.

Evans & Moench, Ltd., Bismarck, for appellant; argued by Kenneth S. Rau.

Dean J. Haas (argued), Asst. Atty. Gen., North Dakota Workers Compensation Bureau, Bismarck, for appellee.

ERICKSTAD, Chief Justice.

Lee Schmalz appeals from a district court judgment upholding the North Dakota Workers Compensation Bureau's dismissal of his claim for benefits for injuries resulting from a heart attack he suffered during the course of his employment. We affirm.

Schmalz is a self-employed appliance, service, and refrigerator technician doing business under the name of Schmalz Appliance Service. He does his work in a garage which is approximately ten by twenty feet in size and twelve feet high. At the time of the heart attack, the garage did not provide for any fresh air ventilation.

Schmalz's work requires the use of an acetylene-oxygen torch to unsweat pipe connections. Some freon generally remains in the refrigeration tubing, and when heated, produces an odor and breaks down into a number of gases. The acetylene-oxygen torch also produces several gases including nitrogen dioxide and carbon monoxide. When reassembling the units, silver solder and cadmium flux are used which may produce gases when heated.

On November 29, 1984, Schmalz went into his shop at about 8:00 or 8:30 a.m. He began installing a compressor, using his acetylene torch, a task which is entirely usual and routine for him. He testified that he had been working on the compressor only minutes before experiencing chest pain. Schmalz sustained a heart attack, which was defined as death of heart muscle attributable to an inadequate supply of oxygen to the heart muscle.

Schmalz filed an application for workers compensation benefits on December 10, 1984. The Bureau dismissed the claim by order dated February 8, 1985. Schmalz failed to present any additional evidence and the order of dismissal was affirmed on December 10, 1986. He requested a formal hearing which was held on August 17, 1988. The Bureau issued an order reaffirming dismissal, based on additional evidence introduced at the hearing and its review of the entire record, on February 8, 1989. The Bureau, in its order reaffirming dismissal, determined:

"FINDINGS OF FACT

"I.

"Claimant filed an application for workers compensation benefits on December 10, 1984, in connection with an alleged injury on November 29, 1984.

"II.

"On the alleged date of injury the claimant was employed by Schmalz Appliance Service as an appliance repairman. Claimant was self-employed and has coverage under the Workers Compensation Act.

"III.

"Claimant indicates that he was replacing a compressor in a refrigerator when he sustained a heart attack on November 29, 1984. The heart attack occurred at approximately 9:30 a.m., on November 29, 1984.

"IV.

"The activity replacing the compressor was normal for the claimant and there is no evidence of unusual stress or strain.

"V.

"However, claimant contends that his heart attack was brought about by an exposure to gases in the course of his employment which reduced the ability of his blood to carry oxygen and resulted in the heart attack.

"VI.

"The evidence of record does indicate that as a result of using an acetylene torch on refrigeration equipment involving freon, and as a result of using cadmium flux, certain gases are emitted into the atmosphere including nitrogen dioxide, cadmium flux fumes, carbon monoxide, and possibly phosgene gas.

"VII.

"Evidence of record indicates that carbon monoxide and nitrogen dioxide combine more readily with the hemoglobin in the blood than does oxygen.

"VIII.

"Evidence of record indicates that if carbon monoxide and nitrogen dioxide gases are present in the atmosphere in sufficient quantities, the gases will mix with the hemoglobin in the blood reducing the ability of the blood to carry oxygen including to the heart muscle.

"IX.

"It is the opinion of Dr. Hinrichs, general practitioner, ¹ that the claimant's exposure to carbon monoxide and nitrogen dioxide probably contributed to the heart attack as a precipitant.

"X.

"However, Dr. Hinrichs admitted that he was unaware of the quantities of carbon monoxide and nitrogen dioxide gases in the air where Mr. Schmalz worked. Dr. Hinrichs is also unaware of the carboxy-hemoglobin level of claimant's blood.

"XI.

"Claimant has proven that certain amounts of these gases are given off in the nature of using an acetylene torch working on freon. However, claimant cannot establish that these gases are present in sufficient quantities in the atmosphere to cause measurable or significant change in the carboxy-hemoglobin level of the blood. Therefore, Dr. Hinrichs' opinion that there may exist a cause and effect relationship between Mr. Schmalz' heart attack and the presence of these gases in the atmosphere is speculative since he assumes that the gases in the air were sufficient to materially affect the carboxy-hemoglobin level of the blood, even though the assumption cannot be reasonably made based upon available evidence.

"XII.

"Evidence is unavailable by which to determine whether the claimant's carboxy-hemoglobin level was such as to reduce the ability of the blood to carry oxygen.

"XIII.

The Bureau obtained the opinion of a cardiologist, Dr. Walter E. Frank. Dr. Frank indicates that approximately 90 percent of the individuals who suffer a heart attack have, as precipitating cause of the heart attack, the development of a blood clot which closes off an already narrowed blood vessel. There is no evidence that an exposure to these gases in any way leads the development of a blood clot.

"XIV.

"Dr. Frank indicates that it would be speculation to provide a medical opinion that presence of certain gases such as carbon monoxide and nitrogen dioxide in the air acts as the trigger to a subsequent heart attack without knowing whether the gases were sufficient in quantity to affect the carboxy-hemoglobin level of the blood thereby reducing the ability of the blood to carry oxygen. The physician indicates that absent this evidence he cannot make such a correlation between the gases in the air and the heart attack.

"XV.

"Statistically speaking, the claimant is most likely to have developed the heart attack as a result of a blood clot which occluded an already narrowed blood vessel.

"XVI.

"Claimant has failed to prove his theory that the carboxy-hemoglobin in his blood reduced the ability of the blood to carry oxygen to the heart and muscle, thereby causing his heart attack. There is no evidence of record which establishes an abnormal carboxy-hemoglobin level of the blood.

"CONCLUSIONS OF LAW

"I.

"The claimant has failed to prove injury by accident arising out of and in the course of his employment.

"II.

"Claimant has failed to prove a cause and effect relationship between his heart attack and an exposure to gases in his employment.

"III.

"Claimant has failed to prove that he was under unusual stress in performing the physical activities on date of heart attack.

"ORDER

"IT IS ORDERED that this claim be in all things dismissed." [Footnote added.]

Schmalz appealed from the Bureau's decision to the district court. The district court affirmed the decision of the Bureau in a judgment dated June 7, 1989. Schmalz then appealed to this Court.

In an appeal from a judgment of the district court involving the decision of an administrative agency, our review is limited to an examination of the decision of the agency and not the decision of the district court. Grace v. North Dakota Workmen's Compensation Bureau, 395 N.W.2d 576 (N.D.1986); Skjefte v. Job Service North Dakota, 392 N.W.2d 815 (N.D.1986); Power Fuels, Inc. v. Elkin, 283 N.W.2d 214 (N.D.1979).

Our review of administrative agency decisions 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? Falcon v. Williams County Social Service Board, 430 N.W.2d 569 (N.D.1988); Otto v. Job Service North Dakota, 390 N.W.2d 550 (N.D.1986). In Skjefte, supra, this Court summarized the standards we use in reviewing administrative agency decisions as follows:

"1. 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 have reasonably determined that the factual conclusions were supported by the weight of the evidence.

"2. We exercise restraint when we review administrative agency findings.

"3. It is not the function of the judiciary to act as a super board when reviewing administrative agency determinations.

"4. We will not substitute our judgment for that of the qualified experts in the administrative agencies."

Skjefte at 817-18.

Section 65-05-05, N.D.C.C., provides for the payment of compensation and other benefits to employees who have "been injured in the course of their employment." The term "injury," as used in section 65-05-05, N.D.C.C., has been construed by this Court to mean "compensable injury" as defined in section 65-01-02(7), N.D.C.C. ² See Grace, supra. The relevant part of the definition that controls this case reads:

"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."

Section 65-01-02(7), N.D.C.C.

The legislative history of the 1977 amendment to section 65-01-02(7), N.D C.C., to require "unusual stress" in cases of heart attacks or strokes is well documented:

"It came about in direct response to this court's decision in Stout v. North Dakota Workmen's Compensation Bureau, 236 N.W.2d 889, 892 (N.D.1975), in which we held that heart attacks...