Schmidt v. N.D. Workmen's Comp. Bureau, No. 6901.

• Court: United States State Supreme Court of North Dakota
• Writing for the Court: BURR
• Citation: 73 N.D. 245,13 N.W.2d 610
• Decision Date: 04 April 1944
• Docket Number: No. 6901.
• Parties: SCHMIDT v. NORTH DAKOTA WORKMEN'S COMPENSATION BUREAU.

73 N.D. 245
13 N.W.2d 610

SCHMIDT
v.
NORTH DAKOTA WORKMEN'S COMPENSATION BUREAU.

No. 6901.

Supreme Court of North Dakota.

Dec. 30, 1943.
Rehearing Denied April 4, 1944.

Appeal from District Court, Burleigh County; Fred Jansonius, Judge.

Proceeding under the Workmen's Compensation Act by Albert T. Schmidt, claimant, for alleged injuries sustained in the course of his employment. From a decision of the North Dakota Workmen's Compensation Bureau dismissing his application, claimant appealed to the District Court, and from a judgment of the District Court in favor of claimant, the Workmen's Compensation Bureau appeals.

Judgment reversed and proceeding dismissed.

[13 N.W.2d 611]

Syllabus by the Court.

1. When the Workmen's Compensation Bureau entertains an application to share in the Workmen's Compensation Fund and determines that the applicant is an employee, was injured in the course of his employment, and, upon hearing, awards him compensation, it has an exclusive continuing jurisdiction over the case and over the right of the employee to share further in the fund, with power to increase or diminish the compensation as the occasion requires.

2. The district court has no jurisdiction to determine the right of any applicant to share in the Workmen's Compensation Fund except in a case where the bureau denies compensation upon some ground going to the basis of the claimant's right to share.

3. Where an applicant applies to the bureau for leave to share in the fund upon the ground that he is suffering from a disease which was accelerated by his employment and the bureau denies his claim on the ground the alleged disability is not due to a disease proximately caused by his employment, and upon appeal to the district court the applicant attempts to prove injuries resulting from an alleged accident, and the record shows that no application was ever made to the bureau for compensation because of said accident and no claim for compensation because of such injuries was ever submitted to the bureau for its determination and the bureau had no opportunity to pass upon such question, it is error for the district court to hear and determine the issue of compensation because of such accident. The applicant must first submit such question to the bureau for its determination.

J. K. Murray, of Bismarck, for plaintiff and respondent.

Alvin C. Strutz, Atty. Gen., and P. B. Garberg, Asst. Atty. Gen., for defendant and appellant.

BURR, Judge.

On the 19th of August, 1940, plaintiff applied to the bureau for compensation because of alleged injuries received by him in the course of his employment. In this application known as No. 100792 he stated he was suffering from the injurious effect of over-exertion and an “impact caused by vibration of heavy machinery.” He termed this a disease and said it was incurred between August 18, 1937, and June 30, 1940. The application was presented as a separate and distinct claim, independent of all others theretofore presented to the bureau. The application was accompanied by a report made by a physician which stated applicant had “pain in the abdomen, chest, and back upon exertion, which condition began about August 18, 1937, after heavy lifting and exertion. Aggravated again about June 30, 1940.” Physician stated he could not state definitely that the disability was due entirely “to this injury.”

The application was received August 20, 1940. On the 16th of September the bureau made its findings and conclusions to the effect that “the alleged disability is not due to a disease proximately caused by the employment,” and dismissed the application.

In November of that year, plaintiff appealed to the district court and in his complaint alleged that between August 18, 1937, and June 20, 1940, he was employed by the state highway department and required to do heavy work and heavy lifting, in operating “heavy motorized machinery and equipment of said highway department,” and in lifting this machinery and objects he overstrained and overexerted himself; “that the motorized machinery of said Highway Department caused tremendous vibration and impact on the appellant's physical system and body; that during the warm periods of the year, said motors of said machinery became extremely hot, thereby heating plaintiff's body and assisting in the creating of blood pressure higher than normal, thereby seriously injuring the plaintiff's heart; that the plaintiff in the performance of his duties was required to operate road machinery including heavy

[13 N.W.2d 612]

snowplows in the winter time, in extremely cold weather; that in the performance of appellant's duties, he became severely chilled at various times, and incurred serious colds and bronchial trouble; that in the operation of said highway machinery in the winter time, petitioner was required to go out in the cold, *** thereby incurring extreme chills, which affected his heart and other internal organs of his body, including his liver and kidneys, gall bladder and heart; that by reason of the aforesaid, appellant was forced to quit his employment on the 20th day of June 1940, and he has been under a doctor's care ever since and will be a cripple and invalid for life; that the appellant's disease, sickness and physical condition, as aforesaid, were and are approximately caused by appellant's type and character of work and employment aforementioned.”

The answer denies “that the injuries and sickness of appellant was incurred in the course of his employment; defendant and respondent further alleges that the said claim was based only and alone on the contention that “overexertion and injurious impact caused by vibration of heavy machinery” was the proximate cause of the disability from which the appellant suffered, and that a copy of the said claim filed by the said appellant is hereto attached and made a part of this answer as though set forth at length herein.” The answer further denies that the plaintiff was injured in the course of his employment and alleges his disability is due to a disease not proximately caused by his employment.

Almost two years elapsed before the case was finally heard in the district court. October 9, 1942, the court rendered a memorandum opinion, holding with the plaintiff. On October 30, 1942, defendant gave notice of motion to reopen the case for the taking of further testimony. This motion to reopen was supported by affidavits wherein it is stated: That the sole ground for the application presented to the bureau was a disease which had been incurred sometime between August 18, 1937, and June 20, 1940, and that this disease was a disease of the heart caused by the vibration of heavy machinery and by overexertion in operating the machinery; that plaintiff never claimed any damages for the injury alleged to have been suffered on May 8, 1940; that the trial of this issue in the district court was had without any presentation of the claim to the bureau; that such claim could not now be presented to the bureau because of the lapse of more than one year from the time that the alleged injury had occurred and that because of the lapse of such time the bureau would have no jurisdiction to hear and determine the issue arising over the alleged injury.

The record, so far as this court can ascertain, shows that upon the hearing before the district court the plaintiff relied entirely upon an alleged injury suffered on May 8, 1940.

At the trial defendants had objected to proffered testimony on the ground that such matter was not “within the issues of this lawsuit ***. This is an appeal from a determination of the Workmen's Compensation Bureau, and must, therefore, be based entirely on the claim filed before the Bureau. The original claim is here before me, and here is a copy attached to the answer. The original claim as filed alleges that the disability was caused by over-exertion and impact caused by vibration of heavy machinery. Therefore, the only testimony in issue-the only matter in issue in this appeal is the disability caused by such over-exertion and such impact or vibration of heavy machinery.” The court denied the motion upon hearing, and on December 22 made findings of facts and order for judgment in favor of the plaintiff, judgment being entered December 28, 1942.

Incidentally we may state that if the legislative intent to secure speedy, sure, and certain relief to employees is not always attained, the fault...