Steele v. North Dakota Workmen's Compensation Bureau

• Decision Date: 28 November 1978
• Docket Number: No. 9481,9481
• Parties: Merlin A. STEELE, Appellant, v. NORTH DAKOTA WORKMEN'S COMPENSATION BUREAU, Appellee. Civ.
• Court: North Dakota Supreme Court

Page 692

273 N.W.2d 692

Merlin A. STEELE, Appellant, v. NORTH DAKOTA WORKMEN'S COMPENSATION BUREAU, Appellee.

Civ. No. 9481.

Supreme Court of North Dakota.

Nov. 28, 1978.

Rehearings Denied Jan. 8, 1979.

Daniel E. Buchanan, Jamestown, for appellant.

Richard J. Gross, Sp. Asst. Atty. Gen., Bismarck, for appellee.

SAND, Justice.

This is an appeal from a Workmen's Compensation Bureau decision, which was affirmed by the Stutsman County district court, denying benefits under the Workmen's Compensation Act to Merlin A. Steele.

On 25 January 1977 Merlin A. Steele filed a claim with the North Dakota Workmen's Compensation Bureau (hereinafter Bureau) claiming that while delivering beer on 10 January 1977 his arm got stiff and gradually got worse so that on Wednesday he could hardly bend his arm, and that he couldn't get to see a doctor until Friday 14 January 1977, when he was seen by Dr. Blackwelder, who referred him to Dr. Reiswig.

The Bureau wrote to Dr. Blackwelder stating it was unable to give further consideration to the claim because it had not received a report from him. Dr. Blackwelder submitted the attending physician's report, dated 21 February 1977, which merely stated that the claimant had pain and swelling of the right elbow and that after he was X-rayed he was referred to Dr. Reiswig at the Fargo Clinic. This report form contained the question, "Is present disability due to an occupational disease or injury?" to which Dr. Blackwelder answered "Yes." In a letter dated 7 February 1977 Dr. Philip H. Reiswig advised the Bureau that Mr. Steele was admitted to St. Luke's Hospital on 15 January 1977 and discharged on 18 January 1977; that the problem was a loose body of the right elbow; that the patient developed pain in the right elbow about one week prior to admission, which became so severe that he was unable to do his work; that there was no direct history of injury; that the difficulty with the elbow could be related to repeated use of his elbow; that the period of disability was estimated to be approximately six weeks; and that there may be some permanent disability associated with the elbow, but was not believed to be significant.

Dr. Reiswig, by letter to the Bureau dated 9 March 1977 wrote that the claimant informed him his claim was denied and submitted the following:

"It is possible that with repeated use of his elbow in lifting heavy beer cases a chip of cartilage could have come loose from his articular cartilage of his joint and resulted in the loose bodies that were found at the time of surgery. It is not unreasonable to associate his occupation with the problem in his elbow."

This letter was "stamped in" by the Bureau on 10 March 1977.

The Bureau, on 10 March 1977, issued its findings of fact, conclusions of law, and order for dismissal, concluding that the claimant failed to establish that he sustained an injury in the course of his employment, and that he was not entitled to benefits under the North Dakota Workmen's Compensation Act.

On 14 March 1977 Merlin A. Steele asked the Bureau for a rehearing and stated that an injury was sustained on his right elbow in June of 1973 while lifting heavy beer cases during the course of his employment. On 24 March 1977 the Bureau, in response to claimant's letter of 14 March, in substance stated that because he now claims his injury stemmed from an incident in 1973, the claim is older than one year from date of injury, and that the Bureau is not liable for the current disability.

On 1 April 1977 Mr. Steele replied by stating:

"Regarding the incident in 1973, I do not feel that it is in any way related to the present injury. Since the doctor for my present injury was aware that sometime in the past I had xrays taken of my arm, it was his request to view them. Since the time that the xrays were taken in 1973, the doctor stated there was nothing wrong, and I have had no problem from that time prior to January 10th, 1977, I can see no reason this should have any bearing on the present injury or what reason it was brought about."

On 6 April 1977 the counsel for the Bureau wrote to Merlin A. Steele stating, in part, as follows:

"Then, in your April 1, 1977, letter you state: 'Regarding the incident of 1973, I do not feel that it is in any way related to the present injury.' You are the one who mentioned the 1973 injury, not the Bureau. Obviously you felt the two were related.

"In any event, there is still no medical substantiation that your present problem is due to a work related injury. Until such information is forthcoming, the Bureau's decision must remain the same. If you have any questions or comments, please contact me."

On 7 June 1977, the Bureau received a report from Dr. Hogan pertaining to the 1973 examination which stated, among other things "Xrays were taken of the right elbow at that time (1973) but did not show any definite fracture or other pathology related to an acute injury."

On 10 June 1977 the attorney, on behalf of the claimant, wrote to the Bureau stating:

"If you agree with me, please reopen and award compensation in this case. We are arranging an appointment for the claimant to determine permanent partial disability. If you will not award compensation prior to a hearing, please consider this a request for one."

On 15 June 1977 counsel for the Bureau wrote a letter to Mr. Buchanan, the attorney for Mr. Steele, concluding with the following:

"If you are requesting a hearing, what would you hope to add to the record through a hearing which is not presently in the file or which could not be gathered in some other way?"

On 24 June 1977 claimant's attorney wrote to the Bureau stating:

"I think we can show from the testimony of two physicians that the claimant's elbow condition occurred in the course of, and arose from his employment. As you know, we do not have to prove in North Dakota that an injury arose from the employment, only that it occurred during the course of it."

The letter concluded by saying:

"I am going to be out of the country until the week of July 25, but, if you cannot pay this claim, I would request that you set the matter for hearing in the early part of August, or, serve a denial of reconsideration on me and the claimant, and we will then file our notice of appeal."

On 12 July 1977, Bureau's counsel wrote to claimant's attorney as follows:

"After your last two letters I and the Commissioners have absolutely no idea what you are trying to say. Why don't you give me a call when you return and we can probably get this straightened out."

On 12 October 1977 claimant's attorney wrote to the Bureau stating that he thought it would be only fair for the Bureau to consent to an oral examination of Dr. Reiswig by deposition to see if his testimony would be as equivocal as his report to the Bureau had seemed to be. In a postscript, claimant's attorney stated, "Could we depose the claimant at the same time?"

On 13 October 1977, Bureau's counsel wrote to claimant's attorney in which he reviewed prior correspondence and concluded:

"After requesting in your previous letter that the Bureau depose Drs. Reiswig and Hogan, you now write requesting that the Bureau depose only Dr. Reiswig. Even if the Bureau granted your request for deposition, it would certainly depose Dr. Hogan as well who would indicate that Mr. Steele had this condition in 1973. In which case the Bureau would then dismiss because of his failure to submit a claim in one year. There would be Absolutely no sense to that.

"Therefore, if you wish the Bureau to issue a denial of a rehearing so that you can appeal to the District Court, the Bureau will do so. However, you have obviously not demonstrated any legitimate reasons for a formal hearing and/or depositions in this case." (Emphasis in original.)

On 14 October 1977 claimant's attorney wrote and stated that the Bureau should enter and serve its denial of rehearing, whereupon the Bureau on 20 October 1977 entered an order denying petition for rehearing. The appeal to the district court followed. The district court affirmed the decision of the Bureau, but only after allowing the claimant an opportunity, which he did not take, to submit additional medical evidence why the claim should be accepted.

The claimant, Steele, on appeal, stated the following issues:

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

2. Is the medical evidence speculative and conjectural?

The Bureau stated the issue differently, as follows:

Whether the North Dakota Workmen's Compensation Bureau was correct in denying benefits for an alleged employment injury to the claimant.

There is an additional critical issue on the question whether or not the Bureau in denying Steele an evidentiary hearing was acting in accordance with law.

On appeal we review the decision of the agency rather than the decision of the district court. This principle of limited review, based upon the doctrine of constitutional necessity, was reached in Geo. E. Haggart, Inc. v. North Dakota Workmen's Compensation Bureau, 171 N.W.2d 104 (N.D.1969), under the then-existing provisions of § 28-32-21, NDCC, which provided that:

"The judgment of the district court in an appeal from the decision of an administrative agency may be reviewed in the supreme court on appeal in the same manner as any case tried to the court without a jury may be reviewed . . . ."

Section 28-32-21, NDCC has since been amended by Chapter 284 of the 1977 Session Laws, which became effective 1 July 1977 and now provides as follows:

"The judgment of the district court in an appeal from a decision of an administrative agency may be reviewed in the supreme court on appeal in the same manner as provided in section 28-32-19. . . ."

Section 28-32-19, NDCC, as amended, sets forth the standard for review of the agency's decision in the district court. ¹ The only rational legal conclusion that can be reached from the amendment and the Haggart case is that on...