Syverson v. North Dakota Workmen's Compensation Bureau

• Decision Date: 28 May 1987
• Docket Number: No. 11345,11345
• Citation: 406 N.W.2d 688
• Parties: Robert D. SYVERSON, Appellee, v. NORTH DAKOTA WORKMEN'S COMPENSATION BUREAU, Appellant. Civ.
• Court: North Dakota Supreme Court

Page 688

406 N.W.2d 688

Robert D. SYVERSON, Appellee, v. NORTH DAKOTA WORKMEN'S COMPENSATION BUREAU, Appellant.

Civ. No. 11345.

Supreme Court of North Dakota.

May 28, 1987.

Daniel E. Buchanan, Jamestown, for appellee.

Clare Hochhalter, Asst. Atty. Gen., Bismarck, for appellant.

MESCHKE, Justice.

The North Dakota Workmen's Compensation Bureau appeals from a district court judgment which reversed the Bureau's order denying Robert D. Syverson's claim for benefits. We affirm the district court judgment.

Syverson filed a claim with the Bureau for compensation and medical expenses in connection with an alleged injury to his shoulders during his employment as a delivery person with Dodgson, Inc., in Jamestown. Syverson first sought medical treatment for pain in his shoulders from Dr. Ard Mardirosian, an orthopedic surgeon, on July 30, 1984. At that time, Syverson, age 37, had been handling and moving heavy appliances and furniture for five years while employed by Dodgson. He had not previously suffered from or sought medical attention for a shoulder disability.

After a number of examinations and treatment attempts, including surgery, Dr. Mardirosian determined that Syverson had bilateral degenerative arthritis of the acromioclavicular (AC) joints. When Syverson was allowed to return to work, limitations were placed on the amount of lifting he could do.

Syverson asserted to the Bureau that his shoulder condition, in part caused by osteoarthritic changes, was brought on or worsened through his employment as a furniture and appliance handler. The Bureau dismissed Syverson's claim. Noting that "arthritis, in various forms, is a disease common to the general public," the Bureau determined that Syverson did not receive an injury by accident arising out of and in the course of employment; that his arthritic condition was not causally related to an employment injury; and that the arthritic condition was not fairly traceable to his employment. The district court reversed the Bureau's decision, concluding that "a causal link between the employment and injury is the only reasonable finding that could be made."

The Bureau asserts in this appeal that Syverson failed to prove by a preponderance of the evidence that the acromioclavicular arthritic condition in his shoulders was a compensable injury.

A "compensable injury" is defined in Sec. 65-01-02(7), N.D.C.C., as "an injury by accident arising out of and in the course of employment.... Such term, in addition to an injury by accident, includes: a. Any disease which can be fairly traceable to the employment." ¹ In Satrom v. North Dakota Workmen's Compensation Bureau, 328 N.W.2d 824 (N.D.1982), we discussed the "injury by accident" requirement of this statute in relation to a claimant's gradual development of a back injury. In that case, a hairdresser sought benefits from the Bureau for an acute disc syndrome she claimed was caused by six years of repeated bending and standing on a hard floor while working at the salon. The Bureau ruled that she failed to prove an injury by accident and that her condition was not causally related to her employment.

This court reversed, concluding that a back injury, such as the claimant's acute disc syndrome, "which can be medically related to repeated stress or strain in a claimant's usual work exertions, is a compensable injury" even if the cause was not of an "accidental character." Satrom, supra, 328 N.W.2d at 828. We rejected the Bureau's argument that the employment must be the sole cause of the claimant's injury:

"It is sufficient if the work-related stress is a 'substantial contributing factor' to the injury. Nelson v. North Dakota Workmen's Comp. Bureau, 316 N.W.2d 790, 795 (N.D.1982). Thus, 'the fact that an employee may have physical conditions or personal habits' which make him or her more prone to such an injury does not constitute a sufficient reason for denying a claim if the preponderance of the evidence indicates that the injury 'was causally related to the worker's employment, with reasonable medical certainty', and was precipitated by usual stress. Nelson, supra." Satrom, supra, 328 N.W.2d at 831.

The same rationale applies to a claimant's development of an arthritic condition. See 1B Larson, Workmen's Compensation Law Sec. 39.10 (1987). Thus, the focal issue in this case is whether Syverson proved by a preponderance of the evidence that the heavy lifting he performed at work was causally related to the development of his arthritic condition.

In an appeal of the decision of an administrative agency, we review the decision by the agency rather than the determination of the district court. Grace v. North Dakota Workmen's Compensation Bureau, 395 N.W.2d 576, 579 (N.D.1986). We consider whether a reasoning mind reasonably could have determined that the factual conclusions reached were proved by the greater weight of the evidence. Ganske v. North Dakota Workmen's Compensation Bureau, 355 N.W.2d 800, 802 (N.D.1984). The Workmen's Compensation Act is to be construed liberally with the view of extending its benefit provisions to all who can fairly be brought within them. Claim of Bromley, 304 N.W.2d 412, 415 (N.D.1981). Moreover, because the adversary concept has only limited application to claims for workmen's compensation benefits, the Bureau may not rely only upon that part of inconsistent medical evidence which is favorable to the Bureau's position without attempting to clarify the inconsistency. Roberts v. North Dakota Workmen's Compensation Bureau, 326 N.W.2d 702, 706 (N.D.1982). We look to the entire record compiled by an administrative agency. Geiger v. Hjelle, 396 N.W.2d 302 (N.D.1986).

Syverson's employment with Dodgson entailed years of lifting and moving heavy appliances and furniture and he had not previously suffered from any shoulder disability. In the "Attending Physician's Report" submitted after one month of treatment, Dr. Mardirosian indicated that "[h]eavy lifting at work" was the claimant's history of onset or manner of affliction, and answered "yes" to the question "Are you satisfied this is an occupational disease or injury?" In an "Attending Physician's Statement" dated September 13, 1984, Dr. Mardirosian further answered, in response to a question whether the patient's condition arose out of his employment, "Yes, due to lifting."

During December 1984, Dr. Mardirosian referred Syverson to Dr. Marie Olestad, another orthopedic surgeon on the clinic staff. Dr. Olestad noted that Syverson suffered "occasional sharp pain with lifting," and that "the history is one of a wear and tear arthritis in the AC joints."

Relying on selected segments of Dr. Mardirosian's testimony, the Bureau asserts that "the evidence does no more than speculate as to a possible causal relationship between any lifting and the arthritic injury." The doctor testified on several occasions that it was only "possible," and that he could not "hundred percent affirm," that Syverson's heavy lifting at work was related to his arthritic condition. The doctor also testified that he researched the problem and that "I have not been able to find an article really dealing specifically with this [AC] joint here that would produce degenerative changes so rapidly due to strain because of the work itself.... Now I presume it's possible." ²

However, Dr. Mardirosian testified more fully, as follows:

"Q [By Mr. Buchanan] Apparently by that time, in the number of times that you had seen Mr. Syverson, it was a concern in your mind, was it not, that he avoid liftings because of those shoulders?

"A [By Dr. Mardirosian] Right.

"Q And the earlier history was, of course, that he had expressed to you that this discomfort apparently presented itself when lifting?

"A That's my original note as he...