Teegarden v. North Dakota Workmen's Compensation Bureau, 10058

• Decision Date: 22 December 1981
• Docket Number: No. 10058,10058
• Citation: 313 N.W.2d 716
• Parties: Virgil E. TEEGARDEN, Appellant, v. NORTH DAKOTA WORKMEN'S COMPENSATION BUREAU, Appellee. Civ.
• Court: North Dakota Supreme Court

Page 716

313 N.W.2d 716

Virgil E. TEEGARDEN, Appellant, v. NORTH DAKOTA WORKMEN'S COMPENSATION BUREAU, Appellee.

Civ. No. 10058.

Supreme Court of North Dakota.

Dec. 22, 1981.

Nilles, Hansen, Selbo, Magill & Davies, Fargo, for appellant; argued by Patricia Rudik Ellingson, Fargo.

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

SAND, Justice.

This is an appeal from a district court judgment affirming a Workmen's Compensation Bureau order denying benefits to the claimant Teegarden on the grounds that the claim was not filed within one year after he knew or should have known that the injury he suffered was related to his employment.

Virgil E. Teegarden, the claimant and the appellant, started work in 1967 with the Hunter Grain Company in Hunter, North Dakota. Hunter Grain Company owns two elevators in Hunter, and Teegarden started work at a feed mill at one of the elevators. In February 1969, he began to have lung problems along with some pleurisy and pneumonia. He was treated as an outpatient for two weeks but was subsequently hospitalized for a period of time. In March of 1969 he had wheezes and rales of the left lower lung for which he was treated and which took approximately two weeks to clear. At this time he was advised by his doctor, Dr. R. W. McLean of Hillsboro, North Dakota, to avoid dust and to quit smoking. Teegarden transferred out of the feed mill to another job at the elevator where he continued to do general elevator work including delivering feed, loading trucks, and dumping grain. In May of 1969 he was again treated for tightness in his chest and bronchitis. The claimant was again treated for pneumonia and pneumonitis in December of 1970. In October 1973 he fractured three ribs and developed pneumonitis which required lengthy hospitalization. In April 1974, February 1975, and twice in September 1975, he was treated for bronchitis. He was again treated for bronchitis in May of 1976, February 1977, February 1978, January 1979, and June 1979. In October 1979 he was hospitalized with pneumonia. He was treated for bronchitis in November and December of 1979, and again in February and March 1980. In April of 1980 he was hospitalized with bronchitis. At that time Dr. McLean told Teegarden that he could no longer return to his employment at the elevator because of the sensitivity to dust. Dr. McLean informed Teegarden that he had a compensable claim with the Bureau.

On 29 May 1980 Teegarden filed a claim with the Bureau stating that his respiratory problems were due to constant exposure to grain dust during the course of his work at the elevator. The Bureau denied Teegarden's claim on 18 June 1980 because it found that the medical evidence indicated that Teegarden's exposure to grain dust through the years precipitated and aggravated his upper respiratory problems and, further, that his claim was not filed within one year after Teegarden first knew that his respiratory problems were related to exposure to grain dust.

Teegarden requested a rehearing and, in lieu of a rehearing, his deposition was taken on 18 Aug 1980. Following the taking of his deposition, the Bureau issued an order affirming the denial of Teegarden's claim.

Teegarden appealed to district court and the Bureau's decision was affirmed. A modification was made in the Bureau's conclusion of law to reflect that Teegarden's condition was related to his employment. Teegarden appealed to this Court.

This case, as well as Beauchamp v. North Dakota Workmen's Compensation Bureau, 126 N.W.2d 417 (N.D.1964), ¹ demonstrate situations in which disability cannot be traceable to a specific accident or to an incident such as the freezing of a toe that can be related to a definite or an approximate time. Rather, the development of the disease or injury is progressive over a period of time. We are also mindful that the statutory definition of an injury includes any disease which can be fairly traceable to employment. NDCC § 65-01-02(8). The term "fairly traceable to the employment" is defined in NDCC § 65-01-02(9). The Bureau does not dispute that the disease is fairly traceable to the employment.

The principal issue, if not the sole issue, is the date when the claimant knew or should have known that the injury (disease) was related to employment.

NDCC § 65-05-01 in part, and as is material to the facts of this case, provides:

"When the actual date of injury cannot be determined with certainty the date of injury shall be the first date that a reasonable person knew or should have known that the injury was related to employment." (Emphasis added.)

The expression, "a reasonable person" is not defined by statute and accordingly it is to be understood in its ordinary sense. NDCC § 1-02-02. The word "reasonable" as defined in Webster's dictionary means "being in agreement with like thinking or right judgment, not conflicting with reason, not absurd, not ridiculous," etc. We believe the Legislature had in mind the ordinary reasonable lay person and not a person learned in medicine when it used that term in our statute. Nor do we believe that the Legislature in using the term "knew or should have known" intended to impose a standard or a degree of wisdom comparable to that expected of a doctor or a person learned in medicine. The Workmen's Compensation Act is primarily concerned with "the well-being of its wage earners." NDCC § 65-01-01. It is only logical to conclude that the term "reasonable person" refers to a wage worker. Consequently the term "reasonable" varies and takes on full meaning from the setting of the employment and the degree of skill or type of skill and knowledge needed to satisfactorily perform the job.

This rationale is consistent with the following concept enunciated by Larson in his treatise on Workmen's Compensation Law:

"Plainly claimant should be expected to display no greater diagnostic skill than any other uninformed layman confronted with the early symptoms of a progressive condition. Indeed, it has been held that the reasonableness of a claimant's conduct should be judged in light of his own education and intelligence, not in the light of the standard of some hypothetical reasonable man of the kind familiar in tort law." Larson's Workmen's Compensation Law, Vol. 3, § 78.41, pages 15-91, 15-92.

This concept is reinforced by the Wisconsin Supreme Court in the case of St. Mary's Hospital v. Industrial Commission, 257 Wis. 411, 43 N.W.2d 465 (1950), involving substantially the same statutory language as found in NDCC § 65-05-01 (except the Wisconsin statute has a two-year limitation, whereas North Dakota has a one-year limitation) and a claimant who was a student nurse. The ultimate issue was, when did the claimant know or when should the claimant have known that she had tuberculosis and that it was work-related. The Industrial Commission found that the claimant did not know the nature of her disability and its relation to her employment prior to October 1944 even though she became ill with a diagnosis of erythema nodosum and later an x-ray report indicated a suspicious lesion of possible tuberculosis, and another x-ray in May of 1944 in which a roentgenologist report dated 30 ...