Wanstrom v. ND Workers Comp. Bureau

• Citation: 2001 ND 21,621 N.W.2d 864
• Decision Date: 02 February 2001
• Docket Number: No. 20000187.,20000187.
• Parties: Orlyn WANSTROM, Claimant and Appellant, v. The NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellee, and City of Bismarck, Respondent.
• Court: North Dakota Supreme Court

621 N.W.2d 864

2001 ND 21

Orlyn WANSTROM, Claimant and Appellant, v. The NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellee, and City of Bismarck, Respondent.

No. 20000187.

Supreme Court of North Dakota.

February 2, 2001.

Kathryn L. Dietz, Dietz, Little & Haas, Bismarck, ND, for claimant and appellant.

Brent J. Edison, Special Assistant Attorney General, North Dakota Workers Compensation Bureau, Bismarck, ND, for appellee.

VANDE WALLE, Chief Justice.

[¶ 1] Orlyn Wanstrom appealed from a district court judgment affirming a North Dakota Workers Compensation Bureau denial of Wanstrom's claim for disability benefits. The Bureau concluded Wanstrom's employment as a firefighter was not a substantial contributing factor in the causation of his lung disease, therefore the N.D.C.C. § 65-01-02(18)(d) presumption his lung condition was suffered in the line of duty was successfully rebutted and Wanstrom did not have a compensable injury. We conclude reasoning minds reasonably could not have determined the presumption was rebutted by the weight of the evidence from the entire record and we reverse and remand.

I

[¶ 2] Wanstrom was a firefighter with the City of Bismarck from May 1, 1974, until June 30, 1997. Wanstrom was exposed to smoke regularly in his work as a firefighter, however, he never required medical treatment for smoke inhalation. Wanstrom smoked cigarettes, approximately one to one-and-a-half packs per day for 30 years. Dr. Monica T. Paulo examined Wanstrom on June 6, 1997. Dr. Paulo diagnosed Wanstrom with chronic obstructive pulmonary disease ("COPD") and stated Wanstrom was at risk for further exposure to smoke or other inhalants. On June 30, 1997, the City of Bismarck placed Wanstrom on medical leave.

[¶ 3] On July 3, 1997, Wanstrom filed a claim with the Bureau seeking application of the presumption in N.D.C.C. § 65-01-02(18)(d) (1995). If applicable, the statute would presume Wanstrom's lung condition was suffered in the line of duty. N.D.C.C. § 65-01-02(18)(d) (1995). The Bureau held because Wanstrom filed his claim after July 1, 1997, he was subject to N.D.C.C. § 65-01-15, a statute enacted by the legislature in 1995 to confine the occupational-lung disease presumption to nonsmokers. Therefore, the Bureau concluded Wanstrom was prohibited from using the presumption under N.D.C.C. § 65-01-02(18)(d). Wanstrom appealed and this Court held the Bureau erred as a matter of law by concluding the application date was dispositive instead of the injury date; therefore Wanstrom was entitled to the presumption his lung disease was suffered in the line of duty. Wanstrom v. North Dakota Workers Comp. Bureau, 2000 ND 17, ¶ 9, 604 N.W.2d 860. We remanded for additional findings of fact and conclusions of law as to whether the presumption has been successfully rebutted. Id.

[¶ 4] On remand, the Bureau looked to the administrative law judge's findings of fact from the previous hearing on October 19, 1998. The Bureau found Wanstrom's employment as a firefighter for 23 years was not a substantial contributing factor in the causation of his lung disease. Therefore, the Bureau concluded the presumption was successfully rebutted and Wanstrom's injury was not compensable. The district court affirmed the Bureau's decision.

II

[¶ 5] On appeal from a judgment involving the decision of an administrative agency, we review the decision of the agency and our review is limited to the record before the agency. Tangen v. North Dakota Workers Comp. Bureau, 2000 ND 135, ¶ 9, 613 N.W.2d 490. Under N.D.C.C. §§ 28-32-19 and 28-32-21, we affirm the Bureau's decision unless its findings of fact are not supported by a preponderance of the evidence, its conclusions of law are not supported by its findings of fact, its decision is not supported by its conclusions of law, its decision is not in accordance with the law or violates the claimant's constitutional rights, or its rules or procedure deprived the claimant of a fair hearing. Negaard-Cooley v. North Dakota Workers Comp. Bureau, 2000 ND 122, ¶ 7, 611 N.W.2d 898. We exercise restraint in determining whether the Bureau's findings of fact are supported by a preponderance of the evidence and do not make independent findings or substitute our judgment for that of the Bureau, but determine only whether a reasoning mind reasonably could have determined the findings were proven by the weight of the evidence from the entire record. Renault v. North Dakota Workers Comp. Bureau, 1999 ND 187, ¶ 16, 601 N.W.2d 580. On the other hand, questions of law, including the interpretation of a statute, are fully reviewable by this Court. Wanstrom v. North Dakota Workers Comp. Bureau, 2000 ND 17, ¶ 5, 604 N.W.2d 860.

III

[¶ 6] Claimants seeking workers compensation benefits generally must prove by a preponderance of the evidence they have suffered a compensable injury in the course of employment. Elter v. North Dakota Workers Comp. Bureau, 1999 ND 179, ¶ 15, 599 N.W.2d 315. A compensable injury includes any disease fairly traceable to the worker's employment. N.D.C.C. § 65-01-02(9)(a)(1) (1995). A disease is fairly traceable to employment if there is a direct causal connection between work conditions and the disease. N.D.C.C. § 65-01-02(18)(a) (1995). A worker's employment need not be the sole cause of the disease, and it is sufficient if a work condition is a substantial contributing factor to the disease. McDaniel v. North Dakota Workers Comp. Bureau, 1997 ND 154, ¶ 12, 567 N.W.2d 833.

[¶ 7] In claims involving fire-fighters, however, a condition or impairment of health caused by lung or respiratory disease is presumed to have been suffered in the line of duty. N.D.C.C. § 65-01-02(18)(d) (1995). The presumption shifts the burden of going forward with evidence and the burden of persuasion from the claimant to the Bureau. Sunderland v. North Dakota Workmen's Comp. Bureau, 370 N.W.2d 549, 552 (N.D. 1985). Therefore, under the North Dakota view of presumptions, the Bureau is required to prove the nonexistence of the presumed fact is more probable than its existence. Id. In this case, the presumed fact is Wanstrom's work as a firefighter was a substantial contributing factor in the development of his lung disease. As we explained in Flermoen v. North Dakota Workers Comp. Bureau, 470 N.W.2d 220, 222 (N.D.1991), the presumption's purpose is to relieve firefighters of the nearly impossible burden of proving firefighting actually caused their disease. Under the firefighter presumption, "[a] worker's employment need not be the sole cause of the disease," and "just because personal habits make a worker more prone to certain injuries does not mean the Bureau can deny a claim when the evidence indicates with reasonable medical certainty that work conditions are causally connected to the particular injury." McDaniel, 1997 ND 154, ¶ 12, 567 N.W.2d 833 (noting McDaniel smoked between one-half and two packs of cigarettes per day for over thirty years). Therefore, it is not sufficient for the Bureau to show smoking was the more likely cause of Wanstrom's lung disease, instead the Bureau must prove Wanstrom's exposure to smoke on the job was not a substantial contributing factor to his disease.

[¶ 8] On remand, the Bureau found the greater weight of the evidence indicates Wanstrom's employment was not a substantial contributing factor in the development of his COPD. The Bureau based this finding on testimony of two medical experts, as summarized in paragraph two of the findings of fact.

The Bureau finds a great deal of consistency between the opinions of Drs. Paulo and Mulro[o]ney. Both doctors made a strong causal connection between the Claimant's smoking and his COPD. Neither doctor could point to an established causal connection between firefighting and COPD. Both doctors found it significant that the Claimant had never been treated for smoke inhalation. Both doctors recognized smoking as the predominant risk factor for COPD. In conclusion, the testimony of both doctors, taken as a whole, eliminates the Claimant's work as a firefighter as a substantial contributing factor in the causation of his COPD. In addition, the testimony of both doctors resolves any arguable conflicts arising from Dr. Paulo's description of Claimant's COPD as being "multifactorial."

[¶ 9] Both physicians testified smoking is a major cause of COPD and both also agreed it was significant that Wanstrom had never required medical treatment following smoke inhalation at a fire. However, the record does not support the Bureau's finding that, taken as a whole, the testimony of both doctors eliminates Wanstrom's work as a firefighter as a substantial contributing factor in the causation of his COPD or resolves conflicts arising from Dr. Paulo's description of Wanstrom's COPD as multifactorial. The Bureau failed to address the agreement of both experts that COPD can be multifactorial and usually COPD develops later than at the young age of 44, even among smokers. Dr. Paulo stated it was unusual, even for a smoker, to develop COPD at age 44 without some other predisposing factor. In fact, both experts testified inhalation of smoke or toxic fumes could be a contributing factor to chronic lung disease. Also, the Bureau did not address the fact Wanstrom was regularly exposed to smoke as is normal for firefighters, as testified by a co-worker, Mr. Thomas Biwer:

Q. [Wanstrom's attorney] I'll try to come back to the question I asked. It was regarding the degree of exposure to smoke during those years, and I was trying—if it was possible, I was trying to define more specifically what "not unusual" meant in terms of quantifying it. And I'm not asking you for specific fires.

A. [Mr. Biwer] Perhaps his—his rate of exposure would have been the same as anyone else, any other member of the fire department.

Q. Which would be what?

A. It's part of the job. It's something that happens when you go to fires.

Q. So it happens—

A. It happens regularly.

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