Wolf v. North Dakota Workmen's Compensation Bureau

• Decision Date: 28 June 1978
• Docket Number: No. 9453,9453
• Citation: 267 N.W.2d 785
• Parties: Harvey A. WOLF, Appellee, v. NORTH DAKOTA WORKMEN'S COMPENSATION BUREAU, Appellant.
• Court: North Dakota Supreme Court

Page 785

267 N.W.2d 785

Harvey A. WOLF, Appellee, v. NORTH DAKOTA WORKMEN'S COMPENSATION BUREAU, Appellant.

Civ. No. 9453.

Supreme Court of North Dakota.

June 28, 1978.

Rehearing Denied July 7, 1978.

Richard J. Gross, Sp. Asst. Atty. Gen., North Dakota Workmen's Compensation Bureau, Bismarck, for appellant.

Daniel E. Buchanan, Jamestown, for appellee.

PAULSON, Justice.

This is an appeal by the North Dakota Workmen's Compensation Bureau (hereinafter the Bureau) from the judgment of the Stutsman County District Court entered December 28, 1977, in which the court reversed the Bureau's award of benefits to the claimant, Harvey H. Wolf, on a 50 percent aggravation basis and remanded the case to the Bureau with directions to award Wolf benefits on a 100 percent basis together with costs and attorney fees.

On November 30, 1976, Wolf injured his left knee in the course of his employment with Liechty Mobile Homes at Jamestown. As Wolf was mounting a kap on a pickup he crouched down. This caused a previously torn meniscus in his left knee to tear further and to lodge in his knee joint. As a result his left knee locked into position so that he could not completely straighten his leg. Wolf sought medical treatment on December 1, 1976, from Dr. Ard Mardirosian, who performed a menisectomy on Wolf's left knee on December 7, 1976, approximately one week after the employment injury.

Wolf filed a compensation and medical expense claim with the Bureau on December 15, 1976. The Bureau entered its findings of fact, conclusions of law, and decision and order on July 13, 1977, in which it found that "the claimant's condition is fifty percent due to a preexisting nonemployment condition and fifty percent due to an employment injury". The Bureau concluded that Wolf was entitled to payment of medical, disability, and permanent impairment benefits on a fifty percent aggravation basis. Wolf appealed from the Bureau's award to the Stutsman County District Court, which court reversed the Bureau's order and entered judgment directing the Bureau to award Wolf benefits on a 100 percent basis. The Bureau now appeals to this court from the judgment of the district court.

Pursuant to § 65-10-01 of the North Dakota Century Code, appeals to the district court from decisions of the Bureau must be taken in the manner provided under the Administrative Agencies Practice Act, Chapter 28-32, N.D.C.C. The district court's judgment in such a case can be appealed to this court pursuant to § 28-32-21, N.D.C.C., which provides that this court is to review an agency's decision as provided by § 28-32-19, N.D.C.C. Pursuant to § 28-32-19, N.D.C.C., as amended by the Legislature (S.L.1977, ch. 287, § 1), effective July 1, 1977, this court shall affirm the decision of the Bureau unless we find that any of the following is present:

28-32-19, N.D.C.C. ". . .

"1. The decision or determination is not in accordance with the law.

"2. The decision is in violation of the constitutional rights of the appellant.

"3. Provisions of this chapter have not been complied with in the proceedings before the agency.

"4. The rules or procedure of the agency have not afforded the appellant a fair hearing.

"5. The findings of fact made by the agency are not supported by a preponderance of the evidence.

"6. The conclusions and decision of the agency are not supported by its findings of fact."

Prior to the 1977 amendment of § 28-32-19, N.D.C.C., this court upheld those findings of fact by the Bureau which were supported by substantial evidence. Foss v. North Dakota Workmen's Compensation Bureau, 214 N.W.2d 519 (N.D.1974). After the 1977 amendment of § 28-32-19, N.D.C.C. only those findings of fact by the Bureau which are supported by a preponderance of the evidence can be upheld by this court on appeal. To meet this standard, a finding of fact by the Bureau must be supported by the greater weight of the evidence. Benzmiller v. Swanson, 117 N.W.2d 281 (N.D.1962).

The Bureau awarded benefits to Wolf on a 50 percent aggravation basis under § 65-05-15, N.D.C.C., which section, prior to its amendment by the Legislature (S.L.1977, ch. 579, § 14), effective July 1, 1977, provided as follows:

"65-05-15. Aggravation of injury or disease. Compensation and benefits not paid for pre-existing condition. In case of aggravation of an injury or disease existing prior to a compensable injury, compensation, medical, hospital or funeral expenses, or death benefits, shall be allowed by the bureau and paid from the fund only for such proportion of the disability, death benefits, or expense arising from the aggravation of such prior disease or injury as reasonably may be attributable to such compensable injury. But any compensation paid on the basis of aggravation shall not be less than ten dollars per week unless the actual wages of claimant shall be less than ten dollars, in which event the actual wages shall be paid in compensation."

The quoted provisions of § 65-05-15, N.D.C.C., as they existed prior to the 1977 amendment, are applicable to this case. ¹

The Bureau made the following findings of fact:

"I.

"That on the 15th day of December, 1976, the above named claimant filed a claim with this Bureau for compensation and/or medical expenses as the result of an injury (disability) sustained on the 30th day of November, 1976.

"II.

"That the claimant, on the 30th day of November, 1976, was an employee of Liechty Mobile Homes, Jamestown, North Dakota, and the occupation of the claimant was to assemble pickup kaps.

"III.

"That the claimant sustained an injury to his knee while mounting kap on pickup when he crouched and it locked.

"IV.

"That the medical information in the file reveals that the claimant's condition is fifty percent due to a pre-existing nonemployment condition and fifty percent due to an employment injury."

From the findings of fact the Bureau concluded that, pursuant to § 65-05-15, N.D.C.C., Wolf was entitled to benefits on a 50 percent aggravation basis.

The record upon which the Bureau has based its order consists primarily of the deposition of Wolf's treating physician, Dr. Ard Mardirosian, who testified that, prior to the November 30, 1976, employment injury, Wolf had chondromalacia of the patella in his left knee, which is a degenerative process involving the bone cartilage. Wolf also had a torn meniscus in his left knee which, according to Dr. Mardirosian's testimony, was probably caused in the past by small injuries in the form of twisting movements at the knee level. For approximately one year prior to his employment injury, Wolf had experienced in his left knee some snapping, clicking, and locking. However, when the knee locked Wolf was able to straighten it out himself. He never considered it necessary to seek medical treatment for this condition which did not in any respect disable him or prevent him from performing his employment. Thus, prior to the employment injury Wolf suffered no disability nor incurred any expense as the result of the condition of his left knee.

As Wolf crouched down while working in the course of his employment on November 30, 1976, his knee locked so that he was unable to straighten his leg without medical attention. Dr. Mardirosian testified that in his opinion Wolf's crouching movement on November 30 caused the meniscus in his left knee to tear further and to lodge in his left knee joint, which in turn caused the knee to lock into position, requiring a menisectomy to correct the problem. As a result of the extended tear of the meniscus, Wolf was temporarily disabled from continuing his employment, and Dr. Mardirosian testified that Wolf might have a permanent impairment of the left knee as well as an increased susceptibility to arthritis in his knee.

Dr. Mardirosian also testified that the chondromalacia of Wolf's left knee was not connected with nor aggravated by his employment injury on November 30. Dr. Mardirosian further testified that future impairment of Wolf's knee, if any, could be caused, at least in part, by the chondromalacia, but he was unable to give an estimate of future permanent impairment.

Dr. Mardirosian was also asked whether he could give an opinion as to the percentage of benefits to which Wolf was entitled for the disability and expense attributable to his employment injury. He said he could give no opinion, but upon further questioning he testified as follows:

"(Dr. Mardirosian) A Well, medical speaking, you know, I haven't been in practice really long enough to have that much experience as to know about this routine regarding the law and so on.

"Q I fully...