*1 298 rate, oppressive and taking grossly of 3.In number paid, interest advantage unfair of another’s neces- payments
payments, and the size or stress. agreed upon. and sities definitely all stated were Furthermore, to be contract there was ques- The of undue is a existence influence price was to be purchase deed and the for Reinke, Perry of v. 1997 ND tion fact. purchase of the chat- applied first v. 570 N.W.2d Okken Okk- par- terms of the We conclude the tels. en, 264, 267 The “ ‘sufficiently certain to agreement ties’ are trial no evidence “[t]here court found is precise act which is be done make presented at trial which would indicate ” ascertainable,’ Linderkamp, 1997 clearly Bert, Bill, any person that or other Jeff ¶64, 5, (quoting 562 734 Beebe ND N.W.2d agreement to enter caused.George into Hanson, v. N.D. N.W. by for the undue There is sale influence.” (1918)), “‘complete is agreement and the father, nephews no or their evidence respect ... its in itself at least with Kuntz, sought any Bert or obtained unfair ” terms,’ and material essential Linder- trial advantage George of Kuntz. The ¶ 5, kamp, (quoting Mandan-Bismarck clearly court’s is not erroneous. Kist, Livestock Auction v. (N.D.1957)). VI judgment The is affirmed. not The trial court did abuse specifically enforcing the con- discretion C.J., WALLE, and [¶ 22] VANDE personal representa- ordering tract KAPSNER, NEUMANN, MARING and complete tive of estate to the sale JJ., concur. farming assets. George Kuntz’s
V personal representa trial court in not
tive erred influence, that,
finding undue asserting “[b]y alleged contract, enforcing the ND 116 nephews enables the unfair Court take BRUNS, Timothy Claimant advantage of distress un George’s Appellant, through justly pur enriches them chase of substantial assets at than less full market value.” DAKOTA NORTH WORKERS BUREAU, COMPENSATION 9-03-03, ap- 19] Under N.D.C.C. Appellee, parent consent contract not real or through free if undue obtained influence. provides:
N.D.C.C. 9-03-11 Manufacturing, F & S Inc., Respondent. influence [¶ Undue consists: No. 980298. use, 1. In the one in whom a confi- reposed by dence is another who or Supreme Court of North Dakota. apparent authority holds real or June 1999. him, over of such confidence or au- thority purpose obtaining for the him; advantage
an unfair over In an- taking advantage an unfair mind;
other’s weakness *2 Askew,
pedic diag- Dr. R. Mark surgeon, chondromalacia, damage nosed traumatic knee. cartilage, right *3 1995, 7, injured his [¶ 3] June Bruns On work, in tears of right resulting knee at aggra- and lateral menisci and medial chondromalacia. Dr. Askew vation of his arthroscopic repair performed surgery perform the torn menisci and to “debride- by ment and microfracture” necessitated the chondromalacia. filed a for benefits
[¶ 4] Bruns claim orthopedic with Bureau. The Bureau’s consultant, Kilzer, Ralph Dr. concluded preexisting chondromalacia was a Bruns’s had been aggravated condition which determined and the work and the was two-thirds the cause was one-third of the cause. chondromalacia 8, Bureau, 1996, 5] March [¶ On 65-05-15, § accordance with N.D.C.C. or- dered in full of medical payment expenses disability temporary and total during stage, apportioned the acute but percent the acute following benefits at 67 Schneider, E. Phillips, Daniel Schneider stage. requested rehearing, Bruns and Phillips, Fargo, appel- & for claimant and hearing September was held on lant. (ALJ). judge before an administrative law Special Leo F.J. At- Wilking, Assistant found Bruns’s chondromalacia ALJ General, torney Fargo, appellee. for ap- warranting was a plication statute and SANDSTROM, Justice. fact, con- issued recommended Timothy appeals Bruns from a law, order, recommending clusions of and judgment affirming the North Dakota stage the acute on a 67 benefits after Compensation Bureau’s Workers order ac- percent adopted basis. The Bureau cepting Bruns’s claim for benefits on a 67 conclusions, findings, ALJ’s and order. affirm, percent aggravation basis. We court, Bruns which appealed district holding properly applied Bureau ap- Bureau’s Bruns affirmed the order. statute, § 65-05-15. pealed to this Court. jurisdiction I district court had [¶ The Const, 8, VI, under art. and N.D. 1986, Bruns Beginning suffered 27-05-06, 28-32-15, §§ 65- and injuries to his right non-work-related appeal timely under 10-01. The was 1986, separate on seven occasions. In 4(a) and N.D.RApp.P. 28-32- 1993, surgeries and he underwent on jurisdiction 21. has knee, This Court including ligament reconstruction Const, VI, §§ N.D. art. 2 and implanting prosthetic ligament. of a Following 28-32-21. surgery Bruns’s ortho- N.D.C.C.
II 1. A “preexisting condition” means dis- ability known in ad- In appeal judg from a vance of the work It is suf- involving ment the decision of an adminis ficient invoke the agency, we review trative the decision of statute if the preexisting condition is agency not the decision of the active at the time of inju- 28-32-21; district court. N.D.C.C. Saa ry, evidenced work restriction Compensa kian v. North Dakota Workers (active disability) or interference tion 1998 ND (active impairment). Nemec v. North function Dakota Workers In cases of ag- *4 Under gravated by compensable injury, the 28-32-21, §§ N.D.C.C. 28-32-19 and we bureau shall pay expense medical agency’s must affirm the decision unless treat injury the acute in full. If findings of fact supported by are not a evidence preex- establishes that the evidence, preponderance of the its conclu isting condition has combined with sions of supported by law are not its find injury, the work and will necessitate fact, ings supported its decision is not further beyond treatment the acute law, by its conclusions of its decision is not stage, aggravation an may award be in accordance with the law or violates the invoked as to the remainder of the claimant’s constitutional or rights, the expense Likewise, medical award. agency’s procedure deprived rules or the the bureau pay temporary shall total Saakian, hearing. claimant of a fair worker, disability to during the the In determining agency’s whether the acute disability phase, in full. When findings of fact supported by prepon are a the worker reaches maximum medi- evidence, derance of the we exercise re recovery, cal perma- and is awarded straint and independent do not make find partial nent impairment, partial dis- ings or substitute our judgment for that of ability, permanent total disability, or the but only determine whether a services, vocational retraining reasoning reasonably mind could have de the evidence establishes that the termined proven by the were preexisting condition has combined weight of the evidence from the entire injury produce the work Nemec, record. at 237.
continuing disability, aggravation an may award be invoked. III argues Bruns [¶ 8] the Bureau erred in statute,
applying aggravation 4. The bureau ag- shall determine the 65-05-15, injury, to his and he should be gravation award based all evi- entitled to full benefits. At the time of dence, reasonably as establishes injury, Bruns’s work 65-05- proportion percentage or of cause as provided, part: in reasonably attributable compensable injury. degree If the
Aggravation awards. The bureau shall aggravation cannot be deter- an aggravation calculate award in case mined, percentage award must aggravation preexisting of a fifty percent total disease, benefits infirmity by compensable a if injury, percent in recoverable one hundred aggravation case of of a compensable injury injury a had been the by nonemployment result of following on the employment. terms: 65-05-15, N.D.C.C., 1. Section parties agree was amended 1. The the 1997 amendment apply in 1997. See 1997 N.D. ch. Sess. Laws does not in this case. aggravation We
A conclude the applies injury a “new” work statute when Bureau argues Bruns preex aggravates “combines with” and applied have should not isting condition. in his because the meniscal tears statute injury” and his constituted “new B wholly un traumatic chondromalacia was argues Bruns his chondromalacia 13] [¶ stresses, for” the related. He “but was not a condition as defined injury resulting in the meniscal work in Bruns tears, sought he would not have medical if be a it only it can arthroscopic leading to the sur treatment “permanent impairment,” constitutes gery. evidence case did not establish this misinterprets argument his chondromalacia constituted active mischaraeter- statute and at the time of his Merely izes the evidence this case. statute, the aggravation Under constitutes a “new because “preexisting condition” is a known disabili- not injury” does mean the *5 impairment ty or which is active cannot, law, as a matter of be statute injury, time of the work as evidenced itself applied. language The of the statute (active disability) or “work restriction in- contemplates applies it in situations where (active impair- with terference function has combined preexisting “the ment).” 65-05-15(1). § N.D.C.C. The injury.” § with the work 65-05- Bureau concedes was no work re- there 15(2). in The record this case establishes disability or active in this striction case. the “new” work “combined with” It relies evidence of “interference chondromalacia, preexisting resulting (active impairment)” function as with of the condition. aggravation preexisting in for benefits. apportioning basis agreed Both Dr. Askew and Dr. Kilzer injury aggravated work Bruns’s chon- 1995 1 It undisputed is the 1995 dromalacia. Bruns, relying Jepson on v. North arthroscopic surgery debridement included Dakota Compensation Workmen’s Bu- chon- and microfracture reau, 417 (N.D.App.1987), N.W.2d 184 ar- dromalacia, repair as well the menis- as the active that must gues cal tears. “permanent under the is shown statute as impairment” defined in N.D.C.C. 65- Furthermore, we note the 01-02(26). Jepson applied pre-1989 specifically provides statute statute, version of the which expenses in full payment for of all medical interpreted require proof this Court has to temporary disability during the acute disability impaired actual that Thus, injury. stage paid of the the Bureau See, capacity e.g., of the claimant. Sloan expenses, including all of Bruns’s medical Compensation North Dakota Workers surgery, full of the arthroscopic cost Bureau, (N.D.1990); 462 N.W.2d 23, 1996, January period of through Compen v. North Elliott Dakota Workers nearly eight months after the work (N.D. Bureau, sation N.W.2d terms, statute, ap The 1989); Balliet v. Dakota North Workmen’s plies only payable to after the benefits achieves maximum medical recov claimant 794-95 The ery. See N.D.C.C. subject appor amendment, only percent items to the 67 how [¶ 16] The 1989 ever, separate in this case are future medical created basis for tionment disability payments. and future condition: “interference with expenses (active If impairment).” function we were cludes lengthy medical history, interpret language require proof this which documents prior inju- the numerous “permanent impairment” of a ries surgeries right his knee. One 65-01-02(26), which is defined year prior to the physical his as or loss of “loss of use of a member of therapist reported Bruns was still suffer- body,” impairment” “active would be ing from pain just “intermittent below the disability.” subsumed “active inter We cap during working day, his most pret statutes to give meaning and effect to notably when he lifting from waist level word, sentence, every phrase, and and do below”; he “twisting avoids on his knee adopt not a construction which would ren possible,” as much as experiences “an part der of the statute mere surplusage. intermittent ‘shift’ sensation his knee if Zueger v. Compen North Dakota Workers he accidentally pivots or sometimes when sation 1998 ND swinging he is leg”; lower laxi- “[m]ild First State Bank v. Moen ty” knee; and, was noted in the “[a]fter (N.D. Enterprises, 529 N.W.2d testing, he did favoring demonstrate mild 1995). legislature was well aware of right extremity lower due report- statutory “permanent term impair ed region discomfort over the of the incre- impairment” ment” and used “active in patellar tendon.” legislature stead. The further clarified its Kilzer, Dr. orthopedic an surgeon, by using intent the language “interference testified at hearing Bruns’s chondro- function,” suggests impair which malacia continuing was a active ment less severe than “loss of or loss of at the time of the work injury. Dr. Kilzer use of a of the body.” Compare member further testified: 65-05-15(1) until N.D.C.C. *6 (Mr. Q; Albrecht continuing) Was this We conclude “active im 65-05-15(1) pairment” condition active at the time injury? of the work require proof “permanent does not im 2 pairment.” Yes, A. he did have chondromalacia laxity and he did have before and at the 2 injury. time of the [¶ 17] Bruns the record Q. preexist- And was there —was this support does not the finding Bureau’s his condition, ing did it interfere the preexist traumatic chondromalacia awas functioning normal of the knee? Was ing contending there is no evi impairment? there an active dence of interference with function or ac Yes, A. there was. impairment. tive conflicting points [¶ 18] record contains ev- [¶ 20] Bruns to other ev idence on whether Bruns’s chondromalacia indicating idence the record his chon- interfered with function of his knee or interfering dromalacia was not with the impairment constituted an active at the function of his knee at the time of the time of work in- challenges The record credibility the reiterate, however, employer We contributing still ment must be a "substantial employee "takes the as he finds him.” Nel problem, cause” of the claimant's medical Compensation son v. North Dakota Workmen’s only ap- and the statute is to be Bureau, (N.D.1982); 316 N.W.2d plied portion "when a substantial of the con- Balliet v. Compensa North Dakota Workmen’s pre-existing dition is attributable to a condi- Bureau, (N.D. tion 297 N.W.2d Hearing tion.” on S.B. 2237 the Senate Before 1980). The Bureau concedes it must show Comm., Industry, Business & Labor 51st N.D. impairment more than a "de minimis” to 10, 1989) (Jan. (written Legis. testimony Sess. satisfy legisla statute. The Haas, Attorney Dean J. Assistant General history tive of the 1989 amendment to Bureau). for the impair- 65-05-15 indicates the opinion to Dr. Kilzer’s contain no reference opinion. particular, In of Dr. Kilzer’s inju- susceptible future more was not Bruns was testimony he argues his Bruns underlying chondromala- of the ry knee felt fine because and his suffering impairment the record therefore conclude undisputed, cia. We injury was prior to the work Bureau relied not find does not demonstrate could the Bureau therefore reaching improper factor interference with or active go and conclusions. Those are matters which function. evidence, and the Bureau weight of the testimony about by Bruns’s is not bound IV prov within the knee felt. It is how his by Bruns The other issues raised courts, Bureau, not ince of judg- affirm the merit. We are without conflicting opinions, medical assess
weigh the Bureau’s order. upholding ment witnesses, credibility and resolve Theige v. North in the evidence. conflicts WALLE, J., and VANDE C. Compensation Dakota Workers KAPSNER, JJ., ¶ concur. NEUMANN ND 567 N.W.2d Otto Bu Compensation North Dakota Workers Justice, MARING, concurring. specially (N.D.1995). reau, 533 N.W.2d independent findings make We do not majority I that on agree with for that of the judgment substitute our reasoning this a mind the record of case Nemec v. North Dakota Workers Bureau. the Bu- reasonably could have determined chon- that Bruns’ traumatic reau’s “preexisting was a condition” dromalacia proven by preponderance was reasoning mind conclude [¶ 21] We evidence. Bu- have determined the reasonably could finding Bruns’s traumatic chondro- reau’s write, however, I dis I because condition was malacia was majority’s agree with conclusions proven by the evidence from the entire lan interpret “If were to this 16: we record. ‘permanent require proof guage § 65-01- *7 impairment’ under N.D.C.C. C 02(26), of or loss which is defined as ‘loss argues improp- the Bureau 22] Bruns [¶ body,’ of the ‘active of use of a member testimony Dr. Kilzer’s erly relied subsumed in ‘active impairment’ would be “ ” that Bruns’s traumatic chondromalacia un disability’ impairment’ and ‘active susceptible him to the more meniscal made 65-05-15(1) not re der does N.D.C.C. ” injury. tears he suffered from the work impairment.’ proof ‘permanent quire a condition prior He evidence is defined Permanent prone particular a worker more to makes compensation statutes as “loss the workers injury trigger is type insufficient body.” a member of the of or loss of use of statute.3 aggravation 65-01-02(26). “Interference (active case, however, impairment)” is “loss there is no with function In this body.” of a member of the See improperly the Bureau relied of use indication Jepson trau- v. North Dakota Workmen’s Com in upon this evidence 184, pensation matic chondromalacia was (concluding a (N.D.App.1987) aggravated by an “ac- accompanied must be conclusions of law condition The of fact and (written supra Hearing testimo- legislative history the 1989 amend- on S.B. 3. The Haas, aggravation supports statute Attorney ment Bruns’s ny of Dean J. Gener- Assistant “susceptibility argument: is Bureau). al for the aggravation statute.” to invoke the insufficient prorating of bene- impairment” and tual ND appropriate is based on fits ENNIS, Appellant, Ed Plaintiff perma- if constituted “only the condition of a mem- impairment” nent or “loss of use body”). ber of the RAY, (active CITY OF Defendant with function 28] Interference re- Appellee.
impairment) is different than “work (active legisla- The disability).” striction No. 980300. in the clearly ture indicates recognition of this distinction statute Supreme North Court of Dakota. “disabili- its use of the word “or” between § 65-05- ty” “impairment.” 18, 1999. June “ 15(1). ‘Disability’ defined in 65-01-02(13) (1995) earnings as ‘loss of Rehearing July Denied 1999. total, may permanent tem- capacity and ” partial.’ v. N.D. porary total or Saakian ND Compensation Workers “ ‘[Tjotal dis- unable,
ability’ exists when a worker is job
solely because of a related amount
perform any or obtain substantial work, particular in that line of
of labor any other for which the worker would (citation omitted).
be fitted.” Id. Disabili-
ty within the Workers con- inability perform job. is an one’s
text has, therefore, legislature dis-
tinguished causing between a condition ability to work and a condition
loss
causing the loss of the use of a member of body under N.D.C.C. of either at the time of the work
Evidence preexist-
injury is sufficient to establish purposes. condition for
ing The medical evidence this case laxity pain limiting normal function and sup- arguably
of the knee is sufficient to
port a conclusion that Bruns suffered from with function of’ or “loss “interference “permanent impairment” of’ or
of use satisfying requirements condition” under the statute.
“preexisting Thus I concur in the result majority,
reached but not with the
reasoning. Mary Maring Muehlen