*1 ROGERS, Appellant, Merlin H.
NORTH DAKOTA WORKERS BUREAU,
COMPENSATION
Appellee, Elevator,
New Farmers Salem
Respondent.
Civ. No. 910323.
Supreme Court of North Dakota.
March 1992.
Stephen Little, D. Little of Dietz & Bis- mаrck, appellant. for Haas, Gen., Dean J. Atty. Asst. Bis- marck, appellee. for WALLE, VANDE Justice. Rogers appealed
Merlin from a district judgment affirming court a North Dakota Workers Bureau order dis- missing his untimely claim because it was filed. We affirm. in grain ap- worked elevators for
proximately years. heavily He smoked approximately years. sought He breathing prob- medical attention for some June, May, lems in of 1988.1 In However, medical improved. records from those visits indicate obstruction was at that 18, 1988, that on Merlin had a severe “likely time he was advised that he would be airway obstruction. He returned on June 1 and progressive lung experience disease if he con- unchanged. severe obstruction remained smoking working present in his tinu[ed] again He was seen on June 8 and the severe environment.” unchanged. obstruction was still On 27 the *2 608 know that the was related to was informed that of 1990 he [sic]
March employment. pro- work due to his not return to could disease, a then filed gressive compensation The Bureau claim.
workers IX. following claim, on the based dismissed year claim filed one The was not within of law: findings of and conclusions fact injury. the of of date OF FACT
“FINDINGS OF LAW CONCLUSIONS IV. Compensation The Workers Bureau does as diagnosed chron- Claimant claim.” jurisdiction not have over this emphysema; pulmonary ic bronchitis requested granted and was a formal permanent lung disease. a hearing, after which the Bureau issued an appeal affirming order the dismissal. On V. court, the the to the district court affirmed Pulmonary performed on tests Bureau’s decision. very hyperinflа- showed a severe court, this appeal On we look of claimant’s and air obstruction the tion the Bureau’s decision and not the decision lungs. Stepanek court. v. North district Compensation Dakota Workers VI. (N.D.1991). Agency deci including in weight evidence The of the using by are sions reviewed court a Hughes’ on statement particular Dr. “(1) three-step process: findings Are the 7, 1990, that the claimant indicates supported by preponderance a fact relationship informed of the adverse (2) law evidencе? Are the conclusions of employment his further between (3) by findings sustained of fact? Is lung disease on 1988. agency supported by the con decision Stepanek, clusions of 476 N.W.2d law?” VII. omitted); 28-32-19, (citations at 3 section review, On we NDCC. do not exercise person a knew or reasonable Claimant present independent judgment of the facts condition should have known “ ‘reasoning if ed but we determine a or to his on was related reasonably mind could have determined before were that the factual conclusions rеached weight proved of the evidence from VIII. Fuels, the entire Power Inc. v. record.’ Dakota 65-05-01 of North Section Elkin, (N.D.1979).” 220 N.W.2d original Century requires that all Code Jones Workers filed compensation claims for shall be if the year injury, one of the within compensation claim cannot be determined with order to a date of injur certainty, "compensable date a must a within one of the worker sustain All claims for person y”.2 reasonable knew or should have NDCC 65-05-05. § defines in- must be incidental character of the 2. North Dakota statute regard jury independent as: a disease not of the relation business and employer employee. disease in- fairly "Any be which can traceable disease impairment cludes and effects from radiation employment. Ordinary diseases of life to the employment. to the It need traceable general public of the to which the employment outside expected, have foreseen or but after not been compen- exposed shall is not contracted, appear it is it must to have its except an the disease follows as sable where origin employ- to, in a risk connected with the inception its caused incident and in is source employee subjected ment and have flowed from that hazard to which an is However, prevenía- consequence. employment. rational the course The disease filed, therefore, timely he did not believe he had a com- must be compensation worker jurisdiction. pensable However, to have in order for the Bureau claim until that time. NDCC, part: 65-05-01, states record, Section from the in the can evidence we compensation reasoning realize how a mind could deter- original “All claims *3 worker, or by injured July filed the mine that in of 1988 Merlin was aware must be behalf, injured someone on the worker’s compensa- that his work was related to his injury the or within within one after lung problems. ble date of years after the death. The two The record reflects that Merlin was must injury purposes of this section exposure job aware that the dust at his injury date of when such be the actual contributing problems in to his health certainty by the can be determined with sought 1988. He medical attention and When the actual claimant and bureau. by Dr. was seen Dale Davis on injury cannot be determined with date of diagnosed 1988. He a se- injury certainty the date of must be airway experi- vere obstruction. He had person knew first date that a reasonable coughing enced shortness of breath and have known that or should spells for the last three months when work- employment. comрen- No was related ing grain around dust. “Grain elevator” may be allowed under sation benefits occupation exposure. was listed as his He any person, provisions of this title to again by seen Dr. Davis on June 1 and 65-05-04, provided in except as section 8, 1988, was un- obstruction she, unless he or or someone on his or changed. behalf, her files a written claim therefor specified time in this sec- within the July In Merlin was seen Dr. 3 tion.” Hughes. Hughes’s Dr. notes of that exam- possibili- ination indicate discussed the deciding whether a claim was ty quitting of Mеrlin work.4 Merlin did not filed, timely inquiry is whether or “[t]he quit want to at that time because he was not the claimant knew or should have close to retirement. a letter to the compensable she had a known that [he or] 27, 1990, Bureau injury.” Stepanek work-related v. North states; Bureau, Compensation Dakota Workers (N.D.1991) (emphasis in- 476 N.W.2d patient by me to “The was first advised original); v. North Da see also White quit smoking leaving consider Bureau, 441 Compensation kota Workers job his care from when first took over (N.D.1989). N.W.2d 908 1988. He felt Dr. Dale Davis on years from that since he was four or five argues Merlin that he could not have that he should continue work- lung causally retirement known that his condition was ing, despite fact that I felt continued employment in related to his because 1990; grain dust the elevator diagnosed not until March employment; is c.Can be traced to the tive treatment for communicable diseases 65-01-02(17). under this title.” NDCC not NDCC § ....” 01—02(8)(a)(1). § 65— "fairly recognized previously defines traceable” as: that a "reason- The statute 3. We have employment’ "‘Fairly traceable to the when lay person person” and not able is a "reasonable modify used to the term 'disease' means Teegarden person learned in medicine.” a disease which: Workmen’s North Dakota it is a. Arises under conditions wherein upon apparent mind consid- to the rational of all the circumstances that is eration there "I him that he is office notes state His the con- a direct causal connection between progressive lung likely experience disease if performed under which thе work is ditions smoking working in his he continues disease; and the years present from retire- He is 5 environment. a natu- b. Can be seen to have followed as strongly he should continue ment and feels ral incident of the work as a result of exposure working.” occasioned the nature of employment; progression emphysema once he that his enhance the knew would was a employment result of obstructive disease.... and was [******] informed that he should quit working.5 asserts that our decision Tee- that I first “Consequently, I would state gardеn v. North Dakota Workmen’s Com Rogers an adverse rela- informed Mr. pensation (N.D. his further tionship between 1981) In Teegarden, controls this case. we lung disease and his adverse reversed the Bureau’s decision that denied 1988.” timely a worker’s claim because it was not Merlin himself indicated that was grain filed. worked eleva *4 relationship between his of the adverse Hunter, tor in located North Dakota. He July in place of work of 1988. health and experienced lung problems some soon after response questions of doctor In to what began Throughout he work. the 1970’s he he informed that and on what date was reoccurring lung pneumonia prob and “emphysema” employ- a result of his was April hospitalized lems. In of he 1980 was ment, responded; Merlin “Dr. James bronchitis was his doctor July Hughes told me on 1988.” This longer that he could no work the eleva at supports evidence the Bureau’s determina- sensitivity tor due to his to dust. He filed July tion that in of 1988 was aware disability claim with the Bureau which problems that his health were related to his was denied. The Bureau determined that work environment. exposure grain because of his to dust and Hughes Dr. and Merlin testified before problems throughout years, medical the he Hughes Although the Bureau. Dr. did not had not filed within one after he knew any made in his retract statements written respiratory problems that his were related letters, may notes or he did indicate that he grain to hearing dust. After a not have as direct with Merlin in been testimony the Bureau affirmed the de regard to the effect of his work environ- nial, appeal and on the district сourt the lung ment on his condition. He testified reversing Bureau was affirmed. the eliminating his main focus tobacco was decision, Bureau’s we said: However, in July 1988. also discussed specific “The Bureau finding made no Merlin’s environment as a in work cofactor of fact as to when the claimant knew or lung progression July the of his disease in disability should have known that his although of 1988. Merlin testified employment, to his traceable was aware that his work environment was any nor are we aware of evidence that related to his сondition at that establishes fact. The evidence es- not aware of the seriousness of his physician that the tablishes disease until March 1990. that the claimant was to avoid dust and However, there is medical evidence in the quit smoking, but does not otherwise file that indicates that Merlin was aware of any establish basis that claimant should problems. the seriousness of his health He have known that the work caused was seen Dr. Davis in and twice may disease. The evidence have been during 1988. The medical records sufficiеnt to convince the doctor that the “airway indicate Merlin had a severe ob- injury, work caused the but the doctor July struction.” In his condition im- did not articulate this to the claimant. proved Hughes Dr. told him that he expect ordinary cannot We claimant quit smoking working should to avoid knowledge to have in medical matters further deterioration. comparable to that of a doctor.” reasoning (emphasis
A
mind could conclude
in
Teegarden,
Except symptomatology diag for the knowledge ant’s under the nosis, per- reasonable this case is not similar Teegarden. son standard.”7 Id. From the Rather, evidence it is similar to the situation person this case a reasonable could Evjen Compen deter- North Dakota Workers (N.D. mine that Merlin compensa- sation had suffered a 1988). 1988; In Evjen, the record reflected that blе and as a result (head seeking claimant knew that his illness medical care he was aware that aches) was related to his work. He and his work related. physician possibility discussed the judgment affirming the Bureau’s *5 changing shifts to eliminate some of the dismissal compensa- of Merlin’s claim for
job stress associated with the headaches. tion is affirmed. Evjen received medical advice that his headaches were related to his ERICKSTAD, C.J., LEVINE, J., and and “significant and that were a health PEDERSON, Surrogate VERNON R. Also, problem.” specific Burеau Judge, concur. findings Evjen was aware of his work PEDERSON, R. Surrogate VERNON related headaches over a he before Judge, sitting as a member of the Court to filed for benefits. The Bureau’s decision to vacancy by resignation fill the created Evjen’s by dismiss claim was affirmed of Justice H.F. III. GIERKE Justice court.6 Id. being Johnson not a member of this Court urges liberally us to construe at the time this case did was heard not 65-05-01, NDCC, citing section White v. participate in this decision. Compensation North Dakota Workers MESCHKE, Judge dissenting. Bureau, (N.D.1989). How ever, sad, ignore lаnguage category we cannot the clear This of workers’ claims is difficult, of the guise distressing. statute under the of a liberal and When he needs fund, Evjen, legislature employers employees. 6. we invited the to recon- At the same running period discourages penalizes sider the the statute the claim for a employees attempt keep working, injury: who rath- claim, filing learning than a er injury after that an legislative invite reconsideration of "[W]e employment. is related to seems ‘[I]t 65-05-01, begin running N.D.C.C. To § palpably unjust employee deny to us to the period, a claim the claimant should have had compensation him because has tried to reason to be aware of the seriousness of his keep place employer’s pay by on the roll disease, injury any or 'since other rule would Scullion, doing regular work.’ Baldwin employees force to rush in with claims for 531, (1936).” Wyo. 62 50 P.2d 539 ache, every pain, symptom.’ minor or 3 A. Evjen Bureau, Compensation v. North Dakota Workers Larson, Compensation Workmen’s Law 78.- § 429 N.W.2d 421 Our Larson, 41(e), p. supra, 15-213. See also 3 A. intervening legislative research of the two ses- Starting period § 78.52. within which to proposal. sions revealed no such file a claim at ‘the first date that a reasonable person knew or should have known that the White, we observed that "Whether or not employment’ encourages was related to White knew or should have known that he had employees every to ‘rush in with claims for compensable injury judged in view of must ache, pain, symptom’ minor in order to intelligence.’" 'his own education and White v. any compen- Bureau, make sure that future claim for Compensation North Workers Dakota untimely. (N.D.1989) (citing Teegar sation will not be deemed The 441 N.W.2d 911 present imposes unnecessary statute an bur- den v. North Dakota Workmen's Bureau, (N.D.1981)). compensation den on the the workers 313 N.W.2d work, expect a worker to un- lifetime is unreasonable to most, nearly a it after away file or because derstand that he must be forever is taken Rogers’ safety net the medical if it worsens. ignorant about barred too of his illness legal effects and the physi- causes establishes that the evidence really compen- it was began, it before only when that the claimant was cian Rogers That is not reasonable. quit smoking, sable. dust and to to avoid yet due for fifty-four in not any basis does not otherwise establish retirement. that the that claimant should have known the disease. work caused officials, necessarily calloused
Agency wrenching Compensa- Teegarden v. N.D. Workmen’s procession the wearisome (N.D. claims, weaseling are hardened to tion 1981) original). (Emphasis of an individual This conclu- effect of a denial harsh prob- apply equally attentive.to the sion for should Legislators, claim. organized by groups Rogers. more pressed lems workers, seem indiffer- than a wornout few person” A must know “or “reasonable ent, opinion un- majority as note 6 of “injury that the should have known” judicial happily reports. I believe that employment.” 65-05-01. related to NDCC carefully apply to more
branch must seek “[a]ny is disease which When the apa- institutional law when faсed with such employment,” can be traceable to the Therefore, respectfully dissent. thy. knowledge comprehend must that “the to, an incident and in its recognition “sympto- that the disease follows as Despite the Rogers’ an matology diagnosis” inception case is is caused a hazard which majority subjected in Teegarden, employee that in is the course of his similar to 65-01-02(8)(a)(l). Bureau’s find- opinion employment.” concludes that the NDCC *6 distinguish Teegar- causes, it from ings (My emphasis). Understanding in this case professiоnal Hughes’ effects, Dr. re- implication den because and of an insidious dis- say Rog- he told ports can read to that complex enough professionals, be for ease is disagree. his illness. I alike), ers what caused lawyers, judges and (physicians, question must be on what The focus of the attributing equivalent comprehen- without “knew”, Dr. Rogers not on what ordinary sion to an worker. in his notes.
wrote compelling evidence of Without more 3) (at agency majority note and (not Rogers’ understanding that of Dr. lay person” will expеct that a “reasonable I it is Hughes), believe that unreasonable readily a doctor or grasp fully and what knew, Rogers to conclude that or should briefly person. That is lawyer tells that known, he to file a workers’ have that experience, as this contradicted common symp- in his compensation claim 1988 when medical or case illustrates. What a trained Rogers’ up. Compare toms first showed might grasp quickly, and legal professional single episode Teegarden’s with extensive lay person may cоinci- what a reasonable history symptoms: of excused dentally vary widely. understand will See Virgil Teegarden, E. the claimant and the Stepanek v. N.D. Workers in appellant, started work 1967 with 1, 3, n. 3 Hunter, Company North Hunter Grain in I that it is unreasonable to conclude believe Company Hunter Grain owns Dakota. Rogers’ should have understood Hunter, in two elevators and enough legal and conse- about the medical mill of the started work at a feed at one prompt- in quences of his condition 1988 to 1969, began February In he elevators. ly compensation claim. file a workers’ lung problems along with some to have pleurisy pneumonia. and He was treated Rogers’ If medical insurance covered the 1988, outpatient for two weeks but was expenses in and if as an minor immediate hospitalized period of working, subsequently for Rogers to continue it was able In March of 1969 he had wheezes “compensable” claim. time. was not then the left lower for which expenses or it and rales of direct loss of Without ties, loading in he wasn’t involved thе off approxi- which took treated and he was might loading grain, or of and that it At this time to clear. mately two weeks doctor, possible him to limit his and by his R.W. for Dakota, Hillsboro, employed.” North still be McLean of Teegar- smoking. quit and to avoid dust heavily come I did not—did not down “So mill to of the feed transferred out den going that I’m to—as on him with the idea he job at the elevator where another it, being I back in I think about remember work general to do elevator continued know, you ponder- asking situation it— feed, trucks, loаding delivering including he needed ing question as to whether May of 1969 he dumping grain. In needed to see the to—he and wife in tightness again treated for know, necessary to change lifestyle, you in The claimant was chest and bronchitis. working any- make the switch to not be pneu- pneumonia for again treated an element more. And remember In in of 1970. October monitis December there, flexibility saying in that if he was and devel- he fractured three ribs exposure, he would—he would to lower lengthy required oped pneumonitis which from that.” bеnefit 1974, February April hospitalization. September he and twice in “A. I think it’s a cofactor and a So He was was treated bronchitis. And significant cofactor in his illness. again treated for bronchitis know, you progression symp- February Jan- February it’s— toms emphysema are insidious and char- October uary on exer- acterized shortness of breath pneumo- hospitalized with 1979 was part frequently rationalized on the tion and for bronchitis nia. He was treated aging just patient part of the 1979, and and December of November they gradually diminish denying so that March 1980. In again February exertion, saying that their level of hospitalized April of 1980 was problem, and really have much of a don’t At that time Dr. McLean bronchitis. put exposures they continue with longer return Teegarden that he could no know, you it’s them at risk. So at the elevator be- between— to his predicted you get percent below 40 once Dr. Mc- sensitivity to dust. cause of the *7 seeking get coerced into they start to that he had a Lean informed that attention, recognizing problem.” а medical compensable claim with the Bureau. On Teegarden filed a [*] [*] [*] [*] [*] [*] stating his Bureau that claim with the Doctor, Haas) “Q. (Mr. And that’s— problems were due to con- respiratory telling something you’d that been that’s during grain dust stant to ’88; namely, that his him in back the elevator. of his work at course factor in his a substantial employment was Teegar- at 717. Teegarden, 313 N.W.2d right?” lung problems; symptoms grain from knowledge of den’s thing that (Dr. Hughes) The initial “A. sought spanned dust a decade before use, and focusing on his tobacco I was was Rogers’ single eрisode workers’ benefits. he should”— that I felt that with that. contrasts Doctor, “Q. things, that But one of the well, says Compare, as what his you him was that told Rogers in 1988: that he told lung in his diminished factor substantial (Dr. Hughes) I did not tell him that “A. function; right?” that isn’t the environment at that he had to leave documents.) (Witness examines I him that it was advisable not time. at the emphasis my concern “A. The — there, I not tell him that he to but did be that the tobacco was time was—was negotiating for a lower leave. I was had to problem.” major My understanding of exposure. level his job wаs that he was doing office activi- [*] # # [*] [*] [*] decline, (Dr. Hughes) sure with treatment and it “A. I can’t be a further And so feelings effectively my I would have been—I more how transmitted would have been them may time. I transmitted likely talking at the have to him be hard-nosed in to verbally effectively in I print than did more about”— patient.” point been think my mind on dust that he ring to”— “Q. “A. “A. “Q. [*] improving out in Yeah, But would he (Mr. My exposed to trying that his [*] dictation.” Little) might to at that might. [*] reconstruct 27th of spirometry small By print have in a [*] But, point, amounts of problems?” ’88, position that you’re again, what was [*] I’d actually have rather the—I [*] refer- grain to in if level tions fоr dramatically 5th alpha1-antitrypsin I inherited sured through the record “Q. Okay.” “A. alpha1-antitrypsin of 1990 is the that I see until Well, him in him from April with that you dust level was not—as know, the chart.” and as first another 1990. So level exposure amplified knowledge. April I alpha^antitrypsin think, I was not mea remember, physician, as I look implica I said, part of what significantly, suggesting that I’m sure “A. So that —that that knowl- airway dealing with reversible we’re edge, being point, new at was the that obstruction.” reason that the nature of the communica- changed.” tion
“Now, generally, or the were this asthma blunt be difficult severity, guess, in recommendations which in all as opposed honesty, follow-up to I tend to be emphysema, on.” I expect well, I ument that he had when we first “A. 1990 was # [*] actually where— [*] alpha1-antitrypsin did the test to doc jjc April [*] of 1990 was [*] defi I ciency. And the reason we did believe Well, my primary “A. concern was we, point the test was because that at guess And hard for tobacco use. I it’s so had documented interval decline people quit smoking that do have function, occurring that at it was long- tendency to use levers in terms of the enоugh begin suspect of a rate him ne- goal. long-term goal term might problem.” be a quit smoking. that he That’s the cessitated priority. number one It necessitated emphysema getting “His worse and implied leave probably that he should time that raised some concern about—the he— well, work, secondary goal.” as a change of that concern about course raised fact that ing that he had a reversible And times improvement that if he were to communication and that it was tobacco.” able simply havе left him “A. Yeah. We had seen a “Now, I, & to continue when it at that urgently I am a bit of an he had probably comes to point, with him at working, important quit [*] responded breathing smoking did tobacco, n impressed by because it was— play opportunist test, n get him off a role in component. impression treatment, significant and I might indicat- >jc time. may my at leaving that blunt it. But that the heat that Dr. Mendoza saw once we leave.” because ciency. Really, changed that nature knowledge of that test earlier than we possibility up knowledge that work. earlier, that —and became aware of really looking assessment went And I we should have done at it in didn’t I, alpha1-antitrypsin up *8 did, I should have it was in 1990 that —I on the issue of him and really that prospective that, communication, subsequent I’m sure that dramatically that’s think about he had to mean, gave him brought when now, defi him Now, if we had seen a lack of improvement Ht [*] # [*] [*] [*] the na- “Q. you say that And so when you mean changed,
ture of communication him that it was stressing more to
you’re you knew
imperative to leave it after em- predisposition toward genetic
he had a deficiency?”
physema because of that It’s, I a difference suppose,
“A. Yeah. oily rag your an stored in
between
garage seeing smoke come out degree urgency
window. knowledge
greatly amplified by the that— deficiency.” alpha^antitrypsin
that he had
“I, know, you trying to think back to ’88, I’m
the interaction we had him that his
sure that I—that I indicated to problem had to
job was a and that we
modify exposure, and that the work
urgency smoking then and that we get quit smoking.”
needed to him to subsequent
“The clinic do much visits
more —much much more to address the is- smoking than do to address the
sue of actually working up
issue of his until he
quit smoking. going And it to do wasn’t gentleman any good quit
this work go home and smoke more.” testimony
Because I believe that Rogers’ is controlled
shows that claim I Teegarden precedent, would reverse.
Therefore, respectfully dissent. T.H., Respondent
In the Interest of Appellant. 910398, 910410.
Civ. Nos.
Supreme of North Dakota. Court
March