*1 599 require a expect law to able against of guard the reversal ROGGENBUCK,

lawyer to Appellee, Diane not true precedent, the same is established v. open question. respect with NORTH DAKOTA WORKERS anti-deficiency validity of a waiver BUREAU, COMPENSATION may have protection judgment statute’s Appellant, undecided, law- many as are issues been with, yers but the liveliness deal ignored or question could not have been Julius, Orange Defendant. an an- prospect nor the underestimated unantic- unfavorable to Borsheims swer Civ. No. 910328. unguarded against. First ipated or See Supreme Court of Dakota. North Anderson, N.W.2d 90 Bank v. 452 State (N.D.1990) [deficiency one judgments are March law and the least favored creatures of them]; policy against accord public there is Bank, Peoples v. & Enderlin State

Gust (N.D.1989); 914 Dakota Bank

447 N.W.2d 443 Fargo Funfar, v. Trust Co. & (N.D.1989). me seems clear to that the Borsheims requested only that

should guarantees also

trial court enforce but not, permit rescission for failure consideration, or, majority now as the

holds, enrichment, prevent unjust as- complied

suming that Borsheims rescission, requirements all of the

with

including offer to consideration restore Alton’s, E.g., Long, Inc. v.

received. (N.D.1984); Boulger,

N.W.2d 198 Blair v. (N.D.1984). simple

358 N.W.2d 522 That elementary seeking alter- measure of en- remedies would avoided the

nate relief,

suing splitting morass of claims for

creating multiplicity of trial court actions perpetuating agony of appeals and Anderson, litigation. v.

endless See Wolf (N.D.1988). It also would

422 N.W.2d the ma- the rationalization of

have obviated achieve a result that does

jority to recog- application from the

easily flow legal principles.

nized I, therefore, dissent. reverse.

600

arising fall The Bu- out of that at work. liability accepted paid the reau and associ- expenses.1 ated medical Subsequent in the Kirk- to the incident Mall, Roggenbuck to re- continued wood from chiropractic ceive treatment Aas. Although some treatments resolved symptoms Roggenbuck’s symptoms, her generally Eventually, over worsened time. Roggenbuck had a Aas concluded that disk 1989, 29, he August re- problem and on orthopedic surgeon. her to an ferred 1989, 3, September Roggenbuck, and On hers, neighbor lifted gas stove into a wagon so it could taken to the child’s neighbor’s place pressure to be cleaned. wagon, process pulling While neighbor slipped Roggenbuck and tried “steady” keep to to “catch” or the stove Apparently, act of falling. Roggenbuck “steadying” the stove caused pain in experience some her to increased Roggenbuck morning, The next back. (argued), Atty. Ken R. Asst. Sorenson usual, approximately went work as but Gen., Bismarck, appellant. for later, pain so became in- four hours Bismarck, Firm, Dietz & Little Law for emergency tense she went room Little, Stephen appellee; argued by D. Bis- Alexius Medical where she of St. Center marck. An MRI revealed that was admitted. scan large Roggenbuck had a herniated disk. ERICKSTAD, Chief Justice. 1989, 6, Roggenbuck under- On problem. correct Compensa- surgery to the disk The North Dakota Workers went appeals judgment from the tion Bureau 1989, early September, Roggenbuck County Burleigh for re- the District Court surgery informed and Bureau of the versing the Bureau’s decision which award- disability. post-operative On only on Roggenbuck Diane benefits ed 19, 1989, Roggenbuck a claim made fifty percent aggravation We affirm basis. 20, conjunction with the October benefits the district court and remand to the Bureau 1988, thereafter con- incident. Bureau determination of bene- appropriate for an M.D., Kennedy, physician Roger tacted fits. Roggenbuck for the disk her- who treated 1988, niation, Aas, D.C., 20, Ralph Roggenbuck and medical On October opinions relationship as injured she fell the Kirkwood Mall records and incident, slip leaving place of em- the 1988 and fall parking lot after between stove, Orange time, steadying of the and subse- ployment Julius. At that 1989 at 1990, D.C., 2, Aas, April the Bu- by Ralph quent surgery. On diagnosed, she was subluxation, Kennedy, asking suffering reau sent letter to from cervical cervi- percentages of causation apportion subluxa- him syndrome, cal cranial sacroiliac moving tion, 24, the nonwork-related stove sprain or strain. On October between slip 1988, prior work-related applied for workers’ incident and the Roggenbuck responded injuries fall incident. Dr. compensation for those benefits scope accepted within Apparently, incident occurred course when the Bureau liabili- lot, parking ty employment. fall in the Kirkwood 1988 raised whether the no issue was ever as to (N.D. apportion percentages of District No. could not he 1985). of the work- injuries basis incidents. nonwork-related We have noted that our review *3 1990, May 15, on awarded subsequently, agency under sec administrative decisions aggravation nonemployment benefits for 28-32-19, N.D.C.C., essentially tion in fifty percent employment injury on a of an three-step process: (1) volves a Are the pursuant 65- basis to section aggravation findings supported of fact by preponder 05-15(4), N.D.C.C.2 (2) ance of the evidence? Are the conclu request made a Roggenbuck thereafter findings of sustained by sions law of An administra- for administrative review. (3) agency supported fact? Is the decision 4, hearing was held March tive by the conclusions of v. law? Tobias fact, officer, hearing findings of his Department North Dakota Human of 16, law, May conclusions of and order of Services, 175, (N.D.1989); 448 N.W.2d 178 decision, 1991, prior affirmed the Bureau’s County Falcon v. Williams Social Service holding “[cjlaimant’s non-employment Board, 569, (N.D.1988). N.W.2d 430 571 3, 1989, upon acted injury of determining agen- whether or not an prior compensable injury and claimant’s findings cy’s supported by factual are to the need for contributed evidence, preponderance of the do not “we disabling claimant medical attention independent findings make of fact or sub- ap- then employment.” Roggenbuck judgment agen- stitute our for that of the pealed to the district court which reversed only reasoning cy, but determine whether a holding of the that the the decision Bureau reasonably mind could have determined improperly aggra- Bureau had invoked supported factual appeal This followed.3 that the conclusions were vation statute. Tobias, weight of the by the evidence.” Initially, an ad we note that when 178; Fuels, at see 448 N.W.2d also Power agency appealed to ministrative decision is Elkin, (N.D.1979). 283 N.W.2d 214 Inc. v. Court, of the we review the decision “This court exercises restraint and will not that court. agency and of the district ‘super reviewing ad- act as a board’ when Compen Dakota v. North White Workers findings ministrative and decisions.” Mid- Bureau, 908, (N.D. 441 N.W.2d 909 sation Service, Recovery 475 Property west v. Job 1989). limit our to the record We review 918, (N.D.1991); 921 Matter agency and not consider the before the do (N.D.1984). Boschee, 347 N.W.2d 335 Asbridge v. finding of the district court. Highway Dakota State Commis North case, bene- In this the Bureau awarded sioner, (N.D.1980). 291 N.W.2d Roggenbuck pursuant 65- fits to to section 05-15(3), N.D.C.C., provides: which 28-32-21, sections 28-32-19 and Under aggravation prior com- N.D.C.C., “In case of we will affirm an administrative in- pensable injury nonemployment agency decision unless of the six enu one in- 28-32-19, aggravation may be jury, the statute reasons listed in section merated N.D.C.C., nonemployment where the is found to exist. In re Annexa voked prior compensable of Donnybrook upon Public acts Part School injury. degree ag- Roggen- dispute If the Bureau does not 2. The causally determined, surgery requiring percent- gravation buck's condition be cannot to the October fall in the Kirkwood related age fifty percent total must be of the award Rather, parking lot. Bureau asserts Mall percent if hundred benefits recoverable one 3, 1989, incident substantial- that the employ- injury had been result of Roggenbuck’s ly contributed ment.” requires be awarded on benefits n fifty percent apportionment basis seemed to in his brief 3. Counsel impossible. right Roggenbuck pain in her had felt stress N.D.C.C., 65-05-15(4), reads: Section leg moving leg and in her left after aggra- bureau "4. The shall determine However, Kennedy and prior to that. both evidence, upon as rea- award based all vation sonably not uncommon Aas indicated this was percent- proportion establishes injuries. not indicate different and did reasonably age cause as is attributable N.D.C.C., 65-05-15, Previously, section to the se- substantially contributes acceleration, progression of the read: verity, result, or, trigger to if it acts as a final injury or Aggravation “65-05-15. symptoms, and the produce recurrent Compensation and benefits disease — not aggravat- a substantial trigger is itself condition. paid preexisting accelerating All benefits factor. ing or paid Compensation not be shall aggrava- when the may apportioned be hap- prior to the condition which existed this subsec- is invoked under tion statute compensable injury nor for pening of a statute aggravation tion. condi- any disability chargeable to such a natural the result is but invoked *4 aggravation In of a condi- tion. case of compensable injury. progression of compensable inju- existing prior to a tion [Emphasis added.]” aggravation of a ry in case of the and Thus, is or not us whether issue before injury by nonemployment provision. properly Bureau invoked hospital compensation, medical or injury, or specifically, the issue is whether More benefits, shall be al- expenses, or death could have reason- reasoning mind not a paid from lowed the bureau greater weight of that the ably concluded only proportion of the dis- fund for such the nonem- indicated that the evidence benefits, arising expense or ability, death 3, related of ployment condi- aggravation prior of such from the 1989, substantially to the se- contributed may to reasonably tion as be attributable Rog- or verity, acceleration degree compensable injury. If the such condition, as a genbuck’s it acted determined, the aggravation cannot be symptoms produce recurrent trigger to fifty percent percentage award shall be trigger was a substantial itself if one hun- of total benefits recoverable accelerating In factor. es- aggravating or percent injury of the had been the dred two-fold, (1) sence, i.e.: Wheth- the issue is any compen- But employment. result of injury contribut- er or not this aggravation paid on the basis of sation condition; (2) Roggenbuck’s ed to per dollars shall not be less than ten result is but a natural or not the Whether wages unless the actual of claimant week In compensable injury. progression of the dollars, ten in which shall be less than questions, recognize we considering these paid in wages actual shall be event the initially for the Bureau to answer However, in compensation. ease reviewing questions, in its find- these employment-aggravated death due to an past keep mind our decisions. ings, we in special expenses and burial resulting ambiguity light of the paid pursuant in full to benefits shall be 65-05-15, section the amendments to sections 65-05-17 and 65-05-26.” N.D.C.C., appropriate to con we believe it legislative his- limited review of the Our history to consider the legislative sider surrounding the amendments to sec- tory light previous statu amendments 65-05-15, N.D.C.C., little reveals which determining us in tory provisions, to aid 65-05-15(3). construing might aid us in objective those amendments. intent or 65-05-15 were The amendments section 61, (N.D. Mees, v.

See State large number of part a small of a but 1978) repeal (“[a]ny amendment changes legislature the 1989 made to also be considered part of a statute must compensation statutes. See the workers’ subsequent intent and determining the true However, S.L.1989, do note ch. 766. we and Blackb objective legislature”); of the proposed legisla- that the fiscal note for the urn, Smith, Inc. v. National Nickels & majority of the tion indicated that Property Casualty “[a] & Farmers Union or no changes in this bill will have little (N.D.1990) 319, 322 Company, 452 N.W.2d Furthermore, impact the fund.” fiscal on ambiguous stat (“[w]hen interpreting an Haas, apparently speaking for the legislative Dean ute, its the court consider Bureau, report- Compensation Workers under which history and the circumstances Standing Min- enacted.”) Senate Committee ed the statute was bill, really precipitated operative stated that the bill was treat- utes essentially housekeeping bill.4 ment. language change in the relevant The “IX. aggravations prior com-

nonwork-related appears to be the na- pensable injuries 13, 1990, “In an letter to April The lan- of further refinement. new ture stated based refine appears to further what guage history, leg symp- on claimant’s with the prior compensa- by aggravation of a meant had, toms she and with the October “severity, referring accel- injury by ble 1988, injury, likely it is that she sus- eration, or where progression” some- disc tained herniated at that time al- symptoms. The thing “triggers” recurrent though prove he cannot it. nonem- placed upon the term to be construction September 3, 1989, ployment appear thus “substantial” would precipitating immediate primary focus. of her admission of doctor indicated that he is unable to decision, the Bureau made the In its final percentages attribute work or *5 findings following relevant of fact: injury. non-work related “V. ^[******]

back dent. she catch “Claimant lifted a ^[******] pain on it as it gas slipped sustained an increase stove and in an off-work acci- 3, 1989, had tried to nosis gust of 1989. Claimant’s cervical sublux- ation solved treatment from “Dr. Aas testified that claimant’s changed itself, and the sacroiliac subluxa- cervical cranial over the course December of 1988 to Au- “XII. syndrome of diag- re- Further, tion and strain remained. dur- “VIII. ing De- the course of treatment between 4, 1989, letter “In a December to August of of Dr. cember Kennedy Dr. stated that based impose any lifting restric- Aas did not history, September of on claimant’s tions .... precip- immediate 1989 incident was the itating re- for her disc herniation cause “XIII. Further, there a quiring surgery. that the Octo- disc oc- “Dr. Aas testified after

suggestion of herniation that 20, 1988, did injury claimant not of which caused ber curred in October trouble, a any symptoms of disc show immediate claimant to continuous Further, however, Dr. Aas testified that problem. of event Haas, Standing statutory sets a reported amendment also forth as in the House Com- “The non-employ- compensability Minutes, where a test part testified in mittee follows: injury aggravates prior a ment injury. aggrava- an to the "Section 5 is amendment aggravation be in- award apportion This is what allows to tion statute. expenses non-employ- as to if the voked all preexisting thereby condition and lower to injury upon compensable injury ment acts pays. deals the benefit it The amendment severity, to the contributes and acceleration, aggravation applied statute with how the is progression of the final re- paid. The bureau is and the benefits are paid is also Initial treatment sult. medical language asking clarifying and allow aggravation because the initial treat- basis identify to those cases where the the bureau sought likely due to a will have been ment non-employment aggravation going is statute to invoked. injury. trigger pay provides the bureau will the medical general principle amendment affirms injury. Allowing after the bills full work aggravation statute cannot be invoked during injury accute the full award [sic] natural the result but a stage." Paragraph four compensable injury. essen- law, Haas, testimony, apparently prepared tially testi- and section five restates current statute." part the current verbatim from fied in as follows: changed 20,1988, injury sis to include lumbar subluxa- did not cause also October volved, ry- susceptible stress lack disc whole of balance or functional ^[******] and made the lesion, strain pelvic however, on the whole area muscle “XV. area subsequent inju- group, did much disorder cause a added more in- problem, not geon. was of did ocally state that the October that on Aas’ not opinion he referred her to an As to August cause a disk lesion.5 testimony strain. opinion responding finding 29, 1989, Further, Roggenbuck that he did not XIII, the fall lead to a Dr. Aas was of it is it is clear orthopedic treatment, 20, 1988, Rather, undisputed unequiv- a disk sur- fall he he does Kennedy “Dr. testified that lesion was occur- condition where disk single injury carrying believe the ring through gradual process.6 hernia- stove would have caused disc XVI, finding Kennedy testified As tion, large, ruptured, as claimant had as follows: single mushy disc time. The for some catching In the absence that — carrying a stove that stove and the absence caused a disc herniation without injury similar type other traumatic preexisting condition. some stove, catching tipping could she have continued with conservative chiro- “XVI. practic treatment a while? quite likely. [Empha- “Dr. testified notwith- “A. It’s Yes. 3, 1989, standing the September sis added.]” *6 back condition would not have claimant’s above, As Dr. Aas indicated that mentioned saw progressed to the condition that he chiropractic conservative treatment was during in course of medical treat- his working. Further, doctor testified ment. decision, its support In Bureau 1989, 3, September notwithstanding the Kennedy’s on primarily relies Dr. state- injury, the claimant could have continued ment that the incident with conservative treatment.” precipitating “immediately was the cause discrepan- Initially, requiring surgery” we a few factual for note her disk herniation First, findings. as to that Dr. cies the Bureau’s the fact indicated XII, 3, 1989, inci- finding diagno- we that Dr. that without the note Aas’ part any type It could lead of disorder. 5. Dr. Aas testified in relevant as follows: “A. to case, particular beginning In her it was to Well, injury "A. she sustained from know, on, you up, went show as time that lesion, probably didn't cause the disk but fall going to there was be more and more. balance, say a func- it caused—we’ll lack by Okay. symptoms “Q. You could tell pelvic tional disorder of that whole muscle assume, exhibiting, something was that she group, added and strain on the whole stress appearing? was involved, to area and due added—it made demonstrating She was "A. Yes. was—she susceptible injury or sub- area much more instability much in the area. at times more sequent injury. didn’t cause but it something bring do and it would She could area, instability would lend a lot of to that bring an effect. could do less about She weakening it. [Emphasis something. an effect in add- about Again, "Q. the lesion occurred sometime ed.]’’ accident, though? prior to the second occurring— Regarding “A. The lesion was Dr. Aas’ of the term disk lesion use following testimony Okay. gradual perti- process? “Q. his Is this a we find the from They're my opinion. —in al- nent: "A. almost gradual ways process lesion, unless is severe a there you say "Q. When disk does trauma. protrusion? some sort mean Okay. straight my well, it, "Q. So I have it own A disk lesion as I use or I “A. as— mind, instability say created an might fall in ’88 we use disk it—a involvement causing problem specifi- to a— led to—is that —led but not where it's a disk, ruptured slipped cally it’s “A. It would— whether a disk, "Q. fractured disk.” disk lesion? the left side other times. But I felt Roggenbuck could dent, likely that it was my treat- certain in mind she with conservative did have have continued damaged for a while. disk. ment “Q. radiating leg Is it unusual However, the fact that an pain up leg kind of one show on treatment, pre precipitated the need then another? becoming disabling cipitated injury’s “A. Particularly Not that unusual. such an necessarily mean that does not large ruptured it’s a disk. if it’s And substantially contributed to the se event fact, very mushy or soft—in it can affect acceleration, progression of the verity, legs at the both same time. So if it’s a factor a substantial condition or that it was disk, very depending the way soft Likewise, person fact it. bent, protrude trunk immediately may tend to required sur would not other, rupture one side precipitating not oc more than but had the event gery necessarily leg. can affect either mean the event curred does was in ting vant ymous. other dent throughout which or anyway. Does that disk more whether based evaluation deposition that In this she would have neurosurgeon “I know Mr. Sorenson has “Q. Okay. whether factor, testimony words, is in unstable or she on her case, well be a you way but the terms are not fact—or her disk would evidenced his can we precipitating from prior to a substantial factor. *7 required surgery anyway possible course he had referred her for progressive becoming find the speculate Aas was in fact progressive history indicate that Kennedy: indicated treatment following treatment. have as to whether more complaints asked ruptured contribu incident, likely getting or inci synon rele- you the his it was tion when very mushy are we surgery? What sort of markedly lus, the usual back. ly one mal, indicating then ated beneath it. The rim of al was removed “Q. “A. rupture? which is the rim of the ^[******] ^[*] opened what What Okay. Someone with I noted talking very soft, you actually ^[*] had no sort and a soft and did that the disk had mushy or softer than nor- about? fragmented ^[*] you consistency large action the rim or the anu- mushy disk, find on ^[*] went in for the amount disk ruptured disk materi- a space. ^[*] disk, examina- disk was degener- disk cushion trigger literal- soft, disk ^[*] like So Well, “A. the disk when the—when rupture? mushy, it’s usual- becomes so soft and your ques- I I “A. think understand ly very to—‘the little records, tion, reviewing I because —takes camel’s straw that breaks the back’—to injury a that she did have disk as felt it, frankly, again, or even a rupture make early as what we have recorded first caught or piece it become extruded response lack of its because under nerve. chiropractic treatments and the usual soft, simple it’s so a movement I “When up, and I think made a statement clear back, bending forward simple of the a effect. to that face, your a over the sink wash pain “There was some radiation things sneeze, any can be the of these like leg, into which sounded down last straw. rupture. I do protrusion or believe disk degeneration of disk damaged “The actual had disk that would that she mushy is a it continuous intermittently protrude; it was where becomes thing tends worse with and it to become history because of her somewhat unclear exactly fast hard to how time. It’s tell gather I as to whether it and what could going disk to deteriorate. an individual right side sometimes and had been injury may more “A. Yeah. The initial be dete- But as it becomes softer damaged disk to the one that make it riorated, actually it to it takes less for begin degeneration. its soft and nerve, you pinch the rupture out and protrusion or of the disk out- rupture along the multiple line. can have events pinching ward the nerve heralded * * * * * * pain, may go, come and the sciatic talking you’re so that when about an Well, spe- her looking I think at “A. you actually damage may the disk degenerated, disk that was so cific degenerate, it but not and make hospi- inciting events that caused may at moment. come herniation any could of a num- have been talization later.” injuries.... of different ber “A. ^[******] Because a disk deteriorates, is clear that ion that From the Roggenbuck’s above-quoted testimony, disk problem opin it spine produces, motion likely begun the normal 1988 fall and with the October will, disk, just by progressively so worsened until it you if trauma to the stage reached a number of spine being where weight of the traumatic to everyday precipitated activities could damaged disk. A trauma means an surgery. the need for Dr. Aas was of a there's evidence that injury, and a lot of opinion.7 similar process of disk deterioration is the whole trauma, episodes minuscule due to 65-05-15(3), N.D.C.C., section Under will, wearing the disk. you aggravation may not in- statute “[t]he progres- if the result is but a natural voked ****** Thus, compensable injury.” sion of “Q. Okay. Symptoms I understand. sense, activity or everyday an event some herniation, with but the may coincide never contribute to the can inju- acceleration, not coincide with severity, herniation of a case, precipitating condition.8 ry? 7. Dr. Aas whatever. geon you That’s wouldn't toms, when one little back. exhibited rable increasing symptoms this sandth tributable out. attributable that she can 1989? “A. Sometimes no. "Q. “A. No. "A. No. "Q. "Q. "A. "Q. Is it safe to her condition can’t apportion wouldn’t to, say, the you looking Otherwise, Okay. If 15 straw wouldn’t have Okay. Okay. straw wouldn’t have done wound ^[******] testified in relevant you’re have say August thing to the accident on referred her to an I to the accident how have couldn’t because— taken much to expected what Can When at could do up aware of the she went straw that broke 29, 1989, at that much—what I wouldn’t have sent her in the happened. you say you percentage the time of and you period that she tell Very hospital it, how much was recommended —or into the weren’t can I assume it me whether cause the part in ’88 and the orthopedic symptoms little. large it would The or how much well, compa- would. surgery been time. as follows: it. ten surprised hospital? thing surgery? camel’s Again, symp- there, thou- take. Any 3rd, sur- was you she at- or note the men’s dent sult, event was Although were held further medical case, and the resultant denial probable compensable injury. into independent awarded on dent should not obscure that because of the back required surgery. occurred while claimant would have correct. ing episode, dent in later, ”[C]laimant take much.” whether or "A. and not whether or “substantially” finding Compensation a disc this following language from Any Okay. section that condition intervening one that had suffered some is herniation, eventually not a injuring cause appeal. had presence nothing thing complication 65-05-15(3), other claimant not had the sneez- The medical contributes error, *8 Law, subsequent was sneezing episode of claimant’s can do it his back. Several If the herniation had This cause, major more than the true nature of the necessitated triggered was for which section 13.11: not the and result asleep N.D.C.C., we flowing or minor event and it to the compensation, benefits testimony sneezing Larson, event nevertheless by subsequent is disability, that in claimant wouldn’t surgery. was the end from clearly bed, it was speaks sneeze Work- years were of a acci- inci- inci- was re- there is no rational ting factor because moving of the found to be event of way in this event in this man- However, quantifying little evidence there stove.9 weight of the [Emphasis than the in this We record other ner case. added.]” steady it on effort possible conclude, apparently trial court con- stove as the minimal, indi- wagon, which seems cluded, reasoning that a mind could result- the stove incident with cate reasonably that the incident concluded in a condition have resulted or could ed with the stove contributed resulting from an from that different Roggenbuck’s condition. There was activity or incident. everyday judg- reasons the For aforementioned which would by either doctor testimony no court is affirmed and ment of the district the final result way suggest any to the Bureau for this case is remanded from that which different this case was appropriate disposition accordance with everyday ac- resulted from would opinion. sink, bending over tivity, such event. precipitating been LEVINE, JJ., and MESCHKE opin- court, memorandum in its The trial BACKES, Judge, District NORMAN J.

ion, affirmative- “the event cannot be said: concur. contribu- as a ‘substantial’ ly characterized Okay. "Q. reference in sequel Did the—there's to the com- as a mere characterization slipping you stove catch- the record to the have seemed obvious. pensable would prob- trigger- ing Okay? And I think the reference if the it. be no different The case should ably you. you mean nonemployment exertion So what did ing episode came is some suit, hanging up by so raising that? a window or like long operative factor is clear that the real "A. Well— as it compensable injury, you: okay. "Q. Did Mr. progression of the Let me ask is the Did— itself slip? exertion that with an associated Butz slipped. in the circum- not be unreasonable Butz "A. Yes. Mr. wag- pulling Okay. "Q. stances.” When he was on? incident, moving Roggen- Relative to the stove Yes. “A. "Q. testified, part, as follows: in relevant buck tip Okay. stove fall or Did the anything? Okay. you stove "Q. have to move the So wagon just on the I steadied it "A. No. the street? across there, referring maybe that’s what I was “A. Yes. twisted, something. I said Okay. you to when "Q. did do that? How yourself? stove, "Q. didn’t lift the You side of the Mr. Butz took one "A. “A. No. "Q. lifted it on a child’s the other side and we took wagon. Okay. also reference in There’s you think told you experience any pain record to—I Okay. "Q. Did caught basically, you experienced when, lifting stove? — experienced pain? stove and “A. No. time, pain at that experienced a little “A. I "Q. Well— away. any but it went what I did at work. Not more than "A. Okay. wag- Same sort of— you put Okay. Okay. it on a "Q. So “A. At that time. on? something: you Okay. "Q. ask Let me wagon. A child’s "A. Yes. experienced differ- pain you then wagon Was the Okay. "Q. Like a Radio Flier red doing experienced oth- pain you ent from my has? kid *9 er activities? Very to it. "A. similar ‘‘A. No. then? Okay. "Q. across the street Pull it you, thing? Can Okay. "Q. sort of Same Yes. "A. can, how much again, you estimate as best you "Q. do that? Both weighed? wagon that stove pulling and I was the "A. Mr. Butz pounds, right 60 around it "A. I estimated setting stove sat just it—but the kind of was any- jiggle in that area. wagon it didn’t the where on thing, you big mean, Okay. "Q. was the stove? How way it sat on I the know. range. "A. A 30-inch there. Gas; right? Okay. Balancing "Q. it? balancing just “A. Yes. really I was it. "A. I wasn’t Okay. Everything taken out? it, "Q. my on the walking hands behind but I had "A. Uh-huh.” stove.

608 BACKES, Judge, substantially contribute to the “acceler- District

NORMAN J. Court, resigna- due the ... of the final result” sitting with the ation III, 65-05-15(3), H.F. of the Honorable GIERKE in section NDCC. as stated Kennedy it was of November Thus stated that his a opinion Roggenbuck “likely had less- that WALLE, Justice, concurring VANDE October, 1988, in disc herniation which er specially. persistent it was gave her trouble but the really September, precip- incident that increasing reviewing an number areWe operative the When involving itated treatment.” compensation cases of worker problems. “say could ailments, disc whether he with rea- primarily asked back questions in the pose certainty difficult factual ab- Those cases sonable medical stove, the has in- gas or not claimant as to whether sence of that incidence with the “in the of their his or course jured progressed her back to the her back would have compensation employment,” condition of a in” you her same condition saw NDCC, 65-05-05, pursuant section say “I that. replied can’t No.” injury is specifically, whether the a more Compare v. North Dakota Workers Sloan by section “compensable injury,” defined Compensation 462 N.W.2d 638 NDCC, 65-01-02(8), “any to mean disease (N.D.1990) connection between [causal employ- fairly be the which can traceable to and a condition is work activities medical “Ordinary dis- ment” but which excludes factual matter]. general public life the eases of to which why the me is But bothersome issue for exposed employment ... outside majority determines the Bureau could except disease as an where the follows reasonably Rog- have concluded that to, inception in is caused its genbuck’s activity with the stove “substan- subjected employee a hazard which an tially the herniation of the accelerated” employment.” his That in the course of disc, irrespective probabilities “com- also the term statute excludes then, happen hap- didn’t it would pensable injury” an “attributable to pened Remembering our standard of later. disease, or condition preexisting injury, appeals review on from decisions of admin- clearly prior to manifested itself which severely limits agencies, istrative our em- compensable injury” except “where evidence, only view manner own substantially aggravates and ployment acts majority opin- reconcile in which can upon underlying substantially an particular ion with the evidence on that employ- worsening severity, or its where application is to our issue rationalize that progres- ment accelerates require of “substantial acceleration” will underlying sion of condition.” NDCC evidence that “but for” the affirmative non-work related 65-01-02(8)(b)(6). was because § injury there was no indi- determining difficulty in cause and similar surgery would be imminent. cation in attack employment effect of heart Here, was not that affirmative evidence Legislature amended stroke cases that Rather, surgery for present. need was require injuries due to the statute to imminent incident. The before stove heart attack and stroke must have been Roggenbuck record reveals that been “precipitated by unusual stress” order surgeon by orthopedic referred to an injury. they deemed chiropractor days prior only inci- 65-01-02(8)(a)(3). Nelson v. NDCC See § Roggenbuck reflects dent and further Compensation North Dakota Workmen’s moving order that her children (N.D.1982). Bureau, 316 gas to use a stove without agency Our review of administrative de- hospital- light preparation pilot one, cisions is a limited as noted surgery. ization back *10 me majority opinion. It is difficult for this is that reasoning My concern with result suppose why mind could not in which the back condi- adduced that reverse instance conclude from the evidence predates employment and is em- Roggenbuck’s activity with the did 02(8)(a)(3),NDCC, that in section related, precipitating inci- 65- ployment related, 05-15(3), than NDCC, rather non-work is work leads me to believe dent we related, not be entitled to employee will deny compensation in necessarily 65-01-02(8), section compensation. Thus though precip- reverse situation even NDCC, beginning quoted at itating Despite related. was work concurrence, from “com- special excludes I concur in the misgivings, these result injuries pensable injury” those attributable majority opinion. reached disease, injury or condition preexisting to a “substantially except employment where upon underlying

aggravates and acts worsening its se- employment substantially

verity, or where underly- of an

accelerates the similarity

ing The obvious be- condition.” language in section 65-01-

tween this