*1 person not have reasonable could judg-

thought a court would render favor, providing pre-

ment in their responsive plead-

vailing party has in alleged the nature of the frivolous

claim. This subsection does not re-

quire the award of costs or fees

against attorney party advancing or existing

a claim unwarranted under

law, supported by good if it is faith extension,

argument for an modifica-

tion, existing or reversal of the law.” that the claim the

We conclude state county proceeding ex rel is not friv- and, accordingly,

olous we affirm the dis- attorney denial of

trict court’s fees.

We affirm the but remand for proceedings

further consistent with this

opinion. WALLE, LEVINE,

VANDE GIERKE, JJ„

MESCHKE and concur. SCHMALZ, Appellant,

Lee M.

NORTH DAKOTA WORKERS COM- BUREAU, Appellee.

PENSATION

Civ. No. 890269.

Supreme Court of North Dakota.

Dec. 1989. Ltd., Bismarck, Moench,

Evans & for appellant; argued Kenneth S. Rau. Gen., (argued), Atty. Asst. Dean J. Haas Compensation North Dakota Workers Bu- Bismarck, reau, appellee. *2 8Í8

ERICKSTAD, “FINDINGS OF FACT Justice. Chief a district appeals from Lee Schmalz upholding the North Dako- "I.

court Compensation Bureau’s dismis- ta Workers application filed an for “Claimant injuries for benefits for sal of his claim compensation benefits on De- workers resulting a heart attack he suffered 10, 1984, in with an cember connection during employment. of his We the course 29, alleged injury on November 1984. affirm. self-employed appliance, is a Schmalz “II. service, refrigerator doing technician and Appli- name of Schmalz business under the alleged injury “On the date ga- He does his work ance Service. Ap- employed was claimant by twenty rage approximately ten which appliance repair- pliance Service as an high. At the feet in size and twelve feet self-employed man. and Claimant attack, garage did not time of the heart coverage has under the Workers Com- provide fresh air ventilation. pensation Act. requires the use of an Schmalz’s work pipe acetylene-oxygen torch unsweat generally re- “III. Some freon

connections. refrigeration tubing, and when mains replac- that he “Claimant indicates heated, produces an odor and breaks down refrigerator ing compressor in a when gases. acetylene-ox- into a number he sustained a heart attack on November produces gases in- ygen torch also several 29, 1984. The heart attack occurred at nitrogen cluding dioxide and carbon monox- a.m., approximately 9:30 on November units, reassembling ide. silver When 29, 1984. and cadmium flux are used which solder may produce gases when heated. 29, 1984,

On November Schmalz went “IV. shop into his at about 8:00 or 8:30 a.m. He activity compressor replacing “The using began installing compressor, normal for the claimant and there is torch, acetylene entirely a task which is unusual stress or strain. no evidence of usual and routine for him. He testified working compres- that he had on the been experiencing sor minutes before chest “V.

pain. Schmalz sustained a heart “However, contends that his claimant which was defined as death of heart muscle brought by an heart attack was about inadequate supply of attributable to an ox- gases in course of exposure to ygen the heart muscle. ability of employment which reduced the application filed an for workers carry oxygen and resulted in his blood 10, compensation benefits on December the heart attack. 1984. The Bureau dismissed the claim 8, February order dated 1985. Schmalz present any

failed to additional evidence “VI. and the order of dismissal Was affirmed on “The evidence of record does indicate 10,1986. requested December He a formal acetylene using as a result of hearing August which was held on refrigeration equipment torch on involv- 1988. The Bureau issued an reaf- order freon, using as a result of cadmi- and dismissal, firming based on additional evi- flux, into um certain are emitted hearing dence its introduced at including nitrogen atmosphere diox- record, February review of the entire on fumes, ide, cadmium flux carboli monox- reaffirming 1989. The in its order dismissal, ide, possibly phosgene gas. determined: reasonably

“VII. cannot made based available evidence. “Evidence of record indicates that car- nitrogen bon monoxide and dioxide com- “XII. *3 readily hemoglobin more in bine with the oxygen. the than does blood “Evidence is unavailable which to

determine whether the claimant’s car- boxy-hemoglobin “VIII. level was such as to ability reduce the carry of the blood to “Evidence of record indicates that if oxygen. nitrogen carbon monoxide and dioxide gases present in atmosphere are the in “XIII. quantities, gases sufficient the will mix hemoglobin the in the reduc- blood The Bureau opinion obtained the of a ability the of the carry oxy- blood to cardiologist, Dr. Walter E. Frank. Dr. gen including to the heart muscle. Frank approximately indicates that

percent of the individuals who suffer a have, heart attack as precipitating “IX. cause of the heart development the of a Hinrichs, opinion gen- “It is the Dr. blood clot which closes off an already practitioner,1 eral that the claimant’s ex- narrowed blood vessel. There is no evi- posure to nitrogen carbon monoxide and dence gases that an to these in probably dioxide contributed to the heart any way leads development the of a precipitant. attack as a blood clot. “X. “XIV. “However, Dr. Hinrichs admitted that “Dr. Frank indicates that it would be he quantities was unaware of the of car- speculation provide opinion a medical nitrogen gases bon monoxide and dioxide presence gases that of certain such as in the air where Mr. Sehmalz worked. nitrogen carbon monoxide and dioxide in Dr. Hinrichs is also unaware car- trigger the air acts as the to a subse- boxy-hemoglobin level of claimant’s quent héart attack knowing without blood. gases whether the were sufficient quantity carboxy-hemoglo- to affect the “XI. thereby reducing bin level of the blood proven “Claimant has certain ability carry oxygen. the of the blood to gases given amounts of these are off in physician indicates that absent using the nature of acetylene torch evidence he cannot make such correla- working However, on freon. claimant gases tion the between the air and the cannot establish that are heart attack. present quantities sufficient in the at- mosphere signifi- to cause measurable or “XV. change cant in the carboxy-hemoglobin “Statistically speaking, the claimant is Therefore, level of the blood. Dr. Hin- likely developed most to have the heart opinion richs’ exist a of a attack as a result blood clot which cause and effect between already occluded an narrowed blood ves- Mr. pres- Sehmalz’ heart attack and the sel. ence of these atmosphere speculative since he assumes that “XVI. gases in the air were sufficient to materi- ally carboxy-hemoglobin affect prove level “Claimant has failed to his theo- blood, though assumption ry even carboxy-hemoglobin Medicine, general 1. Dr. Hinrichs was practitioner. Board Certified in Internal not a supported by a (1) findings of fact Are the ability of the blood to reduced blood (2) Are preponderance of the evidence? muscle, to the heart and carry oxygen by the sustained conclusions of law heart attack. There causing his thereby (3) agency Is the decision findings of fact? record which establish- is no evidence of law? Fal- supported by the conclusions carboxy-hemoglobin level es an abnormal County Social Service con v. Williams blood. (N.D.1988); Board, Otto 430 N.W.2d Dakota, North Job Service OF LAW “CONCLUSIONS supra, this Court Skjefte, “I. in re- the standards we use summarized *4 agency viewing decisions administrative prove inju- has failed to “The claimant follows: arising in the out of and ry by accident employment.

course of independent find- make “1. We do not judgment our

ings of fact or substitute “II. agency, of the but determine for that reasoning mind could a whether prove a cause has failed to “Claimant reasonably that the fac- have determined his heart between and effect supported by the were tual conclusions an attack and weight the evidence. of employment. restraint when we “2. We exercise agency findings. review administrative “III. judi- of the “3. It is not the function prove that he has failed to “Claimant super re- ciary to act as a board when performing unusual stress in was under agency determi- viewing administrative date of heart physical activities on nations. attack. judg- “4. not substitute our We will qualified experts in ment for that of the “ORDER agencies.” the administrative in that this claim be “IT IS ORDERED Skjefte at 817-18. things all dismissed.” added.] [Footnote N.D.C.C., 65-05-05, provides for Section appealed from the Bureau’s de- Schmalz compensation payment of and other The district cision to district court. employees in- benefits to who “been of the Bureau court affirmed the decision employment.” in their jured the course of 7,1989. judgment in a dated June “injury,” as used in section 65- The term appealed to this then Court. 05-05, N.D.C.C., construed has been appeal “compensable injury” In from a to mean Court 65-01-02(7), involving the of an district court decision defined in section N.D.C.C.2 Grace, agency, supra. part our review is limited The relevant administrative See of the decision of the the definition that controls this case reads: to an examination district agency and not the decision of the injury “If an is due to heart attack or court. v. North Dakota Workmen’s stroke, Grace attack or such heart stroke must Bureau, Compensation 395 N.W.2d 576 related worker’s em- to.the (N.D.1986); Skjefte v. North Job Service ployment, reasonable medical cer- with (N.D.1986); Dakota, 392 N.W.2d 815 Pow- tainty, precipitated and must have been Elkin, Fuels, 283 N.W.2d er Inc. by unusual stress.” 65-01-02(7), Section N.D.C.C. agen legislative history the 1977

Our review of administrative 65-01-02(7), cy three-step process: involves a amendment to section N.D. decisions claim, 1984, through Schmalz’s in statute in 1989 S.B. 2256. We do not 2. At the time of compensation dealing whether relevant workers statute consider or not amendment will 65-01-02(7), analysis N.D. make a difference in our of section with heart attacks was section 65-01-02, N.D.C.C., subsequently legislature in the future. C.C. The amended the units, garage out of attached he worked a in cases C.C., require “unusual stress” in Dickin- on thirteenth street is well doc- to his house or strokes of heart attacks 1982, son, In had ventilation. which umented: on Thirteenth Schmalz sold house response in to this direct “It came about in bought a home on First Street Street North Dako- decision Stout v. court’s 1984, Dickinson. From until Compensation ta Workmen’s shop. worked out of rented (N.D.1975),in which garage shop relocated his to a occurring Schmalz that heart attacks held we house, prop- to his which was not attached employment course within that at erly ventilated. Schmalz contends exertion were precipitated usual were time of his heart he was significant There compensable. appliance repair for midst of the busiest season of claims increase number decided, year. Because after the weather attacks Stout was cold, require keep he contends he had to his doors the statute amended substantially heating and windows shut save on his stress’ order to ‘unusual and, therefore, ventilation, employer bill no projected increase reduce resulting produced from his work were from that decision. premiums *5 con- trapped shop. in his small Schmalz v. North Dakota Workmen’s See Grace Construing by preponder- these facts a tends that show Comp. supra. 65-01-02(12)(d) exposed 65-01-02(7) to of the evidence that he was ance §§ gases of at statutory that to a concentration which was presumption a create higher pre- had employee times than he by any least several heart disease suffered by experienced in work. precipitated viously his presumed to been is directly con- stress would be unusual previously explained our view We have Legislature’s the intent.” trary to fol- requirement stress as of the unusual Compen Dakota Kroh v. North Workers lows: 899, (N.D. Bureau, 425 901 N.W.2d sation has that Section “This Court indicated 1988). 65-01-02-(7) the require does not that long been a basic tenet of workers It has causing differ- the heart attack be work seeking that compensation law a claimant employee’s in nature from the usual ent of the Bureau has the burden benefits from however, work; require unusual does proving by preponderance of the evidence Nelson North Dakota Work- stress. [v. participate to in the fund. that he is entitled ], 316 Compensation Bureau men’s 65-01-11, Kroh, N.D.C.C.; supra; Section The [N.D.1982], at 796 N.W.2d [790] (N.D. Bromley, 304 412 N.W.2d Claim upon the partially in relied Nelson of Court Therefore, 1981). has the burden Schmalz in Supreme Court’s decision Colorado evi by preponderance proving of Industri- County Denver v. City and of heart attack was dence that his Commission, 431, 195 579 P.2d Colo. al employment with reasonable related to its (1978). court derived The Colorado 80 certainty, and that the heart attack medical in extraordinary exertion test or unusual by precipitated unusual stress. Insurance part from Schechter State that had failed concluded Bureau 506, 656, Fund, 190 N.Y.S.2d 6 N.Y.2d relationship and the prove both causal (1959). In the Schechter 160 N.E.2d requirement. stress the unusual of New York stated Appeals of Court strain appropriate test unusual argues the unusual that follows: is in that his requirement satisfied stress excessive phrase “unusual or work ‘The by attack was caused unusual strain”, used describ- ex as sometimes ing circumstances which combined cases, limited in its is not so higher gases pose him to much levels of of meaning include work previously experienced than he had that 1980, entirely different character Beginning when Schmalz work. stated, so customarily Simply done. doing refrigeration work began first on long performing employment, as the conditions of with reasonable medical cer- exceptional the work are such that an tainty. reasoning We do believe that not imposed the worker strain is on so minds could conclude that he has accom- great that his heart is affected and plished that feat. There is no evidence thereby, requirement damaged of gases of even of extent noxious excessive strain unusual or is satis- may produced soldering have been 660, fied.’ 190 N.Y.S.2d 160 N.E.2d peculiar of under circumstances at 904. case, nor is of evidence explains Professor Larson unusualness amount have been as follows: person absorbed blood stream of may be a matter of de- age, size, physical

‘[U]nusualness same condition of gree, may appear not of kind. It in the Mr. Schmalz. duration, strenuousness, distance, or conflicting There medical evidence as other circumstances involved the ex- to the effect Schmalz. assignments.’ of routine ecution IB physi- Dr. Mark Hinrichs Schmalz’s A.Larson, The Law Workmen’s cian. Schmalz asserts that Dr. Hinrichs’ Compensation, 38.64(a)(9) (1986); § opinion is due enhanced to his research and Chapman also See v. Wilkenson people number of he had consulted Company, Kan. 667 P.2d 888 regarding the gases. nature of the How- Procon, Inc., (1977); Hamilton v. ever, references, checking we note (1969).” Pa. 252 A.2d 601 they are not efforts of research Dr.

Grace, supra at 580-81. Hinrichs, reports but are provided rather lated he cause before before gases than otherwise. mately repairing refrigeration garage, He had been must be men’s dence, however, to disclose the amount of ee’s 581; complete garage. Compensation Bureau, or Our examination for unusual stress his five exposed however, Nelson applied according after his relocation shop which Schmalz was heart attack. There is no evi years work working Schmalz contends that be to before his for less than one a not properly history. North Dakota Work higher Schmalz had been in his unventilated units for to amount of the to Grace, heart, the employ his exposed ventilated, unventi approxi attack. supra year to tack on November responded: was asked causative factor in Mr. Schmalz’s heart at- whether ter a Dr. Hinrichs assumed a played of sclerotic tion in the oxygen carrying capacity of creased cardiac tack. coronary artery, coupled “Given the lengthy ^[*] blood, or a role in the not the toxic fumes would be a number ^[*] by *6 by I think that pre-existing hypothetical question, which lesion, Schmalz’s Mr. Schmalz’s blood n a 1984. Dr. Hinrichs facts, supply patient’s narrowing n ! scenario with this attorney.3 Dr. Hinrichs on the basis n ! may heart at- attorney of the reduc- a de- n have Af- question answer, a “That’s difficult to reasoning We conclude that a mind could I say because can’t certainty, honest found, did have as that appears but it that the information prove failed by weight concerning gases, very these it well may the evidence from the entire record that his triggering, have had a precipitating role attack precipitated by heart unusual problem in the which he encountered. stress. * * * * * * prove by also needs to preponderance Now, “Q evidence that Okay. Doctor, you’re when heart attack was your related to his giving opinion here, you’re what him, 3. Hinrichs Dr. testified that he relied on give infor- we do not it as much credence as provided attorney. mation to him Schmalz’s we personal would have had it been research helpful While this information have been done Dr. Hinrichs. blood, any- or might trapped opportunity had an you haven’t saying is situation, thing that? you like study the personally go- process was while this any specific there studies weren’t not do “A We did tified: During rect, you were things in one, you can’t bly can be been lutely, swering specifically process? well the rest of Schmalz’s tacks wasn’t attack? came that heart “A And “Q "Q Okay. “A “A Yes.” “Q “Q And Mr. Schmalz was “A “A That’s correct. “Q “A That’s correct. “Q on, narrowing of the likely an he was have talked cross-examination, through or a happen? And isn’t But Well, That’s Something like that Mr. Schmalz certainly, positively. and so he? medicine, referring to. I described? happened. that this did absolutely say wasn’t he? attack, you’re as I am about as what the usual way, you attack is the explanation saying likely explanation or, earlier, I can never situation, is that cor- spasm you’re saying and he to the scenario say sure as artery and a clot That’s contribute Dr. that, way heart at- is that blocked that, had the heart Hinrichs tes- overweight, I, at risk *7 may very you possi- one that’s I was an- right. say abso- for Mr. number he had to the in all — that off Walter Frank. Dr. Frank testified: gases were —Mr. really was no test—believe this is not tests time? foreign substances. looking for the your review of the The Bureau whether the more we can search exposure to sion to form an air, but I— gases, and disease. He tions to a statistical basis angina and then blood the Most nine-out-of-ten “A That’s “Q Okay. “Q “A. ^[*] literature, certainly gases such made that would determine what of the time we angina where blood clot forms. ... in this tell Well, Schmalz’s it would does have likely precipitating event ^[*] you Finally, I’m present in his (cid:127) clot deposed an unknown level of had what we I right.” So, case, presence of criticism—there think, how sorry, opinion response ^[*] probability had a heart forming in that area. have been a clot we know From records and heart atherosclerotic heart Doctor, much he had don’t know other I ^[*] concerning what cardiologist, don’t my opinion, my reading of gas you call attack words, blood there is over that was questioning, me, based progressive attack. On ^[*] was in the think that had occa- preinfarc- toxins, were no your why the Doctor, at the or an ^[*] was, Mr. due Dr. re- or as “A Yes. to the hem- which stick monoxide carbon reading? than “Q high He had cholesterol more in the bloodstream oglobin the the There is amount of the amount of the “A Mm-hmm. “A “Q High That’s correct.” no evidence blood gases in the air nor gases in Schmalz’s blood pressure? in the record as to as to some heart oxygen and case how am not able ^[*] how does, many of them were much, sfs attacks, to tell. ^[*] what but play gases ^[*] in this an—a there, were ^[*] particular part I ^[*] just In re- you of the heart attack. would need at the time what “A. I think previ- Dr. Hinrichs had is questions, exposure in the room sponse to than even better patient ously testified: to the of evidence bloodstream, it’s because gas in his the “Q you any do blood stud- Okay. Did caus- that’s gas in the bloodstream any gases that ies that would show 824 Thus, undisputed opinion I like

ing problems, the and would medical alleged what the level of carbon mo- the have seen causal between the gases other were in required noxide or the blood- injury course and the was not person the stream time the was hav- Syverson. heart attack.” however, Syverson distinguishable, is evidence, assessing injury

In such medical we from the at hand. Schmalz’s case previously said: was a is such a com- heart which legislature mon occurrence that has Bureau needs make reasonable “[T]he adopted special recovery. Sy- rules for clarify discrepancies arising efforts to verson, previously the claimant had not reports. out of inconsistent medical This any disability. suffered from shoulder includes where clarification situations Schmalz, hand, conflicting on other had suffered is medical evidence disease, from an heart physicians. atherosclerotic had different See Claim of high high cholesterol, pressure, blood (N.D.1981). 304 N.W.2d 412 Bromley, overweight. Finally, there was evi- Notwithstanding expansion, we must Syverson dence claimant’s con- keep in mind the basic rule which was lifting tinual had a “wear and tear” effect Bromley by stated in Justice Sand who on shoulder. There no evidence in first enunciated our medical evidence dis- ‘Normally, the instant case of the amounts crepancy rule: of is within the to, exposed nor province of the Schmalz was of the effect agency, administrative courts, of weigh conflicting of him. not the medi- opinions cal and to resolve these con- independent findings As we not do make Weinberger, flicts. v. F.2d Hassler 502 fact, ask but whether or not a (7th Cir.1974).’ Howes v. Workers reasoning reasonably mind could have de- Bureau, Compensation 429 N.W.2d termined, Bureau, did the that Schmalz’s (N.D.1988), citing supra Bromley, precipitated attack was not un- at 417.” stress, usual not related Hayden North Dakota Workers Com- employment, to his we must affirm the Bureau, pensation findings. Bureau’s As the district court affirmed the find- In Syverson v. North Dakota Work- ings fact, law, conclusions of and order Bureau, men’s Comp. N.W.2d 688 Compensation of the Workers (N.D.1987), “causally we discussed the re- district court is affirmed. requirement. employment” Syver- lated to son asserted his arthritic shoulder con- *8 JJ., GIERKE, VANDE WALLE and brought dition was on or worsened his concur. employment as a furniture appliance Justice, LEVINE, concurring in result. claim, rejecting handler. In Syverson’s “ Bureau asserted that ‘the evidence does There nowas evidence at all what about speculate no more than as to possible volume of toxic in the environment is any lifting causal between necessary oxygen to reduce the level of ” injury.’ In affirming the arthritic the claimant’s bloodstream so as to contrib- district court’s reversal of the denial of ute to a attack. The heart Bureau’s Find- said: benefits we acknowledges pres- No. VII that the

“While Dr. Mardirosian have been ence of certain environment medically “in pinpoint precise quantities,” unable to sufficient will affect origin Syverson’s problem arthritic health of shoulder muscle. The is condition, we testimony believe that no told one the Bureau what were, clearly quantities” general demonstrates he considered “sufficient as a Syverson’s employment to proposition. be a substan- While it would unrealistic contributing tial develop- require blood-gas factor in the studies of a claimant ment of his precise arthritis.” at the time of heart attack or and an to noxious attack heart- the environment of noxious fumes level Accordingly, I result. gases. concur support a attack to the time of heart not unrealistic compensation, claim for J., MESCHKE, concurs. provide the Bureau require a claimant necessary to inform the scientific data its and to warrant its decision on causation circumstantial evidence.

reliance on agree did not that the Bureau

I therefore not did determining claimant

err relationship between causal

prove a