ERICKSTAD, Judge (on reassignment).
George E. Haggart, Inc., hereafter referred to as Haggart, appeals from a judgment of the District Court of Grand Forks County dated March 2, 1966, affirming an order of the Workmen's Compensation Bureau of November 9, 1964, which determined that the claimant, Melvin Ziegler, was permanently and totally disabled.
Before this award and judgment the Bureau, by order dated September 27, 1962, had awarded Mr. Ziegler $2,900.31, of which $2,214 represented temporary total
In Mr. Ziegler's initial claim with the Workmen's Compensation Bureau dated November 7, 1961, he asserted that while employed by Haggart on July 14, 1961, he worked inside a large pipe 16 feet deep in the ground; that there was a cold draft coming through the pipe; that there was a great difference in temperature between the surface of the ground, where he worked part of the time, and the pipe, in which he worked part of the time; and that from this difference in temperature he acquired a severe case of pneumonia which later brought on thrombophlebitis of the right leg.
On September 16, 1963, the Bureau determined that Mr. Ziegler was permanently and totally disabled. When Haggart was informed of this decision, it demanded and obtained a rehearing.
In its application for a complete rehearing Haggart sought a rehearing on (1) whether the pneumonia was fairly traceable to Mr. Ziegler's employment; (2) whether the thrombophlebitis was fairly traceable to the pneumonia or fairly traceable to his employment; and (3) whether they were preexisting conditions.
At the rehearing Haggart contended that the pneumonia which first hospitalized Mr. Ziegler was not caused by his employment; that from the first hospitalization for pneumonia he suffered no thrombophlebitis; and that only after a second hospitalization for pneumonia did he suffer from thrombophlebitis and only then was he disabled. Notwithstanding this contention and evidence submitted in an attempt to prove it, the Bureau reaffirmed its decision that Mr. Ziegler was permanently totally disabled and that his injuries were received in the course and scope of his employment by Haggart. The trial court affirmed the decision of the Bureau, and it is from the judgment entered on the trial court's order that Haggart appeals, demanding trial de novo.
Haggart does not deny that Mr. Ziegler is permanently totally disabled. It does, however, contend on this appeal, as it did before the Bureau and the trial court, that Mr. Ziegler's disability did not arise from his employment by Haggart.
A part of our Administrative Agencies Practice Act which relates to this appeal reads:
North Dakota Century Code.
Section 65-05-03 provides that the decisions of the Workmen's Compensation Bureau within its jurisdiction are final except as provided in chapter 65-10. The pertinent part of that section reads:
In 1961 chapter 65-10 provided only for an appeal by the claimant. The pertinent parts of § 65-10-01 then read:
North Dakota Century Code.
It is interesting that even in 1961 § 65-09-03 provided for an appeal by an uninsured employer, but it was not until 1963 that the legislature permitted the insured employer to appeal a decision of the Bureau. See Laws of North Dakota 1963, ch. 427, § 3. As Haggart was an insured employer, it did not have the right to appeal from the September 27, 1962, award.
It is Mr. Ziegler's position that the 1962 decision of the Bureau is res judicata of the nature of the injury and its work-connection. It is his view that, although the order described the nature of the injury merely as pneumonia, the use of the term pneumonia was merely to indicate the initial disabling cause, as evidence submitted at the hearing discloses that if he was disabled for the 52-plus weeks as the order finds, it was not from the pneumonia alone but also from its aftereffect, thrombophlebitis, and thus that the 1962 decision established that he suffered from pneumonia and thrombophlebitis as the result of his employment by Haggart.
In support of his position he refers us to a statement in Arthur Larson's work on the law of workmen's compensation:
Haggart, however, contends that § 65-05-04 prevents any decision of the Bureau from ever becoming res judicata of any issue. That section reads:
In support of its position it refers us to the following statement in American Jurisprudence:
The case cited in support of this reference is that of Industrial Commission v. Dell, 104 Ohio St. 389, 135 N.E. 669, 34 A.L.R. 422 (1922).
It would serve little purpose for us to cite the many decisions of this court in which it has been held that the Workmen's Compensation Bureau has continuing jurisdiction to modify its awards, but it should be noted that as recently as 1963 this court recognized the Bureau's continuing jurisdiction. Knutson v. North Dakota Workmen's Compensation Bureau, 120 N.W.2d 880, 883 (N.D.1963).
There appears to be nothing in our statute and no case law in our state which limits the Bureau to reopening an award only upon proof of a change in the claimant's condition. Accordingly, we must hold that the 1962 award was not res judicata of any issue, and that therefore when the Workmen's Compensation Bureau, in response to Haggart's petition for a rehearing of the 1963 award of permanent total disability, granted the petition, and at the hearing permitted Haggart to go into all the issues, not just that of whether the injury was temporary or permanent, the case was before the Bureau just as though those issues were being faced for the first time.
Notwithstanding that fact, following the rehearing the Bureau, in November 1964, merely executed an order affirming that Mr. Ziegler was permanently totally disabled. What the Bureau was affirming was in effect its previous resolution of September 16, 1963.
In neither the resolution nor the affirmation of the resolution did the Bureau set forth separate findings of fact and conclusions of law upon which it based its decision, which it should have done, pursuant to § 28-32-13.
The Bureau, before making the permanent disability award, apparently also failed to serve written notice upon the employer, pursuant to § 65-05-03.
Neither of these failures has been argued by the employer as a basis for relief, and as the employer has now had notice and has had ample opportunity to present evidence supporting its position, and as it is now quite obvious, following the second hearing, that the Bureau believes that Mr. Ziegler's thrombophlebitis resulted from the pneumonia and that his pneumonia resulted from his work, we shall assume, so that we may reach the merits of this case, that the Bureau has definitely determined that Mr. Ziegler first suffered from pneumonia and then thrombophlebitis as a result of his work with Haggart and that they have permanently and totally disabled him.
We can see no benefit in remanding the case so that the Bureau could properly so state, pursuant to the provisions of § 28-32-13. There is precedent, no doubt, for remanding the case so that the statutes could be properly complied with, but in this case that would result only in additional delay. A precedent for ignoring the procedural defects is Bernardy v. Beals, 75 N.D. 377, 28 N.W.2d 374 (1947), in which Judge Morris, speaking for this court, found similar procedural defects to be censurable but not jurisdictional. In his words, "Our regard for the expedition of justice prompts us to go directly to the merits."
But before we consider the merits, in light of the right of appeal which the insured employer now has, we think it important that we consider what the scope of review in the Supreme Court should be.
Incidentally, from a procedural standpoint, on Haggart's appeal from the November 9, 1964, decision of the Bureau affirming its previous order awarding permanent total disability, the district court issued
Haggart has demanded a trial de novo in this court, and it is this demand that causes us to consider the scope of review in this court.
When the Workmen's Compensation Act was first enacted in 1919, all jurisdiction of the courts over the causes contemplated by the Act were abolished except as provided in the Act itself, as indicated by § 1:
Laws of North Dakota 1919, ch. 162, § 1.
Section 17 provided that the decisions of the Bureau on all questions within its jurisdiction should be final except when the Bureau denied the right of a claimant to participate at all in the Workmen's Compensation Fund. The pertinent part of that section reads:
It should be noted that upon appeal to the district court the trial was to be "in the ordinary way." The original act did not specify the scope of review in the Supreme Court. We observe, however, that as early as 1923 this court held that an appeal in a workmen's compensation case was not triable de novo in the Supreme Court. Gotchy v. North Dakota Workmen's Compensation Bureau, 49 N.D. 915, 194 N.W. 663, 667 (1923).
In 1935, § 6 of ch. 285 amended § 17 of the original act by providing that appeals to the Supreme Court should be de novo. The pertinent part of that section reads:
Laws of North Dakota 1935, ch. 286, § 6.
In 1941 the Administrative Agencies Uniform Practice Act was enacted. Under the procedure prescribed by §§ 17 and 18 of ch. 240 of the 1941 session laws, in proceedings before an administrative agency, all evidence must be adduced in the hearing before the agency. These provisions are
When the code was revised in 1943, § 65-1001 (now N.D.C.C. § 65-10-01) provided that appeals shall be taken in the manner provided in ch. 32 of the title Judicial Procedure, Civil. The reviser's notes indicate that this was done to conform to ch. 240 of the 1941 session laws, which prescribes uniform rules of practice for administrative agencies.
So the pertinent sections for our consideration of the scope of review today are § 65-05-03, which had as its origins § 17 of ch. 162 of the 1919 session laws and § 6 of ch. 286 of the 1935 session laws, and § 65-10-01, which had as its origins the same statutes, both sections being part of the Workmen's Compensation Law; and §§ 28-32-17, 28-32-18, and 28-32-19, which had as their origins §§ 17, 18, and 19 of ch. 240 of the 1941 session laws, the Administrative Agencies Uniform Practice Act.
Although many specifications of error were asserted in the notice of appeal, the argument in this case has been reduced basically to an issue of facts. That being the case, we think the provisions of § 28-32-19 are especially pertinent:
In this case the trial court, in affirming the Workmen's Compensation Bureau, in effect found that the findings of fact made by the Bureau were supported by the evidence, and that the conclusions and the decision of the Bureau were supported by its findings of fact.
Section 28-32-19 must be considered in light of § 28-32-21:
In 1957, in Gullickson v. North Dakota Workmen's Compensation Bureau, 83 N.W.2d 826 (N.D.1957), for the first time in a workmen's compensation case involving an insured employer (relying on a Public
However, we are now inclined to believe that a trial de novo in the district court on the record made before the administrative agency and in this court on an appeal from the district court, as it relates to a determination of the facts, should be limited to determining whether there is substantial evidence to support the administrative agency's findings of fact. Any other construction of the statutes ignores the provision of § 28-32-19 which requires that after a hearing on an appeal from a decision of an administrative agency, the court shall affirm the decision of the agency unless it shall find that the findings of fact made by the agency are not supported by the evidence.
If the provision in § 65-01-01 (originally § 1 of ch. 162 of the 1919 session laws) abolishing jurisdiction of the courts over workmen's compensation cases and the provision in § 65-05-03 (originally § 17 of ch. 162 of the 1919 session laws) making decisions of the Workmen's Compensation Bureau final are to have any meaning, § 28-32-21, providing for review in the Supreme Court, must be construed so as not to substitute the judgment of the Supreme Court for the judgment of the Workmen's Compensation Bureau.
This will not be the first time that this court has stated and applied the substantial evidence rule to appeals in administrative agency proceedings, for only one year before Gullickson, this court, in a Public Service Commission case, said:
For our most recent statement and application of the substantial evidence rule in a public service commission case, see Application of Otter Tail Power Company (Cass County Electric Co-op. v. Otter Tail Power Co.) 169 N.W.2d 415 (N.D.1969).
Current thought supporting the view that judicial review of administrative agency decisions should be limited is contained in American Jurisprudence:
Further, it is interesting to note what the next section of the same work says about the constitutional necessity for such limited review:
We recently had some experience with this constitutional necessity principle, when we found it necessary to declare an annexation statute unconstitutional, as a delegation of nonjudicial duties to the courts. See City of Carrington v. Foster County, 166 N.W.2d 377, 385 (N.D. 1969).
Accordingly, we shall examine the evidence in this case to determine whether there is substantial evidence to support the finding of the Bureau that Mr. Ziegler incurred pneumonia and, subsequently, thrombophlebitis in the course and scope of his employment with Haggart.
Mr. Ziegler testified that he started to work for Haggart on May 18, 1961, and that his work consisted mainly of setting grade until the last three days of his employment, when he acted as a pointer in the construction of a storm sewer at the Grand Forks Airbase. His complaint stated, and he testified at the hearing before the 1962 award, that his last day of work for Haggart was July 14, 1961, whereas it developed that his last day of work was actually July 12, 1961; but in any case, it is clear that he worked as a pointer for three consecutive days during July 1961 just before his contraction of pneumonia, for which he was hospitalized on July 17. Some pertinent testimony concerning Mr. Ziegler's employment and the occurrence of his illness, given at the second hearing, covering the last three days of his employment, reads:
Q. * * * What was the nature of your work?
A. Starting at 7:00 in the morning-well, there was no ditch open, so we had to wait until they opened the ditch until they started digging. They had dug a little ditch before, and we had to shovel dirt in on the sides of the pipes and tamp them down.
Q. What else did you do?
A. And, after they had a couple-they had dug about three lengths of pipe-and then they laid three lengths of pipe, and then you'd have to crawl back in and point them up. They never laid-dug one-for one length of pipe at a time-it was always around two and three lengths-one pole with a backhole.
Q. So that they were laying three at a time?
A. Three at a time.
Q. And when you muddied up these joints, you went back three lengths?
A. That's correct.
Q. And would you describe the conditions in there?
A. It was cold-cool and cold in there and drafty.
Q. And what was your own feeling at that time, how did you-were you perspiring?
A. Yes, definitely.
Q. Did you stay in the tunnel all the time?
A. No, I was in and out.
A. I'd be muddying up the pipes inside-sealing the cracks, and when I was outside, then I'd seal the outside joints.
Q. And was there a difference in temperature from the inside to the outside of the pipes?
A. I'd say there was a great difference.
Q. There is a great difference between inside and outside?
A. That's right.
Q. And did you ever during the day go to the surface to work?
Q. How did you get up there?
A. On a ladder.
Q. And what would you do up there?
A. Up there. Shovel dirt on the side of the pipe, when they were digging the next-while they were digging the next-while they were digging for the next pole-it took them about a half hour-sometimes longer.
Q. Now when you quit on the 12th-what happened-what happened that day?
A. That day-I really didn't feel too good that morning when I went to work.
Q. On Monday and Tuesday of that week, what were you doing?
A. I was doing the same type of work.
Q. You were doing the same type of work?
A. I started when they laid the first pipe on that part of the storm sewer.
Q. Okay-what time did you quit work on the last day that you worked on the week of the 10th?
A. I'm sure it was 5:30.
Q. Uh huh-is that the general quitting hour?
Q. How did you feel at that time?
A. I didn't feel very good.
Q. Describe your condition.
A. I was-I don't know-I just felt chilled, cold-I just didn't feel good.
Q. Then what happened? You went home. * * *
A. I went home.
Q. What did you do there?
A. Well, I tried to eat supper and I couldn't-went to bed and I stayed there until the following Monday-when my wife insisted that I go to the Doctor-I thought I'd get better.
Q. The following Monday, that was the 17th of July, 1961?
A. That's correct.
Q. You went to see Dr. Marshall?
A. That's right.
Q. And you were put in the hospital?
A. That's correct.
Q. With pneumonia?
A. That's right.
Q. Describe your condition between July-the last day you worked the week of July 10th and the time you went to the hospital.
A. Well ah-I was chilled, cough, I just generally felt bad-I hurt all over.
Q. Did you stay * * *
A. I stayed at home-right in the house.
Q. Hu huh. How long were you in the hospital?
A. I was in the hospital five days.
Q. From July 17th to August 22nd?
A. That is correct.
A. That's correct.
Q. And then-what did you do?
A. Well I came home and ah-I just couldn't seem to get better, it didn't want to get better.
Q. When did you first notice the pain in your leg?
A. About 10 days later.
Q. Later from what?
A. From the day I left the hospital—week to ten days.
Mrs. Ziegler corroborated her husband's testimony to the effect that he came home ill the last day of his employment for Haggart and that he stayed home, running a fever, with chills, until he was hospitalized at the Deaconess Hospital in Grand Forks on July 17. She further testified that he started complaining of his right leg shortly after he got out of the hospital the first time and that on doctor's orders she put hot packs on his legs.
Both Mr. Ziegler and his wife testified that before his employment with Haggart his health was good.
Five medical doctors testified in this case.
Dr. William Keig testified in response to a hypothetical question aimed at determining whether the pneumonia diagnosed on July 17 was traceable to Mr. Ziegler's employment. The question follows:
His answer follows:
Dr. Keig was then asked a hypothetical question designed to determine whether the thrombophlebitis resulted from the pneumonia and consequently from Mr. Ziegler's employment:
In response to this question, after numerous objections had been made and questions raised by counsel for Haggart intended to indicate that thrombophlebitis can result from trauma and other things, Dr. Keig made these statements:
Notwithstanding that counsel for Haggart posed a hypothetical question based upon Haggart's view of the facts that varied from the testimony of Mr. Ziegler, which was to the effect that Mr. Ziegler had lost twenty-five pounds of weight in the period of one month preceding his pneumonia, that he had imbibed alcohol excessively in the months preceding his pneumonia, and that the temperature differential from the surface to the bottom of the ditch was approximately only ten degrees (whereas Mr. Ziegler had testified that he estimated the differential at forty degrees), Dr. Keig answered that in his opinion and in all probability Mr. Ziegler caught pneumonia from the working conditions.
Dr. Robert Marshall, the doctor who first attended Mr. Ziegler on his hospitalization on July 17 and who cared for him before leaving for the service during the rest of the month of July and part of August, in response to a hypothetical question posed by counsel for Haggart, which was designed to determine whether alcoholism could have been the probable cause of the pneumonia, responded in the affirmative. He said he could not definitely trace the pneumonia to either the alcohol or the working conditions. He did, however, concede that he saw Mr. Ziegler on several occasions after his discharge from the hospital because of persistent pulmonary infections and conceded that he had included in his report a statement that Mr. Ziegler had begun complaining of pains in his right leg following his discharge from the hospital. This was before his second hospitalization on October 11, 1961, at which time he was diagnosed as having pneumonia and thrombophlebitis.
Dr. Walter Dailey testified that he first saw Mr. Ziegler on October 3, 1961, when Mr. Ziegler's regular doctor, Dr. Marshall, was called into military service. Dr. Dailey was asked the following hypothetical question in an attempt to ascertain whether there was a causal connection between Mr. Ziegler's work and the pneumonia which was diagnosed on July 17, 1961. The question follows:
Dr. Robert C. Painter, who examined Mr. Ziegler for the Workmen's Compensation Bureau, was posed the following hypothetical question:
Subject to questions raised by counsel for Haggart intended to point out that many other factors could cause pneumonia, the doctor answered:
And then in response to a hypothetical question designed to determine whether the thrombophlebitis was traceable to the pneumonia, he answered that he thought that the time element made it very definitely a complication of the pneumonia.
He later described the causes of thrombophlebitis as follows:
He agreed on cross-examination that his opinion might be different if he accepted Dr. Dailey's estimate of the onset of the phlebitis as only one week prior to the second hospitalization.
Here it should be noted, however, that Dr. Dailey was merely estimating the onset of the phlebitis, without having seen the patient before October 3, 1961.
Mr. Ziegler's second hospitalization was from October 11, 1961, to October 18, 1961.
Dr. James Murray testified that in his opinion the pneumonia was not due to the working conditions. This opinion was not in response to a hypothetical question but to a question which asked him whether he had an opinion after reviewing all the medical records and hearing the testimony in the case. He answered, "Definitely, yes," to the following question: "[D]o you think that a weakened, resistant power of a Mr. Ziegler would be more probably the cause of pneumonia than the thermochanges?"
In response to a hypothetical question posed by counsel for Haggart designed to determine whether the thrombophlebitis was the result of the pneumonia, a question which included in its facts that nine weeks intervened between Mr. Ziegler's discharge from the first hospitalization due
There is other testimony on the part of persons called on behalf of Haggart which, summed up, is to the effect that Mr. Ziegler regularly frequented bars during the three months before his first hospitalization for pneumonia in 1961, and that while in the bars he consumed alcohol to excess. One of the witnesses testified that if Mr. Ziegler stayed with him throughout the night, he probably drank between ten and fifteen whiskeys per night; however, Mr. Ziegler denied that he ever drank ten to fifteen whiskeys and said that he usually drank no more than three to four beers. No testimony was submitted to show that Mr. Ziegler consumed alcohol to excess between the date that he left work ill, just before his first hospitalization for pneumonia, and the time of his second hospitalization for pneumonia and thrombophlebitis.
Viewing all of the evidence, not just that which we have recited or summarized in this opinion, in light of the substantial-evidence test, we hold that the Bureau's findings to the effect that in the course and scope of Mr. Ziegler's employment by Haggart he incurred pneumonia which ultimately brought on thrombophlebitis are sustained by the evidence.
We are also of the view that the evidence sustains the Bureau's finding that Mr. Ziegler is presently one hundred per cent disabled as a result of the pneumonia and the thrombophlebitis. Accordingly, we affirm the trial court's judgment affirming the Workmen's Compensation Bureau's decision.
STRUTZ, PAULSON and KNUDSON, JJ., concur.
TEIGEN, Chief Justice (dissenting).
The majority have established a rule in this case that the Supreme Court on an appeal from the district court in a Workmen's Compensation case, as it relates to a determination of the facts, is limited to determining whether there is substantial evidence to support the Bureau's findings of fact. I agree with this principle of law as to the scope of our review. However, this rule precludes a review in this case because the Bureau made no findings of fact when it made its permanent disability award. Bernardy v. Beals, 75 N.D. 377, 28 N.W.2d 374 (1947), cited by the majority, does not constitute precedent for ignoring procedural defects of this grave nature. In Bernardy the Workmen's Compensation Bureau did make brief findings of ultimate facts essential to its decision. These findings are set forth in the opinion and were found sufficient to show the basic facts upon which the Bureau based its decision. In this case we have no findings whatsoever in regard to the facts upon which the permanent award is based. Nowhere in the entire record submitted by the Bureau is there a finding by the Bureau that Ziegler's thrombophlebitis was causally connected to the pneumonia or to his work, or that they have permanently and totally disabled him.
Section 28-32-13, N.D.C.C., provides in part:
In Hvidsten v. Northern Pac. Ry. Co., 76 N.D. 111, 33 N.W.2d 615 (1948), in construing this statute, this court said:
The court then found that certain designated findings of fact were not findings of fact at all but merely references to the evidence and do not, under the statute, constitute a basis for the agency's order. It held "under the express language of the appeal statute, Section 28-3219, supra [the same statute is now in effect as Section 28-32-19, N.D.C.C.], the order of the Commission in this case must be reversed." The court adopted the following syllabus in that case:
In another case, Kuhn v. North Dakota Public Service Commission (N.D.), 76 N.W.2d 171 (1956), this court reaffirmed its position when it held:
In the text of its opinion the court stated that:
The above-cited cases involve appeals from the Public Service Commission. The Public Service Commission and the Workmen's Compensation Bureau are both administrative agencies of the State. Section 28-32-01, N.D.C.C.; Petition of Village Board of Wheatland, 77 N.D. 194, 42 N.W.2d 321; Schnoor v. Meinecke, 77 N.D. 96, 40 N.W.2d 803; Knutson v. North Dakota Workmen's Compensation Bureau (N.D.), 120 N.W.2d 880. Therefore, both are governed by the provisions of Section 28-32-13, N.D.C.C., requiring that they make findings of fact and the courts are governed as to the scope of review on appeal as to both by Sections 28-32-15 through 28-32-21, N.D.C.C.
The majority do not reject the interpretation of these statutes in the two cases I have cited nor do they distinguish them. Bernardy is not the precedent for a situation