This is an appeal by Debbra K. Satrom from a judgment of the District Court of Cass County, dated May 11, 1982, affirming an order of the North Dakota Workmen's Compensation Bureau [Bureau], which denied Satrom's claim for benefits. We reverse the judgment of the district court and remand the case to the Bureau for further proceedings consistent with this opinion.
Satrom is a hairdresser who was formerly employed for a period of approximately six years at the Hair Shack in Fargo. Her work duties included cutting, styling, and shampooing hair as well as giving permanents and "tints" to clientele of the salon. These activities required some lifting, and repeated bending, twisting, and turning of the lower back. Most of these movements were associated with working on patrons' hair over a sink located at Satrom's station at the salon.
While working at the salon on the morning of July 24, 1980, Satrom experienced severe back pains and was then transported and admitted to the hospital. She had also suffered less extreme back pains on the evening of the previous day—which was a
Her attending physician diagnosed Satrom to be suffering from an acute disc syndrome, and, pursuant to the doctor's advice, she did not return to work for a period of fourteen weeks.
Satrom filed a claim with the Bureau on August 6, 1980, seeking medical expenses and disability benefits and alleging in the Bureau's Compensation and Medical Expense Claim form that her back injury was caused by her job-related duties of "shampooing and setting hair, then doing a perm. Bending over at times and standing on hard cement floor". The Bureau dismissed her claim on October 3, 1980. She then requested a formal hearing, which was held on April 23, 1981. Satrom, a co-worker, and the owner of the Hair Shack, were present and testified at the formal hearing. Dr. William T. Ferguson, an orthopedic surgeon and Satrom's attending physician, also testified through deposition. The Bureau issued its findings of fact, conclusions of law, and order affirming dismissal on June 1, 1981. The Bureau made the following findings of fact and conclusions of law:
On July 8, 1981, Satrom appealed the Bureau's order to the District Court of Cass County. The district court entered its memorandum opinion upholding the Bureau's order on April 28, 1982, and judgment was entered on May 11, 1982.
Satrom in her appeal from this judgment raises the following issue for review:
Before addressing the specific issue as set forth by Satrom, we believe it necessary to initially determine whether or not the type of injury alleged in this case is compensable under the North Dakota Workmen's Compensation Act. The Bureau, during oral arguments before this court, took the position that in order to satisfy the "injury by accident" requirement of § 65-01-02(8) of the North Dakota Century Code, a claimant must be able to point to a sudden, unexpected, unforeseen, or unusual traumatic occurrence resulting in physical damage or harm, traceable to a definite time, place, or circumstance. This is not the law in our State.
In order to prove a right to participate in benefits available from the Bureau, the claimant must establish by a preponderance of the evidence that he or she was injured in the course of employment and that the resulting disability is causally connected to that employment. Reynolds v. North Dakota Workmen's Compensation Bureau, 328 N.W.2d 247, 248 (N.D.1982); Robert v. N.D. Workmen's Comp. Bureau, 321 N.W.2d 501 (N.D.1982), and cases cited therein; § 65-01-11, N.D.C.C. "Injury" is defined in § 65-01-02(8), N.D.C.C.:
In Stout v. N.D. Workmen's Compensation Bureau, 236 N.W.2d 889, 894 (N.D.1975), this court opted to follow a majority of jurisdictions and adopted the so-called "usual exertion" rule in workmen's compensation cases, stating that "a claim, if otherwise within the terms of the workmen's compensation Acts, is compensable even though the cause is routine and not accidental, if the result is not foreseen, intended, or anticipated". In Stout, supra 236 N.W.2d at 894, we quoted with approval from Larson, Workmen's Compensation Law,§ 38.-00, at 7-9 [currently found at page 7-18 in the 1980 edition thereof]:
Granted, Stout involved a claim for death benefits due to a heart attack and thus the above-quoted language relating to back weakness can be considered obiter dictum. Nevertheless, the underlying rationale of our decision in Stout leads us to the inescapable conclusion that back injuries, such as the injury alleged in the instant case, may satisfy the "injury by accident" requirement of § 65-01-02(8), N.D.C.C., and thus become compensable, not only if the cause was of accidental character, but also if the cause is routine and the result is not foreseen, intended, or anticipated.
We are cognizant of the fact that the Legislative Assembly's amendment of § 65-01-02(8), N.D.C.C., to require "unusual exertion" in cases of heart attack or stroke [see § 2, Ch. 579, 1977 S.L.] came about as a direct result of this court's decision in Stout. Nelson v. North Dakota Workmen's Comp. Bureau, 316 N.W.2d 790, 793 n. 2 (N.D.1982). However, because the Legislature specifically limited its amendment of § 65-01-02(8)
We next determine whether or not the Bureau's findings of fact are supported by a preponderance of the evidence. The Bureau does not dispute the fact that Satrom suffered an injury. Rather, the crux of the instant appeal is whether or not the Bureau's conclusion that the injury suffered by Satrom was not "an injury by accident arising out of and in the course of employment" [§ 65-01-02(8), N.D.C.C.] is supported by a preponderance of the evidence.
The standard that this court must use in reviewing appeals involving workmen's compensation claims was recently set forth in Claim of Bromley, 304 N.W.2d 412, 414 (N.D.1981):
We must affirm a decision of the Workmen's Compensation Bureau unless its findings of fact are not supported by a preponderance of the evidence. § 28-32-19(5), N.D.C.C. Our review of the Bureau's decision involves a three-step process whereby we determine whether or not the findings of fact are supported by a preponderance of the evidence, whether or not the conclusions of law are sustained by the findings of fact, and whether or not the decision is supported by the conclusions of law. Nyhof v. N.D. Workmen's Compensation Bureau, 325 N.W.2d 239, 241 (N.D.1982); Claim of Bromley, supra 304 N.W.2d at 415.
We have defined "preponderance of evidence" in Steele v. North Dakota Workmen's Comp. Bur., 273 N.W.2d 692, 697 (N.D.1978), as "evidence more worthy of belief", or "the greater weight of the evidence" or "testimony that brings the greater conviction of truth". In Power Fuels, Inc. v. Elkin, 283 N.W.2d 214, 220 (N.D.1979), we added:
The Legislature has limited the Bureau to considering only the evidence in the official record (see § 28-32-06, N.D.C.C.) and, thus, this court will review only the record which was before the Bureau, the transcript of the formal hearing, and the evidence presented at the hearing; but we will not consider any material outside of this record. Gramling v. North Dakota Workmen's Comp. Bur., 303 N.W.2d 323, 327 (N.D.1981). Finally, it is important that we remember that the Workmen's Compensation Act is to be liberally construed with the view of extending its benefit provisions to all who can fairly be brought within them. Claim of Bromley, supra, and cases cited therein.
We have reviewed the entire record in the instant case and conclude that a reasoning mind could not have determined, as did the Bureau, that the greater weight of the evidence is that Satrom's injury was neither causally related to her employment nor was it an injury by accident arising out of and in the course of employment.
The Bureau's conclusions appear to be based principally on its finding that Satrom's home activities, including caring for her two children, gardening, and cleaning,
Dr. Ferguson gave the following explanation of acute disc syndrome:
Satrom and a co-worker, Connie Laude, testified as to the lifting and the repeated bending, twisting, and turning movements associated with their jobs. Sandie Werlinger, Satrom's employer, did not dispute the descriptions they gave of their employment duties, but did dispute the precise amount of time spent in an average day performing these duties. Dr. Ferguson, who, as the treating physician and the sole source of expert medical testimony in this matter, supplied records and testified by deposition, repeatedly described Satrom's work activities as "the main contributing factor to the disc problem she has of the low back". In the face of this uncontradicted evidence, we cannot say that the Bureau's decision denying benefits is supported by a preponderance of the evidence.
The Bureau, however, argues that the doctor's opinion was based entirely upon the work history as related to him by Satrom and thus the doctor was not aware of her outside activities in reaching his conclusion. As a result, the Bureau urges that it is more likely that Satrom's injury was more causally related to her home activities, rather than to her work duties. This contention is not supported by the record. The deposition of Dr. Ferguson reflects the following colloquy between counsel for the Bureau and the doctor:
If the Bureau's position is that Satrom's injury must not only be causally related to her employment, but that the employment must be the sole cause of her acute disc syndrome, we do not agree. It is sufficient if the work-related stress is a "substantial contributing factor" to the injury. Nelson v. North Dakota Workmen's Comp. Bureau, 316 N.W.2d 790, 795 (N.D.1982). Thus, "the fact that an employee may have physical conditions or personal habits" which make him or her more prone to such an injury does not constitute a sufficient reason for denying a claim if the preponderance of the evidence indicates that the injury "was causally related to the worker's employment, with reasonable medical certainty", and was precipitated by usual stress. Nelson, supra.
The Bureau also argues that, as the finder of facts, it is not required to adopt per se the testimony or opinion of any witness.
We have previously stated that in claims involving this type of "injury by accident", the "testimony of a medical expert is always desirable and in most cases indispensable to prove" causation. Stout, supra 236 N.W.2d at 892 [quoting from Foss v. North Dakota Workmen's Compensation Bur., 214 N.W.2d 519, 524 (N.D.1974)]. We have also stated that it is proper for the Bureau to take the evidence as a whole, evaluate it, and "arrive at a conclusion consistent with the overwhelming weight of the medical evidence [emphasis added]". Davis v. North Dakota Workmen's Comp. Bureau, 317 N.W.2d 820, 823 (N.D.1982). Most recently, in Roberts v. North Dakota Workmen's Compensation Bureau, 326 N.W.2d 702, 706 (N.D.1982), a majority of this court stated:
We believe our case law clearly indicates that in cases such as the one at bar, where expert medical testimony is desirable if not essential to a determination of causation, the Bureau may not simply ignore competent medical testimony without expressly setting forth in its findings of fact adequate reasons, which are supported by the record, for doing so. See Inglis v. North Dakota Workmen's Comp. Bureau, 312 N.W.2d 318, 323 (N.D.1981). In the present case, the Bureau stated during oral arguments that "perfect common sense" indicates Satrom's injury is not principally attributable to her employment and that the doctor had "apparently taken a personal interest" in the case because he testified as he did. We find nothing in the record to support these bald assertions.
We do not believe that a holding in Satrom's favor will turn our workmen's compensation fund into a general health or accident insurance fund, as the Bureau predicts. See Booke v. Workmen's Compensation Bureau, 70 N.D. 714, 297 N.W. 779, 781 (1941); Sandlie v. North Dakota Workmen's Comp. Bureau, 70 N.D. 449, 295 N.W. 497, 499 (1940). Nor do we believe that this decision will result in allowing employees workmen's compensation benefits for "an ordinary disease of life, to which the general public outside of employment is exposed". Suedel v. North Dakota Workmen'" Compensation Bureau, 218 N.W.2d 164, 172 (N.D.1974). We hold only that where, as here, the claimant alleges a compensable injury and establishes by a preponderance of the evidence that such injury occurred in the course of employment and that the resulting disability was causally connected to that employment, the Bureau's decision denying benefits will not be upheld.
In accordance with Satrom's request for relief, we remand this case to the District Court of Cass County for the purpose of taxing costs and attorney fees against the Bureau, pursuant to § 65-10-03, N.D.C.C. Satrom also requests that our court direct the district court to remand the matter back to the Bureau with an order directing it to fix payments to be made as follows:
Because both the Bureau and the district court determined that Satrom failed to prove that her injury was causally related to her employment and that her acute disc syndrome was an injury by accident arising out of and in the course of her employment, neither made findings as to the amount of compensation and the period for which such compensation should be paid. Thus, these issues were not decided by the Bureau or the district court. For that reason
Accordingly, we reverse the judgment of the district court and remand the case for further proceedings consistent with this opinion.
ERICKSTAD, C.J., and PEDERSON, VANDE WALLE and SAND, JJ., concur.
For a discussion of the relationship between § 65-10-02, N.D.C.C., and Chapter 28-32, N.D.C.C., our Administrative Agencies Practice Act, see the specially concurring opinion of Justice VandeWalle in Roberts, supra.