Grotte v. North Dakota Workers' Compensation Bureau

489 N.W.2d 875, 1992 N.D. LEXIS 178, 1992 WL 197840
CourtNorth Dakota Supreme Court
DecidedAugust 19, 1992
DocketCiv. 920048
StatusPublished
Cited by11 cases

This text of 489 N.W.2d 875 (Grotte v. North Dakota Workers' Compensation Bureau) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Grotte v. North Dakota Workers' Compensation Bureau, 489 N.W.2d 875, 1992 N.D. LEXIS 178, 1992 WL 197840 (N.D. 1992).

Opinions

ERICKSTAD, Chief Justice.

Timothy Grotte appealed from a district court judgment affirming the dismissal of his claim for benefits by the North Dakota Workers Compensation Bureau, because the claim was untimely filed. We affirm.

Between October 1985 and July 1988, Grotte worked as a field technician for Phillips Petroleum Company (Phillips). Grotte’s job required him to work around chemicals that irritated his lungs. In June 1987 Grotte was hospitalized with lower right lung pneumonia with pleurisy. Grotte’s lung condition improved until he resumed working. On November 23, 1987, Grotte’s doctor advised him that his lung condition was attributable to and aggravated by the chemical fumes that he was exposed to at the workplace. Each time that Grotte would take sick leave, thereby removing himself from the chemical environment at work, his condition would clear. Grotte was “laid off” his job with Phillips in July 1988. His lung problems did not [876]*876reoccur until he resumed work in March 1989 with another company, where he once again worked in the oil fields around chemicals.

On May 17, 1989, Grotte filed a claim with the Bureau for benefits relating to his lung condition. The Bureau denied Grotte’s claim on the ground that it was not timely filed. Grotte appealed to' the district court, which affirmed the Bureau’s dismissal, and Grotte then filed this appeal.

Section 65-06-01, N.D.C.C., specifies the time period within which an injured worker must file for workers compensation benefits:

“All original claims for compensation must be filed by the injured worker ... within one year after the injury.... When the actual date of injury cannot be determined with certainty the date of injury must be the first date that a reasonable person knew or should have known that the injury was related to employment.”

Under this statute the period for filing a timely claim for an injury whose date of occurrence is uncertain “begins on the first date that a reasonable lay person, not learned in medicine, knew or should have known that the injury was related to his or her employment.” Evjen v. North Dakota Workers Compensation Bureau, 429 N.W.2d 418, 420 (N.D.1988). The Bureau determined that the one year limitation period began to run in November 1987, and that Grotte’s May 1989 claim was untimely. Grotte asserts on appeal that the Bureau’s conclusion is wrong, because the Bureau made no specific finding that Grotte knew or should have known that he had a “com-pensable” injury in November 1987.

In White v. North Dakota Workers Compensation Bureau, 441 N.W.2d 908, 910 (N.D.1989), we held that Section 65-05-01, N.D.C.C., “requires knowledge of a compensable injury to begin the period for filing a claim.” The Bureau found that Grotte “reasonably knew the work relatedness of his condition in November of 1987.” Implicit in that finding is that Grotte knew he had a compensable injury by November 1987. Although the Bureau does not specifically refer to the term “compensable” in its findings, Grotte cannot seriously argue that his condition was not compensable by November 1987. He did not make any such argument before the Bureau or the district court. The record evidence is undisputed that by November 1987 Grotte had received medical treatment for his lung condition and had missed a considerable amount of work because of his condition. The evidence also reveals that Grotte had used so much sick leave that he began receiving only partial payments for days missed and that Grotte was aware, by November 1987, that workers compensation benefits could have provided him with more pay than the partial sick leave payments he was receiving from his employer.

Grotte relies upon Teegarden v. North Dakota Workmen’s Compensation Bureau, 313 N.W.2d 716 (N.D.1981), to support his argument that he did not have reason to know that he was suffering a compensable injury in November 1987. In Teegarden, the claimant worked at a grain elevator. He developed respiratory problems, and in 1969 his doctor advised him to avoid dust and to quit smoking. Teegar-den filed a claim for benefits with the Bureau in 1980, asserting that his respiratory problems were due to his consistent exposure to grain dust at work. The Bureau denied his claim on the ground that it was not filed within one year after he knew or should have known that his respiratory problems were related to his job. We reversed the Bureau’s dismissal of Teegar-den’s claim, stating:

“The Bureau made no specific finding of fact as to when the claimant knew or should have known that his disability was fairly traceable to his employment, nor are we aware of any evidence that establishes this fact. The evidence establishes that the physician advised only that the claimant was to avoid dust and to quit smoking, but does not otherwise establish any basis that claimant should have known that the work caused the disease.
* * * * * *
[877]*877“The record contains no evidence of facts indicating that the claimant was informed by anyone that the injury or disease was caused by or was work-related, nor is there any evidence that a worker comparable to the one in question here under the conditions of employment should have known that his injury or disease was caused by work or was work-related.”

Teegarden, supra, 313 N.W.2d at 719.

We disagree with Grotte that as of November 1987 he, like the claimant in Tee-garden, supra, did not have reason to know that he had a compensable work-related injury. Grotte’s own testimony belies that assertion:

“I had bronchitis, asthma, and a burning sensation in the lungs, especially when I was close to any chemical fumes or large amounts of hydrogen sulfide gas at work. Hydrogen sulfide gas, corrosion chemicals, and just the smell of the oil itself was irritating me whenever I got around large amounts.
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“[Wjhenever my respiratory problem flared up, I always kept in close contact with my physician and he related that the respiratory problems were the— (inaudible.)
“MR. HAAS: That they were related to your work?
“THE WITNESS: Yes, Sir.
“Q. When did he first relate this to you?
“A. He suspected probably, I would say, probably in July or August of 1987, and then on a visit with him in November of 1987 he definitely stated that it was work related. And it is documented in my medical records.”

By November 1987, Grotte had received medical treatment for his lung condition, had missed numerous work days because of that condition, and had been informed by his doctor that the condition was work-related. Consequently, Grotte’s circumstances are distinguishable from those in Teegarden, supra, where there was no evidence that the claimant was ever told by his doctors that his respiratory condition was attributable to his job, rather than factors also found outside the workplace, such as dust and cigarette smoke.

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Grotte v. North Dakota Workers' Compensation Bureau
489 N.W.2d 875 (North Dakota Supreme Court, 1992)

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Bluebook (online)
489 N.W.2d 875, 1992 N.D. LEXIS 178, 1992 WL 197840, Counsel Stack Legal Research, https://law.counselstack.com/opinion/grotte-v-north-dakota-workers-compensation-bureau-nd-1992.