Stout v. North Dakota Workmen's Compensation Bureau

236 N.W.2d 889, 1975 N.D. LEXIS 151
CourtNorth Dakota Supreme Court
DecidedDecember 17, 1975
DocketCiv. 9143
StatusPublished
Cited by16 cases

This text of 236 N.W.2d 889 (Stout v. North Dakota Workmen's 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
Stout v. North Dakota Workmen's Compensation Bureau, 236 N.W.2d 889, 1975 N.D. LEXIS 151 (N.D. 1975).

Opinions

VOGEL, Judge.

Alice G. Stout applied for workmen’s compensation death benefits for the death of her husband, Archie A. Stout, who died on November 26, 1973. The Workmen’s Compensation Bureau denied the claim, she appealed, and the district court reversed the Bureau and entered judgment for her. The Bureau appeals. We affirm.

Stout was a truck driver. On the date of his death he delivered freight to a grain elevator at Thompson, North Dakota. The freight consisted of an anhydrous ammonia stand which carried two immovable metal reels intended to hold hoses. Stout and the manager of the elevator slid or skidded the machine off the truck onto a pickup truck. The machine weighed about 150 pounds and the effort involved was not strenuous. Almost immediately, Stout complained of not feeling well and of pain in his arm and chest. He went to the office and sat down. He called his employer in Grand Forks and asked to be picked up and returned home since he was unable to drive the truck. A few minutes later,' he was dead. The cause of death was myocardial arrest.

There was no inkling of heart disease in Stout’s prior medical history. In February of 1973, an electrocardiogram was taken and it was normal. In October of 1973, prior to a prostate operation, he had a physical examination and the report shows that his heart tones were regular and of good quality and there was no enlargement or [891]*891heart murmur. He returned to work on November 12, and his work was uneventful until the day of his death.

An autopsy was performed. It showed atherosclerotic occlusion of the proximal portion of the right coronary artery and severe pulmonary edema.

Mr. Stout’s physician, who had examined him twice previous to the date of his death, testified that it was his opinion “ . that Mr. Stout’s exertion did precipitate the coronary insufficiency that resulted in acute cardiac failure and pulmonary edema and subsequent death.” He was asked, “And is it your opinion that the exertion, moving this object, although it may not have been any great exertion, could precipitate the coronary insufficiency?” and he replied, “It is indeed.” As to causation, he said that the facts speak for themselves: “ . . .he was at work, he did exert within a period of a minute or two and he developed a severe illness and died shortly thereafter.” He said that the pulmonary edema could occur within a very short time, and there was no evidence of any prior heart attack.

The Bureau offered no evidence to contradict that of the plaintiff’s physician.

The Bureau, however, apparently relied on further testimony of the doctor that Stout had preexisting “bad coronary disease” and that “He was, you might say, walking a thin line every day maybe for years.” The Bureau apparently concluded that the death was caused by the preexisting heart condition, and not by the exertion, although the Bureau concedes that the evidence shows that the exertion of moving the anhydrous ammonia stand precipitated the death.

The Bureau’s findings include statements that “ . . . the task was easy and that it required no particular amount of exertion . that the decedent had been performing the same type of work for years; that he suffered from marked coronary atherosclerosis; and that “medical evidence indicates that individuals who suffer from the type of heart disease which caused the claimant’s [sic] heart attack and death often die suddenly with very little exertion due to the nature of the disease.” The Bureau’s final three findings of fact are as follows:

“XII.
“That although medical evidence indicates that the deceased’s heart attack on November 26, 1973, was precipitated by the exertion in the course of his employment on that date, this same medical evidence also indicates that due to the nature of the deceased’s heart disease a heart attack could have resulted from any type of activity whether at home or on the job.
“XIII.
“That the fact that the deceased’s heart attack did occur after unloading freight, which required no particular amount of exertion, the evidence does not substantiate the claimant’s allegation that said heart attack was actually the result of the deceased’s occupation rather than an unfortunate coincidence resulting from any type of exertion and due to an underlying heart condition.
“XIV.
“That the underlying coronary atherosclerosis is not an industrial disease.”

The district court viewed the matter differently. Its findings point out that “some exertion” was required of Stout in order to move the stand, that he complained of pains in his chest and in his right arm immediately thereafter, and died soon afterward, and the Bureau’s findings conceded that there was a causal connection between the death and the employment.

The trial court, as its conclusions of law, stated that the claimant had proved that the unloading of the stand was causally connected to the death, that she had proved [892]*892that the exertion of moving the stand precipitated the death, and that she had proved that she was entitled to death benefits. It reversed the decision of the Bureau.

I

We affirm the district court. We do so, first of all, on the very simple basis that the evidence is undisputed that a work-connected exertion precipitated the heart attack which caused the death almost immediately. If the Bureau has any testimony or opinions to the contrary available to it, they are not part of the record and cannot be considered.

In Foss v. North Dakota Workmen’s Compensation Bureau, 214 N.W.2d 519, 523 (N.D.1974), we said:

“While a myocardial arrest (also known as a myocardial infarction) may occur after exercise in some individuals, it often occurs unassociated with physical activity. . . . It is therefore difficult to establish the precipitating cause of such an affliction and the testimony of a medical expert is always desirable and in most cases indispensable to prove this issue.” [Citations omitted.]

In Foss, the claimant lost because she had no medical proof of causation. Here, the claimant provided the only medical proof of causation.

II

We affirm, secondly, on the basis that the Bureau’s distinction between “unusual exertion” and “usual exertion,” under which it makes awards in cases such as this where the exertion is “unusual” but not where it is “usual,” is an arbitrary distinction which we decline to follow. In Suedel v. North Dakota Workmen’s Compensation Bureau, 218 N.W.2d 164, 175 (N.D.1974), the majority of this court said “we leave for another day” the question of the survival of the unusual-exertion rule in this State, while the minority was of the opinion that the rule had not previously existed in this State. Be that as it may, we now state the rule to be that no such distinction is to be observed in this State. In so ruling, we join the majority of jurisdictions and become a part of the trend toward the so-called usual-exertion rule.

By adopting this rule, we do not reverse such cases as Sandlie v. North Dakota Workmen’s Compensation Bureau, 70 N.D. 449, 295 N.W.

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Bluebook (online)
236 N.W.2d 889, 1975 N.D. LEXIS 151, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stout-v-north-dakota-workmens-compensation-bureau-nd-1975.