dissenting.
[¶ 23] I respectfully dissent.
[¶ 24] Despite the disclaimers in ¶¶ 16 and 19, I cannot read the majority opinion other than to suggest that where an “insidious disease” is involved, a doctor must have specifically related to a claimant that work caused or substantially aggravated or accelerated the claimant’s condition. Further, the majority interpolates “compensa-ble” into the statutory reference to a “work-related injury,” thereby requiring that someone with more expertise than the average claimant make a specific cause/effect connection between the work and the injury and communicate the connection to the claimant. Adding such requirements is not compatible with a reasonable person standard which the majority acknowledges is the legislative intent.
[¶ 25] Relation to the claimant by the health care provider that the claimant had a compensable injury was specifically envisioned by the 1993 amendments to N.D.C.C. § 65-05-01. See majority opinion at ¶ 14. But it is a strange process of statutory interpretation to carry forward those two concepts in light of the 1997 amendments. The majority acknowledges in ¶ 16 that the 1997 “amendment eliminated the requirement that the employee be informed by his health care provider he had a compensable injury and effectively returned to the reasonable person standard used in the majority of jurisdictions.”
[¶ 26] By returning to the reasonable person standard, the legislature made the question of whether the claimant knew or should have known he had a work-related injury a question of fact. Into the mix of what a reasonable person knew or should have known will go many factors depending upon the circumstances of each case. Our prior cases have recognized that the reasonable person standard has to incorporate the characteristics of the claimant that deal with his or her ability to understand the situation. White v. N.D. Workers Comp. Bureau, 441 N.W.2d 908, 911 (N.D.1989). With that limitation in mind, the question becomes whether a reasoning mind, acting as fact-finder, could have found Klein reasonably would or should have understood that he had a work-related injury.
[¶ 27] The administrative law judge made the following findings based upon the evidence:
4. Klein’s job at Lincoln Oakes involved considerable bending, stooping, kneeling, climbing, and heavy lifting. The percentage or frequency of time spent at each of these activities on a daily basis was not established with any degree of certainty. Testimony of Toni Berreth; testimony of Jeryle Klein; testimony of Greg Morgenson.
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7. Klein first sought treatment from Dr. Larsen on October 14, 1996, when he experienced extreme pain over the medial joint line of his left knee. Dr. Larsen diagnosed Klein with severe degenerative arthritis in the left knee, based on x-rays taken at the time and Klein’s reported history of many years of knee problems, and he discussed Klein’s condition with him, including the need for a total knee replacement within five years. Dep. Ex. 11 at 5; testimony of Jeryle Klein.
*5388. Klein was aware by October 14, 1996, that he had severe degenerative arthritis in his knees and was aware that the condition had started at least several years earlier. Testimony of Jeryle Klein.
9. Dr. Larsen performed arthroscopic surgery on Klein’s left knee on December 12, 1996, and reported “bone-on-bone advanced degenerative arthritis ... really severe.” Dep. Ex. 12 at 1.
10. Dr. Larsen once again discussed Klein’s severe arthritis with him on December 20, 1996, and although he did not explicitly tell Klein his work was contributing to his arthritic condition, he advised Klein he should change his work because he could no longer do heavy work and heavy lifting. Dep. Ex. 11 at 6; testimony of Jeryle Klein.
11. On January 10, 1997, x-rays showed “moderately severe degenerative arthritis” in Klein’s right knee, even “bone on bone in some areas.” Dep. Ex. 11 at 6.
12. Dr. Larsen performed arthroscopic surgery on Klein’s right knee on February 5, 1997, and reported “advanced degenerative arthritis with bone on bone.” Dep. Ex. 12 at 6.
13. On February 19, 1997, Dr. Larsen showed Klein the videoarthroscopic pictures illustrating the extent of the severe degenerative arthritis in the right knee and once again advised Klein he would soon need total knee replacements, as well as strongly recommending that Klein should find a different line of work that did not require heavy lifting or kneeling. Dep. Ex. 11 at 9. [¶ 28] Based on those findings, the ad-
ministrative law judge concluded:
7. The greater weight of the medical evidence indicates Klein’s work at Lincoln Oakes did substantially accelerate the progression of Klein’s preexisting arthritis and did substantially worsen the severity of the condition....
8. ... Given the objective medical evidence of the advanced state of Klein’s degenerative arthritis by October 14, 1996, the extreme pain that caused him to seek medical treatment for his knee at that time, and the extensive discussions Dr. Larsen had with Klein from October 14, 1996, through February 19, 1997, concerning Klein’s condition and the need for Klein to find different work, a reasonable person in Klein’s position either knew or should have known by February 1997 that his work was related to his knee condition and to his need for medical treatment.
[¶ 29] The Bureau adopted the administrative law judge’s findings and conclusions.
[¶ 30] Given Klein’s explicit discussions with his doctors regarding his condition and the treatment for his condition, a reasoning mind could have determined that he understood the nature and seriousness of his condition. From the findings it cannot be determined that he was specifically advised by his doctors that his knee condition was “caused” by his work. However, he was specifically advised that he should not do work that involved heavy lifting and he clearly knew that heavy lifting was part of his working conditions at the Lincoln-Oakes Nursery. If more than that is required, then the “more” must be a specific statement by the physician that work is causing or aggravating or accelerating the condition. But this is precisely the condition that was eliminated by the 1997 amendments to N.D.C.C. § 65-05-01.
[¶ 31] The issue for this Court should be whether a reasoning mind reviewing the evidence could have found that a reasonable person of Klein’s intelligence and education should have known in February *5391997 that he suffered a work-related injury. Because I believe the evidence supports the findings made, I would affirm based upon the failure to file the claim within one year.
[¶ 32] Paragraph 17 of the majority opinion justifies its interpolation of the word “compensable” into N.D.C.C. § 65-05-01, despite the fact that the legislature has dropped it, as follows: “To read the statute otherwise would require employees to rush in with claims for minor injuries to ensure that a future claim for compensation will not be untimely.” This ignores the plain language of N.D.C.C. § 65-05-01, and Stepanek v. N.D. Workers Compensation Bureau, 476 N.W.2d 1 (N.D.1991), offered by the majority, provides little support for this assertion. At the time applicable to Stepanek, N.D.C.C. § 65-05-01 required filing within one year of the date of injury. The statute provided:
The date of injury for purposes of this section shall be the actual date of injury when such can be determined with certainty by the claimant and bureau. When the actual date of injury cannot be determined with certainty the date of injury shall be the first date that a reasonable person knew or should have known that the injury was related to employment.
Stepanek, 476 N.W.2d at 4.
[¶ 33] Although Stepanek could identify an injury event in 1986, she did not file her claim until 1989. Id. at 2. The Bureau argued that because Stepanek knew her actual date of injury, her filing was untimely. Id. at 3. This Court held the claim was timely filed because Stepanek could not have reasonably known that the injury was compensable as she had not missed work after the event and had not sought medical attention until 1988. Id. at 6.
[¶ 34] By contrast, N.D.C.C. § 65-05-01, as amended in 1997 and applicable to Klein, no longer refers to the “actual date of injury.” And, in addition to the knowledge of a reasonable person that the worker has a work-related injury, the section requires that the worker “has either lost wages because of a resulting disability or received medical treatment.” The combination of these standards to start the period of limitations means there is little incentive to rush in with claims for minor injuries.
[¶ 35] Reading back into the statute provisions which the legislature has removed subverts the purposes of a period of limitations — to assure timely filing of claims and timely receipt of benefits. Under these facts, I cannot hold that a reasonable person in the position of Klein would not have understood that he had a work-related injury that was severe in nature and had resulted in both lost wages and significant medical treatment. The Bureau made the appropriate findings, and I would affirm.
[¶ 36] EVERETT NELS OLSON, District Judge, concur.