Elliott v. North Dakota Workers Compensation Bureau

VANDE WALLE, Justice,

concurring specially.

In Balliet v. North Dakota Work. Comp. Bureau, 297 N.W.2d 791, 794 (N.D.1980), we concluded that a preexisting condition “has to be accompanied by an actual impairment or disability known in advance of the work-related injury.” Once having reached that conclusion, however, we further indicated that “Only questions of fact remain. Was Mr. Balliet’s heart attack a work-related accident? And, if so, was there a preexisting disabling condition sufficiently established by the Bureau to serve as a basis for apportionment of medical expenses and death benefits?” 297 N.W.2d at 796.

The majority opinion, after reciting that “More than some impairment of a function is necessary; a disabling condition must be shown,” concludes that although there was evidence of a modest impairment of the wrist, “there was no evidence or finding that it was disabling in the sense that Elliott’s work capacity was significantly impaired.”

The evidence from an orthopedic surgeon was that the 1978 fusion resulted in a 25-percent reduction of normal range of motion as well as some loss of strength in the wrist. In response to a question from the Bureau’s attorney as to whether Elliott had recovered and returned to the status prior to the September 19, 1986, injury, the doctor responded:

“He has called on occasion and said that he was having trouble at work with gripping and lifting and some aching in his wrist on occasion and by using a band around his wrist it helped, so he is having some symptoms since the injury. I have the impression from reading the records that he probably had some symptoms prior to the injury, so I think he’s *699close to recovered back to the initial status of the wrist.”

The doctor also testified in response to a question as to the amount of injury to the wrist from the various incidents:

“I guess my opinion would be, from reviewing the entire record of the previous injuries, the Mayo Clinic treatment and X-rays that we have from two or three different sources, that there was a greater amount of residual from the initial injury and surgery than there was from the ’86 injury.”

The Bureau found:

“II.
“On the alleged date of injury the claimant was employed by Melroe Company as a welder.
[[Image here]]
“VI.
“On October 16, 1986, Dr. Miller reported that claimant had a previous fusion in the right hand in 1978. The physician further indicated that claimant had only seventy-five (75%) percent of normal motion prior to his most recent injury.
“VII.
“Dr. Miller stated that claimant had an aggravation of a preexisting injury in a less than normal wrist. .
“VIII.
“At deposition, Dr. Miller testified that claimant’s prior medical condition with the right hand would rate an impairment. There is also sufficient evidence that claimant was disabled as a result of the right hand injury in the past.
“IX.
“Dr. Miller further testified that claimant’s preexisting hand condition was a substantial contributing factor in claimant’s current disability. Dr. Miller testified that claimant’s recovery time was somewhat prolonged by the preexisting condition.
[[Image here]]
“XII.
“There is no dispute concerning the matter [sic] in which claimant was injured. However, the Bureau does find that claimant’s recovery period was prolonged by claimant’s preexisting condition and that claimant’s preexisting condition was a prior impairment or disability known in advance of the work related injury which substantially contributed to claimant’s current disability.”

In accordance with these findings the Bureau made the following conclusions of law:

“II.
“Claimant has a preexisting medical condition in the right hand which was a substantial contributing factor in claimant’s current disability.
“III.
“Claimant’s preexisting medical condition was an impairment and/or disability known in advance of this work related injury.”

Because the issue of whether a preexisting disabling condition was sufficiently established to serve as a basis for apportionment is a question of fact, and, recognizing our standard of review of the evidence, i.e., whether or not a reasoning mind reasonably could have determined that the factual conclusions reached were proved by the weight of the evidence from the entire record [Power Fuels, Inc. v. Elkin, 283 N.W.2d 214 (N.D.1979) ], it is difficult to reconcile the majority opinion. The undisputed evidence shows that Elliott was a welder and that prior to the 1986 injury he had 75 percent normal range of motion and had lost some strength in the wrist. It seems to me that a reasoning mind could, as the Bureau did, reasonably have determined that a welder who has lost 25 percent of the range of motion in a wrist he uses to weld has a preexisting condition “that was disabling in the sense that Elliott’s work capacity was significantly impaired.”

I can only reconcile the majority opinion by concluding that when the aggravation *700statute is to be applied we now require specific and detailed findings as to the precise manner in which the preexisting condition was disabling in the sense that it significantly impairs the work capacity of the claimant.1 Although no such specific requirements by this court have heretofore been announced in Balliet2 or any other decision, I am willing to impose such a requirement in order to assist us in determining that the aggravation statute has not been used to reduce awards by applying it to de minimis preexisting conditions. Hence the Bureau or an employer should be forewarned that before relying on the aggravation statute they must show in detail how the preexisting injury had affected the claimant’s work capacity; mere generalities in findings and conclusions will no longer suffice. It is also important to note we have not yet determined what is meant by a significant impairment of work capacity, i.e., is it qualitative or quantitative (and, if so, how much impairment is significant), or both? But that is apparently reserved for another case.

ERICKSTAD, C.J., concurs.

. The Bureau emphasizes the evidence that indicates Elliott’s recovery time will be somewhat prolonged by the preexisting condition. This finding appears to put the cart before the horse, for, absent a preexisting disabling condition sufficient to impair a claimant's ability to work, a preexisting condition which merely prolongs recovery time is immaterial. For example, age — a preexisting condition — might prolong recovery, i.e., older people do not recover as readily as younger people, but no one would seriously argue that age alone would justify application of the aggravation statute.

. In Balliet v. North Dakota Work. Comp. Bureau, 297 N.W.2d 791, 796 (N.D.1980), we observed that “Balliet’s medical history, even when considered by one untrained, is arguably sufficient alone to support a conclusion that his work capacity was significantly impaired." Elliott’s history of wrist problems, as set forth in the majority opinion, may also appear to be "arguably sufficient alone" to support a conclusion that his work capacity was significantly impaired.