concurring specially.
I concur, but solely on the ground that every issue involved in this appeal was finally determined in the first appeal. Stout v. North Dakota Workmen’s Compensation Bureau, 236 N.W.2d 889 (N.D.1975). I do not concur with any suggestion that 'the so-called “apportionment statute,” Section 65-05-15, N.D.C.C., is or might be applicable to cases such as this or any other particular type of case. Whether it applies to any case will depend on the facts of that case.
I
This appeal involves the same facts as the previous one. In the former appeal we remanded the case “. . .to the Bureau for disposition in accordance with this opinion.” 236 N.W.2d at 894. “This opinion,” of course, was the majority opinion.
Instead of complying with the mandate of this court, and without even filing a petition for rehearing in this court, the Workmen’s Compensation Bureau entered new findings of fact applying the so-called “apportionment statute,” and made an award of 50 percent of the death benefits to which the widow was entitled. It had no medical evidence to support that determination. As the majority opinion says, in milder language than it might have used, the Bureau “apparently applied § 65-05-15, NDCC, as mentioned in the concurring opinion of Justice Sand, . . . ” Of course, the Bureau had no right to do so. The majority opinion is the law of the case and binding on the parties. As we said in Desautel v. N. D. Workmen’s Compensation Bureau, 75 N.D. 405, 414, 28 N.W.2d 378, 384 (1947),
“Under well settled rules, generally recognized by the courts of this country and frequently recognized and applied by this court, the decision on the former appeal became and is the law of the case.
“The facts established upon the trial being in all material respects the same as those alleged in the complaint, the decision on the former appeal is decisive of the question raised on this appeal.”
I consider the action of the Bureau to be an arrogant defiance of the considered opinion of the highest court of this State. That defiance made it necessary for the widow of the deceased worker, whom we had held entitled to death benefits, to go to the expense and trouble of an appeal to the district court. That court properly ruled against the Bureau. Still not satisfied, the Bureau then appealed to this court. I consider that appeal to be wholly unjustified and frivolous, and one for which costs should be assessed in favor of the opposing party, as in Bellon v. Bellon, 237 N.W.2d 163 (N.D.1976).
II
I part company with the majority opinion in its easy assumption that the apportionment statute, Section 65-05-15, N.D.C.C., would apply if it had been invoked in this case at a proper time and in a proper way. I am by no means convinced that this is correct. The few other States which have similar laws have had great difficulty in construing them and seldom have applied them as generally as the majority opinion would lead one to believe. For example, in Redmond v. Workmen’s Compensation Appeals Board, 36 Cal.App.3d 302, 111 Cal. *433Rptr. 530 (1973), the Court of Appeals held that full death benefits were payable unless it could be demonstrated as a reasonable medical probability that a suicide which was work-related would have resulted “in the absence of the industrial injury.” It cannot be contended that Stout’s death would have occurred when it did in the absence of his work-related exertion.
Other courts have held that the apportionment statute does not apply to conditions which were unknown prior to the injury and which had not affected the ability of the employee to do his work. Stout’s condition was unknown and did not affect his ability to do his work until his work-related injury produced his death. The cases are collected in 2 Larson’s Workmen’s Compensation Law, Section 59.20.
The same section describes apportionment statutes as “harsh” and says, at page 10-269:
“The courts, for their part, have generally tempered the harshness of apportionment statutes whenever a doubt could be resolved in the direction of constricting their scope.”
In view of the many uncertainties and possible ramifications in the eventual development of case law, I would not indicate now what effect, if any, the apportionment statute might have on cases like this one or any other type of case in which the issue is appropriately raised.
Ill
Certain parts of the majority opinion, it seems to me, are irrelevant to any issue before us. Certainly, cases like Tingle v. Board of County Commissioners, cited in the majority opinion, offer no aid, since we have no provision in our statute similar to that underlined in the majority opinion, which says that “only acceleration of death * * * attributable to the accident shall be compensable.”
Furthermore, I fail to see what the recent change in the statute [Senate Bill 2158,1977 legislative session] has to do with this case. Our former opinion in this case declared that the law was that death caused by work-related usual exertion was com-pensable. The Legislature, at the urging of the Workmen’s Compensation Bureau, changed that law, effective July 1, 1977. Stout’s death occurred November 26, 1973. It was, and is, compensable in full, regardless of what the Legislature did in 1977. The Legislature chose to put North Dakota into the dwindling minority [about one-fourth] of States which adhere to the unusual-exertion test, which is authoritatively described as historically incorrect, logically unsound, and impractical in operation [1A Larson’s Workmen’s Compensation Law, §§ 38.61-38.63, pp. 7-98 to 7-102]. That is the legislative privilege, but it has nothing to do with this case.
As stated, I concur in the result of the majority opinion, on the sole ground that the issues were all resolved in the previous appeal which is the law of the case, and I decline to join in any suggestion that the apportionment statute is applicable to this or any other particular type of case. Its application will depend on the facts of each case.