dissenting.
[¶ 27] I respectfully dissent.
[¶ 28] The majority impermissibly substitutes its judgment for that of the agency. Although the majority correctly states the law, that “[i]n reviewing the agency’s findings of fact, we do not make independent findings or substitute our judgment for the agency’s judgment,” I believe the majority has done exactly that where it reverses and remands.
I
[¶ 29] Both sides appear to compete to out-jargon each other. In plain English, on September 27, 2010, Brockel was in a work-related motor vehicle accident. WSI accepted the claim for two broken ribs, two fractures of his shoulder blade, and neck sprain/strain. At that time Brockel did not complain or show symptoms of the neck condition that is the primary focus of this case — “vertebral artery occlusion” — a condition in which an artery is pinched when the neck is turned in a certain way, resulting in restricted blood flow and causing light-headedness. About six months after the accident, on February 17, 2011, Brockel apparently first experienced this condition. He had preexisting degeneration in his spine that could have resulted in this “new condition.” This new condition could also have been caused by a trauma, such as the accident, but doctors testified that if the accident had caused the condition, it should have shown up sooner than it did. Not everyone agrees, of course.
[¶ 30] A claimant has the burden of establishing entitlement to benefits. N.D.C.C. § 65-01-11. The majority notes “that an employer takes the employee as it finds him.” But that does not make the employer responsible for every condition an employee develops, unless the work is a substantial contributing factor.
[¶ 31] On March 12, 2012, WSI issued a notice denying coverage for the “new condition” and a notice of intention to discontinue or reduce the benefits it had been paying. The notice of hearing specified the issue: ‘Whether Mr. Brockel’s right vertebral artery occlusion [the new condition] at C5-C6 is a compensable injury; *26and whether Mr. Brockel is entitled to disability benefits after April 2, 2012.”
[¶ 32] After hearing conflicting evidence, the ALJ issued her order, essentially finding the “new condition” was, in fact, a new condition and Brockel had to show it was work-related and he had not done so. The majority affirms here.
II
[¶ 33] In addition, Brockel accuses WSI of doing something that I believe, on the basis of the record, WSI did not do.
[¶ 34] Brockel claims the following:
The ALJ also denied benefits on the ground Brockel had not provided a new medical verification of disability under N.D.C.C. § 65-05-08.1, though WSI’s notice did not seek medical verification, and the issue was not even argued at hearing. (App. 29-30, conclusion of law ¾.
[¶ 35] The majority accepts Brockel’s construction of what happened — that the claim was decided on the basis of his lacking “a new medical verification,” which was not an issue listed by WSI. But the conclusion of law on which Brockel relies says nothing about a “new medical verification”:
2. An injured employee’s doctor shall certify the period of disability and the extent of the injured worker’s abilities and restrictions. N.D.C.C. § 65-05-08.1. The only evidence in the record regarding Mr. Brockel’s disability is that he has work restrictions related to his left arm. There is no certification from any doctor removing Mr. Brockel from work. In fact, Dr. Nelson says that Mr. Brockel has no permanent orthopedic disability or impairment from the work injury. Mr. Brockel does require work restrictions, but there is no evidence that a doctor has certified that Mr. Brockel is unable to work because of his work injury. Accordingly, Mr. Brockel has failed to establish the requirements for verifying disability.
[¶ 36] WSI and the ALJ said nothing about “a new medical verification.” The majority apparently believes WSI is being very clever in not saying its findings were made on the basis that Brockel claims:
The “notice of intention to discontinue/reduce benefits” did not mention verification of disability. WSI’s April 9, 2012, order discontinuing disability benefits referenced N.D.C.C. § 65-05-08.1 and stated “[a]n injured employee’s doctor shall certify the period of disability and the extent of the injured worker’s abilities and restrictions.” However, the order did not indicate Brockel failed to comply with the statute’s provisions, but merely stated as the reason for terminating benefits that “[claimant has not proven that his September 27, 2010, work injury is his primary disabling factor at this time.”
Majority opinion, at ¶ 16 (emphasis added).
[¶ 37] WSI points out the law requires the claimant to establish what WSI gave notice of, and it made its finding on that basis.
Ill
[¶ 38] Next the majority moves on to the shoulder injury and outside the central issues of Brockel’s appeal. Reading the majority opinion, one would likely conclude Brockel (1) has a shoulder injury (2) that precludes him from working; (3) surgery on his shoulder would permit him to return to work; (4) but the “new condition” — the “vertebral artery occlusion” — precludes this necessary surgery on his shoulder. Except for (1), each of the points is contrary to the findings of fact which are supported by the record.
[¶ 39] The ALJ said:
*27The only evidence in the record regarding Mr. Brockel’s disability is that he has work restrictions related to his left arm. There is no certification from any doctor removing Mr. Brockel from work. In fact, Dr. Nelson says that Mr. Brockel has no permanent orthopedic disability or impairment from the work injury. Mr. Brockel does require work restrictions, but there is no evidence that a doctor has certified that Mr. Brockel is unable to work because of his work injury.
Further:
The evidence shows that Mr. Brockel requires activity restrictions with respect to his left arm, but he is not unable to work. Mr. Brockel does have non-work-related vertebral artery occlusion, which according to Dr. Larkins, makes it dangerous to work, and according to Dr. Gelfman, requires work that does not require Mr. Brockel to look over his right shoulder.
The ALJ found:
On May 16, 2011, Dr. Rock advised that surgery on Mr. Brockel’s neck would be too risky to the vertebral artery, therefore no surgical intervention was recommended. Nor did Dr. Rock recommend surgery for Mr. Brockel’s shoulder. “At the moment, the shoulder is not causing him that much discomfort to warrant surgery, which would be accompanied by significant added risk given his positioning on the table, let alone intubation.”
Further:
The greater weight of the evidence shows that Mr. Brockel’s work injuries have not rendered him completely disabled. Mr. Brockel has not worked since his work injury, yet he was released to do one-handed work, and Dr. Gelfman imposed work restrictions on June 10, 2011, but no doctor removed him from work. More recently, Dr. Nelson has advised that Mr. Brockel requires no work restrictions other than those for his left arm.
[¶ 40] The majority’s logic at ¶ 19 is also flawed:
First, the gist of the ALJ’s reasoning is that Brockel’s wage loss is the result of his noncompensable vertebral artery occlusion condition rather than his com-pensable left shoulder injury because the vertebral artery occlusion makes it impractical for Brockel to either return to work or to undergo the surgery necessary to return him to employment. The ALJ’s reasoning ignores this Court’s repeated admonitions that an employer takes the employee as it finds him.
(Emphasis added.) But if, for example, WSI accepts responsibility for an on-the-job foot injury, that does not mean the employer and WSI are responsible for cancer the individual develops if it is unrelated to the job. The majority cites to Thurston v. Guys With Tools, Ltd., 217 P.3d 824, 828-29 (Alaska 2009), in which the employee’s pre-existing cancer and its treatment increased the time it took to recover from the work-related injury. But that is fundamentally different from saying the employer/WSI is responsible for disability from the cancer after recovery from the work-related injury.
[¶ 41] Further, the “new condition” was not a pre-existing condition as in the cases cited by the majority, but a subsequent condition.
[¶ 42] The findings of fact supported by the record reflect that Brockel’s shoulder injury does not preclude him from working and that the “new condition” does not preclude shoulder surgery necessary for Brockel to work.
*28IV
[¶ 43] The findings were made that the “new condition” was, in fact, a new condition and that it was not compensable. Brockel was not denied due process, and although his non-work related “new condition” makes surgery inadvisable, surgery on his shoulder is not necessary for him to return to work. I would affirm on the basis of a proper application of the standard of review.
[¶ 44] Dale V. Sandstrom