Engebretson v. North Dakota Workers Compensation Bureau

MARING, Justice,

specially concurring.

[¶ 24] I agree with the majority’s conclusion the Bureau correctly determined the greater weight of the evidence failed to prove a direct causal connection between Engebretson’s work conditions at Melroe and his asthma, or that Engebretson’s work environment substantially aggravated his asthma. I write separately only to clarify that a physician’s medical opinion based on an examination, a patient’s medical history, and the physician’s education and experience can be “objective medical evidence.”

[¶ 25] The majority states at ¶ 21: “Due to the invalidity of the pre and post work lung function test administered on July 21, 1997, and the absence of any other test results concerning Engebretson’s lung function, there is no data to either confirm or deny the possibility Engebretson’s workplace exposure to fumes and particles aggravated his lung condition.” Because there was no “data” or “test results” confirming or denying substantial aggravation, the majority concludes a reasoning mind could have determined the greater weight of the evidence did not prove Enge-bretson’s asthma was substantially aggravated by his work environment. To the extent the majority opinion may imply only confirming “test results concerning Enge-bretson’s lung function” constitute “objective medical evidence,” I disagree.

[¶ 26] It is not that there was no “objective medical evidence” supporting Enge-bretson’s aggravation claim in this case. As the majority notes at ¶ 17, Drs. Huber and Hughes opined Engebretson’s asthma was aggravated by his exposure to fumes and particles in the workplace. However, under our standard of review a reasonable person could conclude the greater weight of the evidence showed that Engebretson’s asthma was not substantially aggravated by his exposure to fumes and particles in the workplace. The Bureau’s order should be affirmed, therefore, not because of the absence of “objective medical evidence” supporting Engebretson’s aggravation claim, but because a reasoning mind reasonably could have determined the findings were proven by a preponderance of the evidence.

[¶ 27] NEUMANN, J., concurs.