Elshaug v. Workforce Safety and Insurance11/18/2003
dry cleaning agents and other chemical compounds. But the question is not whether she has an adverse reaction to various odors and fumes of laundry cleaning agents, and certainly not whether that was her first experience with the reaction, but whether she has developed, as a disease fairly traceable to her employment, a "chemical sensitivity," a disease which may be fairly described as chemical sensitivity or MCS, as a "compensable injury" within the meaning of 65-01-02(9) (1993), and whether there has been a worsening of that disease after June 25, 1997, such as to constitute a significant change in her medical condition within the purpose and intent of 65-05-08(1) (1997).
In his August 5, 1998, recommended findings of fact, conclusions of law, and order, the ALJ recommended WSI's June 25, 1997, order denying further benefits and its January 28, 1998, order denying reapplication be affirmed. WSI adopted the ALJ's recommended findings of fact, conclusions of law, and order as its order on August 21, 1998.
[ ] Elshaug petitioned for reconsideration on September 16, 1998. Elshaug appealed WSI's August 21, 1998, order to the district court on October 15, 1998. WSI denied Elshaug's September 16, 1998, petition for consideration on October 16, 1998. The district court order entered on July 27, 1999, reversed WSI's orders of August 21, 1998, and October 16, 1998 and ordered WSI to provide Elshaug "with the benefits to which she is entitled." WSI appealed on September 21, 1999.
[ ] This Court concluded "there were improper ex parte contacts between the Bureau's outside counsel and the Bureau under N.D.C.C. ยง 28-32-12.1." Elshaug v. N.D. Workers Comp. Bureau, 2000 ND 42, 1, 607 N.W.2d 568. We affirmed the district court's reversal of WSI's denial of Elshaug's petition for reconsideration, reversed that part of the district court's judgment directing WSI to award benefits, and remanded with directions to grant Elshaug's petition for reconsideration and rehearing. Id. at 11.
[ ] After a hearing and the reception of additional evidence, the ALJ issued recommended findings of fact, conclusions of law, and order on September 19, 2001. In discussing the rationale for his decision, the ALJ stated:
he threshold question must be whether MCS is a disease (for which workers' compensation benefits must be provided if the medical evidence, supported by objective medical findings, establishes that it is a compensable injury within the meaning of the statute) or a mental disorder (a "mental injury" for which workers' compensation benefits are not provided).
In response to the mandate of the supreme court, Elshaug obtained additional medical evidence from Dr. Singer and returned to Dr. Krohn for additional information and her further advice and opinions. . . . But the Bureau also offers additional medical evidence by an expert witness, Dr. McCrary, which countervails . . . the information, advice and opinions offered by Dr. Krohn. . . . Dr. Krohn has concluded that MCS is a disease, and provides treatment accordingly to persons having the symptoms which have been identified as indicative of the disease. Dr. Krohn's findings, advice and opinion are grounded upon the premise that MCS is a disease. Conversely, Dr. McCrary has concluded that MCS is not a disease, and his advice and opinion are based on that conclusion. Therefore, a decision whether to accept the testimony of Dr. Krohn or Dr. McCrary for the determination of this matter first requires a decision whether MCS is a disease.
In my judgment, there is not enough evidence of record to determine whether or not MCS is a disease. . . . But neither do I find the contentions of Dr. Mendoza and Dr. Mc
Page 1 2 3 4 5 North Dakota Employee Leasing Services
Employee Leasing Services
|