Elshaug v. Workforce Safety and Insurance11/18/2003
Crary sufficiently persuasive to convince me that Elshaug's medical condition is psychosomatic as a specific mental disorder. . . .
While I appreciate the extraordinarily heavy burden of proving a proposition which is so controversial that professional associations do not agree, it is nonetheless Elshaug's burden in this case. Failing to carry that burden, Elshaug has not established her entitlement to workers' compensation benefits for her medical condition.
The ALJ concluded:
7. Whatever the nature of Elshaug's medical condition, she has failed to establish by a preponderance of the evidence that her medical condition is a disease that can be fairly traceable to her employment as a compensable injury within the meaning of N.D.C.C. ยง 65-01-02(9) (1995) for which she is entitled to workers' compensation benefits.
The ALJ recommended an order affirming WSI's June 25, 1997, and January 28, 1998, orders denying further benefits. With the exception of one sentence in a finding of fact, WSI adopted the ALJ's recommended findings, conclusions, and order, on November 16, 2001.
[ ] By letter of December 12, 2001, Elshaug sought reconsideration. On January 9, 2002, WSI remanded the matter to the ALJ to consider additional information. On May 3, 2002, the ALJ recommended an order affirming WSI's November 16, 2001, final order. WSI adopted the ALJ's recommended order as its final order on June 28, 2002.
[ ] Elshaug appealed to the district court. The district court found "Elshaug continues to suffer from a chemical exposure at the laundry which has sensitized her to numerous other chemicals in her environment and leaves her unable to perform her job because of a work related condition." The district court judgment entered on January 28, 2003, ordered WSI to recognize the compensability of Elshaug's medical condition, accept her reapplication for disability benefits, and provide appropriate benefits.
II.
[ ] Section 65-01-02(9), N.D.C.C., in effect when Elshaug's claims arose, defined a compensable injury, in part, as "an injury by accident arising out of and in the course of employment which must be established by medical evidence supported by objective medical findings," including " ny disease that can be fairly traceable to the employment."
[ ] A claimant has the burden of proving a right to receive workers compensation benefits or to continued benefits if they are terminated after liability for a claim has been accepted. Unser v. N.D. Workers Comp. Bureau, 1999 ND 129, 22, 598 N.W.2d 89. A claimant must establish by a preponderance of the evidence that the medical condition for which benefits are sought is causally related to a work injury. Rush v. N.D. Workers Comp. Bureau, 2002 ND 129, 6, 649 N.W.2d 207. Confronted with a classic "battle of the experts," a factfinder may rely upon either party's expert witness. Byron v. Gerring Indus., Inc., 328 N.W.2d 819, 822 (N.D. 1982). We have said, however, that " hough the Bureau may resolve conflicts between medical opinions, the authority to reject medical evidence selectively does not permit the Bureau to pick and choose in an unreasoned manner." Negaard-Cooley v. N.D. Workers Comp. Bureau, 2000 ND 122, 19, 611 N.W.2d 898.
[ ] On appeal from a district court's review of an administrative agency's decision, we review the agency decision. The district court's analysis is entitled to respect if its reasoning is sound, because the legislatively-mandated district court review cannot be ineffectual. Kraft v. State Bd. of Nursing, 2001 ND 131, 10, 631 N.W.2d 572. We exercise a limited review in appeals involving WSI decisions. Rush v. N.D. Workers Comp.
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