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Wanstrom v. North Dakota Workers Compensation Bureau2/2/2001
oth doctors made a strong causal connection between the Claimant's smoking and his COPD. Neither doctor could point to an established causal connection between firefighting and COPD. Both doctors found it significant that the Claimant had never been treated for smoke inhalation. Both doctors recognized smoking as the predominant risk factor for COPD. In conclusion, the testimony of both doctors, taken as a whole, eliminates the Claimant's work as a firefighter as a substantial contributing factor in the causation of his COPD. In addition, the testimony of both doctors resolves any arguable conflicts arising from Dr. Paulo's description of Claimant's COPD as being "multifactorial."
[ ] Both physicians testified smoking is a major cause of COPD and both also agreed it was significant that Wanstrom had never required medical treatment following smoke inhalation at a fire. However, the record does not support the Bureau's finding that, taken as a whole, the testimony of both doctors eliminates Wanstrom's work as a firefighter as a substantial contributing factor in the causation of his COPD or resolves conflicts arising from Dr. Paulo's description of Wanstrom's COPD as multifactorial. The Bureau failed to address the agreement of both experts that COPD can be multifactorial and usually COPD develops later than at the young age of 44, even among smokers. Dr. Paulo stated it was unusual, even for a smoker, to develop COPD at age 44 without some other predisposing factor. In fact, both experts testified inhalation of smoke or toxic fumes could be a contributing factor to chronic lung disease. Also, the Bureau did not address the fact Wanstrom was regularly exposed to smoke as is normal for firefighters, as testified by a co-worker, Mr. Thomas Biwer:
Q. [Wanstrom's attorney] I'll try to come back to the question I asked. It was regarding the degree of exposure to smoke during those years, and I was trying -- if it was possible, I was trying to define more specifically what "not unusual" meant in terms of quantifying it. And I'm not asking you for specific fires.
A. [Mr. Biwer] Perhaps his -- his rate of exposure would have been the same as anyone else, any other member of the fire department.
Q. Which would be what?
A. It's part of the job. It's something that happens when you
go to fires.
Q. So it happens --
A. It happens regularly.
Additionally, protective masks were not commonly used until the early 1990s and Wanstrom began his work as a firefighter in 1974. The list of fires attended by Wanstrom included both outdoor and indoor fires, involving a variety of substances.
[ ] Although Dr. Thomas F. Mulrooney testified Wanstrom's occupational smoke exposure was not a substantial contributing factor in the development of his lung disease, Dr. Paulo, Wanstrom's treating physician, could not rule out occupational smoke exposure as a substantial contributing factor to Wanstrom's lung disease. In fact, she said she could not delineate what role the smoke exposure had in the development of Wanstrom's disease.
[ ] Taken as a whole, the weight of the evidence does not support the Bureau's finding firefighting was eliminated as a substantial contributing factor to Wanstrom's lung disease.
[ ] The presumption, enacted to relieve claimants from the nearly impossible burden of proving firefighting actually caused their disease, may appear to create a nearly impossible burden for the Bureau to prove the negative, that is, to prove the nonexistence of a substantial contributing factor to the causation of a disease. However, it has not been an impossible burden. In Burrows v.
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