 |
 |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|
|
|
|
Wanstrom v. North Dakota Workers Compensation Bureau2/2/2001
North Dakota Workers Comp. Bureau, 510 N.W.2d 617 (N.D. 1994), the Bureau successfully rebutted the presumption for law enforcement officers. Burrows was a police officer for 31 years, had a 40-year history of smoking, and developed lung cancer. Id. at 617. Based on the medical opinions of two experts, including the treating physician, this Court held a reasoning mind could have reasonably determined Burrow's lung cancer was caused by his smoking and not by his occupation. Id. at 619. In contrast to Wanstrom, Burrows was not exposed to smoke, in fact, there was no evidence of exposure to cancer-causing agents on the job and there was no evidence showing a risk of lung cancer from police work. Id.
[ ] The presumption was also successfully rebutted in Elter v. North Dakota Workers Comp. Bureau, 1999 ND 179, 2, 599 N.W.2d 315, a case of a police officer who had smoked one to one-and-a-half packs of cigarettes per day for approximately 30 years and developed lung cancer. Elter had not smoked for the last 15 years and claimed the cancer may have been caused by his exposure to asbestos and radon during his employment as a highway patrol officer. Id. at 2, 4. However, because no credible evidence established the levels of radon in the courthouse or how frequently Elter worked in the courthouse, and none of the experts could determine whether Elter's carcinogen exposure in the work place increased the relative risk in developing cancer, the presumption his occupation was a substantial contributing factor to his lung cancer was successfully rebutted. Id. at 19-21.
[ ] In Sunderland v. North Dakota Workmen's Comp. Bureau, 370 N.W.2d 549, 554 (N.D. 1985), the Bureau failed to rebut the presumption Sunderland's 36 years as a police officer substantially contributed to the development of his lung cancer. Sunderland had smoked one pack of cigarettes per day for 40 years. Id. at 553. The Bureau relied on the physician's statement "his occupation in no way, as far as we know, contributed to this difficult illness." Id. [Emphasis added in Sunderland]. This Court held the weight of the evidence did not support this finding, additionally, the Bureau erred as a matter of law in concluding it was Sunderland's burden to establish the link between his cancer and occupation, defeating the purpose of the presumption. Id. at 553-54.
[ ] Recently, however, we further clarified the strength of the presumption when we held the presumption was not successfully rebutted by expert opinion that merely denied the premise that served as the basis for the legislative enactment of the presumption. Robertson v. North Dakota Workers Comp. Bureau, 2000 ND 167, 1, 616 N.W.2d 844. Robertson was a police officer who developed heart disease. Id. at 2. Robertson was entitled to the presumption his heart disease occurred in the line of duty. Id. at 28. The Bureau argued this presumption was rebutted by expert testimony which purported stress of work was not a risk factor for heart disease. Id. at 36-37. We held expert medical opinion rejecting the legislatively adopted premise of the presumption is insufficient to rebut the presumption. Id. at 40. In Robertson, we quoted the explanation given by the Minnesota Supreme Court in Swanson v. City of St. Paul, 526 N.W.2d 366, 368 (Minn. 1995):
Certainly, causation in heart cases is difficult enough to determine by applying medical theory to observable facts, but the difficulty is compounded by the persisting split in medical theory itself on the relation of stress and heart disease. That, however, is not a matter for the courts to consider where the legislature has decided that work common to certain occupations contributes causally to named diseases whe
Page 1 2 3 4 5 6 North Dakota Employee Leasing Services
Employee Leasing Services
|
| |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|