IN THE SUPREME COURT
STATE OF NORTH DAKOTA
|Across Big Sky Flow Testing, LLC,|
|Workforce Safety & Insurance and M.F.B., dependent of Dustin Bergsing (deceased), by and through her guardian, Lacey Breding|
|Supreme Court No. 2014 0193|
|Dunn Co. No. 2013-CV-00097|
Appeal from the District Court Judgment dated april 10, 2014, affirming the findings of fact, conclusions of law, and order dated july 17, 2013
DUNN county district court, SOUTHwest judicial district, the honorable Zane Anderson
|Mitchell D. Armstrong #05892|
|Brian D. Schmidt #07498|
|Special Assistant Attorneys General for|
|Workforce Safety and Insurance|
|122 East Broadway Avenue|
|P.O. Box 460|
|Bismarck, ND 58502-0460|
|TABLE OF CONTENTS|
|Table of Contents|
|Table of Authorities|
|Statement of the Issues|
|I.||Statement of the Case||1|
|II.||Statement of Facts||3|
|A. Relevant Facts|
|B. The ALJ's Decision|
|III. Applicable Law and Argument|
|A. Standard of Review|
|B. The Order Should be Affirmed|
|Certificate of Compliance|
|Certificate of Service|
|TABLE OF AUTHORITIES|
|Fetzer v. Workforce Safety & Ins., 2012 ND 73, 815 N.W.2d 539||20|
|Higginbotham v. Workforce Safety & Ins., 2014 ND 147, -- N.W.2d --||19|
|Landrum v. Workforce Safety & Ins., 2011 ND 108, 798 N.W.2d 669||19|
|Lippman v. ND Workmen's Comp. Bur.,55 N.W.2d 453 (N.D. 1952)||20|
|Mitchell v. Sanborn, 536 N.W.2d 678 (ND 1995)||20|
|Nelson v. N.D. Workmen's Comp. Bur., 316 N.W.2d 790 (N.D. 1982)||21|
|Rush v. N.D. Workmen's Comp. Bur., 2002 ND 129, 649 N.W.2d 207||20|
|Swenson v. Workforce Safety & Ins., 2007 ND 149, 738 N.W.2d 892||20|
|N.D.C.C. § 28-32-44||1|
|N.D.C.C. § 28-32-46||19|
|N.D.C.C. § 65-01-02||20|
|N.D.C.C. § 65-01-11||20|
|N.D.C.C. § 65-05-05||3|
STATEMENT OF THE ISSUES
I. Whether the administrative law judge could reasonably conclude Dustin Bergsing's death arose out of and in the course of his employment.
I. STATEMENT OF THE CASE
[¶1] Across Big Sky Flow Testing, LLC ("Across Big Sky") appeals the district court's Judgment affirming an ALJ's Findings of Fact, Conclusions of Law, and Final Order ("Order") awarding benefits in the death of Dustin Bergsing ("Bergsing"). Appellant's Appendix ("App.") at 71-88. In July 2012, an application for death benefits was submitted to WSI in relation to Bergsing's death on January 7, 2012. Id. at 31. WSI accepted the claim on September 28, 2012. Id. at 35. Across Big Sky requested reconsideration. C.R.(1) at 96. WSI issued its administrative order, finding the evidence indicated Bergsing sustained a fatal injury by accident resulting in his death and arising out of and in the course of his employment with Across Big Sky. App. at 36-39. Across Big Sky requested an administrative hearing. C.R. at 112, 114.
[¶2] The hearing occurred on June 18, 2013, to address the issue of whether Dustin Bergsing's death arose out of and in the course of his employment. App. at 40. On July 17, 2013, ALJ Sand issued the Order, concluding the evidence showed Bergsing's death arose out of and in the course of his employment with Across Big Sky and affirming WSI's award of benefits. Id. at 14-21. Across Big Sky appealed to the district court, which affirmed the Order. Id. at 8, 71-86. Judgment was entered and Notice of Entry of Judgment was served on April 14, 2014. Id. at 88, 89-91. Across Big Sky appealed on May 29, 2014. App. at 92. WSI requests the Judgment be affirmed.
I. STATEMENT OF FACTS
A. Relevant Facts
[¶1] Dustin Bergsing was working for Across Big Sky when he was found dead at a Marathon well-site near Mandaree, North Dakota, in the early morning hours of January 7, 2012. App. at 30. At the time of his death, Bergsing was engaged to Lacey Breding ("Breding"). Id. at 49 (Tr. 40:8-11). They had a daughter together, born in November 2011. Id. at 50 (Tr. 41:7-13). Breding submitted an application for death benefits listing their infant daughter as Bergsing's dependent who was applying for benefits. Id. at 31; see also N.D.C.C. § 65-05-05. Across Big Sky also submitted a report of death, describing the accident happened when Bergsing was "on the catwalk and was going to gauge the oil level in the production tank." Appellee's Appendix ("Supp. App.") at 4 (C.R. at 9).
[¶2] On January 6, 2012, Bergsing left the home he shared with Breding in Montana to start his shift in North Dakota. Id. (Tr. 43:24-44:3). The week before, Breding and Bergsing began making plans for their wedding, which was scheduled for June 30, 2012. Id. at 51 (Tr. 45:2-12). The night of January 6, Breding and Bergsing were messaging each other, and Bergsing stopped responding around 9:30 p.m. Id. (Tr. 45:20-46:10). The next contact Breding had was from the Dunn County Sheriff's Department at approximately 4:15 a.m. informing her Bergsing had died. Id. (Tr. 46:10-21).
[¶3] Steve Polesky of Across Big Sky testified Across Big Sky's business encompasses essentially anything related to production from an oil facility. Id. at 52 (Tr. 49:1-5). He testified Bergsing's job was to be on the well-site to monitor the location for Marathon Oil. Id. (Tr. 51:4-15). This was Bergsing's first day at that well-site, but he had been working for Across Big Sky for 3-6 months. Id. (Tr. 51:16-52:2).
[¶4] Polesky described the Marathon location where Bergsing died as having two wells, two sets of tanks, and a catwalk in between. Id. at 52-53 (Tr. 52:13-53:5). He testified Bergsing was found by the number two tank on the left hand side of the catwalk. Id. (Tr. 55:24-56:8). Bergsing had already gauged one tank before he died and recorded the oil level. Id. at 54 (Tr. 58:1-7). Bergsing's gauge was found cleaned off and laying on the second tank. Id. Bergsing's gauge notes indicated he had gauged the tanks at 8:00 p.m., recording the oil, water, casing pressure, and flowline pressure. Id. (Tr. 59:13-60:9); Supp. App. at 5-6 (C.R. at 39-40). On Bergsing's 10:00 p.m. note, he had gauged the oil, but nothing else. Id.; see also App. at 61 (Tr. 87:21-88:2).
[¶5] Polesky agreed Bergsing was at the well site as part of his employment with Across Big Sky and part of his job was gauging the tanks. App. at 61-62 (Tr. 88:24-89:8). Bergsing's gauge was on top of a tank approximately 4-5 feet from where his body was found. Id. at 62 (Tr. 89:9-18). In order to gauge the tanks, a person has to stand on the catwalk near the tank and put the gauge in the tank. Id. at 64 (Tr. 99:4-6). Polesky agreed it appeared the last thing Bergsing ever did in his life was record his notation of the oil levels in the tanks at the site. Id. (Tr. 99:20-100:2); Supp. App. at 6 (C.R. at 40).
[¶6] Deputy Derrek Harju was a deputy sheriff for Dunn County when he received a call from dispatch about Bergsing's death at the Marathon well location. App. at 44 (Tr. 18-19). When Harju arrived, Bergsing's body was in the ambulance. Id. (Tr. 19:8-9). Harju was called to the scene at approximately 1:00 a.m. on January 7, 2012. Id. at 45 (Tr. 21:1-7). Bergsing's body was fully clothed in his fire retardant rig attire. Id. at 44 (Tr. 19:17-21). Upon questioning the ambulance personnel, Harju was informed they had not found any markings or anything that could have related to his death, no "foul trauma or anything like that." Id. (Tr. 20:3-7). He was informed the body had been found on the catwalk. Id. (Tr. 20:8-13).
[¶7] Harju was led to the area where Bergsing's body was found, near a tank with the hatch still unlatched. Id. at 45 (Tr. 21:25-22:7). He described:
I believe it was an eight-tank site, eight or six. And if I recall right out of my head, it was the second tank or the third tank on the left with the hatch that was still open. That is where they indicated, right at that hatch point, is where, if somebody were to stand by that hatch where they were opening it, the gauge tank, would have fallen or collapsed at that point on the catwalk and then kind of just curled up into that catwalk, because it was a pretty tight catwalk. But the body had just fallen backwards from that hatch and just and laid down right at that tank.
Id. (Tr. 22:25-23:11). An autopsy was ordered to determine the cause of death. Id. (Tr. 24:5-8).
[¶8] Harju remained on the scene and obtained a statement from the person who originally found Bergsing's body, Jim Kime. Id. (Tr. 24:9-15); C.R. at 3. Harju also searched Bergsing's phone, located the information for Breding, and performed a death notification. App. at 45-46 (Tr. 24:16-25:5). Harju then left the site. Id. at 46 (Tr. 26:3-14). He returned the following day, and searched Bergsing's camper and truck. Id. (Tr. 26:15-28:2). He was "looking for any indications of narcotics, drug use, that would indicate maybe [Bergsing] could have possibly been using drugs on scene that could have led to an overdose of something internally that we couldn't notice." Id. (Tr. 28:6-10). He conducted a thorough search of the trailer and truck, but found no evidence of drug use. Id. at 46-47 (Tr. 28:5-30:4). Harju's understanding was Bergsing's job was to gauge the tanks, and he would do that by lowering something into the tanks. Id. at 48 (Tr. 35:3-13). Harju's impression was that, when Bergsing died, he was in the process of gauging the tank. Id. at 49 (Tr. 37:16-20).
[¶9] Dr. William Massello is the North Dakota state forensic examiner, and a forensic pathologist. C.R. at ROA 48 (Massello Deposition Tr. 4-5). He performed the autopsy and determined the cause of death was hydrocarbon poisoning due to inhaling vapors from petroleum products. Id. at 7:1-8:3. The bloodwork showed Bergsing had ethane, propane, butane, isobutene, pentane, hexane, and cyclohexane in his blood. App. 39f (Massello Depo. Tr. 8:5-9). Dr. Massello is aware these are components found at an oil well site and are "volatile compounds" found in gasoline. Id. (8:10-14).
[¶10] The autopsy revealed generalized internal organ and vascular congestion and pulmonary edema (fluid-laden lungs). Id. (9:1-17); see also Supp. App. at 1-3 (C.R. at 6-8). The Postmortem Summary in the autopsy report indicated:
This 21-year-old white male was at work on an oil rig. He was found sitting on a catwalk located between and above oil storage tanks. His full postmortem examination revealed findings consistent with an alcohol, drug and/or toxic substance poisoning. This was confirmed by postmortem toxicology which demonstrated multiple hydrocarbon compounds, components of petroleum, in both the blood and in the lungs. No other drugs or toxic substances were found. Death is the result of the decedent's inhaling vapors from petroleum.
Supp. App. at 1. In order to have those petroleum products in his lungs, Dr. Massello testified a person would have to breathe in the vapors. App. at 39f, 39h (Tr. 9:18-22; 18:21-19:6) (describing the importance of the toxicology results located at C.R. pp. 138 and 139).
[¶11] Dr. Massello indicated the presence of these potentially toxic compounds was the only thing he found wrong with Bergsing. Id. at 39f (Tr. 10:22-11:7). When asked how these compounds would result in Bergsing's death, Dr. Massello explained:
Well, as I mentioned, number one is you can have a seizure. You could have respiratory what we call respiratory arrest or respiratory paralysis, it can put you in a coma, or you can have what we call a fatal arrhythmia of the heart, the heart can quit beating normally and actually sort of fibrillate or jiggle in such a fashion that it doesn't produce any flow of blood and you die from that. And then, of course, you know, when you have fluid in your lung, this can impair the exchange of oxygen that you are going to you're not going to get enough oxygen when you breathe. And then also these components will displace oxygen from your lungs so that in and of themselves they're displacing oxygen from the lung and, as a consequence, you just don't have enough oxygen in your system. So it can be any one of these or all of these things and these can end up killing you.
Id. at 39f-39g (11:8-12:2). Dr. Massello explained his physical examination of Bergsing's organs was consistent with exposure to hydrocarbon vapors in the sense there was pulmonary edema. Id. at 39g (12:11-20). He testified a person's reaction to these compounds is specific to the person and the situation, and "small amounts or moderate amounts of these vapors can kill you as can large amounts." Id. (13:25-14:6). Dr. Massello discovered nothing else that would indicate the cause of a sudden death of a 21-year-old. Id. (14:7-15:2). Dr. Massello testified it was his opinion, to a reasonable degree of medical certainty, Bergsing died as a result of inhalation of these petroleum vapors. Id. at 39h-39i (19:23-20:4).
[¶12] Harvey Hanel, WSI's pharmacy director also testified via deposition and was cross-examined at the hearing. App. at 66 (Tr. 105-06); C.R. at ROA 47 (Hanel Dep. At 4-5). He was consulted by WSI in relation to the chemicals in Bergsing's blood and whether they contributed to the cause of death. ROA 47 at 6:7-17. He reviewed documents and researched the EPA's Acute Exposure Guidelines for benzene, methyl ethyl ketone, butane, and isobutane. App. at 39b (8:17-9:3). Based on his research, he testified just the level of butane itself in Bergsing's blood would have been unlikely to cause death. Id. (10:24-11:3). However, he described it is really difficult to say one way or the other based on a "one point in time serum level." Id. (11:3-10). He testified it is more likely the level of butane was actually higher in Bergsing's blood than what is reported in the postmortem toxicology reports. Id. at 39b-39c (11:25-12:5). He did not evaluate the effects of the combination of the substances found in Bergsing's blood. App. at 66 (Tr. 106:14-107:4). He agreed all of the compounds are found in crude oil and in the right set of circumstances could cause death by inhalation. Id. (Tr. 107:5-14). Similar to Dr. Massello, he testified what you would see in an autopsy where death is caused by inhalation of these vapors is pulmonary edema and congestion in the cardiovascular system. Id. (Tr. 107:15-108:1). Hanel did not consider himself a cause of death expert and did not have any disagreement with Dr. Massello's testimony. Id. at 66-67 (Tr. 108:2-4; 109:24-110:10).
A. The ALJ's Decision
[¶1] In the Order, the ALJ made several factual findings consistent with the evidence described above. As most relevant to this appeal, she found:
14. From observations at the site and review of Mr. Bergsing's notebook, which was found with his body, it appears that he had opened the first tank on the left side, gauged it, retrieved his gauge line, cleaned it, coiled it and had moved on to the next tank where he was found with the hatch unlatched. There was no evidence such as a butane lighter, a paper or plastic bag or other device that would support Big Sky's contention that Mr. Bergsing was doing something other than his job at the time he passed away.
16. Harvey J. Hanel is a doctor of pharmacy. Dr. Hanel's opinion was that in order for Mr. Bergsing to pass away from inhalation of butane or isobut[a]ne the concentration would have had to be so high that it was explosive. Dr. Hanel noted that the level of butane present was not reported. Dr. Hanel noted that the level of butane in Mr. Bergsing's blood was in a medium range but not sufficient to conclusively show that Mr. Bergsing had died from butane. Dr. Hanel noted that like other petro-chemicals, butane is highly volatile and a reading at any point in time would differ from a reading at another time. Thus, he could not opine whether Mr. Bergsing's blood level butane reading could have been different at the time of his death, but he did note it would have been higher than at the autopsy.
17. Dr. William Massello III is a medical doctor trained as a forensic pathologist. Among his duties as the state medical examiner is the determination of the cause and manner of death. In this case Dr. Massello reviewed the toxicology reports as well as performed an autopsy. He observed pulmonary edema and heart failure, noted the toxicology reports showing elevated levels of petroleum products, and concluded Mr. Bergsing died from "hydrocarbon poisoning due to inhaling vapors from petroleum products." Pg. 164. Dr. Masello found no other possible causes of death.
18. The January 19, 2012, "Certification of Facts of Death" state that Mr. Bergsing died on January 6, 2012. The report of death states that the cause of death was hydrocarbon poisoning "[d]ue to inhalation of petroleum vapors" and it occurred when Mr. Bergsing "[i]nhaled petroleum vapors from storage tank." Pg. 5. The report of death was signed by William Massello II[I], MD. The postmortem summary stated that the "findings were consistent with an alcohol, drug and/or toxic substance poisoning." Pg. 6. The postmortem toxicology report showed "multiple hydrocarbon compounds, components of petroleum" in the blood and lungs but did not show any "other drugs or toxic substances." Id. Physical findings were that his lungs had marked congestion with edema and no injuries or pulmonary emboli. A urine screen was negative for drugs.
App. at 18-19.
[¶2] The ALJ concluded:
3. All of the evidence shows that Mr. Bergsing was on site and was where he was expected to be. The fact that his notebook and gauging tape were found with him, show that he was doing what he was expected to do. While there is speculation and argument that Mr. Bergsing was engaged in non-work activity such as huffing butane, there is no actual evidence that that is the case. There were no butane lighters, and no bags to facilitate the alleged huffing. Here the only evidence is that Mr. Bergsing was doing his work when he succumbed to hydrocarbon inhalation. It is undisputed that these hydrocarbons are present at the well site and though Dr. Hanel could not reach a conclusion as to the cause of Mr. Bergsing's death, Dr. Masello, based upon his training and experience was able to reach a conclusion as to Mr. Bergsing's death. Dr. Massello considered not only the toxicology reports reviewed by Dr. Hanel, but also personally performed the autopsy. Consequently, Dr. Massello's opinion is more persuasive as to the cause of death then Dr. Hanel's.
4. I conclude that the preponderance of the evidence shows that Mr. Bergsing was at a place he was expected to be to perform his work duties and that he was furthering his employer's business. His death arose out of and in the course of his employment with Big Sky.
5. The greater weight of the evidence in the record showing that Mr. Bergsing's death arose out of and in the course of his employment with Big Sky, WSI's November 15, 2012, order awarding benefits in the death of Dustin Bergsing must be affirmed.
Id. at 20-21.
[¶3] Across Big Sky petitioned for reconsideration, asserting the conclusion that Bergsing's death arose out of and in the course of employment is speculative. Id. at 22. The ALJ denied reconsideration, stating in relevant part:
There is no dispute that the hydro-chemicals present in Mr. Bergsing's lungs and blood were present at the site where Mr. Bergsing was found. There is also no evidence whatsoever that the cause of death was not inhalation of hydrocarbons in a sufficient quantity that it affected Mr. Bergsing's death through pulmonary edema.
Big Sky argues Dr. Hanel's conclusion that it was highly unlikely that Mr. Bergsing died from an exposure to workplace butane is not dispositive. Dr. Hanel is a doctor of pharmacy and not a medical doctor. Though he concluded the concentrations of butane found were unlikely to cause death, he acknowledged that the levels would have been higher than the testing demonstrated and he also stated could not rule  out petrochemical inhalation as the cause of death. Pg. 152 [footnote omitted]. While this is not a ringing endorsement of Dr. Massello's opinion, it also leaves room for his opinion to be correct. Moreover basing his conclusion merely on the presence of butane, neglects the effect of the numerous other petrochemicals that were present.
Dr. Massello is the state medical examiner, he is a trained forensic pathologist, and is a licensed medical doctor. Based on his training and experience alone his opinion is entitled to more weight in this case than is Dr. Hanel's opinion.
While Dr. Hanel's opinion was that there would have to be higher concentrations of butane to cause death; Dr. Massello's opinion is not limited to the effect of butane on Mr. Bergsing but encompasses the effect of all of the petrochemicals found. Pg. 164-65.
Big Sky argues that Dr. Massello's opinion is somehow suspect because he did not have an opinion as to the concentration of the butane in the gauged tank at the site. This is a red herring as Dr. Massello's opinion was not based solely on inhalation of butane. Dr. Massello's opinion, based upon his training and experience was that it might only require a small quantity of petrochemicals to cause Mr. Bergsing's lungs to begin to retain fluid which eventually lead to his death.
In the final analysis, Dr. Massello's opinion as to the cause of Mr. Bergsing's death was clear: the only thing wrong with Mr. Bergsing was the presence of inhaled hydrocarbons in a sufficient quantity that it affected his death through pulmonary edema.
Id. at 27-28.
[¶4] The district court affirmed the Order, concluding a reasoning mind reasonably could have determined "that the petrochemicals Bergsing inhaled while he was checking the tank levels, i.e. arising out of and in the course of his employment, caused his death based on the objective medical evidence that a body's susceptibility to death from such chemicals varies person to person and exposure to those chemicals was assessed to be the only cause of death." App. at 85. WSI requests the Judgment be affirmed.
III. APPLICABLE LAW AND ARGUMENT
A. Standard of Review
[¶1] The standard of review is set forth in N.D.C.C. § 28-32-46, and provides that a district court shall affirm the Order unless:
1. The order is not in accordance with the law.
2. The order is in violation of the constitutional rights of the appellant.
3. The provisions of this chapter have not been complied with in the proceedings before the agency.
4. The rules or procedure of the agency have not afforded the appellant a fair hearing.
5. The findings of fact made by the agency are not supported by a preponderance of the evidence.
6. The conclusions of law and order of the agency are not supported by its findings of fact.
7. The findings of fact made by the agency do not sufficiently address the evidence presented to the agency by the appellant.
8. The conclusions of law and order of the agency do not sufficiently explain the agency's rationale for not adopting any contrary recommendations by a hearing officer or an administrative law judge.
If the order of the agency is not affirmed by the court, it must be modified or reversed, and the case shall be remanded to the agency for disposition in accordance with the order of the court.
On appeal, the Court does not substitute its judgment for that of the agency and "it is the province of the ALJ to resolve conflicts of evidence and weigh the credibility of witnesses." Landrum v. Workforce Safety & Ins., 2011 ND 108, ¶ 20, 798 N.W.2d 669. The appellate court determines only "whether a reasoning mind reasonably could have determined that the factual conclusions reached were proved by the weight of the evidence from the entire record." Id. Questions of law are fully reviewable. Higginbotham v. Workforce Safety & Ins., 2014 ND 147, ¶ 7, -- N.W.2d --. A reasoning mind could have concluded that Bergsing's death arose out of and in the course of his employment, and the ALJ followed the law.
B. The Order Should be Affirmed.
[¶1] The burden of proving a compensable injury is by the preponderance of the evidence. N.D.C.C. § 65-01-11. A compensable injury is "an injury by accident arising out of and in the course of hazardous employment which must be established by medical evidence supported by objective medical findings." N.D.C.C. § 65-01-02(10). "Generally, 'course of employment' refers to the time, place, and circumstances of the accident resulting in the injury, and 'arising out of' refers to a causal connection between the injury and the employment." Fetzer v. Workforce Safety & Ins., 2012 ND 73, ¶ 6, 815 N.W.2d 539; see also Mitchell v. Sanborn, 536 N.W.2d 678, 684 (ND 1995) ("For purposes of receiving [workers' compensation] benefits, an employee's injury arises out of and in the course of employment if it occurs within the period of employment at a place where the employee may reasonably be and while he was engaged in performing the duties of his contract or engaged in something incident thereto and contemplated thereby"); Lippman v. ND Workmen's Comp. Bur.,55 N.W.2d 453, 458 (N.D. 1952) ("it may be stated as a very general proposition that an injury occurs 'in the course of the employment when it takes place within the period of the employment, at a place where the employee reasonably may be in the performance of his duties, and while he is fulfilling those duties or engaged in doing something incidental thereto, or, as sometimes stated, where he is engaged in the furtherance of the employer's business.'") To establish a causal connection, it must be demonstrated that employment was a substantial contributing factor to the injury, not that employment was the sole cause of the injury. Swenson v. Workforce Safety & Ins., 2007 ND 149, ¶ 24, 738 N.W.2d 892. Speculation as to cause does not meet the burden of proving cause by a preponderance of the evidence. Rush v. N.D. Workmen's Comp. Bur., 2002 ND 129, ¶ 8, 649 N.W.2d 207.
[¶2] Across Big Sky argues the Order is based on speculation. However, the evidence establishes Bergsing was at a location he was supposed to be, performing duties he was hired to perform, and died as a result of inhalation of hydrocarbon vapors consistent with being at the well location he was hired to monitor. Across Big Sky's argument asks this Court to reweigh the evidence and essentially argues absolute medical certainty is required for Bergsing's death to be compensable. However, absolute medical certainty is not required. "Reasonable medical certainty is sufficient to establish the cause of death." Nelson v. N.D. Workmen's Comp. Bur., 316 N.W.2d 790, 794 (N.D. 1982).
[¶3] There is no dispute Bergsing was at a location he was supposed to be for his employment. Therefore, the "course of" employment prong of the requirements of a compensable injury is established. Whether his death "arose out of" his employment requires a causal connection to his employment. Bergsing was found below an unlatched tank. He was dressed in rig attire with a notebook that indicates he was on the catwalk gauging the tanks--a task he was hired to perform. His gauging coil was nearby. Dr. Massello, the state forensic examiner whose job is to determine cause of death, determined Bergsing died of inhalation of petroleum vapors. There was no dispute that the vapors at issue are present at the well-site. Not only does this evidence show the ALJ's factual conclusions are based on a reasoned view of the evidence, WSI asserts the evidence is strong that Bergsing's death arose out of and in the course of his employment. In fact, there is no evidence of any nonwork-related cause of Bergsing's death.
[¶4] Across Big Sky places undue emphasis on Dr. Hanel's testimony, which is also contrary to the standard of review. The ALJ weighed Dr. Massello's and Dr. Hanel's testimony, concluding greater weight should be placed on Dr. Massello's testimony. The ALJ did not ignore Dr. Hanel's testimony and the weight placed on the testimony is a function for the ALJ. Further, Dr. Hanel testified he did not disagree with Dr. Massello's testimony; agreed pulmonary edema was consistent with death as a result of inhalation of these compounds; and did not consider himself to be a cause of death expert. Across Big Sky does not appear to dispute that Bergsing died from inhalation exposure, arguing it "appears likely that Mr. Bergsing's death was caused by the inhalation of butane." Appellant's Brief at ¶ 13. Across Big Sky does not articulate how it claims the butane arrived in Bergsing's system in some way unrelated to his employment.
[¶5] Even though Bergsing was found on a catwalk beneath an unlatched oil tank, in his rig attire, with his gauging coil and incomplete gauging notes, and died of exposure to hydrocarbon vapors, Across Big Sky presents no alternate explanation that Bergsing's death did not arise from his work activities. Further, Across Big Sky focuses its argument solely on the presence of butane even though there were several hydrocarbon compounds present in Bergsing's blood and lungs. Across Big Sky wants to imply Bergsing's death arose from huffing, but it does not want to say so because there is no evidence whatsoever to support this argument. Deputy Harju conducted a thorough search of Bergsing's camper and truck, but found nothing to suspect drug abuse or huffing. The autopsy showed several hydrocarbons, including butane, in Bergsing's system, consistent with his presence at the well-site and his work gauging the tanks. The only speculation occurring in this case is from Across Big Sky-- there is no evidence explaining another cause of death for this otherwise healthy young man.
[¶6] Bergsing's job was to gauge oil tanks for Across Big Sky. He was at a well location, in his work gear, and with his work equipment when he was found. The only evidence of his cause of death is that he died from inhalation of petroleum vapors. There is no dispute these vapors are present at the jobsite. Across Big Sky's bare assertion that something else could have caused his death ignores the evidence. A reasoning mind could have reasonably concluded Bergsing's death arose out of and in the course of his employment.
[¶7] For the foregoing reasons, WSI requests the Judgment be affirmed.
|Dated this 30th day of July, 2014.|
|By /s/ Mitchell D. Armstrong____|
|Mitchell D. Armstrong #05892|
|Brian D. Schmidt #07498|
|Special Assistant Attorneys General for Workforce Safety and Insurance|
|122 East Broadway Avenue|
|P.O. Box 460|
|Bismarck, ND 58502-0460|
1. "C.R." refers to the Certificate of Record on Appeal to District Court filed on October 30, 2013, pursuant to N.D.C.C. § 28-32-44. (R. at Doc ID #'s 7-9). Citations to C.R. will be to the bate-stamped page number.