Manske v. Workforce Safety and Insurance

20070173 Catherine Manske, Claimant and Appellant
v.
Workforce Safety and
Insurance, Appellee
and
Northern States Power
Company a/k/a Xcel Energy, Respondent

Appeal from: District Court, Northeast Central Judicial District, Grand Forks County
Judge Lawrence E. Jahnke
Nature of Action: Workers Compensation
Counsel:
Appellant: Boechler Law Firm
Appellant: David C. Thompson, P.C.
Appellee: Douglas W. Gigler , Spec. Asst. Atty. Gen.
Term: 12/2007   Argument: 12/20/2007  1:30pm
ND cite: 2008 ND 79
NW cite: 748 N.W.2d 394

Listen to recording of oral argument in MP3 format

Issues: Appellant's Statement of the Issues:
A. North Dakota law providing for workers compensation benefits is "remedial legislation", and Workforce Safety & Insurance may not permissibly "place itself in a position fully adversary to the claimant."
B. In resolving conflicts in medical evidence in cases before it, Workforce Safety & Insurance "must consider the entire record, clarify inconsistencies and explain its reasons for disregarding medical evidence favorable to the claimant."
C. In order to establish a causal connection between a particular injury, and a workers employment, for the purpose of entitlement to workers compensation benefits in North Dakota, a claimant need not prove that the `employment was the sole cause of injury and it is sufficient if the working condition is a substantial contributing factor to the injury."
D. The final decision of Workforce Safety & Insurance in this case must be vacated, and reversed, where "a reasoning mind" could not have reasonably concluded that claimant Catherine Manske had failed to prove, by a preponderance of the evidence, that her late husband's occupational asbestos exposure was not at least a "substantial contributing factor" in causing the lung cancer which took Robert Manske's life.

Appellee's Statement of the Issues:
1. Whether WSI applied the correct evidentiary standard in reaching its decision on Catherine Manske's claim for benefits.
2. Whether a reasoning mind could reasonably determine that Manske's exposure to asbestos during his employment was not a substantial contributing factor to his fatal lung cancer.
3. Whether WSI properly weighed conflicting medical opinions and adequately explained its reasons for rejecting the testimony of medical evidence favorable to Catherine Manske.

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Docket entries:
106/20/2007 NOTICE OF APPEAL: 06/18/2007
206/20/2007 ANNOUNCED DISQUALIFICATION: Crothers, Daniel John
307/17/2007 DISK of Administrative Transcript dated 1-26-06
407/17/2007 RECORD ON APPEAL & Separate [Entry No. 3 - WSI Certificate of Record (Entry Nos. 1-896)]
507/17/2007 Not received with the Record on Appeal (Entry No. 28 - Steno Notes).
607/27/2007 MOT. EXT/TIME APPELLANT BRIEF
707/27/2007 ACTION BY CLERK (MAT). Granted: 08/27/2007
808/27/2007 MOT. EXT/TIME APPELLANT BRIEF, Affidavit of David C. Thompson, Aff. of Service by electronic mail
908/27/2007 ACTION BY CHIEF JUSTICE (MAT). Granted: 09/11/2007
1009/11/2007 APPELLANT BRIEF (e-filed)
1109/11/2007 E-FILED BRIEF (ATB) (e-filed)
1209/12/2007 APPELLANT APPENDIX (e-filed)
1309/12/2007 E-FILED APPENDIX (ATA)
1409/14/2007 Received $190 surcharge for ATB & ATA (Receipt #17690)
1509/18/2007 Received 7 copies of ATB from Central Duplicating
1609/18/2007 Received 6 copies of ATA from Central Duplicating
1709/19/2007 Affidavit of Service by Electronic Mail of AEB on opposing counsel
1810/10/2007 MOT. EXT/TIME APPELLEE BRIEF (E-FILED)
1910/10/2007 E-FILED MOTION (MAE)
2010/10/2007 ACTION BY CLERK (MAE). Granted: 11/13/2007
2111/14/2007 APPELLEE BRIEF
2211/14/2007 E-FILED BRIEF (AEB)
2311/15/2007 Received $25 surcharge for AEB (Receipt #17913)
2411/21/2007 Received 7 copies of AEB from Central Duplicating
2511/23/2007 SITTING WITH THE COURT: Schmalenberger, Allan L.
2611/27/2007 MOT. EXT/TIME REPLY BRIEF & Affidavit in Support (E-filed)
2711/27/2007 E-FILED MOTION (Mot/Ext/RYB)
2811/27/2007 ACTION BY CLERK (MRY). Granted: 12/12/2007
2912/13/2007 Letter dated December 13, 2007, from David C. Thompson that no Reply Brief will be filed
3012/20/2007 APPEARANCES: David C. Thompson; Douglas W. Gigler
3112/20/2007 ARGUED: Thompson; Gigler
3212/20/2007 ORAL ARGUMENT WEBCAST
3304/23/2008 DISPOSITION: REVERSED AND REMANDED
3404/23/2008 UNANIMOUS OPINION: VandeWalle, Gerald W.
3504/23/2008 (CONCUR IN THE RESULT): Schmalenberger, Allan L.: CON/RES
3604/23/2008 Costs on appeal to be taxed under N.D.C.C.  65-10-03
3704/23/2008 Judgment e-mailed to Parties
3805/15/2008 MANDATE
3905/21/2008 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE

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