IN THE SUPREME COURT
STATE OF NORTH DAKOTA
| ROBERT RINGSAKER, |
| APPELLANT, |
| vs. |
| WORKFORCE SAFETY & INSURANCE FUND, |
| APPELLEE, |
| and |
| YELLOW FREIGHT SYSTEM, |
| RESPONDENT. |
| SUPREME COURT NO. 20040155 |
APPEAL FROM THE JUDGMENT OF WARD COUNTY DISTRICT COURT
DATED MAY 19, 2004
WARD COUNTY DISTRICT COURT CIVIL NO. 51-02-C-00476
THE HONORABLE GARY A. HOLUM, PRESIDING
BRIEF OF APPELLANT ROBERT RINGSAKER
| DIETZ & LITTLE LAWYERS | ||||||
| STEPHEN D. LITTLE (ID# 03323) | ||||||
| ATTORNEY AT LAW | ||||||
| 2718 GATEWAY AVENUE | ||||||
| SUITE 302 | ||||||
| BISMARCK, ND 58501 | ||||||
| ATTORNEYS FOR APPELLANT | ||||||
| (701) 222-1761 | ||||||
TABLE OF CONTENTS
PAGE
Table of Contents . . . . . . . . . i
Table of Authorities Cited . . . . . ii
I. Statement of the Issue. . . . . 1
Did Robert Ringsaker file a timely claim for workers compensation benefits for his right-shoulder rotator cuff injury?
II. Statement of the Facts/Statement of the Case. . . . 1 - 3
III. Law and Argument. . . . . . . . 3 - 6
IV. Conclusion. . . 6
Certificate of Service . . . . . . . 7
TABLE OF AUTHORITIES CITED
PAGE
| CASES | ||||||||||||
| Anderson v. Workers Compensation Bureau, | ||||||||||||
| 553 N.W.2d 496, 500 (N.D. 1996) . . . 5 | ||||||||||||
| Klein v. North Dakota Workers Compensation Bureau, | ||||||||||||
| 2001 ND 170, 634 N.W.2d 530 . . . 5, 6 | ||||||||||||
| White v. Workers Compensation Bureau, | ||||||||||||
| 441 N.W.2d 908 (ND 1989). . . . . 4, 6 | ||||||||||||
| STATUTES | ||||||||||||
| N.D.C.C., Section 65-05-01 . . . . . . 2 | ||||||||||||
I. STATEMENT OF ISSUE
Did Robert Ringsaker file a timely claim for workers compensation benefits for his right-shoulder rotator cuff injury?
II. STATEMENT OF THE FACTS/STATEMENT OF THE CASE
Robert Ringsaker began driving truck for Yellow Freight in 1984 (App. pp. 56.2 & 56.3). His duties consisted of loading, unloading and delivering freight (App. 56.3). Mr. Ringsaker suffered occasional bumps and bruises in his work but "you know, a couple of days later it goes away, so, you just don't pay any attention to it" (App. 58). Mr. Ringsaker felt his right shoulder "jerk in there every once in a while" when he pulled the fifth wheel pin connecting the tractor to the trailer (App. 57). In 1996, he felt his right shoulder "jerk" when he pulled the fifth wheel pin and, when his shoulder pain didn't go away, he consulted Dr. Bernard Varberg, an orthopedic surgeon (App. pp. 49 - 50).
Mr. Ringsaker continued to work as a truck driver for Yellow Freight despite having a "real stiff and sore" shoulder and he continued to seek periodic medical treatment (App. p. 51). He understood from Dr. Varberg that he had arthritis in his shoulder (App. p. 52). Mr. Ringsaker never saw his medical records and never considered arthritis to be work related (App. 59) (App. p. 53).
In January 2000, Mr. Ringsaker was first diagnosed with a rotator cuff tear at the Mayo Clinic, and he promptly filed a workers compensation claim for a right-shoulder rotator cuff injury (App. p. 54). In October 2000, he had corrective rotator cuff surgery performed (App. pp. 55 - 56). Mr. Ringsaker noted on his claim form that he had had ongoing right-shoulder problems for the previous few years and asserted that his torn rotator cuff was progressive and was attributable to 16 years of opening and shutting trailer doors, pulling fifth wheel pins, cranking trailer dollies and moving freight as a trucker for Yellow Freight.
Mr. Ringsaker told Workforce Safety & Insurance that he had engaged in repetitive right arm use for the previous 16 years as a truck driver, he had no hobbies or sports which might explain his shoulder injury, and he had had occasional shoulder symptoms and treatment before filing his claim, (App. pp. 42 - 48). WSI issued a notice of decision in May of 2000 dismissing Mr. Ringsaker's claim stating that he had not provided a specific incident on his claim form or provided a specific date of injury, and asserting that there was no objective medical evidence of a right shoulder condition related to work duties (App. pp. 40 - 41). Mr. Ringsaker requested reconsideration, asserting that right-shoulder rotator cuff tear was, in fact, work related (App. p. 39.1). Nevertheless, WSI dismissed Mr. Ringsaker's claim in a formal order dated June 21, 2000 (App. 32 - 39).
On September 11, 2000, Mr. Ringsaker's treating surgeon, Dr. David Uthus, opined that Mr. Ringsaker's torn rotator cuff was, in fact, work related and was a gradual "wear and tear" type of condition (App. pp. 31.1 - 31.2) as Mr. Ringsaker had asserted. On July 16, 2001, WSI issued an Amended Order of Dismissal, finally agreeing that Mr. Ringsaker had suffered a work-related shoulder injury but asserting, for the first time, that he had not filed his claim within the one-year limitation period specified in N.D.C.C. Section 65-05-01 (App. pp. 25 - 31). Again, Mr. Ringsaker requested reconsideration and demanded formal hearing (App. p. 24).
A formal hearing was held before a temporary administrative law judge (TALJ) on February 24, 2002, on the issue of whether Mr. Ringsaker had timely filed his claim for benefits (App. p. 23.1). On March 10, 2002, the TALJ issued recommended findings of fact and conclusions of law finding that Mr. Ringsaker had not timely filed his claim for benefits (App. pp. 16 - 23). The Bureau adopted the TALJ's recommended findings on March 22, 2002, and Mr. Ringsaker appealed to the District Court (App. p. 15).
While Mr. Ringsaker's appeal was before the District Court, WSI sought and obtained an extension until August 2, 2002, in which to file its brief (App. p. 51). WSI failed to comply with the terms of the order granting the extension, which its counsel had drafted. The District Court refused to consider WSI's brief and directed judgment for Mr. Ringsaker (App. p. 59). WSI appealed and the matter was remanded to the District Court for a determination on the merits. On May 6, 2004, the Honorable Gary Holum, District Judge, affirmed WSI's Final Order (App. p. 7) and Mr. Ringsaker has, once again, appealed (App. p. 13).
III. LAW AND ARGUMENT
As noted earlier, Workforce Safety & Insurance initially dismissed Robert Ringsaker's claim for his right-shoulder condition on the grounds that he had not demonstrated, through, objective medical evidence, that his right-shoulder rotator cuff tear was causally related his work duties (App. pp. 40 - 41). Over a year elapsed between WSI's initial dismissal and its amended order of dismissal. During that time, WSI apparently became convinced that Mr. Ringsaker had, in fact, suffered a compensable work injury to his right-shoulder rotator cuff, but he should have known it was compensable when he saw Dr. Varberg on January 21, 1997. In other words, although WSI's various analysts and attorneys did not consider Mr. Ringsaker's torn rotator cuff to be work related until July 16, 2001, he somehow should have recognized the compensability of his condition and filed his claim years earlier. It is clear from Mr. Ringsaker's testimony, which was uncontroverted, that until he was diagnosed with a rotator cuff tear in February of 2000, he understood his right-shoulder condition to be non-work-related arthritis (App. p. 60). Prior to filing his claim for benefits in 2000, Mr. Ringsaker continued to work despite having a painful right shoulder (App. p. 61).
The issue of when the one-year filing deadline for establishing a compensable worker's compensation claim begins running was first considered by this Court in White v. Workers Compensation Bureau, 441 N.W.2d 908 (ND 1989). Like the claimant in White, Robert Ringsaker was told by his doctor that he had arthritis. Also, like White, Mr. Ringsaker did not miss any work because of his right shoulder condition. This Court noted that filing dates must be considered under a "reasonable person" standard. In other words, whether Robert Ringsaker should have followed Dr. Varberg's diagnosis of non-work-related arthritis or should have nevertheless filed a claim for worker's compensation benefits at that time should be gauged on the basis of a reasonable person with a high school education and a lifetime of truck driving. This Court recognized that the average person would pursue a doctor's diagnosis no further unless he somehow had additional medical information or training White, supra In the instant case, Mr. Ringsaker filed his claim for workers compensation benefits immediately after he learned at Mayo Clinic in January of 2000 that he had a torn rotator cuff.
This Court affirmed its adoption of the reasonable person standard in Klein v. North Dakota Workers Compensation Bureau, 2001 ND 170, 634 N.W.2d 530. The Court noted that "a person who experiences pain and other symptoms while working does not have reason to know of a significant work-related injury" Klein para. 15, citing Anderson v. Workers Compensation Bureau, 553 N.W.2d 496, 499 (N.D. 1996). The Court went to note,
Certainly, some injuries are obviously caused by a claimant's work and do not require a doctor to inform the claimant his injuries are work related. In these situations, the limitations begins to run in absence of any medical advice. Other complex, insidious injuries, however, require knowledge in medical matters because of the causes and effects are not immediately apparent to the reasonable lay person not learned in medicine.
Klein, para. 19.
In the instant case, Robert Ringsaker was told by Dr. Varberg that his right shoulder symptoms were due to arthritis. Mr. Ringsaker reasonably understood that arthritis is a condition common to he general public and would not ordinarily be a compensable injury. It was only after Mr. Ringsaker learned that he had a torn rotator cuff that he filed his claim for workers compensation benefits and obtained appropriate surgical care. Indeed, it was not until WSI fully understood Dr. Uthus's medical opinion dated September 11, 2000, (App. pp. 31.1 - 31.2) that it first considered Mr. Ringsaker's condition to be compensable. It still took another ten months for WSI to issue an appealable order. From the time WSI issued its notice of decision on May 4, 2000 (App. pp. 40 - 41) until it issued its amended order of dismissal on July 16, 2001 (App. pp. 25 - 31), WSI's claims and legal departments concluded that Mr. Ringsaker's right shoulder condition was not work related. Now WSI insists that, not only was Mr. Ringsaker's shoulder condition always work related, but he, with his high school education and lifetime of truck driving, should have known that it was work related as early as 1997. The Bureau's position is untenable. The TALJ failed to apply the reasonable person standard as adopted by this Court in White, and Klein, supra and failed to apply that standard to Robert Ringsaker.
IV. CONCLUSION
WSI now concedes that Mr. Ringsaker suffered a gradual and progressive work-related right-shoulder rotator cuff tear. Mr. Ringsaker did not learn of that condition until he was diagnosed at the Mayo Clinic in January 2000. Based on the information provided to him by his doctors, Mr. Ringsaker reasonably did not file a claim for workers compensation benefits until he understood the true nature of his condition and its relationship to his work activities. Mr. Ringsaker suffered a work-related injury, and he acted reasonably in filing a claim for worker's compensation benefits only after he was convinced there was a work relationship. Mr. Ringsaker respectfully requests this Court reverse the decision of Workforce Safety & Insurance and direct WSI to accept Mr. Ringsaker's claim and provide appropriate benefits.
Respectfully submitted this 7th day of July, 2004.
| DIETZ & LITTLE LAWYERS | ||||||
| BY: STEPHEN D. LITTLE (ID 03323) | ||||||
| ATTORNEY AT LAW | ||||||
| ATTORNEYS FOR THE APPELLANT | ||||||
| 2718 GATEWAY AVENUE SUITE 302 | ||||||
| BISMARCK ND 58501 | ||||||
| (701) 222-1761 | ||||||