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Across Big Sky Flow Testing, LLC v. Workforce Safety & Ins.

Supreme Court of North Dakota

December 18, 2014

Across Big Sky Flow Testing, LLC, Appellant
v.
Workforce Safety & Insurance and M.F.B., dependent of Dustin Bergsing (deceased), by and through her guardian, Lacey Breding, Respondents, Workforce Safety & Insurance, Appellee

Page 381

Appeal from the District Court of Dunn County, Southwest Judicial District, the Honorable Zane Anderson, Judge.

Stephen D. Little, Gateway Office Building, Bismarck, ND, for appellant.

Mitchell D. Armstrong (argued), Special Assistant Attorney General, and Brian Schmidt (on brief), Special Assistant Attorney General, Bismarck, ND, for appellee.

Daniel J. Crothers, Lisa Fair McEvers, Carol Ronning Kapsner, Dale V. Sandstrom, Gerald W. VandeWalle, C.J. Opinion of the Court by Crothers, Justice.

OPINION

Page 382

Crothers, Justice.

[¶1] Across Big Sky Flow Testing, LLC appeals from a district court judgment affirming an administrative law judge's award of benefits in the death of Dustin Bergsing. Big Sky argues the greater weight of the evidence and the applicable law does not support the determination Bergsing suffered a work-related death. We affirm, concluding a reasoning mind reasonably could have determined the findings were supported by the weight of the evidence.

I

[¶2] On January 6, 2012, Dustin Bergsing, an employee of Big Sky, was stationed at an oil tank site. Bergsing's duties included gauging the oil in tanks two times per hour, switching tanks when necessary and requesting a truck to pick up oil when the tanks were full. Shortly after midnight on January 7, another employee was sent to the site when a high tank level warning occurred. The employee found Bergsing's body lying next to an unlatched tank cover, a log book showing he last logged a tank at 10:00 p.m. and his gauging tape which was cleaned, coiled and sitting on the tank. A toxicology report showed multiple hydrocarbon compounds and components of petroleum in Bergsing's blood and lungs. An autopsy showed pulmonary edema and heart failure.

[¶3] A Dunn County Sheriff's Deputy searched Bergsing's trailer and vehicle and found no evidence of illegal drug use or huffing. An OSHA investigation concluded Big Sky did not violate any safety or health standards and no work-related exposure to hydrogen sulfide occurred. WSI consulted a doctor of pharmacy, Dr. Harvey J. Hanel, to determine if the levels of petroleum vapors in Bergsing's system were concentrated enough to cause his death. Dr. Hanel opined the level of butane in Bergsing's blood did not conclusively show Bergsing died from butane, and he suggested Bergsing could have been huffing. The death certificate, by opinion of Dr. William Massello III, the state medical examiner, states the cause of death was hydrocarbon poisoning due to inhalation of petroleum vapors from storage tanks.

[¶4] An ALJ awarded benefits after finding the greater weight of the evidence showed Bergsing's death arose out of and in the course of his employment with Big Sky. Big Sky filed a petition for reconsideration with the ALJ, which was denied. Big Sky appealed the ALJ's order awarding benefits and the order denying the petition for reconsideration to the North Dakota district court. The district court affirmed. Big Sky appeals.

II

[¶5] " This Court reviews the decision of WSI rather than the district court." Kershaw v. Workforce Safety and Ins.,2013 ND 186, ¶ 9, 838 N.W.2d 429. This Court exercises " a limited review in appeals involving WSI decisions." Elshaug v. Workforce Safety and Ins., 2003 ND 177, ¶ 12, 671 N.W.2d 784. Under N.D.C.C. § § 28-32-46 and 28-32-49, this ...


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