Forbes v. Workforce Safety & Insurance Fund

SANDSTROM, Justice,

concurring in part, and dissenting in part.

25] I concur in that part of the majority opinion concluding Forbes’ false statements were material with regard to both the forfeiture of all future benefits and to the reimbursement of all disability benefits paid by WSI up to the surgery performed on April 29, 2003. However, I dissent from that part of the majority opinion which concludes there is no evidence to support WSI’s findings that Forbes’ statements caused WSI to pay disability benefits in error after Forbes’ surgery and caused WSI to pay medical benefits in error. I would, therefore, require Forbes also to reimburse WSI for those benefits.

[¶ 26] WSI specifically found by a greater weight of the evidence that Forbes’ misrepresentations of her physical activities and condition caused it to pay both medical and disability benefits in error. WSI also found by the greater weight of the evidence that Forbes’ failure to disclose her work activities and income caused it to pay disability benefits in error. The majority opinion, however, states there is no evidence to support reimbursement of disability benefits after Forbes’ surgery or to support any reimbursement of medical benefits.

[¶ 27] On the contrary, there is evidence that Forbes’ false statements caused disability benefits to be paid following her April 29, 2003, surgery. The record contains evidence of Forbes’ pattern of false statements in failing to report work and income continuing after her surgery. Of the approximately $307 Forbes collected from Mary Kay sales, five of the eight checks, totaling $235.46, were dated after her surgery. Additionally, of the sixteen injured-worker status reports in which Forbes consistently failed to report work and income, five were dated, signed, and submitted to WSI after the date of her surgery. It was only in her September 9, 2003, report that she revealed $20.07 of the $881.69 she had earned conducting insur-*547anee physicals for Portamedic. In addition to Forbes’ failure to report work and income, WSI found Forbes’ willful misrepresentation of her physical condition to medical providers and her employer caused WSI to erroneously pay her benefits.

[¶ 28] The majority opinion does not adequately explain how these continuing false statements before and after her surgery are somehow cured and rendered “causally disconnected,” and thus immaterial, so as not to require the disability benefits paid after her surgery to be reimbursed to WSI. On the basis of this record, it is illogical to find Forbes’ pattern of false statements material for purposes of reimbursement of disability benefits prior to surgery but somehow immaterial for purposes of reimbursement of disability benefits after the surgery.

[¶ 29] This is also true with regard to the majority opinion’s assertion that WSI has not provided any evidence that any of the medical benefits paid would not have been paid as a result of Forbes’ work-related injuries. WSI found Forbes’ misrepresentation of her physical activities and condition caused WSI to pay medical benefits in error. Although neither Dr. Arazi, nor any other doctor, directly testified Forbes’ prescribed treatment would have been different had she not exaggerated her symptoms, the evidence in the record reflects that in response to Forbes’ statements that her symptoms were worsening, Dr. Arazi was uncertain about a course of treatment and even considered a referral to the Mayo Clinic. WSI found Dr. Arazi testified that he agreed there appeared to be a “substantial difference” between her actual physical activities and what he understood her condition to be, and that it was more likely than not that she had misrepresented her physical condition. It is a reasonable inference from the record that Forbes’ false statements, particularly with regard to the misrepresentation of her physical condition, affected and influenced Forbes’ course of treatment and the medical benefits paid. Without reweighing the evidence, Dr. Ara-zi’s testimony supports WSI’s specific finding that Forbes’ misrepresentation of her physical activities and condition caused medical benefits to be paid.

[¶ 30] This Court should not substitute its judgment for that of the fact-finder. See Toso v. Workforce Safety and Ins., 2006 ND 70, ¶ 8, 712 N.W.2d 312. “In evaluating WSI’s findings of fact, we do not make independent findings or substitute our judgment for that of WSI, rather, we determine only whether WSI reasonably reached its factual conclusions from the weight of the evidence on the entire record.” Id. (citing Hopfauf v. North Dakota Workers Comp. Bureau, 1998 ND 40, ¶8, 575 N.W.2d 436). This Court has previously stated that when a claimant fails to report income to WSI, the violation frustrates WSI’s attempt to demonstrate materiality. See Unser v. North Dakota Workers Comp. Bureau, 1999 ND 129, ¶¶ 18-20, 598 N.W.2d 89. “It may be difficult, if not impossible, for [WSI] to discover or unearth a claimant’s prior earnings which the claimant has intentionally concealed from [WSI].” Id. at ¶ 20. Failure to report work activities and income received in connection with unreported work activities impedes WSI’s process of determining eligibility and is thus material. See Snyder v. North Dakota Workers Comp. Bureau, 2001 ND 38, ¶ 18, 622 N.W.2d 712. Similarly, it is a reasonable inference that Forbes’ misrepresentations to her medical provider and her employer regarding her physical condition prevented WSI from accurately assessing the appropriateness of the medical benefits paid. Here, I believe from the record that all of Forbes’ misrepresentations and false statements consid*548ered together affected and influenced WSI’s decision whether to pay both disability and medical benefits, including the medical services recommended and received, which were a part of her claim for benefits.

[¶ 31] I would affirm.

[¶ 32] GERALD W. YANDE WALLE, C.J., concurs.