dissenting in part and concurring in part.
[¶ 23] I concur in parts II and III of the majority opinion. I respectfully dissent from part IV and would reverse the district court’s judgment affirming WSI’s order requiring Schoch to repay the benefits he has received.
[¶ 24] In order for WSI to require repayment of benefits under N.D.C.C. § 65-05-33(3), WSI must prove Schoch willfully made a false statement in connection with his application for benefits and that the false statement is material. Forbes v. Workforce Safety & Ins., 2006 ND 208, ¶¶ 13, 14, 722 N.W.2d 536. When seeking reimbursement of the benefits paid, WSI must prove that the false statement caused the benefits to be paid in error. Forbes, at ¶ 14. WSI relied on Schoch’s failure to disclose on his claim form that he had received treatment from Dr. Ficek, a chiropractor, in order to find that Schoch had made a willful false statement that was material and caused the benefits to be paid in error. However, the medical records of Dr. Mack from October 3, 2001, which WSI had before it accepted the claim, indicated Schoch told Dr. Mack he had seen a chiropractor on October 1 and 2, 2001. Based on these undisputed facts, and a correct application of the law, Schoch’s statement on his claim form could not have caused the subsequent payment of his medical benefits. Because the conclusions of law and order of WSI are not supported by its findings of fact or in accordance with the law, I would reverse that part of the judgment affirming the WSI order which orders repayment of the medical benefits.
[¶ 25] MARY MUEHLEN MARING