Berglund v. Potlatch Corp.

• Decision Date: 27 December 1996
• Docket Number: No. 22718,22718
• Citation: Berglund v. Potlatch Corp., 129 Idaho 752, 932 P.2d 875 (Idaho 1996)
• Parties: Fred E. BERGLUND, Claimant-Appellant, v. POTLATCH CORPORATION, Employer, and Workers Compensation Exchange, Surety, Defendants-Respondents. Lewiston, October 1996 Term
• Court: Idaho Supreme Court

Page 875

932 P.2d 875

129 Idaho 752

Fred E. BERGLUND, Claimant-Appellant, v.POTLATCH CORPORATION, Employer, and Workers Compensation Exchange, Surety, Defendants-Respondents.

No. 22718.

Supreme Court of Idaho,

Lewiston, October 1996 Term.

Dec. 27, 1996.

William J. Fitzgerald, Lewiston, for claimant-appellant.

Clements, Brown & McNichols, P.A., Lewiston, for defendants-respondents.

SILAK, Justice

This is an appeal from an Industrial Commission(Commission) decision, which was rendered after a hearing and post-hearing brief.After the hearing to determine Fred Berglund's (Berglund) eligibility for benefits, but before the Commission reached a decision, Berglund was convicted under Idaho Code section 41-1325 of providing false information to an insurer.Subsequently, the Commission ruled that Berglund was not a credible witness, had not been involved in a work-related accident and had forfeited his right to compensation.The Commission also required Berglund to repay Potlatch Corporation and Workers Compensation Exchange (the Respondents) for workers' compensation amounts already collected.Berglund appeals that portion of the Commission's decision requiring him to reimburse the Respondents.

I.FACTS AND PROCEDURAL BACKGROUND

In January 1991, Berglund sought medical treatment after dislocating his right thumb while playing basketball.That same month, Berglund was laid off by Potlatch for economic reasons, although that company rehired Berglund on May 8, 1991.The same day he returned to work, Berglund claimed that he had injured his right thumb on the job.After Berglund denied that he had previous problems with his thumb, Dr. John C. Kovach, (Dr. Kovach) the treating physician, concluded that Berglund had indeed been injured at work.

On May 13, 1991, Berglund filed a Notice of Injury and Claim for Benefits with the Commission, and ultimately received over $23,000 in medical and time-loss benefits.In 1992, Berglund applied for total permanent disability benefits.As part of that process, Berglund served sworn interrogatory answers that his thumb injury was solely work-related.During that same litigation, the Respondents showed Berglund's medical records from his January 1991 injury to Dr. Kovach.The doctor then determined that the alleged work injury for which he treated Berglund in May 1991 was actually the January basketball injury.Dr. Kovach also stated that Berglund had lied about not having any previous thumb injuries.Several other doctors concurred in those conclusions.

In 1993, Respondents sought reimbursement under Idaho Code section 72-801 of the amounts of workers' compensation Berglund had already received.The Nez Perce County Prosecutor subsequently charged Berglund with a violation of I.C. § 41-1325, which prohibits providing false information to an insurer.Before his criminal trial, the Commission held a hearing on the issues of whether Berglund had been injured in a work-related accident in May 1991, whether he had submitted false information in seeking workers' compensation benefits, and whether the Respondents were entitled to reimbursement.

In May 1995, Berglund was convicted of the criminal charge, and was sentenced to two to five years in prison.The judge suspended the sentence and gave Berglund a six month jail sentence and five months probation.Berglund did not appeal his conviction or sentence, and his claim for post-conviction relief was denied.

In October 1995, the Commission sent Berglund a notice that it would treat Respondents' Motion for Judgment and Supporting Memorandum, made after the Commission hearing and the criminal conviction, as a post-hearing brief.The record does not contain any response by Berglund to that notice, although the Commission's decision indicates that Berglund had protested the procedure by letter.The Commission found that Berglund was not involved in a work-related accident, that his testimony was inconsistent, that he was not a credible witness, that he was convicted of violating I.C. § 41-1325, that he forfeited his right to compensation, and that he must reimburse Respondents under I.C. § 72-801.Berglund's Motion for Reconsideration was denied.

Berglund now appeals that portion of the Commission's decision requiring him to reimburse Respondents for the workers' compensation amounts he had received.

II.ISSUES ON APPEAL

On appeal, the issues are:

1.Whether the Commission can forfeit Berglund's benefits pursuant to I.C. § 72-801 when the criminal conviction was obtained under I.C. § 41-1325.

2.Whether Berglund was denied his right to due process by entry of Findings of Fact, Conclusions of Law, and an Order that Berglund's rights to benefits were forfeited and that the Respondents were entitled to reimbursement of all benefits paid without a further hearing.

3.Whether the imposition of the Order denying Berglund benefits and ordering him to pay reimbursement based upon a criminal conviction constituted a violation of Berglund's rights against double jeopardy.

III.STANDARD OF REVIEW

We begin by noting our standard of review of Industrial Commission decisions.This Court exercises free review of the Commission's legal conclusions, but will not disturb findings of fact if they are supported by substantial and competent evidence.Reiher v. American Fine Foods, 126 Idaho 58, 60, 878 P.2d 757, 759(1994).Substantial and competent evidence is relevant evidence that would be accepted by a reasonable mind as adequate to support a conclusion.Id.(quotingIdaho State Ins. Fund v. Hunnicutt, 110 Idaho 257, 260, 715 P.2d 927, 930(1985)).

IV.ANALYSIS

Two Idaho Codesections are at issue in this case.I.C. § 72-801 is part of Idaho's workers' compensation laws, and states as follows:

If, for the purpose of obtaining any benefit or payment under the provisions of this law, either for himself or for any other person, any one wilfully makes a false statement or representation, he shall be guilty of a misdemeanor and upon conviction for such offense he shall forfeit all right to compensation under this law.

I.C. § 41-1325 was part of Idaho's insurance laws, and the relevant portion, in effect at the time this action arose, provided that:

[a]ny person who, with the intent to defraud or deceive an insurer for the purpose of obtaining any money or benefit presents or causes to be presented to any insurer, any written or oral statement including computer-generated documents as part of, or in support of, a claim for payment or other benefit pursuant to an insurance policy, knowing that such statement contains false, incomplete, or misleading information concerning any fact or thing material to such claim; ... is guilty of a felony and shall be subject to a term of imprisonment not to exceed five (5) years, or a fine not to exceed five thousand dollars ($5,000) or both....

A.The Commission May Require A Claimant To Forfeit His Or Her Benefits Pursuant To I.C. § 72-801, When A Criminal Conviction Has Been Obtained Against The Claimant Under I.C. § 41-1325.

Berglund argues that since he was never charged with or convicted of violating I.C. § 72-801, he cannot be required to forfeit his benefits under that statute.He further argues that since I.C. §§ 72-801and41-1325 are not identical, conviction under I.C. § 41- 1325 cannot be a basis for benefit forfeiture under I.C. § 72-801.

However, the Commission's decision that Berglund forfeited his right to benefits under I.C. § 72-801 was not based solely on I.C. § 41-1325.In its Order on Reconsideration, the Commission expressly stated:

[t]he Commission's decision was only based in part upon [Berglund's] criminal conviction for providing false information to an insurer ... The Referee reviewed the evidence submitted at hearing held on January 4 and 5, 1996.She determined [Berglund] was not credible as his testimony regarding the alleged incident was inconsistent.The Commissioners then reviewed the record prior to adopting the proposed order and found the Referee was correct, and that her decision was reflective of the record.

On appeal, Berglund does not dispute the Commission's factual findings that his testimony was inconsistent, that he was not a credible witness, and that he did not sustain a compensable work-related injury.Those determinations were made independently of the criminal conviction, and provide a sufficient basis for the Commission's finding that Berglund "wilfully ma[de] a false statement or representation" for the purpose of obtaining workers' compensation benefits.Therefore, we uphold the finding of the Commission that Berglund violated I.C. § 72-801, and must reimburse the Respondents for amounts they had already paid Berglund.

B. Berglund Did Not Properly Present On Appeal The Issue Of Whether He Was Denied His Due Process Rights By Entry Of The Commission's Findings Of Fact, Conclusions Of Law, And Order, Without A Further Hearing.

Berglund argues on appeal that he should have been given an opportunity before the Commission to present evidence regarding the information he supplied to the Respondents.According to the Commission's Findings of Fact, Conclusions of Law, and Proposed Order, Berglund wrote to the Commission and objected to the Referee's decision to treat Respondents' Memorandum in Support of the Motion for Judgment as a post-hearing brief.The Findings further state that the Referee overruled that objection.

However, the objection is not part of the record on appeal.Thus, this Court cannot ascertain the basis for the objection, the nature of the arguments contained in it, or whether those arguments would be sufficient to support the objection.We have noted that "[q]uestions or matters not presented in the record will not be considered by this Court on appeal."Feld v. Idaho Crop Improvement Ass'n, 126 Idaho 1014, 1017, 895 P.2d 1207, 1210(1995).Because the objection to the Commission's procedure is not in the record, the due process issue...