Fettig v. Workforce Safety and Ins., 20060105.

• Citation: 728 N.W.2d 301,2007 ND 23
• Decision Date: 28 February 2007
• Docket Number: No. 20060105.,20060105.
• Parties: Anton FETTIG, Claimant and Appellant, v. WORKFORCE SAFETY AND INSURANCE, Appellee.
• Court: United States State Supreme Court of North Dakota

728 N.W.2d 301

2007 ND 23

Anton FETTIG, Claimant and Appellant, v. WORKFORCE SAFETY AND INSURANCE, Appellee.

No. 20060105.

Supreme Court of North Dakota.

February 28, 2007.

Stephen D. Little, Dietz & Little Lawyers, Bismarck, N.D., for claimant and appellant.

Lawrence A. Dopson, Special Assistant Attorney General, Bismarck, N.D., for appellee.

CROTHERS, Justice.

[¶ 1] Anton Fettig appealed from a district court judgment affirming a Workforce Safety and Insurance ("WSI") order terminating his future benefits after April 20, 2004, and ordering him to reimburse WSI for disability benefits paid between October 16, 1996, and December 31, 2002. We conclude a reasoning mind could reasonably conclude Fettig made willful and material misrepresentations regarding his work activities and income and his physical condition. We affirm.

I

[¶ 2] In August 1993, Fettig was 58 years old and working as a self-employed contract pumper within North Dakota's oil industry when he injured his low back and left hip. Fettig did not work in the contract pumping business after January 1994. Fettig was subsequently diagnosed with chronic low-back pain and post-traumatic sacral deformity. In early 1994, WSI accepted Fettig's workers' compensation claim and paid him associated medical and disability benefits for over ten years. At the time of his injury, Fettig was also engaged in farming and continued to report income from his farm to the Internal Revenue Service in years following his injury. Fettig did not, however, report this farm income to WSI in his required monthly work status and income reports.

[¶ 3] In 2002, Fettig's file was reviewed by a WSI claims analyst. Fettig continued to claim to be disabled although he had been receiving minimal medical treatment. WSI hired an investigator to determine whether Fettig was entitled to continued benefits. After further investigation, on March 30, 2004, WSI issued a Notice of Intention to Discontinue Benefits ("NOID"), informing Fettig that he had made willful false statements in violation of N.D.C.C. §§ 65-05-08 and 65-05-33 and that all future benefits would be terminated after April 20, 2004. WSI also determined an overpayment of benefits occurred as a result of his willful false statements, which included failing to report his income and work activities on his Income and Work Status Cards and Injured Worker Status Reports and making material and false statements and misrepresentations to WSI representatives regarding his physical condition, capabilities, and activities during a functional capacity evaluation ("FCE"). Fettig requested reconsideration of the NOID.

[¶ 4] On April 28, 2004, WSI issued an order denying Fettig further benefits and ordering him to repay previously paid benefits. WSI's order required Fettig to repay $150,604.71 for disability payments from July 26, 1996, through April 20, 2004, and for permanent partial impairment ("PPI") benefits paid on September 10, 2002. WSI's order required Fettig to forfeit all future benefits on his claim after April 20, 2004. Fettig requested reconsideration.

[¶ 5] After an evidentiary hearing, an administrative law judge ("ALJ") determined WSI did not carry its burden with regard to requiring reimbursement of disability benefits paid after 2002, nor with respect to the PPI benefits paid. The ALJ's recommended order required Fettig to repay disability benefits paid from October 16, 1996 (identified by WSI as the date of Fettig's first willful misrepresentation) through December 31, 2002. The ALJ also recommended terminating Fettig's benefits after April 20, 2004, "on the basis that he had willfully and intentionally made material false statements to WSI about his income and work activities, and had willfully and intentionally misrepresented his physical condition and capabilities in conjunction with functional capacity evaluations and a permanent partial impairment evaluation."

[¶ 6] Specifically, the ALJ found that between 1996 and 2002 Fettig willfully failed to report his work activities and income from his farming operations:

1. In April 1995 Anton Fettig prepared a United States Department of Agriculture document titled "Farm Operating Plan for Payment Eligibility Review for Individual." . . . Part 9 of that document instructed him to disclose the amount of "cropland acres" owned by him, leased from others, and leased to others. Mr. Fettig represented that he owned a 100% interest in 287.4 acres and that he leased no acreage to others. He stated that he cash-rented 98.7 acres from Fritz Birdbear, 136.4 acres from Veronica Baker, and 2 acres from what appears to be "Heirs of Allotment 853A & 3172." He further represented that he leased several parcels from others on a 50/50 crop share basis: specifically, 471.1 acres from Howard Fettig, 156.4 acres from Morgen Fettig, 120.5 acres from Laverne Fettig, 282.7 acres from Gabriel Fettig, and 249.7 acres from Charles Fettig. Part 13 of the application instructed: "Enter the estimated percent or hours of labor required for this farming operation which is provided by you personally, hired laborers, or others." It then asked: "What estimated percent or hours of active personal labor do you provide?" Mr. Fettig wrote — 100%. The application included an attachment titled "Definitions," which explained to him that the term "active personal labor" means personally providing physical activities necessary in a farming operation, including activities involved in land preparation, planting, cultivating, harvesting, and marketing of agricultural commodities in the farming operation. He entered nothing for the remaining categories: "hired labor" and "other labor." Part 14 of the application instructed: "Enter the estimated percent of the farming operation's total management responsibility and the type of managerial duties required for this farming operation which are provided by you personally or by hired management." In response to the instruction: "Enter the estimated percent of active personal management provided by you." Mr. Fettig wrote "100%." Part 16 of the application, titled "Certification," stated:

I certify that all the information entered on this document and any supporting documentation is true and correct. I understand furnishing incorrect information will result in forfeiture of payments and the assessment of a penalty. I will timely provide written notification to the Agricultural Stabilization and Conservation Committees for the county and State listed in Item 9 of any changes in this farming operation.

Mr. Fettig signed that certification. That farm operating plan was effective for the program years 1996 through 2002.... Mr. Fettig made no changes to the plan during that period other than to file an update on June 18, 1996, changing the acreage figure listed at Part 9 for land owned by him, from 287.4 acres to 281.2 acres, and for land leased from Howard Fettig, from 471.1 acres to 466.7 acres. . . .

2. Mr. Fettig's federal income tax returns for each year from 1996 through 2002 include a "Schedule F — Profit or Loss From Farming." For 1996 he reported farm income of $52,686 from "sales of livestock, produce, grains, and other products you raised" and "agricultural program payments" of $9,730.... For 1997 he reported farm income of $55,320 from "sales of livestock, produce, grains, and other products you raised" and "agricultural program payments" of $8,328. . . . For 1998 he reported farm income of $49,632 from "sales of livestock, produce, grains, and other products you raised" and "agricultural program payments" of $11,458.... For 1999 he reported farm income of $37,462 from "sales of livestock, produce, grains, and other products you raised" and "agricultural program payments" of $1,170.... For 2000 he reported farm income of $42,672 from "sales of livestock, produce, grains, and other products you raised" and "agricultural program payments" of $3,031.... For 2001 he reported farm income of $24,412 from "sales of livestock, produce, grains, and other products you raised" and "agricultural program payments" of $1,071.... For 2002 he reported farm income of $51,976 from "sales of livestock, produce, grains, and other products you raised" and "agricultural program payments" of $1,045. . . .

3. Mr. Fettig was actively engaged in farming, personally providing physical activities necessary in a farming operation, including activities involved in land preparation, planting, cultivating, harvesting, and marketing of agricultural commodities in the farming operation, between January 1, 1996 and December 31, 2002, and he received a total of $314,160 in farm income from sales of livestock, produce, grains, and other products, together with $35,833 in agricultural program payments, during that period.

4. During the period from July 26, 1996 through April 28, 2004, Mr. Fettig filed income and work status reports (Form SFN 7871) with the Workers' Compensation Bureau and its successor, WSI, at intervals of, typically, twenty to thirty days.... The forms he filed between July 26, 1996 and June 29, 1999 were titled "Claimant's Income and Work Status Card," and asked, among other questions: "Have you done any work, whether for pay or not?" On each of the forty cards Mr. Fettig submitted during that period he checked "no" to that question. Those same cards also asked: "Have you received money from any source other than the Bureau?" Mr. Fettig checked "no" on every card except one, (for September 15, 1998, where he checked "yes" but did not reveal the amount or source of such income). The status reports he filed between July 22, 1999 and April 28, 2004 were titled "Injured Worker Status Report." That report form prefaced a series of questions with the following admonishment: "You must accurately report work of any kind (voluntary, part-time, or full-time) that you do, whether you are paid or not. You must report any money received from work, activities, or services of any...