Forbes v. Workforce Safety and Ins. Fund

• Decision Date: 17 October 2006
• Docket Number: No. 20050431.,20050431.
• Parties: Lynette FORBES, Claimant and Appellant, v. WORKFORCE SAFETY AND INSURANCE FUND, Appellee, and Mercy Medical Center, Respondent.
• Court: North Dakota Supreme Court

722 N.W.2d 536

2006 ND 208

Lynette FORBES, Claimant and Appellant, v. WORKFORCE SAFETY AND INSURANCE FUND, Appellee, and Mercy Medical Center, Respondent.

No. 20050431.

Supreme Court of North Dakota.

October 17, 2006.

COPYRIGHT MATERIAL OMITTED

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

Lawrence E. King, Special Assistant Attorney General, Bismarck, N.D., for appellee.

MARING, Justice.

[¶ 1] Lynette Forbes appealed from a district court judgment affirming a Workforce Safety and Insurance ("WSI") order terminating her future disability and medical benefits and ordering her to repay previously paid disability and medical benefits. We affirm in part, concluding a reasoning mind could reasonably have found by a preponderance of the evidence that Forbes made intentional and material false statements, which caused her doctors to remove her from work and resulted in payment by WSI of disability benefits prior to her surgery on April 29, 2003. We affirm WSI's order requiring Forbes to forfeit all future benefits and to reimburse WSI for disability benefits paid up to April 29, 2003. However, we reverse those parts of the WSI order which require Forbes to reimburse WSI for disability benefits after April 29, 2003 and for all of her medical benefits paid by WSI after her work injury.

I

[¶ 2] In August 2002, Forbes submitted a claim to WSI for workers' compensation benefits, reporting injuries to her low back, neck, left arm, and head sustained during the course of her employment at Mercy Medical Center as an operating room nurse. Forbes reported the injury occurred on August 13, 2002, indicating she injured herself while holding a camera for a surgical procedure. Forbes also filled out an incident report as required by her employer. WSI accepted Forbes' claim, and Forbes began receiving disability and medical benefits.

[¶ 3] At the time of her August 2002 claim, Forbes also completed a prior injury questionnaire. On the questionnaire, Forbes was asked whether she had previously had any health problems or injuries to the portions of her body injured during the work incident. At that time, Forbes did not disclose a previous injury from July 2002. Almost a year later, Forbes submitted additional incident reports to her employer, claiming she wrenched her lower back while assisting a patient in July 2002, and she incurred pain in her neck while attempting to keep an x-ray machine from tipping in September 2002. In 2003, WSI conducted an investigation of whether Forbes had made false statements and misrepresentations regarding her physical condition, capabilities, and activities, and whether she had failed to report work activities and earned income.

[¶ 4] On January 20, 2004, WSI issued a notice of intention to discontinue benefits, informing Forbes she had violated N.D.C.C. § 65-05-33 relating to penalties for false claims or false statements in connection with a claim for WSI benefits. The notice said Forbes was not entitled to any further benefits after February 10, 2004, and previously paid disability benefits and medical benefits had been erroneously paid on the basis of her false statements, resulting in an overpayment. Forbes requested reconsideration.

[¶ 5] In a March 11, 2004, order on reconsideration, WSI found Forbes' willful false statements had caused the erroneous payment of $20,438.55 in disability payments and $31,982.81 in medical benefits. WSI ordered that Forbes forfeit all future benefits on her claim after February 10, 2004, including medical, disability, vocational rehabilitation, and permanent partial impairment benefits. WSI further ordered Forbes to repay $52,421.36 for disability and medical benefits provided to her between September 13, 2002, and September 23, 2003.

[¶ 6] Forbes requested a rehearing, and an administrative hearing was held before an administrative law judge ("ALJ"). The ALJ issued recommended findings of fact, conclusions of law, and order. WSI adopted the recommended findings of fact, conclusions of law, and order.

[¶ 7] WSI found Forbes willfully failed to report earnings from physical examinations conducted for Portamedic from August 2002 to August 2003, and during that period, she also falsely stated to WSI that she was not working nor receiving income. WSI found Forbes did not report income she had received from her sales of Mary Kay products, or $5,000 she had received from a doctor to start her Mary Kay business. WSI further found Forbes had willfully misrepresented her physical condition to her medical providers and her employer, resulting in her removal from work and in payment by WSI of benefits.

[¶ 8] WSI also found that despite numerous reports to her doctors of pain in her neck and back, including soreness, stiffness, and tingling, Forbes continued traveling to provide insurance physicals and even engaged in strenuous physical exercise, including weight-lifting, walking, and attending yoga and "trim and tone" classes. WSI found her significant physical activities were juxtaposed in time with reports to her doctors of pain and difficulty doing even simple tasks, such as washing dishes, peeling potatoes, putting on makeup, curling her hair, and stirring food. Specifically, WSI found:

2. On August 16, Ms. Forbes saw Dr. Wiens. She complained of being stiff and sore, with tingling in her arms. Dr. Wiens diagnosed muscle spasms of the neck and back, gave her some VIOXX, and thought she could continue to work. On August 19, 2002, he removed Ms. Forbes from work until August 21. Ms. Forbes however continued to conduct insurance physicals for Portamedic and did so on or about August 21, 2002. The next day, Ms. Forbes reported to Harry Wallner, her physical therapist, that she had been unable to work the last couple of days.

....

5. On November 19, 2002, Ms. Forbes presented for follow-up of her neck pain. She said she had persistent neck pain radiating into her right arm and achiness in the left arm with numbness of the 4th and 5th digits of her left hand. She was diagnosed with neck pain, C5, C6 posterior disk bulge, posterolateral disc protrusion and small posterior osteophyte at C6, C7 and was taken off work "secondary to her pain." She was referred to physical therapy and Dr. Arazi. During November, and while removed from work, she continued to perform insurance physicals for Portamedic.

....

9. On January 3, 2003, Ms. Forbes followed up with Dr. Nielsen and complained that she was going through physical therapy and now "her symptoms basically went back to Square One." Dr. Nielsen continued her removal from work. That same day, Ms. Forbes attended the Healthy Hearts Wellness Center, exercising in the weight room. On January 13, 2003, Ms. Forbes followed up with Dr. Arazi, and complained that her symptoms were getting worse. She complained that she had difficulty doing dishes, peeling potatoes, putting on her makeup, curling her hair, and stirring. Upon examination, she had pain on hyperextension of the neck. Dr. Arazi noted that "[s]ince the patient's symptoms appear to have gotten worse, I am not quite sure what to do at this point." He removed Ms. Forbes from work indefinitely and considered a referral to Mayo Clinic. Dr. Arazi agrees that he removed her from work based upon Ms. Forbes' representations to him regarding her inabilities.

10. On the other hand, while Ms. Forbes was complaining to her doctors and employer that her symptoms were getting worse and that she had difficulty brushing her teeth, talking on the phone, doing dishes, peeling potatoes, putting on her makeup, curling her hair, etc., she was also attending the Healthy Hearts Wellness Center, lifting weights, walking and attending yoga and trim and tone classes. On January 23, 27, and 29, she attended both classes.

11. Connie Wold, manager of the Healthy Hearts Wellness Center and instructor, taught both the yoga and trim and tone classes. She had occasion to observe Ms. Forbes in class. She stated that the yoga class was very tough and the positions are challenging. She testified that Ms. Forbes always does the advanced moves, not the modified positions. Ms. Wold regularly includes a Plank pose in the yoga class. That pose is not recommended for people with carpal tunnel or a shoulder problem, yet Ms. Forbes does that pose and is able to keep up with Ms. Wold, who competes in marathons and triathalons. At no time did she observe Ms. Forbes holding back or failing to complete an activity, even while doing shoulder presses with weights during the trim and tone class. Ms. Wold considers Ms. Forbes to be a very fit individual and considered her a nine, on a scale of one to ten, with ten being a very fit individual. Given the difficulty of the poses used in the yoga class, it is hard to reconcile Ms. Forbes' complaints with her actual physical activity. Dr. Arazi testified during his deposition that he agreed there appeared to be a substantial difference between her actual physical activities and what he understood her physical condition to be. He believed it was more likely than not that Ms. Forbes had misrepresented her physical condition.

....

13. The greater weight of the evidence indicates that Ms. Forbes willfully misrepresented her physical condition to her medical providers and employer, resulting in her removal from work and payment by WSI of disability benefits. Ms. Forbes complained of significant pain and maintained that she could not return to work, any work, yet she continued to perform insurance physicals for Portamedic, driving to the appointments to complete the physicals, while complaining to doctors that she couldn't drive to go to work at Mercy Hospital. She complained of significant pain and that her symptoms were getting worse, all the while she was lifting weights and attending yoga and trim and tone classes, doing advanced yoga moves, and keeping up with a triathlete, while complaining to her doctors that she had...