Forni v. Pathfinder Mines

• Decision Date: 22 July 1992
• Docket Number: No. 91-206,91-206
• Citation: 834 P.2d 688
• Parties: In the Matter of the Worker's Compensation Claim of Frederick T. FORNI, Petitioner (Employee-Claimant), v. PATHFINDER MINES, Respondent (Employer-Respondent).
• Court: Wyoming Supreme Court

Page 688

834 P.2d 688

In the Matter of the Worker's Compensation Claim of Frederick T. FORNI, Petitioner (Employee-Claimant), v. PATHFINDER MINES, Respondent (Employer-Respondent).

No. 91-206.

Supreme Court of Wyoming.

July 22, 1992.

J. John Sampson, Sheridan, for petitioner.

Stephenson D. Emery, Williams, Porter, Day & Neville, P.C., Casper, for respondent.

Before MACY, C.J., THOMAS, URBIGKIT, ^* and GOLDEN, JJ., and ROONEY, J., Retired.

THOMAS, Justice.

The dispositive question presented by this case is whether evidence was presented to the hearing examiner sufficient to justify reopening the case of Frederick T. Forni (Forni) on the statutory ground of fraud. Beyond that threshold question, the case presents an issue with respect to whether a hearing examiner in a worker's compensation case can draw a conclusion on the issue of medical causation from circumstantial evidence that is contrary to the expert medical opinion, as well as the unrebutted testimony of the injured workman. A tertiary substantive issue relates to the justification for treatment of diabetes and depression as essential prerequisites to surgical procedures on Forni's back. The hearing examiner ruled that the evidence justified reopening of the case. He then decided that the treatment sought was for non-covered, preexistent injuries. With respect to the treatment for diabetes and depression, necessary predicates to the back surgery, he decided that the treatment was not covered.

We hold that the circumstances demonstrated in this record did not justify a reopening of the case on the statutory ground of fraud. We then rule that the hearing examiner must follow evidence, as distinguished from inferences that he might draw from circumstances, and the evidence in this case does not support his ruling with respect to the award for treatment of the back injury. We also make it clear that this is a situation in which the ancillary treatment for diabetes and depression, necessary as requisites to the ultimate back surgery, is compensable. The decision of the hearing examiner is reversed with instructions to enter an award in favor of Forni.

Forni, as appellant, states the issues of the case in this way:

I. The administrative law judge's actions, findings, conclusions and order in denying appellant's claim are arbitrary, capricious, and an abuse of discretion, were not supported by the evidence, and are contrary to the evidence.

II. The administrative law judge's finding that the diabetes treatment required as part of the surgery [was not compensable] was arbitrary, capricious, and an abuse of discretion, was unsupported by the evidence, and was contrary to the evidence.

Pathfinder Mines (Pathfinder), as appellee, rephrases those issues in this way:

I. Whether the Administrative Law Judge's finding that Employer carried its burden to reopen the award of benefits to Claimant pursuant to W.S. 27-14-605(a) is supported by substantial evidence.

II. Whether the Administrative Law Judge's finding that Claimant failed to carry his burden of proving a causal connection between the incident of June 29, 1989, and his back injury is supported by substantial evidence.

Forni suffered an injury to his back on June 29, 1989, while he was employed by Pathfinder at its Shirley Basin mine. That injury was not immediately reported, partly because Forni was able to continue working until July 10, 1989, when he no longer could tolerate the pain. The delay in reporting also was explained in part because Pathfinder had an incentive program that rewarded employee crews which were able to go six months without a lost-time accident. If such an accident occurred, the entire crew was denied the incentive, and Forni did not want to assume the responsibility of that incentive being lost by other members of the crew.

Ultimately, Forni's injury was diagnosed as "spinal stenosis L4-5 secondary to ruptured disc and hypertrophy of ligamentum flavum." Worker's compensation benefits were paid without objection from either the Worker's Compensation Division or Pathfinder until April 16, 1990. See Wyo.Stat. § 27-14-601(a) (1991). On April 16, 1990, Pathfinder notified the Worker's Compensation Division that, "[a]ll claims filed by Frederick T. Forni are denied by the employer on the basis that it is our belief that medical treatment unrelated to the injury may be occurring." The question arose because Forni was treated for depression and diabetes preparatory to a surgical procedure on his back necessitated by the injury.

In a letter dated April 26, 1990, the Worker's Compensation Division advised Forni of Pathfinder's objections, and he was told, "[t]he Division will try to informally resolve this matter with your employer and will notify you of the final determination." The informal resolution was not achieved and, pursuant to an order of June 1, 1990, the matter was set for hearing before an administrative hearing officer on August 8, 1990. Subsequently, it was reset for September 6, 1990. During all of this time, Forni was recuperating from the back surgery which had been performed on January 24, 1990.

Prior to the actual hearing, on August 15, 1990, Pathfinder presented its petition to reopen Forni's claim relying upon Wyo.Stat. § 27-14-605(a) (1991), which provides:

(a) If a determination is made in favor of or on behalf of an employee for any benefits under this act, an application may be made to the division by any party within four (4) years from the date of the last payment for additional medical and disability benefits or for a modification of the amount of benefits on the ground of increase or decrease of incapacity due solely to the injury, or upon grounds of mistake or fraud. (Emphasis added.)

Pathfinder's contention was that, "as a result of fraud, misrepresentation, or other misconduct," Forni received benefits for his June 29, 1989 injury. In accordance with the same allegations, Pathfinder also requested relief pursuant to Wyo.R.Civ.P. 60(b).

The fraud allegations arise out of a question on the first page of his employment application and Forni's answer to the question. These were:

List Any Illness or Injuries For Which You Have Consulted a Doctor Within Last 5 Years.

Answer: Carpal Tunnel Syndrome and swollen elbow.

In addition, Forni completed an "EMPLOYMENT APPLICANT'S PHYSICAL QUESTIONNAIRE," in which he was asked if he had knowledge of ever having any of the following, "[h]ead, spinal or back injury or ailment." Forni's answer was "No." However, in a section of the questionnaire immediately following, and on the same page, Forni responded that he had been under a doctor's care for a lost-time industrial accident on two occasions. The closing paragraph of the application, which Forni, executed stated:

I hereby certify that the answers to the foregoing are accurate and true to the best of my knowledge and belief. I further certify I understand that if I fraudulently represent my physical condition for the purpose of obtaining employment I may be subject to dismissal from my employment by the Company, and, further, that any claim for Workmen's Compensation arising out of misrepresentation may be denied.

The dispositive question in this case is whether the decision of the administrative hearing officer to reopen the claim because of fraud is supported by substantial evidence. The findings by the administrative hearing officer on this issue were:

7. That the Claimant [Forni] was hired for employment in February of 1990 [1989 is the correct year], at which time he submitted an employment application which indicated he suffered from carpal tunnel syndrome and a swollen elbow; he specifically denied that he ever suffered from any kind of head, spinal, or back injury.

8. That the Claimant suffered from and was treated for previous back injuries or problems in August of 1984 and May of 1988.

The hearing officer denied any relief under Wyo.R.Civ.P. 60(b) because the motion was not timely filed, but he did rule that reopening was appropriate under Wyo.Stat. § 27-14-605(a), concluding:

The Employer has attempted to proceed under this provision and therefore has the burden to prove that there was mistake or fraud in the granting of any benefits to the Employee. In this regard, evidence was presented by the Employer which shows that at the time the Claimant applied for employment with the Employer he did not indicate to the Employer that he had had previous incidents and/or problems with his back. Testimony was presented by the Claimant's physicians showing that the Claimant had in fact been treated, previously in particular, for problems with his back. The Office notes that the extent of the Claimant's back problems was not fully diagnosed during these earlier treatments and the Claimant may not have been aware of any major or serious back problems. Nevertheless, the Employee was aware that he had been treated for and had some problems related to his back at the time he applied for employment with the Employer. The Claimant, therefore, failed to reveal this questionable, yet known condition to the Employer, and therefore, "inadvertently" misled the Employer. As a result, the basic issue of the nature of the Claimant's condition as it relates to his back is opened pursuant to 27-14-605 as of August 15, 1990.

The language of these findings and the conclusions is somewhat loose. Forni informed Pathfinder that he had been treated by a doctor "within the last 5 years" for carpal tunnel syndrome and swollen elbow. The 1984 treatment alluded to by the hearing examiner was almost four and one-half years old at the time of the application. Forni testified that his recollection was that the injury was over five years old at the time he filled out the application. The hearing officer conceded that Forni may not have perceived during treatment that it was for a "[h]ead, spinal or back injury or ailment," but apparently gave no credit to Forni's testimony. ...