Wanner v. WORKERS COMPENSATION BUREAU

• Decision Date: 20 December 2002
• Docket Number: No. 20020080.,20020080.
• Citation: 654 N.W.2d 760,2002 ND 201
• Parties: Marvin WANNER, Claimant and Appellant, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellee.
• Court: North Dakota Supreme Court

654 N.W.2d 760

2002 ND 201

Marvin WANNER, Claimant and Appellant, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellee.

No. 20020080.

Supreme Court of North Dakota.

December 20, 2002.

Steven L. Latham (argued), Wheeler Wolf, Bismarck, ND, for claimant and appellant.

Lawrence E. King (argued), Special Assistant Attorney General, Bismarck, ND, and Lawrence A. Dopson (on brief), Special Assistant Attorney General, Bismarck, ND, for appellee. MARING, Justice.

[¶ 1] Marvin Wanner appealed a judgment affirming a North Dakota Workers Compensation Bureau order adopting an administrative law judge's recommended order that Wanner forfeit all additional workers compensation benefits after December 22, 1999, in connection with his 1988 work injury. We hold the Bureau's finding that Wanner willfully made a material false statement in connection with his claim is not supported by a preponderance of the evidence. We reverse and remand for reinstatement of benefits and payment of accrued benefits erroneously terminated.

I

[¶ 2] Wanner injured his back while employed as a truck driver on September 20, 1988. The Bureau accepted liability and paid medical expenses and disability benefits. While receiving disability benefits, Wanner sold vegetables he raised in a garden which "might be 55 or 60 wide" and "maybe 60 feet long" and occasionally drove a farm truck hauling grain for friends during harvest. In 1999, the Bureau asked a private investigator to conduct surveillance of and investigate Wanner's activities because it had received information Wanner was doing physical labor. In a December 15, 1999, order, the Bureau found, among other things, that Wanner maintained a garden, received money for vegetables, and performed harvest activities for a friend while receiving disability benefits, which he failed to report and about which he willfully made false statements. The Bureau ordered Wanner to repay $6,678.51, and ordered that he "forfeit all additional workers' compensation benefits in connection with this claim after December 22, 1999."

[¶ 3] Wanner requested a rehearing. After a hearing, an administrative law judge ("ALJ") issued recommended findings of fact, conclusions of law, and order. Considering an injured worker status report Wanner completed on August 31, 1999, the ALJ found: "The plain and certain statements made by Wanner to the Bureau upon the completion and submission of the report were that he had not done any type of work and that he had not received money from any source except the Bureau and the Social Security Administration."

[¶ 4] With regard to the issue of whether Wanner misrepresented his work activities concerning his garden and money received therefrom, the ALJ found:

15.... Considering the question posed by the report concerning work activities (Have you gone back to work, or done any type of work for pay or not?), in the context of Wanner's need to be busy, to have something to do, it is clear that for the work done in his garden Wanner would not think that he had gone back to work or even done any type of work....

16. Wanner does not dispute, however, that his garden was a source of money; as he put it, "a few dollars I get from garden veggies ... to help cover... [the costs of] seed ... water for [the] garden.["] ... But there is little evidence to suggest that Wanner planned a garden to produce vegetables for sale; rather it is more likely than not that his garden was the result of the absence of any planning and the lack of any thought for the use of the vegetables which his efforts would produce....

20.... Regardless, he was unequivocally instructed and advised by the Bureau for the completion of the report that he "must report any money received from work, activities, or services of any kind, regardless of profit or loss.["]

[¶ 5] With regard to the issue of whether Wanner misrepresented his work activities concerning his hauling grain for a farm family, the Rollers, the ALJ found:

23. The Bureau also contends that Wanner worked for a farm family, "the Rollers," hauling grain during harvest. The ... greater weight of evidence shows that Wanner has helped out the Rollers at least six to eight times a year during harvest over a period of three or four years, 1996 through 1999, depending upon how one counts. He would usually come out to the farm around noon after harvesting had begun, and would take a truck loaded with grain from the field to the farmstead where it would be placed in a bin for storage, or sometimes the grain would be hauled to a nearby town to be sold at the elevator....

Wanner does not deny that he helped the Rollers during harvest by hauling grain, but notes that the family members were his friends and that he was not paid for his help. He explains that he did not consider his help to be work, rather, he testified, "what I would call having fun, being productive again, being able to do something I used to do, drive a truck."

The ALJ recommended the following conclusions of law:

5. [T]he evidence does show, indeed is overwhelming, that for the work done in his garden Wanner would not think, in the words of the Bureau's question, that he had "gone back to work or done any type of work" in his garden—even considered in the context of the Bureau's instruction and advice for the completion of the report that "you must accurately report work of any kind ... that you do."

....

7.... Wanner's assistance to the Rollers is clearly within the Bureau's instruction and advice for the completion of the report ("work of any kind (voluntary, part-time, or full-time) that you do, whether you are paid or not") and the Bureau's question ("Have you gone back to work, or done any type of work for pay or not?").... By his negative response on August 31, 1999, to the Bureau's question whether he had "gone back to work, or done any type of work for pay or not" Wanner willfully made a false statement within the meaning of N.D.C.C. § 65-05-33 in connection with his claim for workers' compensation benefits.

8. Considered in the context of the circumstances, the greater weight of the evidence establishes that Wanner intentionally failed to report the money received for the sale of vegetables from his garden.... By his representation to the Bureau that other than the Bureau he had received money only from "Social Security," Wanner willfully made a false statement within the meaning of N.D.C.C. § 65-05-33 in connection with his claim for workers' compensation benefits.

9.... There is neither any testimony or other evidence which shows or which would support an inference that the Bureau has paid any amount of benefits in error because of Wanner's failure to report his work to assist the Rollers for their harvest or because of his failure to report the money he received for the sale of vegetables from his garden....

Upon the evidence of record and in accordance with the instruction of the Supreme Court for the application of N.D.C.C. § 65-05-33 Wanner may not be required to reimburse the Bureau for any benefits which the Bureau has paid him, but he shall forfeit any additional benefits.

[¶ 6] The ALJ issued a recommended order providing "Wanner made false statements concerning work which he did and money which he received, that those false statements were willful and intentional ... and could have misle[]d the Bureau for the determination of options for his rehabilitation and entitlement to benefits and were therefore material." The ALJ further recommended forfeiture of all additional benefits in connection with Wanner's September 20, 1988, injury, and that the Bureau could not obtain reimbursement for benefits already paid.

[¶ 7] On August 17, 2001, the Bureau issued an order adopting the ALJ's recommended findings, conclusions, and order. Wanner appealed to the district court, which affirmed the Bureau's decision. Wanner appealed to this Court.

II

[¶ 8] In an appeal from an administrative agency decision, we review the decision of the administrative agency, rather than that of the district court, although the district court's analysis is entitled to respect. Paul v. North Dakota Workers Comp. Bureau, 2002 ND 96, ¶ 6, 644 N.W.2d 884. Under N.D.C.C. §§ 28-32-46 and 28-32-49, we affirm an agency's order unless (1) the order is not in accordance with the law; (2) the order violates the appellant's constitutional rights; (3) the provisions of N.D.C.C. ch. 28-32 have not been complied with in the agency's proceedings; (4) the agency's rules or procedure have not afforded the appellant a fair hearing; (5) the agency's findings of fact are not supported by a preponderance of the evidence; (6) the agency's conclusions of law and order are not supported by its findings of fact; (7) the agency's findings of fact do not sufficiently address the evidence presented by the appellant; or (8) the agency's conclusions of law and order do not sufficiently explain its rationale for not adopting any contrary recommendations by a hearing officer or administrative law judge. We exercise restraint in deciding whether or not an agency's findings of fact are supported by a preponderance of the evidence; we do not make independent findings or substitute our judgment for that of the agency, but, instead, we decide whether a reasoning mind reasonably could have decided the agency's findings were proven by the weight of the evidence from the entire record. Paul, at ¶ 6. Questions of law, including statutory construction, are fully reviewable on appeal. Id.

III

[¶ 9] Wanner contends the Bureau erred in using a "preponderance of the evidence" standard of proof, rather than a "clear and convincing" standard of proof in determining he made false statements in violation of N.D.C.C. § 65-05-33. A similar contention was recently rejected in Sjostrand v. North Dakota Workers Comp. Bureau, 2002 ND 125, 649 N.W.2d 537. A majority of this Court (Maring, J., dissenting) held "the Bureau's findings under N.D.C.C. § 65-05-33...