Wanner v. North Dakota Workers Compensation Bureau

2002 ND 201, 654 N.W.2d 760, 2002 N.D. LEXIS 272, 2002 WL 31846254
CourtNorth Dakota Supreme Court
DecidedDecember 20, 2002
Docket20020080
StatusPublished
Cited by8 cases

This text of 2002 ND 201 (Wanner v. North Dakota Workers Compensation Bureau) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wanner v. North Dakota Workers Compensation Bureau, 2002 ND 201, 654 N.W.2d 760, 2002 N.D. LEXIS 272, 2002 WL 31846254 (N.D. 2002).

Opinions

[763]*763MARING, 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 faked 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 [764]*764of 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.”
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1.... 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 [765]*765him, but he shall forfeit any additional benefits.

[¶ 6] The AJLJ 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 mislead 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.

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Wanner v. North Dakota Workers Compensation Bureau
2002 ND 201 (North Dakota Supreme Court, 2002)

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Bluebook (online)
2002 ND 201, 654 N.W.2d 760, 2002 N.D. LEXIS 272, 2002 WL 31846254, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wanner-v-north-dakota-workers-compensation-bureau-nd-2002.