SHELBY FREDERICK, Employee/Appellant, v. DIVINE HOME CARE, INC., and UNITED WIS. INS. CO./UNITED HEARTLAND, Employer-Insurer/Cross-Appellants.

WORKERS’ COMPENSATION COURT OF APPEALS
JULY 1, 2014

No. WC13-5654

HEADNOTES

PRACTICE & PROCEDURE - MATTERS AT ISSUE.  The compensation judge improperly expanded the scope of the issues presented at hearing, i.e., “nature and extent of the employee’s injuries,” when he determined, without providing sufficient notice to the parties, that he could decide that there was no injury whatsoever and, thus, no primary liability.

DISCONTINUANCE; REHABILITATION - DISCONTINUANCE.  The record contains substantial evidence to support the compensation judge’s decision to discontinue compensation and to terminate rehabilitation services.

CREDITS & OFFSETS - CREDIT FOR OVERPAYMENT. There was sufficient evidence to support the compensation judge’s conclusion that although he believed that the employee was malingering, there were questions about whether the employee’s state of mind was directed toward fraudulent conduct.  In addition, the NOID, as submitted, was not sufficient to meet the procedural requirements of Minn. R. 5220.2580.

Affirmed in part and vacated in part.

Determined by:  Cervantes, J., Hall, J., and Milun, C.J.
Compensation Judge:  Adam S. Wolkoff

Attorneys:  DeAnna M. McCashin, Schoep & McCashin, Alexandria, MN, for the Appellant.  Sarah M. Hunter, O’Meara, Leer, Wagner & Kohl, Minneapolis, MN, for the Cross-Appellants.

 

OPINION

MANUEL J. CERVANTES, Judge

The employee appeals from the compensation judge’s decision allowing discontinuance of wage loss benefits and termination of her rehabilitation plan.  The employer and insurer cross-appeal from the compensation judge’s determination that the employee did not receive or obtain her benefits in bad faith or through fraud.  We affirm the compensation judge’s findings and order relative to the discontinuance of wage loss benefits and termination of rehabilitation benefits, but vacate the findings and order to the extent that they went beyond the scope of the issues presented at the hearing.

BACKGROUND

The employee, Ms. Shelby Frederick, was 21 years old at the time of the hearing, which took place in October 2013.  She began working for the employer herein, Divine Home Care, in May 2012.  While working for the employer, she drove to clients’ homes to assist them with activities of daily living, including personal care and grooming, repositioning, feeding, cleaning, laundry, and other tasks.

The employee testified that she sustained an injury while working at a client’s home on August 14, 2012.  She testified that she was repositioning the client when she felt something snap in both wrists.  She testified that she experienced immediate pain in her arms and said that when she looked down, her hands had already begun to swell.

The employee was seen by a nurse practitioner at the Alexandria Clinic on the date of injury.  She was complaining of “charlie horse like pain in both wrists and forearms,” and she said pain increased with “any movement of her fingers or wrists.” On examination, the employee reported tenderness in the distal tip of the radius and ulna bilaterally, she was negative for edema, erythema, or ecchymosis, and her skin was warm and dry.  X-rays were negative for fracture.  The employee was diagnosed with bilateral wrist strain/sprain and given light-duty work restrictions.  She was told to return in a week, but she came back to Alexandria Clinic on August 16, 2012, and saw Dr. Amanda Walz.  The employee was complaining of severe pain and weakness in her hands as well as paresthesia’s and decreased grip strength.  The employee also indicated that she was unable to drive because of pain.

The employee began treating with Dr. Thomas Dudley at Heartland Orthopedics on August 23, 2012.  The employee complained of bilateral wrist pain, tingling in all digits, and diffuse numbness in both hands.  Dr. Dudley noted no edema, erythema, or swelling, bilaterally, and he stated that the employee had “full PROM of the elbows, wrist, and fingers though she is hesitant to move them independently.”  The examination was limited due to “pain and patient guarding.”  Dr. Dudley also stated that the paresthesia the employee was describing did not fit a “precise anatomic pattern,” and he noted that “the cause of her pain and discomfort is not readily evident today.”  Dr. Dudley recommended therapy and continued work restrictions.

The employee began a course of occupational therapy at Douglas County Hospital in early September 2012.  The employee reported needing help with all of her daily activities.  The therapist noted that the employee was reporting “diffuse pain and sensory complaints” that did not follow a “predictable pattern of nerve entrapment within [the] upper extremity.”

The employee saw Dr. Philip Bachman at Midwest Occupational Medicine on September 7, 2012.  She complained of difficulty using her arms, tingling in her arms, fingers, and neck pain.  Dr. Bachman saw no signs of atrophy/hypertrophy, skin discoloration, swelling, or ecchymoses.  Dr. Bachman assessed the employee with a cervical strain with “heightened response.”  Dr. Bachman also noted that the employee had some “atypical” responses and that she seemed “highly agitated to palpation and perhaps somewhat anxious.”  Dr. Bachman concluded, “I do not think [the employee] has reflex sympathetic dystrophy.”

The employee returned to see Dr. Walz at Alexandria Clinic on September 17, 2012.  The employee described worsening symptoms and said she was unable to drive safely.  Dr. Walz restricted the employee from driving because of her stated inability to hold on to the steering wheel.  The employee testified that she has not been able to return to work after the driving restriction was imposed, and she was unable to drive herself to the employer’s light-duty assignments because the distance was too far for her.  The employee was referred by her attorney to QRC Tom Lanes, but he was also unable to find transportation options that did not require her to drive to work.

The employee underwent an upper extremity EMG on October 2, 2012.  That study was interpreted as normal.  After the EMG, Dr. Walz referred the employee to Dr. David Falconer.

The employee began treating with Dr. Falconer on October 26, 2012.  Dr. Falconer asked the employee about her stated inability to drive, and the employee said that she had weakness and did not feel safe operating a motor vehicle.  Dr. Falconer indicated that “the basis and objective nature of these concerns is unclear and suggests an element of functional overlay.”  On examination, the employee had sweaty palms that were deemed consistent with hyperhydrosis.  Her Tinel’s sign was “equivocal,” her Phalen’s sign was negative, and there was “no gross atrophy, wasting or weakness of the thenar and hypothenar hand intrinsic muscles.”  Dr. Falconer noted “that her symptoms of burning pain and poor localization suggests a component of RSD or sympathetically mediated pain syndrome,” and he stated that this “would be best objectively documented with a positive bone scan.”  Dr. Falconer could not identify an objective basis for the employee’s stated inability to drive, and he expressed a “concern given the degree of vehemence that [the employee] expresses that there is a component of either secondary gain or functional overlay.”  Following a separate conversation with the employee’s QRC, Dr. Falconer indicated that he “had concerns about the nature of [the employee’s] complaints, her vehemence refusing to attempt to travel to work and the negative aspect of her work in response to focal therapy to date, which does not support a focal injury.”

The employee did not treat with any medical provider between October 26, 2012, and December 13, 2012.  She testified this was because of “problems with referrals.”

The employer and insurer conducted surveillance of the employee in November 2012 and January 2013.  Investigators from Sturm Consulting took video footage of her.  At the hearing, Jason Sturm testified that he was one of the investigators who observed and filmed the employee, and he saw her driving and carrying items with her hands.  The videos show the employee driving on multiple occasions, lifting her dog, lifting a pet carrier, and smoking.

A three-phase bone scan of the upper extremities was performed on December 13, 2012.  This was interpreted as normal.

On April 16, 2013, Dr. Falconer saw the employee again and noted that the employee had attended a driving evaluation, at his recommendation, which concluded that the employee was not safe to drive.  Dr. Falconer stated that the employee’s “studies and work up do not support an objective sympathetically mediated source of pain [or] discomfort.  I do not identify any other focal orthopedic disorder that I can localize, treat or identify.”  As such, Dr. Falconer referred the employee to Dr. Elghor.

The employee was sent for an independent medical examination with Dr. L.T. Donovan, an orthopedic surgeon, on April 4, 2013.  His examination findings included multiple inconsistencies and non-physiologic responses.  He noted that there was no swelling and that the employee had normal skin color and temperature bilaterally.  He noted that she did have “a straight hyperhidrosis of the palms in both hands.”  He also noted inconsistent range of motion in the wrists and “complaints of rather diffuse pain on both wrists.”  Dr. Donovan stated that the employee presented with a “clear-cut case of malingering based upon examination findings and the employee’s presentation.”  Dr. Donovan concluded that based upon the employee’s clinical presentation and the results of the bone scan, there was “absolutely no sign of any reflex sympathetic dystrophy.”  Dr. Donovan did not believe that the employee sustained any injury whatsoever on August 14, 2012, and he felt that the employee was capable of working at all times after that date.  However, he indicated that “if one accepted the facts stated by the employee at the initial evaluation as being true,” then she may have sustained a bilateral wrist sprain on August 14, 2012, which would have required temporary restrictions for four weeks, and the injury would have resolved after that time.

The employer and insurer filed a notice of intention to discontinue temporary total disability benefits on April 19, 2013.  The employer and insurer alleged that, “The employee’s August 14, 2012, injury has resolved without the need for further restrictions and the work injury is no longer a substantial contributing factor to her disability.”  They also alleged that the work injury was no longer a substantial contributing factor in the employee’s disability, that the employee had attained maximum medical improvement, and that the employee’s receipt of benefits since September 12, 2012, when she stopped working, had not been in good faith and had been received through fraud.

The employer and insurer also filed a rehabilitation request seeking termination of the employee’s rehabilitation plan, stating that the employee’s “injury has resolved without the need for further restrictions and the work injury is no longer a substantial contributing factor to her disability and she is therefore no longer entitled to rehabilitation benefits.”

The employee saw Dr. Walz again on May 3, 2013.  Dr. Walz noted that she was “not convinced that [the employee] gave her best effort” during strength testing.  In a follow up on July 9, 2013, Dr. Walz noted again that “I was not convinced that she gave her best effort at resisting with strength testing.”

The employee underwent a cervical MRI in July 2013.  The MRI revealed “tiny disc bulges at C5-6 and C6-7,” and the remainder of the study was normal.

The employee began treating at the Center for Pain Management in July 2013 as well.  PA-C John Hardman indicated that in evaluating grip strength, the employee “lets go” and would exhibit “inconsistent effort.”  He also indicated that both extremities appeared symmetrical and there was no discernible motor deficit.  The employee had normal reflexes.  PA-C Hardman referred the employee to physical therapy.

The employee continued treating with PA-C Hardman, and on August 21, 2013, he noted that the employee was continuing to exhibit inconsistent effort on evaluation of grip strength.  He noted similar findings on September 16, 2013, as well as symmetrical appearance in the extremities, no discernible motor deficit, normal reflexes, normal head and neck movements, and no effort at resisting with bilateral bicep and triceps muscle strength testing.

The employee saw Dr. Sam Elghor at the Center for Pain Management for the first time on September 30, 2013, just a few days before the hearing.  Dr. Elghor issued a letter to the employee’s attorney dated October 1, 2013, in which he explained that the employee exhibited “all the hallmarks of complex regional pain syndrome,” including skin hypersensitivity, color changes, temperature changes, hyperhidrosis (increased sweating), stiffness, and lack of strength.  As such, Dr. Elghor opined that the employee was suffering from moderate complex regional pain syndrome in both extremities, right greater than the left.  He recommended additional treatment options relating to complex regional pain syndrome.

On October 3, 2013, the case came on for hearing before the compensation judge with regard to the discontinuance and rehabilitation issues.  The compensation judge received medical records, including the reports from Dr. Elghor, Dr. Donovan, and the surveillance videos taken by Sturm Consulting.  The compensation judge also heard testimony from the employee, QRC Lanes, Occupational Therapist Julie Olberding, the employer’s human resources manager, Christine Evanson, and investigator Jason Sturm.

At the outset of the hearing, the compensation judge described the issues for determination, stating, “I understand the claim is a bilateral upper extremity injury.  Those are the nature of the injuries claimed.  So nature and extent beyond that.”  In his findings and order, the compensation judge stated that the issues included the nature and extent of the employee’s injury, her “entitlement to temporary total disability benefits from April 19, 2013 to the present and continuing,” and “whether the rehabilitation plan should be terminated.”  The employer and insurer also alleged that the employee had fraudulently received benefits.

In his findings and order, the compensation judge noted that the employee was filmed driving and using her hands to grip and turn the steering wheel.  He also noted that the employee was observed opening the door to her vehicle and lighting and smoking cigarettes without difficulty.  The compensation judge stated that the employee was observed lifting and carrying items with her hands and upper extremities “in a normal fashion.”  The compensation judge concluded that “the employee’s activities depicted in the video surveillance were inconsistent with representations she made to her treating physicians and others regarding her abilities.”  In her defense, the employee testified that the places to which she drove were within a few blocks of her home.

The compensation judge, relying on the opinion of Dr. Donovan, found that the preponderance of the evidence indicated that the employee “did not sustain any injuries arising out of and in the course and scope of her employment on August 14, 2012.”  In addition, the compensation judge stated that the “employee’s testimony is not accepted as credible.”  As such, the compensation judge determined that the employee was not entitled to temporary total disability benefits beyond April 19, 2013, and he determined that the rehabilitation plan should be terminated.  The compensation judge also determined that the employer and insurer had not established their fraud claim.  The employee appeals from the discontinuance and the termination of her rehabilitation.  The employer and insurer cross-appeal from the denial of their fraud claim.

STANDARD OF REVIEW

In reviewing cases on appeal, the Workers’ Compensation Court of Appeals must determine whether “the findings of fact and order [are] clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.”  Minn. Stat. § 176.421, subd. 1.  Substantial evidence supports the findings if, in the context of the entire record, “they are supported by evidence that a reasonable mind might accept as adequate.”  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).  Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed.  Id. at 60, 37 W.C.D. at 240.  Similarly, “[f]actfindings are clearly erroneous only if the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.”  Northern States Power Co. v. Lyon Foods Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).  Findings of fact should not be disturbed, even though the reviewing court might disagree with them, “unless they are clearly erroneous in the sense that they are manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole.”  Id.

“[A] decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which [the Workers’ Compensation Court of Appeals] may consider de novo.”  Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993).

DECISION

EMPLOYEE’S APPEAL

Scope of the Hearing

As a threshold matter, the employee argues that the compensation judge improperly expanded the issues at hearing when he found that no work injury occurred whatsoever.  It is generally inappropriate for a compensation judge to decide a contested issue on grounds not raised or litigated by the parties.  See Dawson v. Univ. of Minn., slip op. (W.C.C.A. May 6, 1999) (citing Kulenkamp v. Timesavers, Inc., 420 N.W.2d 891, 40 W.C.D. 869 (Minn. 1988)).  Minn. Stat. § 176.238 outlines the process for discontinuing compensation.  Discontinuances generally follow an expedited hearing process pursuant to Minn. Stat. § 176.238, subd. 6, which states that, “The hearing shall be limited to the issues raised by the notice or petition unless all parties agree to expanding the issues.”  The same principle of limiting issues considered at a hearing has also applied in expedited hearings relating to rehabilitation benefits.  See, e.g., Owens v. New Morning Windows, slip op. (W.C.C.A. June 5, 2000).

In Kulenkamp, the Minnesota Supreme Court held that “Basic fairness requires that the parties in a workers’ compensation proceeding be afforded reasonable notice and an opportunity to be heard before decisions concerning entitlement to benefits can be made.”  420 N.W.2d at 894, 40 W.C.D. at 872.  Consideration of primary liability might also be appropriate in the context of a discontinuance hearing, “so long as a party has reasonable notice” of that issue.  Id.  “[T]he totality of the facts and circumstances of a case, tempered with the application of common sense,” sometimes require that the scope of the issues raised “be viewed with a degree of latitude.”  Meyer v. George F. Cook Constr. Co., slip op. (W.C.C.A. Dec. 14, 2001).  See also Reid v. Ryder Truck Rental, 42 W.C.D. 677, 681 (W.C.C.A. 1989) (explaining that where the rationale for an NOID, for example, intertwines with other entitlement issues, “[a] compensation judge is not required to make decisions in a vacuum or attempt to deal with interrelated issues in isolation.” (emphasis in original)).  However, the issue on appeal is whether a party has had sufficient notice of an expanded claim or issue to present its case.  See Kulenkamp, 420 N.W.2d at 894, 40 W.C.D. at 873.

The case at hand came on for hearing on an objection to discontinuance and a rehabilitation request.  The employer and insurer had not denied liability.  At the beginning of the hearing, the compensation judge stated that the first issue for determination was the nature and extent of the employee’s injuries.  Specifically, he said, “I understand the claim is a bilateral upper extremity injury.  Those are the nature of the injuries claimed.  So nature and extent beyond that.”  In this context, the burden of proof was on the employer to establish grounds to discontinue temporary and rehabilitation benefits.  While Dr. Donovan’s IME called the issue of primary liability into question, neither party asked the compensation judge to resolve that issue.

On the other hand, if primary liability had been raised as an issue at hearing by agreement of the parties, the burden of proof would have been on the employee to submit evidence and make arguments relative to the establishment of the employee’s injuries because this would have been an expansion of the objection to discontinuance.  Given the posture of the case, however, the parties’ evidence and argument focused on whether the employee’s injuries had resolved, not whether the employee sustained injuries.  The employee argued at hearing, and in her written closing arguments, that she had ongoing disability and need for rehabilitation benefits due to ongoing symptoms and the development of complex regional pain syndrome (RSD).  Understandably, she did not focus on whether the injuries occurred.  On appeal, the employee’s attorney argued that had she known the compensation judge was considering primary liability, she would have addressed whether injuries occurred and not only the nature and extent of the injuries.

The employer and insurer also focused on whether the employee’s injuries had resolved, not primary liability.  In her opening statement at hearing, the attorney for the employer and insurer argued, “The evidence will show that this work injury resolved no later than September 12, 2012, based on the Independent Medical Exam of Dr. Donovan, and she is no longer experiencing the effects of any work injury.”  In their written closing argument, the employer and insurer described Dr. Donovan’s IME opinion as follows: “the employee was malingering, the work injury resolved by September 14, 2012, and she could work without restrictions.”  They concluded that section on the nature and extent of the injury stating, “The weight of the evidence establishes the August 14, 2012, injury resolved no later than September 14, 2012.”

Given the arguments presented, the procedural posture, and the compensation judge’s characterization of the issues prior to hearing, we conclude that the employee did not have adequate notice that primary liability would be decided and was not afforded an opportunity to be heard relative to this issue.[1]  Therefore, we vacate finding 35 of the compensation judge’s findings and order to the extent that it may affect the employee’s benefits beyond the discontinuance and rehabilitation termination issues raised at this hearing.

Substantial Evidence

The employee argues that the compensation judge’s decision to allow a discontinuance of wage loss benefits and termination of rehabilitation benefits was not supported by substantial evidence.

As an initial matter, the employee argues that Dr. Donovan was not shown to have any knowledge of or experience with complex regional pain syndrome.  The employee argues further that Dr. Donovan’s orthopedic opinion is consistent with Dr. Falconer’s orthopedic opinion that the employee does not have a condition that can be treated by an orthopedic specialist.  Arguments regarding an expert’s qualifications go to the weight of the evidence and not the foundation for the expert’s opinions.  See Ruether v. State, Mankato State Univ., 455 N.W.2d 475, 477, 42 W.C.D. 1118, 1121 (Minn. 1990).  A medical expert is not disqualified from expressing an opinion as to causation simply because he may be testifying outside his area of expertise; rather, the expert’s qualifications and the evidence supporting his opinion go to the weight to be given his opinion.  Id. at 477-78, 42 W.C.D. at 1121-22.  It is then within the compensation judge’s discretion to assess the weight and sufficiency of a medical expert’s opinion.  See id.

Dr. Donovan is an orthopedic surgeon with added qualifications in hand surgery.  He specifically examined the employee for the hallmarks of RSD, including skin color, temperature, swelling, and hyperhidrosis, and he opined that she did not have any such condition.  The compensation judge was aware of Dr. Donovan’s qualifications, and we conclude that the decision to credit Dr. Donovan’s opinion with regard to the employee’s condition and possible RSD was within the compensation judge’s discretion.

Next, the employee argues that Dr. Donovan’s opinion is contrary to the weight of the evidence presented.  A compensation judge’s choice between conflicting medical opinions is usually upheld unless the facts assumed by an expert in rendering an opinion are not supported by the evidence.  Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985).  While there may be some differences in the details, an expert need not express or even be aware of every relevant fact for his or her opinion to be valid.  See, e.g., Bossey v. Parker Hannifin, slip op. (W.C.C.A. Mar. 14, 1994).  Even where some facts may be unknown to a doctor, his opinions may still be valid, so long as the omissions do not mislead the fact finder.  Drews v. Kohl’s, 55 W.C.D. 33, 39 (W.C.C.A. 1996), summarily aff’d (Minn. July 11, 1996).

The employee cites to a number of records and argues that Dr. Donovan either ignored them or made incorrect factual assumptions based on them.  For example, she argues that Dr. Donovan mistakenly indicated that there had been no documentation of swelling.  The employee accurately argues that there are numerous medical records indicating symptoms of hand discoloration, swelling, and sweating, which may be symptoms of RSD.  Conversely, there are a number of medical records in which the same symptoms were not present on examination.  For example, when the employee was seen at Alexandria Clinic on August 14, 2012, the date of injury, her examination was negative for edema, erythema, or ecchymosis.  On August 23, 2012, Dr. Dudley at Heartland Orthopedics noted no swelling or edema.  When the employee saw Dr. Bachman at Midwest Occupational Medicine on September 7, 2012, the doctor saw no signs of atrophy/hypertrophy or skin discoloration, and he assessed the employee with a cervical strain with “heightened response.”  Dr. Bachman also noted that the employee had some “atypical” response and stated that he did not think the employee had reflex sympathetic dystrophy.  In the fall of 2012, Dr. Falconer recommended a bone scan to “objectively” document what he suspected may have been “a component of RSD or sympathetically mediated pain syndrome.”  The bone scan, which was performed on December 13, 2012, was normal.

Dr. Donovan conducted his independent medical examination on April 4, 2013.  His examination findings included multiple inconsistencies and non-physiologic responses.  He noted no swelling, hand discoloration, or issues with temperature.  Dr. Donovan concluded that based upon the employee’s clinical presentation and the results of the bone scan, there was “absolutely no sign of any reflex sympathetic dystrophy.”

Where evidence is conflicting or more than one inference may reasonably be drawn from the evidence, the findings of the compensation judge are to be upheld.  See Redgate v. Sroga’s Standard Serv., 421 N.W.2d 729, 734, 40 W.C.D. 948, 957 (Minn. 1988).  It is not the role of this court to evaluate the credibility and probative value of witness testimony and choose different inferences from the evidence than the compensation judge.  See id.; see also Krotzer v. Browning-Ferris/Woodlake Sanitation Serv., 459 N.W.2d 509, 512-13, 43 W.C.D. 254, 260-61 (Minn. 1990).  Here, the compensation judge carefully examined the employee’s medical records and made detailed findings outlining the employee’s medical history.  While there are records that indicate that the employee may have exhibited some of the markers for RSD, including swelling, there are a number of records indicating that the employee did not exhibit the same markers, and there are a number of opinions specifically stating that the employee did not have RSD.

Furthermore, the compensation judge based his decision on his determination that the employee was not credible.  The employee provided a number of explanations in her testimony.  For example, she said that she was only viewed on the surveillance film for less than an hour in total and that she was not doing any firm grasping or lifting of anything heavier than one pound.  She also said that although she was seen driving, she was only a minute or two away from her home, and the driving evaluation indicated that she should not do prolonged driving.

As with the medical records, there is ample evidence to support the compensation judge’s credibly conclusion.  For example, the employee conceded on cross-examination that she had denied driving at all at her deposition.  At the hearing, she changed her testimony to admit that she had been driving, but only short distances and with modifications such as driving with her knees and using a “trucker knob.”  Even then, the private investigator indicated that when he observed the employee driving, no such modifications were present. 

There were also a number of inconsistencies between the employee’s testimony and her medical records.  For example, she testified that she had swelling immediately after the injury, but the records from the date of injury are negative for edema.  The compensation judge also noted the multiple references from the various treating physicians to issues such as “non-organic pathology,” “functional overlay,” and questionable effort with strength testing.

Again, it is not the role of this court to reevaluate the credibility and probative value of witness testimony and choose different inferences.  See Krotzer, 459 N.W.2d at 512-13, 43 W.C.D. at 260-61; Redgate, 421 N.W.2d at 734, 40 W.C.D. at 957.  The record in this case provides substantial evidence to support the compensation judge’s decision to discontinue compensation and terminate rehabilitation services.

THE EMPLOYER AND INSURER’S CROSS-APPEAL

The employer and insurer cross-appealed the compensation judge’s denial of their fraud claim.  Minn. Stat. § 176.179 governs the recovery of overpayments and states that if a

compensation judge determines that the mistaken compensation was not received in good faith, the commissioner or compensation judge may order reimbursement of the compensation. For purposes of this section, a payment is not received in good faith if it is obtained through fraud, or if the employee knew that the compensation was paid under mistake of fact or law, and the employee has not refunded the mistaken compensation.

For purposes of Minn. Stat. § 176.179, the elements required to prove fraud in a workers’ compensation case are as follows:

1.   False representations of fact;
2.   The representation must deal with past or present facts;
3.   The fact must be susceptible of knowledge;
4.   The representing party must know the fact is false;
5.   The representing party must intend that another be induced to act based on the false representation;
6.   The other person must, in fact, act in reliance on the false representation;
7.   The representation must be the proximate cause of the actual damages.

Pitsenburger v. Jeff Belzer Chevrolet, 56 W.C.D. 427, 435-36 (W.C.C.A. 1997) (citing Specialized Tours, Inc. v. Hagen, 392 N.W.2d 520, 532 (Minn. 1986)).  Ultimately, whether benefits have been received as a result of fraud is a question of fact for the compensation judge.  See Mitrovich v. United Parcel Serv., slip op. (W.C.C.A. July 25, 2000).

The employer and insurer argue that the employee made intentional misrepresentations about her complaints and physical capabilities, falsely testified during her deposition and at hearing, and fraudulently misled the employer, her providers, and the court with regard to any disability or need for workers’ compensation benefits.  They argue that it was inconsistent for the compensation judge to find that the employee had not sustained an injury but then deny the claim for fraud.

The compensation judge explained that although he believed that the employee was malingering, as Dr. Donovan opined, even Dr. Donovan conceded that some of the various medical treatment involved was reasonable and necessary.  As such, the compensation judge stated that “this calls into question the employer and insurer’s conclusion that the employee’s state of mind was directed toward fraudulent conduct.”  In the context of the record in this case, we interpret this language to mean that the compensation judge believed there may have been other factors at play rather than fraudulent conduct.

In addition, the compensation judge denied the fraud claim because he determined that the employer and insurer had not complied with the procedural requirements of Minn. R. 5220.2580, which states as follows:

Subpart 1.  Request for refund.
All requests for refunds or reimbursements by an insurer for payments made under a mistake of fact or law, which were allegedly not received by an employee or dependent in good faith, must be made in writing to the employee with a copy immediately mailed to the attorney representing the employee or dependent, if any, and upon request to the division.
Subpart 2.  Contents of request.
All requests must contain the following information:
A.     amount of alleged overpayment;
B.     what the original payment was made for;
C.     the date on which the payment was made;
D.     the mistake of fact or law which forms the basis for the claimed overpayment;
E.      the reason the insurer believes the payments were not received in good faith; and
F.      a statement informing the employee that, if the employee has any questions  regarding the legal obligations to repay any claims for overpayment alleged to have not been received in good faith, the employee should contact either a private attorney or the division.

The employer and insurer argue that the NOID satisfied the requirements of Minn. R. 5220.2580 by listing the amount of benefits paid, each benefit type, the dates the payments were issued, and the factual and legal basis for the fraud claim.  We disagree.

The NOID does not contain the information required by Rule 5220.2580.  The NOID merely gives a general statement that “The employer and insurer contend the employee’s claim for and receipt of temporary total disability benefits was not in good faith and obtained through fraud.  Under M.S. 176.179 we request reimbursement of benefits since September 12, 2012.”  The NOID does not give any specific reason why the employer and insurer believed that the benefits paid all the way back to September 2012 were not received in good faith.  Furthermore, the NOID does not contain the specific statement required by subp. 2.F.  To accept the employer and insurer’s argument would relieve them from satisfying every element of Minn. R. 5220.2580.

The compensation judge ultimately found that the employer and insurer did not establish every element of fraud as defined by statute and rule.  We affirm.

For the reasons stated above, we conclude that the record contains substantial evidence to support the compensation judge’s decision to discontinue compensation, to terminate rehabilitation services, and to deny the employer and insurer’s claim for fraud.  The compensation judge expanded the scope of the issues when he considered primary liability where it was not at issue.  Therefore, finding number 35 of the compensation judge’s findings and order is vacated to the extent that it may affect the employee’s benefits beyond the rehabilitation and wage loss benefits at issue in this matter.  We affirm the remainder of the findings and order.



[1] Compare this case with Olenchak v. Wenzel Plumbing and Heating, 65 W.C.D. 290 (W.C.C.A. 2005) (citing Eide v. Timberland Lumber Co., slip op. (W.C.C.A. Aug. 19, 2003) (holding that where the employee’s attorney did not object to the statement of issues set out by the employer and insurer and, instead, argued the position of the employee on those issues, the compensation judge had not inappropriately decided those issues).  Compare it also with our recent decision in Gordenier v. Original Mattress Factory, No. WC14-5661 (W.C.C.A. June 4, 2014).  In Gordenier, the employee sustained low back injuries in December 2007.  The case proceeded to trial on a medical request relating to subsequent treatment for piriformis disorder.  The employee argued that the piriformis disorder was related to the low back injuries.   At the outset of trial, the compensation judge directly stated that she would be deciding the nature and extent of the admitted injuries involved and whether they were “temporary or ongoing.” The employee’s arguments focused on her ongoing symptoms and the relation of her initial injuries to her current condition.  We held that the compensation judge did not improperly expand the scope of the hearing when she determined that the employee’s initial injuries were temporary in nature.  Here, by contrast, the compensation judge stated that he would be deciding the nature and extent of the admitted injuries but gave no indication that he would consider whether injuries had occurred at all.