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Schoch v. North Dakota Workforce Safety and Insurance

February 17, 2010


Appeal from the District Court of Stark County, Southwest Judicial District, the Honorable William A. Herauf, Judge.

The opinion of the court was delivered by: Crothers, Justice


[¶1] Dion Schoch appeals from a district court judgment affirming a decision by Workforce Safety and Insurance ("WSI") which reversed its prior acceptance of Schoch's claim after WSI decided Schoch failed to prove he sustained a work injury and which ordered Schoch to repay $6,718.81 after WSI decided Schoch willfully made a material false statement in his claim for benefits. Schoch argues he proved he sustained a compensable work injury on October 1, 2001, and WSI did not prove he made a willful and material false statement in his claim for benefits. We affirm in part, reverse in part, and remand.


[¶2] On October 16, 2001, Schoch submitted a claim to WSI for benefits, stating he sustained a "ruptured disk between L4 & L5" at 3 p.m. on October 1, 2001, while working for Funshine Express "unloading 65 cases of paper, three of us lifting cases and stacking them according to color." In response to a question on the claim form about whether he "had prior problems or injuries to that part of the body," Schoch checked "no." Schoch's claim stated that his employer was notified about the work injury on October 2, 2001, and that the president of Funshine Express signed an employer's report of injury on October 16, 2001. Schoch's claim identified his "treating doctor(s)" as Dr. Terrance Mack with West River Health Services in Hettinger. The claim form did not disclose Schoch's treatment in August 2001, and on October 1 and 2, 2001, for left hip and low back pain with chiropractor Dr. Dion Ficek. According to Schoch, Dr. Ficek's treatment was for left hip and sacroiliac pain, and Schoch did not believe Dr. Ficek's treatment was related to Dr. Mack's treatment for the disc herniation.

[¶3] WSI received Schoch's medical records from Dr. Mack, which reported Schoch's treatment on October 3, 2001. The records did not reference a work injury but did note Schoch presented to the clinic that day with an onset of acute low back pain:

"He said that for the past six weeks he has had some problems with his hips, specifically on the left side, which he has been seeing a chiropractor for. His back has not bothered him up until this past weekend. He had been active on his hands and knees laying some carpet when he started to have some low back pain. He suffered through the weekend taking no medication to ease the pain and saw a chiropractor on Monday. This helped alleviate the pain after some manipulation. The pain returned again on Tuesday. He went to see a massage therapist who recommended that he go to a chiropractor. On Tuesday evening, he saw a chiropractor who attempted to manipulate the joints. This did not help at all and he began to suffer from excruciating pain."

A diagnostic test by Dr. Mack revealed a "large left L4-5 disc herniation." Schoch was admitted to a hospital for treatment with epidural steroid injections, and he was discharged from the hospital on October 5, 2001, and returned to work.

[¶4] In November 2001, after receiving Dr. Mack's medical records, WSI accepted Schoch's claim and paid his medical expenses. According to the WSI claims adjuster, she did not personally contact Schoch because his claim was for medical treatment and not for lost wages and because Schoch reported no prior injuries or problems to that part of the body. The claims adjuster testified she saw the reference to chiropractic treatment in Dr. Mack's notes, but did not contact Schoch because those notes indicated problems with his hip and the onset of low back pain.

[¶5] Schoch had no further contact with WSI until March 2003, when he again saw Dr. Mack and contacted a WSI claims analyst after his "back . . . flared up." WSI authorized Schoch to see Dr. Larry Teuber in Rapid City, who diagnosed "[i]ntermittent left leg pain secondary to intervertebral disc displacement at the left L4-5 level" and "[l]ow back pain secondary to degenerative disc disease L4-5." Dr. Teuber recommended conservative treatment and medication.

[¶6] In February 2006, Schoch saw Dr. Catherine Houle for low back pain. In March 2006, Dr. Mark Monasky performed a L4-5 discectomy on Schoch. While processing Schoch's claim for those medical expenses, WSI saw Schoch had received chiropractic treatment from Dr. Ficek. WSI then obtained Dr. Ficek's chiropractic records, which included an exam note on August 8, 2001, stating Schoch had "increased hip and LB px off and on the last 2-3 days." Dr. Ficek's assessment was a "SI segmental dysfunction." An October 1, 2001, note by Dr. Ficek assessed Schoch with "SI segmental dysfunction, px" and stated Schoch "[c]omplains of increasing px in the L hip, LB area. Noticed it over the weekend when playing catch with a football with his son." An October 2, 2001, note by Dr. Ficek assessed Schoch with "SI segmental dysfunction, px. Dorsal segmental dysfunction, px," and stated he "[c]ontinues to complain of L hip, LB area."

[¶7] WSI ordered a medical review by Dr. Gregory Peterson to ascertain if Schoch's current condition was related to his reported work injury. Dr. Peterson concluded Schoch's disc herniation was unrelated to his reported October 1, 2001 work injury, and identified "suspect[ed] fraud." After further investigation, WSI issued a notice in March 2007, concluding Schoch had not sustained a compensable work injury on October 1, 2001, denying him any further benefits, and ordering him to reimburse WSI for previously paid benefits for willfully filing a false claim or making a material false statement in support of a claim.

[¶8] Schoch requested a hearing. After an evidentiary hearing, an administrative law judge ("ALJ") recommended denying Schoch further benefits because he failed to prove he suffered a compensable work injury. The ALJ said that the evidence established Schoch sustained a disc herniation on October 1, 2001, but that a preponderance of the evidence did not establish the herniation was due to a work injury. The ALJ said none of Schoch's treating physicians expressed a medical opinion establishing that a work injury occurred, that a work injury caused Schoch's medical condition, or that a work injury substantially worsened any pre-existing condition. The ALJ stated Schoch's condition was more likely attributable to aging, to playing football with his son, or to laying carpet. The ALJ found Dr. Peterson's testimony persuasive that Schoch's disc herniation was a normal aging development, or was due to other causes including laying carpet, or playing football with his son. The ALJ also recommended that Schoch reimburse WSI $6,718.81 in medical expenses for willful and material false statements in support of his claim. The ALJ found Schoch's statement on his claim form that he had no prior problems or injuries to the part of the body injured was not a willful false statement. The ALJ also found Schoch's failure to disclose that he had received treatment from Dr. Ficek on the date of the injury was a willful false statement, was material to WSI's evaluation of Schoch's claim, and had the effect of preventing WSI from obtaining Dr. Ficek's records for the August and October 2001 chiropractic treatments, which likely resulted in a different handling of Schoch's claim. WSI adopted the ALJ's recommendation, and the district court affirmed WSI's decision.


[¶9] Under the Administrative Agencies Practice Act, N.D.C.C. ch. 28-32, courts exercise limited review in appeals from decisions by WSI. Forbes v. Workforce Safety & Ins. Fund, 2006 ND 208, ¶ 10, 722 N.W.2d 536. Under N.D.C.C. ...

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