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Stewart v. North Dakota Workers Compensation Bureau8/27/1999
Filed 8/27/99 by Clerk of Supreme Court
Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Gail Hagerty, Judge.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Opinion of the Court by Kapsner, Justice.
[ ] The North Dakota Workers Compensation Bureau appeals from a judgment vacating the Bureau's order and remanding for reinstatement of Patrick Stewart's benefits. We affirm in part, reverse in part, and remand for entry of judgment consistent with this opinion.
I.
[ ] In 1993 Stewart injured his left shoulder at work. The Bureau awarded benefits, including temporary total disability benefits. In October 1996 the Bureau hired a private investigator, Francine Johnson, to investigate Stewart. She videotaped Stewart on five occasions between October and December 1996 performing various activities, including operating a backhoe, driving truck, shoveling, and operating snow removal equipment.
[ ] On November 5 and November 30, 1996, Stewart signed income and work status cards indicating he had performed work but had not received pay. On December 19, 1996, Johnson interviewed Stewart. Stewart admitted he had been operating equipment and removing snow to help a friend, Jason Duncan, who owned an excavating business, but denied he had been paid for his activities. Four days later, on December 23, 1996, the Bureau issued a notice of intention to discontinue benefits (NOID) to Stewart, stating the reason for termination as:
Information received by the bureau indicates that you have provided a false statement regarding your return to work status.
The notice gave Stewart 21 days to respond. Stewart's benefits were terminated effective January 13, 1997. The Bureau subsequently interviewed and deposed Jason Duncan. In May 1997 the Bureau subpoenaed the bank records of Jason Duncan's business, Outback Excavating, and discovered six checks totaling $1,410.00 written to Stewart between June and November of 1996.
[ ] On October 24, 1997, more than ten months after issuing the NOID and nine months after administratively discontinuing Stewart's monthly benefits, the Bureau finally issued an order terminating benefits and ordering Stewart to repay $2,357.14 in benefits previously received. Stewart requested a hearing, which was held on April 7, 1998. Stewart testified the checks from Outback Excavating were for items of personal property he had sold to Jason Duncan, not payment for work he had performed. The administrative law Judge (ALJ) issued a recommended decision on April 27, 1998, finding the evidence did not establish that Stewart had made false statements or willfully failed to report income, and recommending reversal of the Bureau's order terminating benefits and ordering repayment of benefits.
[ ] The Bureau rejected the ALJ's recommendations and, on May 29, 1998, issued its findings of fact, Conclusions of law, and order determining Stewart had made material false statements regarding his work status and receipt of income. The Bureau affirmed that part of its October 24, 1997, order which terminated Stewart's benefits, but reversed that part of the order which required repayment of benefits received prior to January 13, 1997.
[ ] Stewart appealed to the district court, which concluded the Bureau had failed to provide adequate notice as required by the due process clause and N.D.C.C. ยง 65-05-08.1(6) because the NOID failed to inform him of the evidence upon which the Bureau was relying to terminate benefits. The court further concluded the ten-month delay between the NOID and issuance of an appealable order was unr
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