Berger v. North Dakota Workers Compensation Bureau12/27/2000
Appeal from the District Court of Morton County, South Central Judicial District, the Honorable James M. Vukelic, Judge.
AFFIRMED.
Opinion of the Court by Neumann, Justice.
[ ] Robert L. Berger ("Berger") appealed from a district court order and judgment affirming an order of the North Dakota Workers Compensation Bureau ("the Bureau") determining he was not an employee covered by the Workers Compensation Act when he was injured. We affirm.
[ ] Berger suffered a head injury while working as a bartender at the Silver Dollar Bar in Mandan December 6, 1992. Berger's wife, Dayta, filed a claim for workers compensation benefits on his behalf. The Bureau accepted the claim and awarded benefits on March 11, 1993.
[ ] On August 2, 1993, the Bureau issued an order in which it found Berger's injury was caused by voluntary use of intoxicants, concluded the injury was not employment-related, and ordered dismissal of the claim. On November 30, 1993, the Bureau issued an order in which it found Berger was injured when he was assaulted while employed at the Silver Dollar Bar on December 6, 1992, found the evidence did not establish his injury was caused by voluntary consumption of alcohol, concluded he "suffered an injury by accident arising out of and in the course of his employment," revoked its dismissal order of August 2, 1993, and ordered payment of medical expenses and disability benefits.
[ ] On May 15, 1998, the Bureau mailed Berger a notice of intention to discontinue or reduce benefits because it had determined he was a partner in the business for which he was working when he was injured, and did not have appropriate workers compensation coverage. The Bureau terminated Berger's benefits on June 5, 1998. On November 17, 1998, the Bureau notified Berger it found he was not a partner or an employee, but was a consultant. The Bureau also notified Berger it was reinstating benefits from June 6, 1998, and it was terminating benefits on December 8, 1998.
[ ] On December 28, 1998, the Bureau issued an order revoking acceptance of Berger's claim, dismissing the claim, ordering repayment of benefits, and ordering forfeiture of benefits. The Bureau found Berger made a false statement when he applied for benefits as an employee, he was not an employee when he was injured, he was a paid consultant when he was injured, and neither Berger nor the Silver Dollar Bar had procured appropriate workers compensation coverage for him. The Bureau revoked the November 30, 1993, order awarding benefits, dismissed the claim, ordered Berger to repay $158,714.87 for medical expenses, disability benefits, and permanent partial impairment benefits, and ordered forfeiture of any additional benefits in connection with the claim.
[ ] Asserting he was an employee of the Silver Dollar Bar and entitled to workers compensation benefits for his injury, Berger requested reconsideration and demanded a formal hearing. After conducting a formal hearing on August 18, 1999, a Temporary Administrative Law Judge ("TALJ") issued recommended findings:
. The greater weight of the evidence shows that the claimant was not an employee of the Silver Dollar Bar on December 6, 1992, or any other relevant time. He worked in the bar as a bartender, but his status was that of an owner or partner.
. The claimant never obtained optional coverage as an owner under the North Dakota Workers Compensation Act.
. The greater weight of the evidence does not show that the claimant deliberately filed a false claim or made a false statement in connection with this claim.
The TALJ concluded Berger "was not a person covered by
Page 1 2 3 4 5 North Dakota Employee Leasing Services
Employee Leasing Services
|