In the Matter of the Chiropractic License of Judy C. Thompson, D.C., License No. 3695.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-298

 

In the Matter of the

Chiropractic License of Judy C. Thompson, D.C.,

License No. 3695

 

Filed September 21, 2004

Affirmed; motion to strike granted
Klaphake, Judge

 

Minnesota Board of Chiropractic Examiners

OAH Docket No. 4-0901-14920-2

 

John J. Gores, Gores Law Office, 7091 Highway 65 Northeast, Suite 201, Fridley, MN 55432 (for relator Judy C. Thompson)

 

Mike Hatch, Attorney General, Steven M. Gunn, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2131 (for respondent Minnesota Board of Chiropractic Examiners)

 

            Considered and decided by Klaphake, Presiding Judge, Willis, Judge, and Minge, Judge.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

 

            In this certiorari appeal, relator Judy Thompson challenges an order of the Minnesota Board of Chiropractic Examiners (the board) disciplining her for violating the Minnesota Chiropractic Licensure Act (the act) by knowingly submitting bills to a third-party payor for services not rendered.  The board's decision to discipline relator was based on a determination that she could not have treated her patient, R.G., on the dates she indicated in her bill to his insurance company, Ward North America, because R.G. was out of the country on those dates.  Relator has also filed a motion to strike documents submitted with the board's supplemental brief to this court.  By order dated July 13, 2004, a decision on the motion to strike was deferred to this panel. 

            Because (1) a review of the record as a whole shows that there is substantial evidence to support the board's decision; (2) the board properly considered and weighed the conflicting evidence in making its determination; and (3) relator's procedural and evidentiary arguments lack merit, we affirm the board's decision.  Because the board submitted a letter in which it states it has no objection to the court excluding these documents from the record, we grant relator's motion to strike. 

D E C I S I O N             1.         Substantial Evidence

            When an agency acts in a quasi-judicial capacity, an appellate court applies the substantial evidence test.  In re Petition of N. States Power Co., 416 N.W.2d 719, 723 (Minn. 1987).  Substantial evidence is defined as:  "(1) such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; (2) more than a scintilla of evidence; (3) more than some evidence; (4) more than any evidence; or (5) the evidence considered in its entirety."  Minn. Ctr. for Envtl. Advocacy v. Minn. Pollution Control Agency, 644 N.W.2d 457, 466 (Minn. 2002).  Under the substantial evidence test, the reviewing court "evaluate[s] the evidence relied upon by the agency in view of the entire record as submitted."  Cable Communications Bd. v. Nor-West Cable Communications P'ship, 356 N.W.2d 658, 668 (Minn. 1984).  If an agency engaged in reasoned decision-making, a reviewing court will affirm, even though it may have reached a different conclusion than the agency.  Id.at 669.  This court defers to an agency's conclusions regarding conflicts in testimony, the weight given to expert testimony, and the inferences to be drawn from testimony.  In re Excess Surplus Status of Blue Cross & Blue Shield, 624 N.W.2d 264, 278 (Minn. 2001). 

Here, the board concluded that relator fraudulently billed Ward North America for services allegedly provided on May 22, 23, 25, and 27, 2000.  The board adopted the ALJ's findings and conclusions that relator's patient, R.G., was out of the country visiting family in Somalia from May 20 through 28, 2000, and thus could not have received services from relator on those dates.  Relator contends that there are two R.G.s: her patient and an impostor R.G.  She claims that the impostor R.G. was in Somalia on May 20 through 28, 2000, and that her patient R.G. was in the country and did indeed receive treatment on May 22, 23, 25, and 27, 2000.

            After engaging in a thorough analysis of the evidence, the ALJ determined that relator's patient and the R.G. who went to Somalia were the same person.  The ALJ based his determination on the following facts:  (1) a person with a name identical to relator's patient flew from Minneapolis/St. Paul to Dubai and arrived in Dubai on May 21, 2000, and the same person flew back from Dubai on May 26, 2000, and arrived in the U.S. on May 28, 2000; (2) in early June, the person relator knew as R.G. saw her and reported that he had seen a Dr. Mohamed, who admitted him to Methodist Hospital by ambulance for severe dehydration and infectious colitis; (3) Dr. Mohamed saw a man named R.G. on May 30, 2000, diagnosed this man as suffering from diarrhea and dehydration, and referred him to Methodist Hospital where he was ultimately admitted; (4) the patient told Dr. Mohamed and Dr. Hasbargen, the doctor who treated R.G. at Methodist Hospital, that he had just taken a trip to Somalia and had consumed camel's milk; and (5) the R.G. who saw Dr. Mohamed and Dr. Hasbargen, and the R.G. who was seeing relator reported the same general symptoms, social security number, and address.  The ALJ concluded that these facts raised a strong inference that the two men were the same person.  Further, the ALJ noted that R.G. was engaged in no-fault arbitration with Ward North America.  During those proceedings, R.G. admitted that he went to Somalia in April or May, and that he drank camel's milk while he was there and returned with stomach problems.

The ALJ determined that "at best, [relator] only raises a possibility that Drs. Mohammed and Hasbargen treated someone posing as R.G. and not the R.G. [whom relator] had been treating."  The ALJ further noted that the only evidence provided by relator to prove her imposter theory "are some apparent discrepancies in the examination and treatment records of the various physicians."  The ALJ noted that while relator argues that the existence of an impostor can be inferred from the different social histories for R.G. that were taken at Methodist Hospital and at relator's clinic, a more probable inference was that R.G. was an unreliable informant about his social history.

            Based on this record, we conclude that there was substantial evidence to support the board's adoption of the ALJ's determination that R.G. was out of the country from May 20 through 28, 2000, and could not have received services from relator on May 22, 23, 25, and 27, 2000.  While there was evidence of inconsistent statements by R.G. in the record, the board was entitled to make reasonable inferences based on the evidence.  Because the board thoroughly considered the conflicting evidence and engaged in reasoned decision-making, we affirm its decision.   

            2.         R.G.'s Testimony

            Relator argues that admitting R.G.'s no-fault arbitration testimony violated her due process rights because she did not have the opportunity to confront and cross-examine R.G. at the no-fault arbitration proceeding, at the depositions in the disciplinary proceeding, or at the hearing before the ALJ. 

            Relator raises this particular challenge to the admission of R.G.'s no-fault arbitration testimony for the first time on appeal.  Counsel for both parties and the ALJ discussed R.G.'s unavailability, and relator made a hearsay objection to the evidence, but she did not raise any objection based on violation of due process.  This court will generally not consider matters that were not argued and considered in the trial court.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). 

            Further, the ALJ properly admitted the evidence over relator's hearsay objection because the ALJ is not bound by the rules of evidence and may "admit all evidence which possesses probative value, including hearsay, if it is the type of evidence on which reasonable, prudent persons are accustomed to rely in the conduct of serious affairs."  Minn. R. 1400.7300, subp. 1 (2001).  And, in fact, even if the ALJ were bound by the hearsay rules, R.G. was clearly unavailable to testify because he asserted his Fifth Amendment rights at the two depositions he attended and successfully avoided being subpoenaed to attend the hearing before the ALJ.  See Minn. R. Evid. 804(a).  Thus, we conclude that the ALJ did not abuse his discretion or err in admitting R.G.'s arbitration testimony.          

            3.         Ex Parte Communications

Ex parte contacts between a party and a decisionmaker can be grounds for reversal.  See Meinzer v. Buhl, 66 C & B Warehouse Dist., Inc., 584 N.W.2d 5, 6 (Minn. App. 1998).  To maintain the public's confidence in a fair and open system, the Minnesota Supreme Court has admonished parties who have engaged in ex parte communications during agency proceedings.  Id.; see also In re Petition of N. States Power Co., 414 N.W.2d 383, 384-86 (Minn. 1987) (affirming vacation of public utilities commission order, where commissioner discussed employment with utility during time that commission was considering and approving utility's proposed rate increase).  In Meinzer, 584 N.W.2d at 7, a re-employment judge and the employer laughed while discussing pieces of the evidence after relator left the room.  Relator later heard the exchange in a tape of the proceedings.  Id.  This court reversed the agency's determination, finding that this procedural violation constituted reversible error.  Id.   

            Here, in its January 26, 2004 order, the board stated that it "met to consider the matter on November 6, 2003, at University Park Plaza," and that it adopted the ALJ's findings and recommendations "by unanimous decision."  (Emphasis added.)  But two members of the board make up the complaint panel and were legally disqualified from participating in the deliberations or in the vote on whether to discipline relator.  See Minn. Stat. §§ 214.103, subd. 7, 214.10, subd. 2 (2002).  To clarify that the complaint panel members did not participate in the January order, the board attempted to submit affidavits to this court.  By order issued April 20, 2004, this court refused to accept the affidavits and remanded the matter to the board for a ruling on who participated in the vote and deliberations that resulted in the January order.  On remand, the board held a special session on May 20, 2004, to clarify who participated in the final order.  Relator claims that on remand the board engaged in inappropriate ex parte contacts with members of the complaint panel and the complaint panel's counsel.

            Any ex parte communications that took place, however, are not grounds to reverse.  The contacts related to procedural aspects of the case rather than to the substance of the evidence or the law.  These contacts were necessary to satisfy this court's remand order.  Moreover, these contacts occurred well after the board's decision to discipline relator had been rendered.  We therefore conclude that these contacts were not improper and do not provide a basis to reverse the board's decision. 

            4.         Quorum

            Minn. Stat. § 148.04 (2002) requires that to transact business, the board must have a majority and that "a majority of the board shall constitute a quorum."  When board members abstain from voting because of legal disqualification, the statutorily required majority of the remaining legally qualified members is needed for a quorum.  In re 1989 St. Improvement Program, 483 N.W.2d 508, 510 (Minn. App. 1992).

            Here, the two members of the board who make up the complaint panel were legally disqualified from participating in the deliberations or vote on whether to discipline relator.  Minn. Stat. §§ 214.103, subd. 7, 214.10, subd. 2.  Relator argues that the board's May 20, 2004 order clarifying who participated in the deliberations and vote that resulted in its January order disciplining relator is a nullity because the board only had three members vote on the order and did not have a majority of the seven board members. 

            But the board only needed a majority of the legally qualified members present at the May 20, 2004 special meeting.  After disqualifying the complaint panel members, there were five legally qualified board members left to vote.  Three members of the board voted.  Therefore, the board had a quorumor a majority of the qualified board membersand the vote was valid. 

            5.         Procedural and Evidentiary Claims

Finally, relator argues that the following procedural and evidentiary errors occurred during the proceedings:  (1) the board erred by not admitting an affidavit stating that another individual was found driving R.G.'s cab; (2) the board erred by failing to provide relator proper notice of the on-going investigation against her; (3) the board erred by not filing a written motion before initiating the proceedings against relator; and (4) the board erred by shifting the burden of proof.

            We have thoroughly considered these arguments and find them to be without merit.  Because relator was afforded all the process that she was due, we affirm the decision of the board. 

            Affirmed; motion to strike granted.