WORKERS COMPENSATION CONVICTION UPHELD ON APPEAL
$70,680.34 restitution for faked claim properly imposed. . .
Matthew Ailer was in an MVA on Hwy 93 in 5/11 while
driving a Garden City Janitorial van. He filed a claim with MSF
for an arm injury. He asserted that his symptoms worsened even
after continued treatment. Stephen Powell released him to full duty
10/4/11. He began seeing PT Kristen Green 10/6. He asked
for a note restricting him from lifting a heavy floor burnisher.
Green wrote the letter, and Ailer gave it to his employer Cory
Miller. The next day Miller trained Ailer and Jeff Russell to
safely lift the burnisher and unload it from the truck with a ramp.
Ailer filed a 2nd comp claim reporting that his arm went numb
as he was lifting the burnisher 10/16 and it fell on him. Russell
and Chelsea Chafee, another co-worker and Ailer's then fiancée,
were with him and took him to the CMC ER where he complained
of pain, numbness, and a pin-pricking sensation in his
neck & back.
During the months following the accident he complained
to doctors that he was in extreme pain, could not use
his right arm and leg, and could not walk without a cane. MSF
accepted his claim. On 3/12/12 Russell told Miller that Ailer's
burnisher accident was staged. Russell reported to MSF Special
Investigator Gaylen Buchanan that Ailer and Chafee asked
Russell to put the burnisher on top of him after they finished
cleaning a store and that Russell reluctantly agreed after Ailer
and Chafee promised to pay him $20,000 from settlement of
his claim. Russell stated that they then drove a few blocks from
the store where Russell and Chafee placed the burnisher on Ailer's
chest and rolled it back and forth. Ailer was not satisfied and
had Russell punch him several times. They then went to CMC.
Buchanan's investigation discovered that Ailer's complaints
& claims did not align with his symptoms or lack of symptoms.
MSF referred to DCI. Agent Butch Huseby focused on Ailer's
medical reports and interviewed providers, noting that the
doctors agreed that he showed no medical signs of trauma or
injury.
Ailer was charged with felony theft and convicted by
a jury. Judge Seeley deferred sentencing for 6 years and ordered
$70,680.34 restitution. Ailer appeals.
Ailer alleges that Martin Judnich was ineffective by allowing
Huseby to testify on an ultimate legal issue ("I looked into the
statute to see what elements of theft are involved in this case
and did he purposely and knowingly commit a crime to get
to this end, and I would say he did."), failing to rebut a "material
misstatement of fact" as to whether Ailer had been treated for
conversion disorder, and failing to object to the Prosecutor
asking Ailer if witnesses were lying when his testimony conflicted
with their testimony. Even if Judnich had objected to
Huseby's statement, Ailer fails to show how the result would
have been different. Clearly, jurors would have formed their
views based on credibility of the principal fact witnesses rather
than a minor comment by the investigator as to his opinion.
Ailer likewise fails to demonstrate how Judnich's failure to
rebut testimony as to whether Ailer had been treated for conversion
disorder prejudiced him. Shortly before Cecelia Robinson
testified that he had never been treated for it she stated that
she was aware that he had been diagnosed with it but did not
think it was related to "either work comp incident." Psychologist
Jeremiah Tollison testified that 2 previous providers had diagnosed
conversion disorder and described the specifics of the
disorder and how it applied to his case. (He testified that
conversion "is when a patient presents with or sensory deficits
that aren't really attributable to a medical cause. Often a neurologist
will evaluate the patient and cannot find a medical explanation
for why the patient is having the symptom they are having.")
Nor was Ailer prejudiced when Judnich failed to object to the
Prosecutor asking if witnesses were lying. It is within the Judge's
discretion to allow "were they lying?" questions. Hart (Mont.
2000) (probative when clarifying a line of testimony, evaluating
credibility of a defendant who is claiming everyone else is lying,
or when a witness flatly denies events). Ailer claimed that
everyone else was lying and flatly denied that the burnisher
incident was posed.
Seeley did not abuse her discretion in finding that garnishment
of Ailer's wage was admissible under Rule 404(b). Ailer
alleges that
to prove his motive to pose the burnisher incident and that the
prejudicial effect did not outweigh probative value. Seeley's
restitution award was supported by substantial evidence. Former
MSF claims examiner Suzanna Simmons provided an in-depth
explanation of the amounts paid to Ailer after his 2nd claim
was filed, and the documents she used to calculate restitution
were admitted at the sentencing hearing. Ailer alleges that she
failed to concretely distinguish between payments for the 1st
and 2nd claims. However, she affirmed numerous times that
her calculations related strictly to the 2nd claim, which had a
different claim number. She opined that the date of his release
to full duty -- 13 days before he filed the burnisher claim --
separated the claims and benefit payments, and also noted her
reliance on what Ailer had told his doctors about his injury.
.
State v. Ailer, DA 16-240, 2/6/18.
