Mail Carrier Found Not Guilty on All Counts in OWCP Fraud Trial

By Vickie Sandlin – July 27, 2017
The prosecution failed to convince a jury of 12 people that Kristi Rae Ness, 54 of Julesburg, was guilty on 12 felony counts of insurance fraud, offering a false instrument for recording, attempt to influence a public servant and forgery of a public record.

In May 2015 Ness claimed she suffered an on-the-job related injury. Her claim was accepted and she was provided medical treatment. Ness’ job duties included stacking and sorting mail, delivering packages, walking her route to deliver mail door to door.

Ness underwent a partial knee replacement April 19, 2016 performed by Dr. Braden Mayer, MD, of the Steadman Hawkins Clinic in Denver. Mayer is also an associate team physician for the Colorado Rockies and the Denver Broncos.

The trial spanned over four days. On Monday,13 members of the community had been selected to sit on the jury. One would be an alternate juror.

Opening arguments began on Tuesday morning.

Deputy District Attorney Anthony Gioia opened his argument by telling jurors that Kristi Ness had been injured on the job as a U.S. Postal Carrier in the spring of 2015. Subsequently, Ness underwent surgery in 2016, filed forms, and received more than $11,000 in workers’ compensation. Gioia told the court that Ness hard been told prior to the surgery that she would be restricted from twisting, turning and lifting for at least 6-8 weeks. As Gioia continued, he said that the jurors would see video that was taken of the defendant screeding and edging concrete, digging and “stomping down with her leg” and carrying stacks of lumber.

Gioia outlined how Special Agent Wayne Leaders, of the U.S. Postal Service had visited with Ness at her home. Leaders had asked Ness if she had been doing anything outside the scope of her restrictions. Ness replied to Leaders saying “I can’t” and telling the special agent that she had restrictions prohibiting her to do heavy work. At that time, the agent showed Ness a video of herself performing hard labor. Gioia said Leaders then asked Ness “If a jury sees this, what will the jury think?” Ness was said to have replied, “Guilty.”

Scott Robinson, Ness’ defense attorney, offered a different side. He told the jury how his client had been raised in Nebraska, the daughter of a farmer. As such, she had been raised doing hard, physical labor. After high school, Ness earned a degree in cosmetology, met her husband Mike, married and moved to Colorado where they raise their family. As the family grew up, she went to work for the USDA and worked there for 3 years before going to work for the United States Postal Service.

Robinson told the jurors that being a mail carrier was more than putting a letter in a mailbox. He said the job actually was very physical. Ness was required to sort, case, and carry the mail out to her mail truck, often times banging her left knee against the side of the vehicle. In 2006, Ness tore her ACL throwing a bale of hay and underwent surgery. She had a second surgery in 2007. Neither time had Ness filed a worker’s compensation claim. After continued years of labor intensive work with the post office, the hard work had taken its toll by 2016. This time, the surgeon said the injury to her knee was work related. Ness was given two options, either to go with a total knee replacement, or a partial replacement. Ness chose the latter.

Afterwards Ness told her supervisor, Romney Apodaca about her decision to proceed with the surgery and that her doctor had said the injury was work related. Robinson told the jury that Ness had been working in a hostile environment and that Apodaca did not want to accept the doctor’s diagnosis. He also told the court that Apodaca would have no understanding of the strenuous job of a mail carrier has as she had never carried the mail herself.

Robinson’s defense seemed to hinge on how to differentiate “job restrictions” from “life restrictions.” He told the jury that his client had been given two instructions at the time of her surgery, 1) to remain completely off work for 8-12 weeks, and 2) “let your body be your guide.”

Before opening arguments, Judge Carl Sidney McGuire had told the jurors that opening statements were only the attorneys’ frame work and should not be considered as evidence.

A number of witnesses were called to the stand to include Nicholas Goodwin with the US Postal Service Human Resources Workers’ Compensation for the Colorado/Wyoming District, Special Agent Wayne Leaders, Jay Lindsay, former law enforcement officer; Romney Apodaca, Julesburg’s Post Mistress; Korwin Kinnie, defendant’s cousin by marriage; Shirley Ness, defendant’s mother-in-law, Diane Hernandez, family friend; Mike Ness, the defendant’s husband; and Kristi Ness herself.

The prosecution’s case centered around the interpretation of Section 3 from CA-7 Claim for Compensation form that the defendant submitted and did not answer on the five occasions that she submitted claims for work comp claims.

SECTION 3 You must report any and all earnings from employment (outside your federal job); include any employment for which you received a salary, wages, income, sales commissions, or payment of any kind during the period(s) claimed in Section 2. Include self-employment, odd jobs, involvement in business enterprises, as well as service with the military. Fraudulently concealing employment or failing to report income may result in forfeiture of compensation benefits and/or criminal prosecution.”

The prosecution also put a lot of emphasis on form CA-17, Duty Status Report. The form has two columns, Side A that was to meant to be completed by the employee’s supervisor, and Side B that was meant to be complete by the employee’s Physician. Side A asks for the employee’s name, date of injury, social security number, occupation and asks the supervisor to describe how the injury occurred and state the parts of the body affected. It ask how many hours per day the employee work and the days of the week. A list of 20 work related activities are listed and has boxes to annotate if the activity is continuous or intermittent and the number of hours of day the activity is performed. Activities listed include, lifting and the number of pounds, sitting, standing, walking, pulling/pushing, operating machinery, etc.

In his testimony Goodwin told the court that his predecessor had filled out Side A of the form and not Ness’ direct supervisor Apodaca. He said that the form itself could be confusing.

Side B asks the physician pertinent questions such as clinical findings, diagnosis due to injury and other disabling conditions. And the seeming most important question with regards to Ness’ case, “Employee Advised to Resume Work?” Each exhibit entered into evidence show the box “No” marked and that Dr. Mayer signature was at the bottom of the form.

Robinson told the jurors that the CA-7 form was actually a 10 page document of 200-plus page policy and the prosecution was hanging his case on just two sentences. In Robinson’s summation he told the jury that his client had worked in a hostile environment since Romney Apodaca had become the facility’s Postmistress, and described Jay Lindsay as a hostile witness.

Testifying for the defense were family and friends of Ness. Shirley Ness, and Hernandez told the court that the defendant had been at their homes and had observed her working along side her husband. Shirley Ness was asked by the prosecution if she knew Kristi Ness was using a shovel at her home. Shirley Ness answered yes, but she only thought Kristi was helping her son Mike and was not hurting herself.

Shirley Ness testified that had her son not been able to help repair the sprinkler in her yard, she would not have had the work done. She also testified that Mike was not compensated for his work.

Hernandez told the court that she hired Mike Ness after he and number of his family and friends had poured a driveway for her husband who was a disabled veteran at no charge. The project included the building of a 2-car garage, with a 12′ addition of a sunroom and bathroom.

Assisting on the job site was Kinnie. Kinnie testified that he was not compensated for his work as the two men often traded off help between jobs.

On the witness stand Mike Ness told the court after his wife’s surgery he could see that she was bored from lack of activity and had encouraged her to join him on the work site. He described her his “best friend” and said they had been married for 34 years.

On cross examination by the Gioia, he was asked if the couple had a joint banking account. Mike Ness told the court that he did have a personal account that he would make withdrawals from and contribute to the joint account. Mike Ness told the court that his wife performed normal chores such doing the dishes and such, but he did not pay her.

Prior to taking the stand, Kristi Ness received a courtesy advisement by Judge McGuire. He explained that she not have to testify but could do so if she wish. On the witness stand, the defendant told the court about her personal life, the fact she was raised on a farm in Nebraska, always worked hard, very active, earned a degree in cosmetology, raised two daughters, worked three years for the USDA before being hired by the Postal Service. Basically she led a very active life.

She testified that she had injured her knee in 2006 and underwent surgery in 2006 and 2007, but never filed workers’ comp at the time. She said she injured the knee throwing hay. When she again was having problems with her knee she sought medical attention. The doctor then said the injury was work related. She was given two options, a total knee replacement or a partial replacement. Ness chose the latter as it would mean less recovery time and that she would be able to return to her job sooner.

Ness described the surgery as “worse than child birth.” Within 3 days post surgery she was doing physical therapy. She went twice a week. Therapy included riding a stationary bicycle, theraband therapy, stair work, walking backwards, and learning how to walk without a limp.

Ness said she had suffered a set back in early June 2016 when she was selected for jury duty. Her knee became stiff due to the sitting and because her legs were too short to reach the floor. She also suffered another setback while at physical therapy.

During the cross examination, Gioia told Ness the video showed her on May 11, 2016 operating a mitre saw. Ness admitted to using the saw. She said she had been getting depressed, but it was getting to be nice weather. Gioia asked if running the saw cause her pain. Ness said no, she said she was using upper body strength, and she thought the activity was good for her. She was asked if she gave any thought she shouldn’t be doing this kind of activity. Again Ness said no. Gioia questioned Ness about using a shovel to dig for the sprinkler. She told him that she it helped her to extend her left knee. She thought she digging helped her regain the extension and reflection back to her knee and leg. Gioia asked her if she had ever been told that she could return to work. Again, Ness answered no.

After a brief recess, Gioia questioned Ness about a visit when Special Agent Wayne Leader and Timothy Korsic made an unannounced visit to her home under the guise that they were their to talk about “quality control.” A 90 minute audio tape had been made of the visit.

The first half of the tape, Ness conversed with the Special Agents and tells them about her activities she did prior to surgery, and then ones she had been not been able to perform since the surgery. In the tape she is heard to say that she worked as a farm wife before the surgery, but at the time of the visit, she was restricted in her activities and could not bend, turn or twist.

On the tape Ness was heard talking with the agents about the forms she had to fill out, and together they discussed the questions and her answers. Midway through the tape, Leaders reads Ness her rights. Ness could be heard asking if she had done something wrong.

Gioia asked Ness if she attempted to deceive the investigators, and Ness denied doing so. She responded the same way when asked if she had created a false document. Ness’ responses were “Not at all. I’m an honest person.”

Gioia contended that Ness never revealed that she had been doing physical labor, construction work. He was referenced a 3 hour video that the jury had watched on Tuesday afternoon. Surveillance video had been taken by Leaders in May of 2016. In it, Ness was seen digging, screeding concrete, and carrying 2’x6’x10′ lumber. The video also showed Ness taking breaks, stretching her left leg, and doing prescribed home exercises.

Ness told the court that what she had done, she was neither compensated for and it was not comparable to the work she would be subjected to perform if she had returned back to the post office. Ness explained at the post office she had to work within time constraints and was not allow extra breaks. She would be allowed 10 minutes in the morning and afternoon and 30 minutes for lunch.

Witnesses had been taken out of order, the defense rested it’s case on Wednesday afternoon. However the prosecution still had one witness to testify and due to scheduling conflicts and travel he would not be available until Thursday morning.

Dr. Braden Mayer took the stand Thursday morning for the prosecution. He testified that he was in private practice, on staff with the Steadman Hawkins clinic in Denver, specialized in Sports Medicine and was an Assistant Physician to the Colorado Rockies and Denver Broncos sport teams.

Mayer testified that he had performed knee microfracture surgery on Ness. He said typical recovery would take 8-12 weeks, and 9-12 months for a full recovery. He told court that he has patients that want to return to work as soon as possible, often due to work responsibilities or financial needs. He said he always counsels them about possible risks of re-injury when doing so.

He testified that he could not recall Ness ever asking to return to work early. He told the court at the 6-week mark he asks his patients how they are feeling and what their goals are, such as getting back to work. He said he wants to see things going slow during the first six weeks, making sure the knee is processing okay. Gioia was asked if had reviewed the video showing Ness performing construction work. He said had. Gioia asked him if was surprised to see Ness perform those activities, and Mayer answered “no.” Mayer explained in that setting he was “Happy to see her doing well, surprised? No.”

From his standpoint, Mayer explained that it is not uncommon for a person to heal rather quickly, but he had never discussed her returning to work. Under cross examination, Mayer told the court that he doesn’t want patients laying around the house and their knee getting stiff. He likes to have his patients up and doing physical therapy. He said he suggests to his patients to listen to their body, and do what the body tells you.

The prosecution rested its case after Mayer’s testimony.

Closing arguments followed.

Gioia argued that the defendant never disclosed that she was doing construction work, and that she was benefitting financially via her husband’s construction company. He told the jury that Ness never disclosed she was able to return to work, although she was working with her husband. He said Ness had defrauded the system, and had been caught stealing from hard working Americans.

Robinson’s summation was twice as long as Gioia. He claimed that Ness worked in a hostile environment in which there was a vendetta and the truth had been grossly distorted. He contended there had not been any double dipping on the part of Ness. “No way at 6-weeks could she have handled the amount of physical exertion it takes for a mail carrier to do.” He reminded the jury that the burden of proof was on the prosecution and that proof had to be beyond a reasonable doubt. It was lunch time when the jury was escorted to the deliberating room. They return in less than an hour with their verdict. Not guilty on all counts.

For a cost of $75, Ness’ records will be sealed. She was released from her bond.

Source: Ness Found Not Guilty on All Counts – Julesburg Advocate

Related: Worker’s Comp Trial Begins – Julesburg Advocate

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