KIMBERLY PURCELL, EMPLOYEE, PLAINTIFF v. FRIDAY STAFFING, EMPLOYER, ZURICH NORTH AMERICAN, CARRIER (GALLAGHER BASSETT SERVICES, THIRD-PARTY ADMINISTRATOR), DEFENDANTS
No. COA13-1252
IN THE COURT OF APPEALS
Filed 5 August 2014
[235 N.C. App. 342 (2014)]
dоes not impact its validity in this instance. Lack of recordation only denies the deed the protections that recordation affords.
We hold that, in the present case, the documents satisfied
Reversed.
Judges STEELMAN and ERVIN concur.
1. Workers’ Compensation—denial of benefits—prior undisclosed wоrk-related injury increased risk
The Industrial Commission did not err by denying plaintiff‘s claim for workers’ compensation benefits. There was sufficient evidence that plaintiff‘s prior undisclosed work-related injury increased the risk of sustaining her present injury.
2. Appeal and Error—preservation of issues—failure to raise constitutional issue at trial
Although plaintiff alternatively argued that
Appeal by plaintiff from opinion and award entered 21 June 2013 by the North Carolina Industrial Commission. Heard in the Court of Appeals 5 March 2014.
McAngus, Goudelock & Courie, P.L.L.C., by Sally B. Moran and Colin E. Cronin, for defendants-appellees.
GEER, Judge.
Plaintiff Kimberly Purcell appeals an opinion and award of the Industrial Commission denying her claim for workers’ compensation benefits. Plaintiff contends on appeal that the Commission improperly applied
Facts
On 6 August 1999, plaintiff suffered an injury to her back while working for Quality Assured Enterprises. A lumbar MRI revealed a disc protrusion in her lower back at the L5-S1 vertebrae and disc degeneration at the L4-5 vertebrae. Dr. Stewart J. Harley treated plaintiff for those injuries, in part with a surgical procedure called a microdiscectomy, and he initially restricted plaintiff from doing any work that involved bending, stooping, lifting, or twisting. Following a functional capacity evaluation (“FCE“) and after reaching mаximum medical improvement, plaintiff was given a seven percent partial disability rating to her back. Dr. Harley prescribed physical therapy and eventually relaxed plaintiff‘s lifting restrictions to permit lifting of no more than 20 pounds, although he encouraged her to find sedentary-level work.
As a result of this injury, plaintiff filed a workers’ cоmpensation claim against Quality Assured. Plaintiff and Quality Assured signed a Compromise Settlement Agreement on 24 January 2002 for an amount of $50,000.00 to be paid to plaintiff. Part of the Settlement Agreement stated, “IT IS UNDERSTOOD by and between the respective parties hereto that party of the second part‘s condition as the result of her accident may be permanent and may be progressive, that recovery therefrom is uncertain and indefinite ....” The Settlement Agreement also noted that plaintiff did not dispute that she had a seven percent permanent partial impairment to her back.
Subsequently, plaintiff worked in different jobs for various companies. She continued to receive treatment for back pain through her primary care providers. In 2007, plaintiff complained of low back pain radiating down her left leg and weakness in her left leg. After her primary care provider recommended a lumbar MRI and physical therapy, plaintiff told her, on 20 July 2007, that she had a disc bulge аt L4-5. Her doctor diagnosed degenerative disc disease, wrote a prescription for a TENS unit, and recommended physical therapy. On 23 January 2008, plaintiff again complained of back pain, told her primary care provider that she was seeing a neurosurgeon, and said she might need back surgery.
On 28 May 2010, plaintiff applied for employment with defendant Friday Staffing, a
To complete her application, plaintiff signed the following verification: “I hereby state all information on this Work History Record is true and factual.... I understand thаt any false statement may result in my immediate dismissal. I understand that Friday Services is an Employer-At-Will, and that my employment can be terminated at any time, with or without reason and with or without cause.”
Friday Staffing matched plaintiff with Continental Teves, a company that manufactures automotive parts. Friday Staffing then conducted an in-person interview in which plaintiff verified her ability to lift and carry up to and over 50 pounds and that she had not filed any workers’ compensation claims previously, did not have any condition that might limit her ability to perform any work assignment, had not had any prior injury or surgery, and had not ever received treatment or consultation for back pain or a back injury.
Plaintiff initially began working for Continental Teves on 2 June 2010 as an assembly line worker. The job profile for the position included occasional walking and stooping; frequent overhead reaching; pushing 40- to 45-pound baskets of automotive parts; lifting automotive parts from baskets to the assembly line; and carrying boxеs of automotive parts from a staging area to a table.
At Continental, plaintiff worked a CO2 line and a drum line. With regard to the CO2 line, the Commission found that plaintiff was required to constantly lift trailer arms weighing between 20 and 25 pounds. In April 2011, plaintiff was working 80 percent of her time on the CO2 line, “which involved the more strenuous work of the lines Plaintiff worked.” At approximately 1:00 a.m. on 18 July 2011, while at work, plaintiff reinjured her back. A subsequent MRI revealed a “new large focal disk [sic] extrusion at L5-S1 compressing the descending right S1 nerve root.” Since the 18 July 2011 injury, plaintiff has been out of work.
Plaintiff completed an undated Form 18, “Notice of Accident to Employer and Claim of Employee,” and on 17 November 2011, defendant Friday Staffing filed a Form 61 denying liability for plaintiff‘s claim. The deputy commissioner denied her claim in an opinion and award filed 9 November 2012. Plaintiff appealed to the Full Commission.
The Full Commission filed an opinion and award on 21 June 2013, affirming the opinion and award of the deputy commissioner with minor modifications. The Cоmmission concluded that plaintiff‘s claim should be denied pursuant to
Discussion
Our review of a decision of the Industrial Commission “is limited to determining whether there is any competent evidence to support the findings of fact, and whether the findings of fact justify the conclusions of law.” Cross v. Blue Cross/Blue Shield, 104 N.C. App. 284, 285-86, 409 S.E.2d 103, 104 (1991). “The findings of the Commission are conclusive on appeal when such competent evidence exists[.]” Hardin v. Motor Panels, Inc., 136 N.C. App. 351, 353, 524 S.E.2d 368, 371 (2000). As the fact-finding
[1] Plaintiff challenges the Full Commission‘s interpretation and application of
No compensation shall be allowed under this Article for injury by accident or occupational disease if the employer proves that (i) at the time of hire or in the course of entering into employment, (ii) at thе time of receiving notice of the removal of conditions from a conditional offer of employment, or (iii) during the course of a post-offer medical examination:
- The employee knowingly and willfully made a false representation as to the employee‘s physical condition;
- The employer relied upon one or more false representations by the employee, and the reliance was a substantial factor in the employer‘s decision to hire the employee; and
- There was a causal connection between false representation by the employee and the injury or occupаtional disease.
Plaintiff does not dispute the Commission‘s determination that the first two elements were met, but contends on appeal that that the Commission erred in finding a causal connection, the third element. In making this argument, plaintiff appears to contend that defendants must show through expert testimony “that the herniated disc wаs caused or contributed [to] by the alleged fraud.” Defendants, however, contend that plaintiff has applied the wrong causation standard.
Our appellate courts have not interpreted and applied
Statutory language is ambiguous if it is “‘fairly susceptible of two or more meanings.‘” State v. Sherrod, 191 N.C. App. 776, 778, 663 S.E.2d 470, 472 (2008) (quoting Abernethy v. Bd. of Comm‘rs of Pitt Cnty., 169 N.C. 631, 636, 86 S.E. 577, 580 (1915)). Because our courts have defined the phrase “causal connection” differently depending on the issues involved, that phrase is ambiguous when included in a statute, at least in the workers’ compensation context. Compare Chambers v. Transit Mgmt., 360 N.C. 609, 618, 619, 636 S.E.2d 553, 559 (2006) (exрlaining that in order to prove “causal connection” between specific traumatic event and injury, plaintiff must show that injury was “the direct result of a specific traumatic incident” (quoting
When confronted with ambiguous statutory language, we may determine the intent of the legislature by “‘considering [the statute‘s] legislative history and the circumstances of its enactment.‘” Lanvale Props., LLC v. Cnty. of Cabarrus, 366 N.C. 142, 164, 731 S.E.2d 800, 815 (2012) (quoting Shaw v. U.S. Airways, Inc., 362 N.C. 457, 460, 665 S.E.2d 449, 451 (2008)). Also, when construing an amendment, “[i]n determining legislative intent, we may ‘assume that the legislature is aware of any judicial construction of a statute.‘” Blackmon v. N.C. Dep‘t of Corr., 343 N.C. 259, 265, 470 S.E.2d 8, 11 (1996) (quoting Watson v. N.C. Real Estate Comm‘n, 87 N.C. App. 637, 648, 362 S.E.2d 294, 301 (1987)).
Prior to the enactment of
Pursuant to the Larson test, an employee may be barred from recovering workers’ compensation benefits as a result of a false statement at the time of hiring when the employer proves:
(1) The employee must have knowingly and wilfully made a false representation as to his or her physical condition. (2) The employer must have relied upon the false representation and this reliance must have been a substantial factor in the hiring. (3) There must have been a causal connection between the false representation and the injury.
3 Larson‘s Workers’ Compensation Law § 66.04 (2006) (footnotes omitted).
Although the Freeman majority opinion found “no specific statutory basis for the Larson test,” it nonetheless reasoned that common law doctrines provided implicit authority because “‘in construing the provisions of this Stаte‘s Workers’ Compensation Act, common law rules . . . remain in full force . . . .‘” Id. at 37, 38, 657 S.E.2d at 393, 394 (quoting Tise v. Yates Constr. Co., 122 N.C. App. 582, 587, 471 S.E.2d 102, 106 (1996)). This Court, after applying the Larson test, reversed the Industrial Commission‘s award of compensation to Mr. Freeman on the grounds that he had made misrepresentations to his employer regarding a prior back injury and workers’ compensation claim. Id. at 48, 657 S.E.2d at 399.
Judge Wynn, however, dissented, noting: “Not only have we previously rejected the Larson test, there is no legislative authority for this Court to adopt such a test.” 189 N.C. App. at 49, 657 S.E.2d at 400 (Wynn, J., dissenting). The Supreme Court reversed “for the reasons stated in the dissenting opinion[.]” Estate of Freeman, 363 N.C. at 250, 676 S.E.2d at 46.
In short, just two years preceding the enactment of
In Freeman, this Court determined that the requiremеnt of “a causal connection” between the plaintiff‘s misrepresentations and his earlier back injury presented “the issue . . . whether his undisclosed medical condition increased his risk of injury.” 189 N.C. App. at 45, 46, 657 S.E.2d at 398, 399. We, therefore, hold that when requiring a “causal connection” to satisfy the third element of
Here plaintiff concedes, and Dr. Harley‘s unchallenged expert medical testimony indicates, that plaintiff‘s prior back problems, which she concealed from defendаnt employer, increased the potential for her 2011 back injury if she violated her lifting restrictions. Nonetheless, plaintiff argues that because there was “no evidence as to the exact parts being lifted” while plaintiff worked with Continental, the Commission could not have concluded
The Commission found that plaintiff developed severe right-sided pain and numbness on 18 July 2011 “as she was having to constantly twist and bend over to pick up trailer arms from the pallet.” In addition, the Commission found that the trailer arms weighed between 20 and 25 pounds, a weight in excess of her work restrictions. Although plaintiff argues that there was no evidence that she violated her work restrictions of lifting no more than 20 pounds, the Commission‘s finding regarding the weight of the trailer arms was supported by plaintiff‘s own testimony that the trailer arms weighed “about twenty -- maybe twenty-five pounds.”
The Commission was entitled to find based on plaintiff‘s testimony that she was exceeding her work restrictions when she injured her back. That finding, in conjunction with Dr. Harley‘s unchallenged expert testimony that plaintiff was at an increased risk of injury if she exceeded her work restrictions, supported the Commission‘s conclusion that a causal conneсtion existed between plaintiff‘s false representation and her 18 July 2011 back injury. We, therefore, hold that the Commission did not err in denying plaintiff‘s claim for worker‘s compensation based on
[2] Plaintiff alternatively argues that
However, even if this issue were beforе us, it would be without merit since
Affirmed.
Judges ROBERT C. HUNTER and McCULLOUGH concur.