Purcell v. Friday Staffing , 235 N.C. App. 342 ( 2014 )

NO. COA13-1252
NORTH CAROLINA COURT OF APPEALS
Filed: 5 August 2014
KIMBERLY PURCELL,
Employee,
Plaintiff,
v. North Carolina
Industrial Commission
FRIDAY STAFFING, I.C. No. X57382
Employer,
ZURICH NORTH AMERICAN, Carrier
(GALLAGHER BASSETT SERVICES,
Third-Party Administrator),
Defendants.
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.
Ganly & Ramer, by Thomas F. Ramer, for plaintiff-appellant.
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 N.C. Gen. Stat. § 97-12.1 (2013)
when it concluded that the injury she suffered while working for
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defendant Friday Staffing was causally connected to a previous
work-related injury that plaintiff concealed when she applied
for employment with Friday Staffing. However, we agree with the
Commission's interpretation of N.C. Gen. Stat. § 97-12.1 that a
causal connection exists between a willfully misrepresented
prior condition and a present injury if the former increases the
risk of the latter. Because there was sufficient evidence in
this case that plaintiff's prior undisclosed work-related injury
increased the risk of sustaining her present injury, we affirm.
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 maximum 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
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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'
compensation 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 at 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
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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 company that fills the labor needs
of a clientele of employers with potential employees it hires.
The employment application included two pertinent
questionnaires: a "Friday Essential Functions Questionnaire" and
a "Medical History Questionnaire." On the Essential Functions
questionnaire, plaintiff indicated that she could engage in the
following activities: lifting more than 50 pounds; carrying more
than 50 pounds; frequent bending, pulling, pushing, kneeling,
squatting, and twisting; standing for long periods; and sitting
for long periods. In the Medical History portion of the
application, plaintiff indicated that she had never filed a
workers' compensation insurance claim, suffered any injury or
undergone surgery, or received treatment or consultation about
back pain or possible back injuries.
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 that any
false statement may result in my immediate dismissal. . . . I
understand that Friday Services is an Employer-At-Will, and that
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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 boxes 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
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strenuous work of the lines Plaintiff worked." At approximately
1:00 a.m. on 18 July 2011, while at work, plaintiff re-injured
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 Commission concluded that
plaintiff's claim should be denied pursuant to N.C. Gen. Stat. §
97-12.1 on the grounds that at the time plaintiff was hired:
"(1) Plaintiff knowingly and willfully made a false
representation as to her physical condition; (2) Defendant-
Employer relied upon said false representation by Plaintiff, and
the reliance was a substantial factor in Defendant-Employer's
decision to hire her; and (3) there was a causal connection
between the false representation by Plaintiff and her claimed
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injury." Plaintiff timely appealed the Full Commission's
opinion and award to this Court.
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 body, "'[t]he Commission is the sole judge of
the credibility of the witnesses and the weight to be given
their testimony.'" Deese v. Champion Int'l Corp., 352 N.C. 109,
115, 530 S.E.2d 549, 552 (2000) (quoting Adams v. AVX Corp., 349
N.C. 676, 680, 509 S.E.2d 411, 413 (1998)). "[T]he Industrial
Commission's conclusions of law are reviewable de novo."
Johnson v. Herbie's Place, 157 N.C. App. 168, 171, 579 S.E.2d
110, 113 (2003).
Plaintiff challenges the Full Commission's interpretation
and application of N.C. Gen. Stat. § 97-12.1, which provides:
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
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course of entering into employment, (ii) at
the 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:
(1) The employee knowingly and
willfully made a false
representation as to the
employee's physical condition;
(2) 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
(3) There was a causal connection
between false representation by
the employee and the injury or
occupational 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 was 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 N.C.
Gen. Stat. § 97-12.1 since its enactment in 2011. "Questions of
statutory interpretation are questions of law[.] . . . The
primary objective of statutory interpretation is to give effect
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to the intent of the legislature. The plain language of a
statute is the primary indicator of legislative intent." First
Bank v. S & R Grandview, L.L.C., ___ N.C. App. ___, ___, 755
S.E.2d 393, 394 (2014) (internal citations omitted). "If the
statutory language is clear and unambiguous, the court eschews
statutory construction in favor of giving the words their plain
and definite meaning. When, however, a statute is ambiguous,
judicial construction must be used to ascertain the legislative
will." State v. Beck, 359 N.C. 611, 614, 614 S.E.2d 274, 277
(2005) (internal citation and quotation marks omitted).
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) (explaining 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 N.C. Gen. Stat. § 97-2(6) (2005)) with
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Morrison v. Burlington Indus., 304 N.C. 1, 39, 43, 282 S.E.2d
458, 481, 484 (1981) (requiring for "causal connection" a
showing that "occupational conditions . . . significantly
contributed to the [occupational] disease's development"), and
Gallimore v. Marilyn's Shoes, 292 N.C. 399, 402, 233 S.E.2d 529,
531 (1977) (holding decedent's death did not arise out of her
employment due to lack of "causal connection" between work and
death since nature of work did not increase risk she would be
slain by criminal act).
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 N.C. Gen. Stat. § 97-12.1, a
majority opinion in Freeman v. J.L. Rothrock, 189 N.C. App. 31,
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36, 657 S.E.2d 389, 392-93 (2008), rev'd per curiam sub nom.
Estate of Freeman v. J.L. Rothrock, Inc., 363 N.C. 249, 676
S.E.2d 46 (2009), attempted to adopt the "Larson test":
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 State'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
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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 N.C.
Gen. Stat. § 97-12.1, the Supreme Court reversed Freeman because
this Court had "no legislative authority" to read the Larson
test into the Workers' Compensation Act. 189 N.C. App. at 49,
657 S.E.2d at 400 (Wynn, J., dissenting). Then, when the
legislature enacted N.C. Gen. Stat. § 97-12.1, it used language
identical to the Larson test as set out and applied in this
Court's opinion in Freeman. We presume that the legislature was
aware of this Court's decision in Freeman applying the Larson
test and, under these circumstances, we conclude that the
legislature intended to adopt the Larson test as Freeman
initially expressed and applied it.
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In Freeman, this Court determined that the requirement 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 N.C. Gen. Stat. § 97-12.1, the legislature
intended that a defendant show that a plaintiff's undisclosed or
misrepresented injury, condition, or occupational disease
increased the risk of the subsequent injury or disease.
Here plaintiff concedes, and Dr. Harley's unchallenged
expert medical testimony indicates, that plaintiff's prior back
problems, which she concealed from defendant 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 that plaintiff violated her lifting
restrictions, and thus there could be no causal connection
between her prior and recent back injuries. We disagree.
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
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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 connection
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 N.C. Gen. Stat. § 97-12.1. See Freeman, 189 N.C. App.
at 47-48, 657 S.E.2d at 399 (holding that causal connection was
established by expert testimony that plaintiff's undisclosed
medical condition increased his risk of back injury at issue).
Plaintiff alternatively argues that N.C. Gen. Stat. § 97-
12.1, as applied in this case, is an unconstitutional ex post
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facto law. However, "'[a] constitutional issue not raised at
trial will generally not be considered for the first time on
appeal.'" In re Cline, ___ N.C. App. ___, ___, 749 S.E.2d 91,
102 (2013) (quoting Anderson v. Assimos, 356 N.C. 415, 416, 572
S.E.2d 101, 102 (2002)), disc. review denied, ___ N.C. ___, 753
S.E.2d 781 (2014). "Since this argument was not raised [below],
it is not properly before us on appeal." Id. at ___, 749 S.E.2d
at 102.
However, even if this issue were before us, it would be
without merit since N.C. Gen. Stat. § 97-12.1 does not involve a
criminal offense. See State v. Wiley, 355 N.C. 592, 625, 565
S.E.2d 22, 45 (2002) (explaining that ex post facto implicates
four types of laws: "'1st. Every law that makes an action done
before the passing of the law, and which was innocent when done,
criminal; and punishes such action. 2d. Every law that
aggravates a crime, or makes it greater than it was, when
committed. 3d. Every law that changes the punishment, and
inflicts a greater punishment, than the law annexed to the
crime, when committed. 4th. Every law that alters the legal
rules of evidence, and receives less, or different, testimony,
than the law required at the time of the commission of the
offence, in order to convict the offender[]'" (quoting Collins
v. Youngblood, 497 U.S. 37, 42, 111 L. Ed. 2d 30, 38-39, 110 S.
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Ct. 2715, 2719 (1990)). Accordingly, we affirm the Commission's
opinion and award.
Affirmed.
Judges ROBERT C. HUNTER and McCULLOUGH concur.