O'Hara v. A.D. Jacobson Co., Inc.

• Decision Date: 14 November 1995
• Docket Number: No. WD,WD
• Citation: 909 S.W.2d 381
• Parties: Kevin O'HARA, Respondent, v. A.D. JACOBSON COMPANY, INC., Appellant. 50769.
• Court: Missouri Court of Appeals

Page 381

909 S.W.2d 381

Kevin O'HARA, Respondent, v. A.D. JACOBSON COMPANY, INC., Appellant.

No. WD 50769.

Missouri Court of Appeals Western District.

Nov. 14, 1995.

Jeff Stigall, Stigall, Humphrey, Lucas, Henry, Stigall & Dollar, L.P., Kansas City, for appellant.

Stephen K. Nordyke, Kyser & Nordyke, Butler, for respondent.

Before LAURA DENVIR STITH, P.J. and LOWENSTEIN and HANNA, JJ.

LAURA DENVIR STITH, Presiding Judge.

Employee-Respondent Kevin O'Hara injured his back on July 16, 1993, while working for Employer-Appellant A.D. Jacobson Company, Inc. Administrative Law Judge Mark Siedlik denied an award of compensation based on the affirmative defense that Mr. O'Hara fraudulently represented that he had no previous back injuries on an employment application which allegedly requested this information.

The Missouri Labor and Industrial Relations Commission reversed, finding that A.D. Jacobson had not satisfied all of the elements of the affirmative defense of fraudulent representation. A.D. Jacobson appeals. We affirm on that ground.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Mr. O'Hara's Employment with A.D. Jacobson and Current Injury.

A.D. Jacobson is a mechanical contractor. The record shows that when A.D. Jacobson needs a pipefitter for a job it is doing, it contacts a union hall, and the hall provides it with a list of available union pipefitters. Any individual A.D. Jacobson selects from that list is immediately considered hired by A.D. Jacobson without the need to complete an employment application.

This appeal arises out of a back injury which Kevin O'Hara sustained on July 16, 1993, while working as a pipefitter for A.D. Jacobson. Mr. O'Hara, who has worked as a pipefitter since 1974, had sustained two back injuries prior to the injury in question. The first back injury, which was work-related, occurred in 1983 and required surgery. Mr. O'Hara was assessed a permanent disability rating of 20 percent and received workers' compensation benefits. Following a period of recuperation, Mr. O'Hara returned to his job as a pipefitter. Seven years later, in 1990, Mr. O'Hara sustained another back injury unrelated to work. Mr. O'Hara obtained medical treatment and was off work for a short period of time.

Mr. O'Hara had been hired through the union hall by A.D. Jacobson to work as a pipefitter on numerous occasions. Two of those occasions were from April, 1988, to February, 1990, and June 13, 1990, to July 17, 1990. Because Mr. O'Hara was hired through the union hall on those occasions, he was not required to fill out employment applications.

On June 15, 1992, A.D. Jacobson again hired Mr. O'Hara through the union hall, and again did so without requiring him to complete an employment application. Two days after he was hired, on June 17, 1992, Mr. O'Hara was required to complete an untitled form which requested personal information and an emergency contact. The form also asked, "Have you ever received workers' compensation benefits?" Even though Mr. O'Hara had received workers' compensation benefits in the past, the response "No" was placed in the blank left for an answer. This period of employment with A.D. Jacobson ended without incident on July 12, 1992.

On June 28, 1993, Mr. O'Hara was again hired out of the union hall to work as a pipefitter for A.D. Jacobson. As before, because he was hired out of the union hall, Mr. O'Hara was not required to complete an employment application as a condition of employment.

As before, two days after Mr. O'Hara started work, Mr. O'Hara was given a form, this time entitled "Employee Emergency Notification Form" and instructed to fill it out. In addition to requesting information regarding who to notify in the case of an emergency, this form contained a question which stated, "Have you had any bodily ailments in the past? (Heart trouble, diabetes, back trouble, epilepsy, etc.)". Mr. O'Hara answered "No" to this question.

On Friday, July 16, 1993, Mr. O'Hara was performing his job as a pipefitter for A.D. Jacobson. He injured his back by twisting it while he was pulling and lifting a mast out of a roustabout (manual hoist). While Mr. O'Hara was able to finish work that day, he was unable to return to work on the following Monday.

Mr. O'Hara was treated at Hickman Mills Clinic. He returned to light duty work for one week. Mr. O'Hara was unable to tolerate this work and returned to off-work status.

Mr. O'Hara was then referred by A.D. Jacobson to Dr. David Tillema. Dr. Tillema provided medical treatment, including epidural steroid injections and physical therapy. Mr. O'Hara also underwent diagnostic testing which included an MRI. It was Dr. Tillema's opinion that the MRI showed a disc fragment. Based upon this, Dr. Tillema recommended that Mr. O'Hara undergo surgery. On the morning that Mr. O'Hara was scheduled to be admitted for surgery, he was notified by the Builder's Association Self Insurers Fund that the surgery had been canceled.

Mr. O'Hara was subsequently referred to Dr. Edward Prostic. It was Dr. Prostic's opinion that the abnormality visible on the MRI performed by Dr. Tillema was not a disk fragment and was not the cause of Mr. O'Hara's problems. Dr. Prostic opined that Mr. O'Hara sustained a sprain and strain to his lower back with aggravation of his sciatic nerve. Dr. Prostic provided medical treatment including physical therapy and medication. Mr. O'Hara was released to return to work on January 21, 1994.

Mr. O'Hara's workers' compensation claim was heard before Administrative Law Judge Mark S. Siedlik in April, 1994. At the hearing, A.D. Jacobson contended that Mr. O'Hara was not entitled to benefits based on the affirmative defense of fraudulent representation, citing to a Labor & Industrial Relations Commission Decision, Roxie Frederick v. Delta Airlines, Injury No. 87-53805.

Mr. O'Hara was the only witness who testified in person at the hearing. The deposition testimony of Dr. Tillema and Dr. Prostic, and of Mr. Lawrence Jabara, the Corporate Secretary and Controller for A.D. Jacobson, was admitted into evidence.

When questioned about the "No" response to the question on the 1993 Employee Emergency Notification Form as to whether he had ever had back trouble, Mr. O'Hara testified that, since he was filling out an emergency notification form, he believed the question only referred to conditions that might be of importance to medical personnel in the case of an emergency. Because his prior back injuries had not required emergency treatment, he did not think that they had to be listed. Mr. O'Hara also said that he did not feel that his prior injuries were "back trouble" because they did not require emergency treatment and he was not suffering from any back problems at the time the form was completed.

Mr. O'Hara denied writing "No" in response to the question regarding previous workers' compensation claims on the untitled form dated June 17, 1992. He claimed he left this space blank and that someone else must have written in this response. The original of this form was not produced by A.D. Jacobson. Only a copy of this form was entered into evidence.

Mr. Jabara handles the paperwork for all employees of A.D. Jacobson. Through his deposition testimony, Mr. Jabara clarified that the 1993 Employee Emergency Notification Form is a post-employment form, and not an application, stating "It's not something that we look at and then say, you know, make a determination whether that person should come to work for us. It's simply information that we want to have on the person." When asked what actions Mr. Jabara would have taken if Mr. O'Hara had listed the two previous injuries on the form but indicated that he was not having any current problems, Mr. Jabara testified:

If Kevin would have responded and said, "I'm doing great. I'm not having any problems." I'm not sure I would have done anything. I mean, I don't know. You know, you have to sort of take people at their word for those sort of things. We certainly don't terminate people who indicated that they have problems. But we certainly don't want to aggravate those problems. So, it would have very much depended on his response to that as to what we would have done.

Mr. Jabara also testified that A.D. Jacobson has never changed the work duties of an employee based on information contained on the emergency notification form. The only action taken by A.D. Jacobson was to provide back braces to employees. Back braces, however, were not available at the time that Mr. O'Hara completed the form or when he thereafter reinjured his back.

In his Findings of Fact and Conclusions of Law Administrative Law Judge Siedlik concluded that A.D. Jacobson had met its burden of proof on its affirmative defense of fraudulent representation and held that it acted as a bar to Mr. O'Hara's claims.

The Missouri Labor and Industrial Relations Commission reversed the decision of the ALJ and awarded benefits to Mr. O'Hara. The Commission found that A.D. Jacobson failed to satisfy the elements necessary to establish the defense of fraudulent representation. The Commission also noted that the affirmative defense of fraudulent representation has not been recognized by a Missouri court or the Missouri legislature as a bar to workers' compensation benefits. Moreover, the Commission found that the affirmative defense conflicted with the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., ("ADA") and, as such, should no longer apply as a bar to recovery. This appeal followed.

II. STANDARD OF REVIEW

In Davis v. Research Medical Center, 903 S.W.2d 557 (Mo.App. en banc 1995), this Court recently stated the standard of review to be applied in cases such as this in which the Commission has reversed the award entered by the ALJ. Davis explained that the Court undertakes a two-step review process, as follows:

In the first step, the court examines the whole record, viewing the evidence and all reasonable inferences drawn...