Purcell v. Friday Staffing

• Decision Date: 05 August 2014
• Docket Number: No. COA13–1252.,COA13–1252.
• Citation: 761 S.E.2d 694
• Court: North Carolina Court of Appeals
• Parties: Kimberly PURCELL, Employee, Plaintiff, v. FRIDAY STAFFING, Employer, Zurich North American, Carrier (Gallagher Bassett Services, Third–Party Administrator), Defendants.

761 S.E.2d 694

Kimberly PURCELL, Employee, Plaintiff,

v.FRIDAY STAFFING, Employer, Zurich North American, Carrier (Gallagher Bassett Services, Third–Party Administrator), Defendants.

No. COA13–1252.

Court of Appeals of North Carolina.

Aug. 5, 2014.

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, Asheville, by Thomas F. Ramer, for plaintiff-appellant.

McAngus, Goudelock & Courie, P.L.L.C., Charlotte, 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 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 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 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 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 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 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 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...