CLAIM NO. E118065
OPINION FILED MARCH 25, 1997
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by LAURA J. McKINNON, Attorney at Law, Fayetteville, Arkansas.
Respondent represented by EARL "BUDDY" CHADICK, Attorney at Law, Fayetteville, Arkansas.
Decision of Administrative Law Judge: Affirmed.
OPINION AND ORDER
Claimant appeals from a decision of the Administrative Law Judge filed July 16, 1996 finding that this claim is barred by the Shipper's defense. Based upon our de novo review of the entire record, we find that respondent has proven by a preponderance of the evidence that claimant knowingly and willfully made a false representation as to her physical condition, respondent relied upon the false representation and there is a causal connection between the false representation and claimant's injury.
Claimant contends that she sustained an injury on October 5, 1991, during the course and scope of her employment with respondent. Claimant specifically contends that on October 5, 1991, she fell and injured her tailbone. Claimant was seen by Dr. W.R. Therlby at the St. Mary's Regional Medical Center with complaints of injury to her tailbone and right hip. Dr. Therlby indicated at the time of his examination that claimant experienced symptoms similar to that of a herniated nucleus pulposus in the lumbar disc, however the MRI did not reveal such findings. On October 8, 1991, Dr. Therlby referred claimant to Dr. Lynn Haines who recorded the following history:
The patient is a 27 year old caucasian female, an employee of Tyson Foods, who was allegedly injured in a fall at work on October 4. The patient, who works at Tyler Road facility, was apparently pulling on some tape attached to a pipe, the tape tore and gave way, the patient fell backwards, landing on the concrete floor, in the sitting position, i.e. landing on both buttocks, with onset thereafter of midline low back pain that extends into the sacrum, also into the right buttocks, posterior thigh to the knee. Gwenna states that she allegedly can apply pressure over the low lumbar spine and cause her right leg to go numb. This pressure is applied to the alleged trigger point area. She also complains that most any movement causes back pain. The patient, however, denies any involvement of the left leg. She does complain that her back pain decreases with Valsalva Maneuver. She has, however, no bowel or bladder complaints and has apparently no prior history of low back pain or at least none is recorded.
After examining the claimant and noting exaggerated complaints of pain Dr. Haines made the following impression:
At the very, very worst, this patient might have a lumbar contusion, although I suspect that most, if not all, of her complaints are functional. There is no disc herniation seen on the MRI scan, no evidence of fracture on that study, and there is clinically no evidence of radiculopathy. The lack of any bruises or other signs of trauma in the buttocks area would tend to rule out a fractured sacrum. For purposes of completeness, I have gone ahead and ordered a set of x-rays of the lumbar spine and coccyx. But I strongly believe that the studies will be normal, but I feel that precaution should be taken before the patient is mobilized.
Both diagnostic exams revealed normal findings of the lumbar spine and coccyx.
Thereafter, it is noted that claimant's continued treatment was for complaints of "low back and right leg pain" for an injury to her back. On November 8, 1991, Dr. Adamtez noted, "She continues with pain in her low back, coccygeal area and into the buttock on the right side." Thus, a complete review of the medical records reveal that on October 5, 1991, claimant may have sustained an injury to her lower back, lumbosacral, sacral and coccyx area of her spine.
Respondent controverted this claim pursuant to theShipper's defense. In Shipper's Transport of Georgia v. Steppe, 265 Ark. 365, 578 S.W.2d 232 (1979), the Arkansas Supreme Court adopted what has been commonly known in Arkansas as the Shipper's defense to Workers' Compensation Claims. The court held in Shipper's that a false representation on an employment application will bar the recovery of Workers' Compensation benefits if the employer proves the following three elements:
1) The employee knowingly and willfully made a false representation as to her physical condition;
2) The employer relied upon the false representation and this reliance was a substantial factor in the hiring; and
3) That there was a causal connection between the false representation and the injury.
It is really undisputed that the first two requirements have been met. Claimant readily admitted at the hearing that she made a knowing and willful false representation regarding her physical condition on her employment application. Claimant denied on her employment application ever having to leave a job due to a medical or health reason, that she had ever been injured on the job, that she had ever received Workers' Compensation benefits, or that a doctor had ever told her that she could not do any particular type of work. In addition, claimant denied any back trouble, back strain, or back operation, any broken bones, ever being involved in a motor vehicle or motorcycle accident, any joint impairment or dislocations. Moreover, claimant cited her present medical health as excellent.
The medical records introduced into evidence, as well as claimant's own testimony at the hearing, unquestionably reveal that claimant in fact had been involved in previous workers' compensation claims involving injuries to her back and coccyx. In addition, just one month after sustaining a Workers' Compensation injury back in 1988 claimant was involved in a motor vehicle accident which caused problems with her coccyx.
Claimant's first workers' compensation injury occurred on May 24, 1988 while working for Fairfield Communities. As a result of that injury claimant was diagnosed with an acute lumbosacral strain of the low back. Claimant was advised to perform no heavy lifting, pushing, pulling, tugging, stooping, twisting, or turning activities after her first Workers' Compensation injury. Just one month after the May 1988 injury claimant was involved in a motor vehicle accident on June 16, 1988. X-rays of claimant's coccyx at that time revealed evidence of an old injury. After the motor vehicle accident claimant was diagnosed with multiple injuries including an "acute lumbosacral strain with sacral and coccygeal strain."
Clearly, the evidence reveals that claimant did sustain a workers' compensation injury to her lower back and coccyx which she denied on her employment application. Consequently, respondent proved by a preponderance of the evidence that claimant knowingly and willfully provided false information on her employment application.
With regard to the second element of the Shipper's defense, the record shows that respondent relied upon claimant's false information. Ray Ellis, the personnel manager for respondent, testified that after reviewing claimant's application, claimant was hired and placed in positions which she would not have been placed in had claimant truthfully responded to the questions on her application. The positions of "general processor," and "sanitation/clean-up crew" require physical agility with bending, twisting, and stooping. Mr. Ellis testified that had he known of claimant's previous injuries and physical restrictions claimant would not have been placed in these positions. Mr. Ellis' reliance on claimant's employment application was a substantial factor in claimant being hired and placed in the positions she was assigned. Accordingly, we find respondent proved by a preponderance of the evidence that their reliance on claimant's false representation was a substantial factor in hiring claimant.
Finally, with regard to the third element to theShipper's defense, we find that the causal connection between the false representation and the injury has been proven. The records reveal that prior to being employed by respondent and contrary to claimant's employment application claimant suffered from injuries to her lower back, sacral, and coccyx. Claimant's injury on October 5, 1991, resulted in injuries to these same areas. Although the diagnosis was merely of strains, claimant underwent extensive and prolonged treatments to these areas of her lower back and coccyx. The striking similarities between claimant's old and new injuries clearly establishes a causal connection between the false representation and claimant's current injury. Claimant's willful and false representation prohibited respondent from knowing claimant's past health history and interfered with respondent's ability to properly place claimant in a position suitable to her physical abilities. Accordingly, we find that the causal connection element has been proven.
Therefore, for those reasons stated above, we find that respondent has proven by a preponderance of the evidence that this claim is barred by the Shipper's defense. Accordingly, we affirm the decision of the Administrative Law Judge denying and dismissing this claim.
IT IS SO ORDERED.
Commissioner Humphrey dissents.