Opinion
CLAIM NO. F502368
OPINION FILED MAY 15, 2006
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the Honorable Kenneth A. Harper, Attorney at Law, Monticello, Arkansas.
Respondents represented by the Honorable Michael J. Dennis, Attorney at Law, Pine Bluff, Arkansas.
Decision of Administrative Law Judge: Affirmed.
OPINION AND ORDER
The respondents appeal an administrative law judge's opinion filed October 24, 2005. The administrative law judge found that the Shippers defense did not bar the claimant's claim. After reviewing the entire record de novo, the Full Commission affirms the opinion of the administrative law judge.
I. HISTORY
Micah Duane Beatty, age 33, testified that he was involved in an automobile accident in 2001. Mr. Beatty testified, "I had a guy turn in to me, and I tore a lateral. I had the surgery. I went in — I used Dr. Clark — I went in and he told me I needed surgery on it. And I asked him was it, you know, was it something major or something that I could do without, and he said that it was nothing major; that I'd be in there that morning; you'll be out of there the same morning; come back in a few days and get my stitches out. I did everything he said to do, just like he said to do, just like he said to do it. I never had any problems, no issues, I wasn't limited on anything. He released me 100 percent full duty."
Dr. Charles A Clark reported on January 24, 2002, "Micah is a f/u for anterior instability correction L shoulder, with arthroscopic Bankhart reconstruction. He had a lot of pain at his last visit and was concerned about a recurrent tear, but most of the pain was consistent with impingement. . . . On repeating the exam today, all of his pain has basically gone after the injection." Dr. Clark assigned a 10% permanent partial impairment rating to the claimant's left shoulder.
The claimant completed and signed an International Paper New Employee Health History on August 30, 2002. The New Employee Health History contained a series of 88 questions, and after each question the claimant was to circle "Yes" or "No." The Health History included the following:
SECTION A: At the PRESENT TIME are you (Circle Yes or No)
1. Affected in your ability to work by any health problem?
2. Restricted in any work activity due to an injury or other health problem?
3. Restricted in any way in doing strenuous activity?
* * *
SECTION C: Do you have any limitation in ( Circle YES or NO)
45: Either ARM or SHOULDER that affects the strength or motion of your arm?
* * *
SECTION D: Have you EVER
60: Lost work time due to any injury or illness?
64: Had major surgery or a major operation?
67: Been hospitalized for a major injury or illness?
The claimant circled "No" after each question on the Health History, including each question listed above, except that the claimant did indicate that he was a smoker and had been exposed to high dust levels. The claimant wrote after Section B, not printed above, that he had sustained a "Cut over left eye." The claimant testified that he did not consider the previous surgery performed by Dr. Clark to be "major surgery." The claimant testified that he was honest in completing the questionnaire.
The claimant's testimony indicated that he began working for International Paper in September 2002. The claimant testified that he did not have any limitations related to his left shoulder, and that he was able to perform his job.
The parties stipulated that the employment relationship existed on November 27, 2004. The claimant testified:
Q. What is your job?
A. My qualification is a PS-2, Process Specialist 2, a third helper in the extruder department on the winders, and I setup the PS-1 and S.O. sometimes. . . . When I work the PS-1 job, they bring — when they put the poly on the paper, it comes out of a machine, and they put it into the winder to cut it to the specs that the customers want, as far as the widths, I pull the cores off the buggies and throw the cores into the machine, and the guy that I'm helping, he is on the opposite end of the machine, and we just get everything lined up for the winder to put the paper to the size that they want it. . . .
Q. Is that how you got hurt?
A. Yes, sir. I was pulling cores out of the top of the buggy, and both arms were extended over my head to pull the cores; and when I pulled, they didn't move, so I put more strength on it, and when I pulled, my left shoulder popped out of place.
An MRI of the claimant's left shoulder was taken on December 27, 2004, with the impression, "Post surgical changes. Thickening of the distal end portions of the subscapularis and supraspinatus tendons suggestive of tendinopathy or tendinitis. Small amount of fluid in the subcoracoid space and around the subscapularis tendon. Superior anterior labral tear."
Dr. John O. Lytle informed a claims supervisor on February 16, 2005:
I have tried to be very specific with Mr. Beatty in understanding exactly how he injured his shoulder. He describes this to me as a dislocation as he was climbing and reaching above his head. When he started to fall, he jerked and grabbed himself, and that is how he held. . . .
You question if this is a result of normal wear and tear of the shoulder or related to his injury of 2001. I do not think it is normal wear and tear. I do believe that he had an injury. However, I do believe it is related to the original injury in 2001 and that this is the same type of injury, and I think he has a recurrence.
Mr. Beatty has not gotten well to my satisfaction and I feel that surgery is indicated and warranted because of his clinical symptoms of catching and popping in his shoulder.
It is my hope that his can be managed with the arthroscope alone. However, if there are other problems that are identified at the time of arthroscopy of the shoulder, then I would be prepared for an open repair. . . .
Dr. W. Scott Bowen examined the claimant on March 17, 2005 and reported:
Micah is a 32 year old employee at International Paper who is righthanded. Originally, he had an injury while working on 11/27/04. On that date, he was reaching overhead, working as a production worker in the extruder department when he had to pull a cardboard core out of a buggy and had to forcibly jerk on the core to get it to release and had a forcible abduction external rotation type injury to his shoulder and he dislocated his shoulder. This was originally had been (sic) repaired arthroscopically by Dr. Clark in 2001 successfully. He has never had any recurrent episodes of subluxation or dislocations noted after surgery. At that time, he was able to pull on his arm and reduce the shoulder spontaneously. . . .
Dr. Bowen gave the following impression: "Left shoulder instability — It is my opinion that this is consistent with a new injury to his shoulder since the previous anterior labrum had been repaired. . . . The fact that he did have a traumatic event at work and did not have any problems to my knowledge in the interval between his original surgery and the injury would suggest that this is consistent with a new injury. . . . I think he would require arthroscopic surgery with a superior labral repair that would require he would be on desk work or light activity for the first six to eight weeks and gradually reduce his weight restriction and hopefully, return to full activity by the time he is three months out."
Dr. Lytle stated on May 19, 2005:
He is frustrated with his shoulder. However, when closely questioned, he admits that he is somewhat better. He is anxious to return to full, active duty and asked for a release.
His frustration centers around conflicting opinions. Dr. Bowen gave him an opinion that he had a problem with his shoulder and that this was a new problem. This rationale was that the old problem had been completely resolved.
My opinion is merely semantics, that he had a tear of the same area in the same labrum that was torn previously, and I said therefore it was a recurrent tear. Again, I feel that this is mostly semantics, but nonetheless Workers Compensation has denied his claim for surgery. . . .
At this point, Mr. Beatty wants to RTW and I think he is allowed to do so. He does have some soreness from time to time, and I cautioned him against the type of activity that will hurt this, specifically holding on with his arm above his head or any type of jerking this and grabbing himself to catch a fall. . . . He is given a release to return to full, active duty on May 23. . . .
A pre-hearing order was filed on June 8, 2005. The claimant contended that he re-injured his left shoulder at work on November 27, 2004. The claimant contended that the injury was "a new injury or an aggravation of a pre-existing condition." The claimant contended that he was entitled to reasonably necessary medical treatment, and temporary total disability compensation from November 28, 2004 to a date yet to be determined.
The respondents contended that the claimant's condition was "a recurrence" of a shoulder injury in 2001. The respondents alternately contended, "if the claimant proves he sustained a new injury, this claim is barred by the Shipper's defense. The claimant completed a `Health History' form on August 30, 2002 indicating he had no work restrictions or physical limitations with his shoulder and had not had surgery from work due to an injury."
The parties agreed to litigate the following issues: "Compensability; medical expenses; temporary total disability benefits; controversion and attorney's fees."
In correspondence to the claimant's attorney dated July 11, 2005, Dr. Bowen stated, among other things, "His previous shoulder injury was an anterior labral injury, but the most recent injury was a superior labral injury."
A hearing was held on September 23, 2005. The claimant withdrew his claim for temporary total disability at that time. The respondents withdrew their contention that the claimant's shoulder condition was a recurrence of a prior injury.
The claimant testified that none of his workers' compensation medical bills had been paid, and that he wished to undergo surgery to his shoulder.
Steve Estes, human resources manager for International Paper, testified for the respondents:
Q. How long have you been here in Pine Bluff?
A. A little over 18 months.
Q. So on August 30th of 2002, you were not located at the Pine Bluff mill?
A. No. I was in a similar position in Augusta, Georgia for IP at that time. . . .
Q. So you were familiar with the procedure, the hiring procedures, of International Paper on August 30th of 2002?
A. Yes.
Q. Now, are you familiar with the New Employee Health History form that we have been talking about here today?
A. Yes. That is given post-offer, pre-employment. . . .
Q. And what's the purpose of taking this form?
A. Well, from (A), from a legal standpoint, you can't get that data until after an offer is made, so we do it post-offer. But before the employment starts, you look at the medical history to see what is there. Are there red flags that would come up that would say, (A), is there some ADA-type restrictions or something like that, that I would have to work around? It could be that somebody was not capable of performing essential functions and they couldn't be hired at all; it could be that they had some type of medical history, let's say, a heart problem or something, that you need to get checked out before they went into our environment. Or if they had some type of restriction. You know, when I look at it, I have to determine, (A), where to hire people, you know, if to hire them, and (B), where to put them, where's the best fit based on what the different jobs are. So that's all a part of the process to say, (A), do we hire them? and, (B), where do we put them within the mill? . . .
Q. Now, you have looked at Mr. Beatty's New Employee Health form before coming to his hearing today?
A. I have.
Q. Is there any of those red flags or any of those things that would cause additional inquiry that you just described?
A. No.
Q. All right. If Mr. Beatty had put on the form that he had had, like say, Question 10, said that he had had a joint disease or problem within the past five years, or if he put down here at the bottom shoulder surgery last year, would that have done anything?
A. Yes. That would have been what I would consider a red flag. The typical process there is the nurse that looked at it here at the mill, that's Penny Russell, but when the person looks at it and sees something, then they would get myself involved. We would sit down with the employee, and try to get some additional data as to what is going on. . . .
Q. Now, the job that Mr. Beatty occupies, have you identified any particular stresses on the person's physical abilities?
A. I mean, what he said was accurate related to his job duties that he does within that job, so it would have certainly been a concern with the cores, the potential for having to lift over your head, and do that type of work would have certainly been a concern had we known that he had that injury. . . .
Q. Would Mr. Beatty have been hired had he given accurate information on this New Employee Health History about his shoulder?
A. He may well have been hired. I think where he went probably would have been a different story, if we had the opportunity to place him someplace else. I know I would in making that ultimate decision. If we hired him, I don't think that is where I would have put him.
The administrative law judge found, "The respondents have failed to prove a causal connection between the claimant's misrepresentation on the employment application and the injury to his shoulder. Therefore, this claim is not barred by the Shipper's defense."
The respondents appeal to the Full Commission.
II. ADJUDICATION
In Shippers Transport of Ga. v. Stepp, 265 Ark. 365, 578 S.W.2d 232 (1979), the supreme court recognized that public policy places an obligation on an employee to give truthful answers to a prospective employer's questions about his pre-employment health condition. The court held that a false representation on an employment application will bar recovery under Arkansas' workers' compensation act if the employer meets the following test:
(1) the employee must have knowingly and willfully made a false representation as to his physical condition;
(2) the employer must have relied upon the false representation and this reliance must have been a substantial factor in the hiring; and
(3) there must have been a causal connection between the false representation and the injury.
See, Newsome v. Union 76 Truck Stop, 34 Ark. App. 35, 805 S.W.2d 98 (1991).
In the present matter, the Full Commission affirms the administrative law judge's finding that the Shippers defense does not bar the claim. The Full Commission finds that the claimant did not knowingly and willfully make a false representation as to his physical condition when he applied for work at International Paper. We recognize that the claimant did undergo nonwork-related shoulder surgery in 2001. The claimant testified, however, that he did not consider this surgical procedure to be a "major" operation. We also note that the operation was an outpatient procedure, and that the claimant was pain-free by January 2002.
The claimant applied for employment with the respondent-employer in August 2002. The claimant indicated on the written Health History that he was not affected in his ability to work, that he was not restricted by any health problem, and that he was not restricted from doing strenuous activity. The claimant's answers to these written questions do not indicate that the claimant misled the respondent-employer. A factor the Court considered in Newsome, supra, was whether an employer's questions seek factual information which bear directly on the claimant's health history. The claimant was not asked a question which bore directly on his prior health history. A pre-employment questionnaire should seek specific factual information rather than just an opinion. Sawyer v. Mtarri, 33 Ark. App. 125, 806 S.W. 27 (1991); Knight v. Industrial Electric, 28 Ark. App. 224, 771 S.W.2d 797 (1989). Reasonable minds could agree with the claimant's "opinion" that he was not restricted from working because of his shoulder. The respondents did not specifically ask the claimant whether he had sustained a prior injury.
The length of time the claimant performed his work duties is also a factor. Sawyer, supra. The claimant began working for International Paper in September 2002, and there was not a reported incident until over two years later, November 2004. The claimant possibly would have sustained this injury even without the prior shoulder surgery. We note Dr. Bowen's statement in March 2005, "The fact that he did have a traumatic event at work and did not have any problems to my knowledge in the interval between his original surgery and the injury would suggest that this is consistent with a new injury." Dr. Bowen stated, "It is my opinion that this is consistent with a new injury to his shoulder since the previous anterior labrum had been repaired."
Based on our de novo review of the entire record, the Full Commission affirms the administrative law judge's finding that the Shippers defense does not bar the instant claim. The Full Commission finds that the claimant sustained a compensable injury to his left shoulder pursuant to each element of Ark. Code Ann. § 11-9-102(4)(A)(i). For prevailing on appeal to the Full Commission, the claimant's attorney is entitled to a fee of five hundred dollars ($500), pursuant to Ark. Code Ann. § 11-9-715(b)(2) (Repl. 2002).
IT IS SO ORDERED.
_____________________________ OLAN W. REEVES, Chairman
______________________________ SHELBY W. TURNER, Commissioner
Commissioner McKinney dissents.
DISSENTING OPINION
I must respectfully dissent from the majority opinion finding that the Shippers MACROBUTTON checkbox.wcm defense does not bar the claimant's claim for medical expenses. My review of this claim reveals that this is a classic case where the Shippers defense acts to bar the claimant's claim for benefits.
The record reveals that the claimant sustained a an injury to his left shoulder in 2001 as a result of automobile accident. An arthroscopic Bankhart reconstruction of the claimant's left anterior labrum was required in order to repair this injury. In January of 2002, Dr. Charles A. Clark assigned the claimant with a permanent physical impairment rating of 6% to the body as a whole pursuant to that shoulder injury. Then, in August of 2002, the claimant applied for a position with the respondent employer, for which he was ultimately hired.
In the process of being hired for his position with the respondent employer, the claimant completed a New Employee Health History questionnaire. In that questionnaire, the claimant categorically denied any history of health problems or conditions that might impede his ability to perform his job, other than having been exposed to high levels of dust while employed in the farming industry, and having sustained a cut over his left eye, which left a visible scar. Otherwise, the claimant denied that he was restricted from any work activity or from doing strenuous physical activity, or from having any arm and/or shoulder limitations that affect his strength or motion. He further denied that he suffered from, or had been medically treated for any joint, muscle, or bone disease within the past 5 years; having ever been hospitalized for a major injury or illness; and, ever having major surgery or a major operation.
Mr. Steve Estes, human resources manager for the respondent employer, testified during the hearing of September 23, 2005. Mr. Estes explained that the New Employee Health History questionnaire is required to be filled out by all prospective employees post-offer, or pre-employment status. Mr. Estes explained the purpose of this form in greater detail as follows:
Well, from, (A), from a legal standpoint, you can't get that data until after an offer is made, so we do it post-offer. But before the employee starts, you look at the medical history to see what is there. Are there red flags that would come up that would say, (A), is there some ADA-type restrictions or something like that, that I would have to work around? It could be that somebody was not capable of performing essential functions and they couldn't be hired at all; it could be that they had some type of medical history, let's say a heart problem or something, that you need to get checked out before they went into our environment. Or if they had some type of restriction. You know, when I look at it, I have to determine, (A), where to hire people, you know, if to hire them, and, (B), where to put them, where's the best fit based on what the different jobs are. So, that's all part of the process to say, (A), do we hire them? and, (B), where do we put them within the mill.
Mr. Estes further explained that at the Pine Bluff mill, where the claimant worked, there is usually more than one position open, and new employees are hired from a pool of applicants. Therefore, the questionnaire is critical — not only to hiring decisions, but to placement determinations, as well. Mr. Estes stated that had he had knowledge of the claimant's prior shoulder injury and surgery, it would have sent up "red flags" where the claimant was concerned. In that instance, Mr. Estes stated that he and the plant nurse would have met with the claimant in an effort to obtain more information about his condition. However, because the claimant did not disclose his prior shoulder injury in the questionnaire, Mr. Estes was not given the opportunity to follow-up with him and make appropriate recommendations, such as having a doctor evaluate the claimant's condition or conducting an functional capacity evaluation to ensure proper job placement. In sum, Mr. Estes admitted that had he been forthcoming on the questionnaire, the claimant may "well have been hired". However, Mr. Estes added that "where he [the claimant] went probably would have been a different story".
When questioned as to why he did not disclose information concerning his prior shoulder injury on the questionnaire, the claimant testified as follows. First, he stated that he did not consider his shoulder injury to be a "major injury" or a "disease" of his joint, although he admitted that his joint was involved in his first injury. Further, although the claimant did not consider the outpatient surgery that he had undergone pursuant to this injury to be "major surgery", he agreed that he had been admitted to the hospital on an outpatient basis, and that he had been administered anesthesia for this procedure. In fact, the record reveals that the claimant had undergone physical therapy pursuant to this injury, and that he had only been medically released by his surgeon, Dr. Clark, approximately 6 to 7 months prior to filling out the questionnnaire. Moreover, stating that he had been working "100 percent duty" since he had been employed with the respondent employer, the claimant denied having any impairment to his strength or range of motion as a result of his prior shoulder injury. The claimant further denied having known that he was assigned a permanent impairment rating as a result of his previous shoulder injury until such time as he re-injured his shoulder in November of 2004. The claimant admitted, however, that he had received a $25,000.00 settlement as a result of his 2001 shoulder injury. Finally, when questioned why he had listed on the questionnaire a cut he had sustained over his left eye as a result of a car accident in 1995, and not the more serious injury to his shoulder in 2001, the claimant offered no explanation. Rather, the claimant simply stated that he has suffered no residual problems from his eye injury.
In Shippers Transport of Ga. v. Stepp, 265 Ark. 265, 578 S.W.2d 232 (1979), which was a case of first impression, the court recognized that in certain instances a claimant is statutorily precluded from compensation due to misrepresentations made on an employment application. The criteria set forth inShippers, supra, in order to establish an affirmative defense to a claim for compensation is threefold. First, the employee must knowingly and willingly make a false representation as to his physical condition. Second, the employer must rely on the misrepresentation in hiring the employee. Finally, there must be a causal connection between the misrepresentation and the injury. If these three criteria are met, the compensation is barred. As the Administrative Law Judge correctly points out, in a series of cases following Shippers, supra, the court has ruled that the questions must be substantial enough to elicit a "health history". See, Sawyer v. Mtarri, 33 Ark. App. 125, 806 S.W.2d 7 (1991); Knight v. Industrial Electric, 28 Ark. App. 224, 771 S.W.2d 797 (1989); Stillman v. Multi-State Electrical, 28 Ark. App. 193, 771 S.W.2d 807 (1989); and, College Club Dairy v. Carr, 25 Ark. App. 215, 756 S.W.2d 128 (1988). More specifically, an employer relying upon an employee's false representation on his job application as an affirmative defense to a workers' compensation claim must show that the employee was questioned in some degree regarding health history and present condition in such a way as to elicit responses likely to be worthwhile in assessing the employee's health history, condition, and capacity for performing the employment. See, Knight, supra. In the case at bar, there is substantial evidence that the claimant knowingly and willingly made a false representation of his physical condition to the respondent employer on the questionnaire discussed above. Even the Administrative Law Judge found this to be true, stating:
Therefore, the claimant's decision to disclose a ten year old visible scar over his eye rather than a three year old shoulder injury indicates the claimant was being less than candid on the employment application. Accordingly, I find the claimant knowingly failed to disclose his physical condition.
Questions concerning the credibility of witnesses and the weight to be given to their testimony are within the exclusive province of the Commission. White v. Gregg Agricultural Ent., 72 Ark. App 309, 37 S.W.3d 649 (2001). Clearly, the credible evidence in this claim demonstrates that the claimant knowingly and willingly did not report his prior shoulder injury on the questionnaire because he knew it might jeopardize his employment opportunity with the respondent employer. Based upon the above and foregoing, the claimant has shown himself to be "selectively honest", at best.
Moreover, albeit the claimant fully performed his work duties for two years prior to his injury of November 2004 without incident, a review of the questionnaire reveals that the questions contained therein were not "too broad and general" to elicit an honest response from the claimant at the onset of his employment. See, Knight, supra; See also, Sawyer, supra. For example, Section D, question No. 64, of the questionnaire specifically elicited information regarding the claimant's prior history of major surgery and/or operation. The claimant testified that his previous shoulder surgery was done on an outpatient basis. Therefore, he did not consider this procedure to be "major surgery". However, it is undisputed that the claimant underwent a surgical procedure on his shoulder for which he was admitted into an outpatient hospital setting, and for which he was given anesthesia. In addition, this shoulder injury was significant enough for the purposes of a legal action that the claimant received a $25,000.00 settlement pursuant thereto. Finally, as previously discussed, the claimant was forthcoming on the questionnaire about his prior eye injury, which was minor compared to his previous shoulder injury. This leaves reasonable minds to conclude that the claimant purposely omitted information regarding his shoulder condition from the questionnaire due to the potential for such information to have a negative impact on his being hired.
In addition, Section C, question No. 45, of the questionnaire specifically asked if the claimant had any physical limitations of either his arm or shoulder that affects his strength or motion. A report of Dr. Clark's last visit with the claimant reflects that the claimant's range of motion in his injured shoulder was diminished as compared to his other, uninjured shoulder. Even if the claimant sincerely had no knowledge that he had been assigned an impairment rating following his prior shoulder injury, an assertion which I do not find convincing, his last reported visit with Dr. Clark reflects that the claimant suffered permanent impairment to this injury. When questioned about the validity of this report, the claimant stated, "If he [Dr. Clark] wrote it down there, yeah." Therefore, the Administrative Law Judge erred in finding that questions contained within the questionnaire pertaining to the claimant's physical restrictions, strength and motion, and disability do not apply in his situation.
In addition, there is substantial evidence found within the record, particularly in the testimony of Mr. Estes, to support a finding that the respondent employer relied on the claimant's false representation concerning his shoulder condition for purposes of hiring and placement. Even the Administrative Law Judge found that the employer relied on the information presented by the claimant for purposes of job placement.
Finally, the medical records demonstrate that the claimant re-injured his shoulder in the same location as his first injury. This finding is supported by a letter from Dr. Lytle dated February 16, 2005, in which he stated:
I do believe that he had an injury. However, I do believe it is related to the original injury in 2001 and that this is the same type of injury, and I think he has a recurrence.
Further, in an effort to clarify his position that the claimant's November 2004 injury was a "recurrence", as opposed to Dr. Dr. Bowen's opinion that the claimant sustained a "new injury", in a letter dated May 19, 2005, Dr. Lytle wrote:
My opinion is merely semantics, that he had a tear of the same area in the same labrum that was torn previously, and I said therefore it was a recurrent tear.
Based upon the above and foregoing, there is substantial evidence to show a causal connection between the misrepresentation made by the claimant and his current injury.
Clearly, the requirements set forth in Shippers, supra, have been met in the current claim. Therefore, and for the above stated reasons, I respectfully disagree with the majority opinion that the Shippers MACROBUTTON checkbox.wcm defense does not bar the claimant's claim for medical expenses. Accordingly, I must respectfully dissent from the majority's opinion and this award of benefits.
__________________________________ KAREN H. McKINNEY, Commissioner