Opinion
CLAIM NO. E408320
OPINION FILED MAY 8, 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 3, 1996 finding that the claimant failed to prove by a preponderance of the evidence that he sustained a compensable injury caused by a specific incident and that the respondents proved by a preponderance of the evidence that this claim was barred by the Shippers Transport of Georgia v. Stepp, 265 Ark. 365, 578 S.W.2d 232 (1979). Based upon our de novo review of the record, we find that the decision of the Administrative Law Judge should be affirmed.
The claimant moved to Northwest Arkansas in late 1992 to help his parents operate a chicken farm. On January 24, 1994, he began working for the respondent on the line folding chicken breasts over a stuffing. In approximately February of 1994, he successfully bid for a job as a Line Support. His duties consisted of supplying line workers with tubs, removing the tubs filled with chicken, weighing the tubs to 70 pounds, and placing the tubs on a pallet and icing them down. The claimant testified that on April 22, 1994 while lifting a tub of ice overhead, he felt a pull in his back and experienced weakness, numbness and cold in his right hand. The claimant stated that the accident was witnessed by Cheryl Tiser, a co-worker who told him to report the injury to his supervisor. He began missing work the next week and sought treatment from Dr. Tom Westwood who recommended light duty. When the claimant's condition worsened, Dr. Westwood referred the claimant to Dr. Terry Green who took the claimant off work from June 20 to August 4, 1994. The claimant testified that he asked for a leave of absence from Mary Jane McClurg. The claimant testified that he told Ms. McClurg that the accident was work-related but she refused to complete that section of the report. The copy he received showed that it was a nonwork-related accident. The claimant explained that he experiences pain in his upper back, shoulders, and fingers of his right hand.
The claimant in the present claim alleges that he sustained an injury as a result of a specific incident which is identifiable by time and place of occurrence. Therefore, the claimant must satisfy the following requirements contained within Ark. Code Ann. § 11-9-102 (Repl. 1996):
(1) "Compensable injury" means: An accidental injury causing internal or external physical harm to the body . . . arising out of and in the course of employment and which requires medical services or results in disability or death. An injury is "accidental" only if it is caused by a specific incident and is identifiable by time and place of occurrence. Ark. Code Ann. § 11-9-102 (5)(A)(i) (Repl. 1996).
(2) A compensable injury must be established by medical evidence, supported by "objective findings" as defined in § 11-9-102 (16). Ark. Code Ann. § 11-9-102 (5)(D) (Repl. 1996). "Objective findings" are those findings which cannot come under the voluntary control of the patient. Ark. Code Ann. § 11-9-102 (16)(A)(i) (Repl. 1996).
(3) For injuries falling within the definition of compensable injury under subdivision (5)(A)(i) of this section, the burden of proof shall be a preponderance of the evidence. Ark. Code Ann. § 11-9-102 (5)(E)(i) (Repl. 1996).
If the claimant fails to establish by a preponderance of the credible evidence any of the requirements for establishing the compensability of the injury he fails to establish the compensability of the claim, and compensation must be denied. We find that the claimant failed to prove by a preponderance of the evidence that he sustained a compensable injury identifiable by time and place of occurrence.
The evidence shows that the claimant failed to immediately report his injury to his supervisor. He continued to work that day and waited for one work week and a weekend, at which time he informed his supervisor Tina Frick, that he had shoulder pain. The claimant did not complete a Tyson Foods Injured Team Member Statement until June 17, 1994, at which time he specifically wrote that he had not reported the injury on the date of the accident because his "symptoms didn't set in until after work." In addition, the claimant failed to name Ms. Tiser as a witness to the injury although the Statement specifically asks if there were witnesses. When questioned, the claimant testified that he was unaware of any witnesses at that time because he did not know if Ms. Tiser had actually seen the accident. However, the claimant went on to state:
Q. Okay. Why was she [Ms. Tiser] important as a witness to you?
A. Because she was standing right beside me at the time.
Q. How soon after the accident did you talk to her about it?
A. Immediately.
Although the claimant insists that Ms. Tiser had knowledge of his alleged accident on April 22, 1994, and listed her as a witness on his pre-hearing questionnaire, and although the claimant indicated that he had called Ms. Tiser's house on several occasions about testifying on his behalf, he did not call Ms. Tiser to testify at the hearing. The Commission has recognized that an "unexplained failure to call a witness with special knowledge of a transaction raises a presumption (or inference) that the testimony would be unfavorable [to the party failing to produce the witness.]" Combs v. Conway Human Development Center and Public Employee Claims Div., Full Workers' Compensation Commission opinion filed May 3, 1995 (Claim E315849) citingArk. Highway Commission v. Phillips, 252 Ark. 206, 209, 478 S.W.2d 27 (1972).
The medical evidence also fails to mention a history of a work-related accident or injury. When the claimant sought treatment from Dr. Westwood on April 28, 1994, Dr. Westwood's notes reveal that the claimant related his upper back and spine pain to either (1) jogging or (2) a preexisting condition for which he had previously sought chiropractic treatment.
The medical records show that the claimant has a history of shoulder and upper back problems prior to the alleged April 24, 1994 incident. The claimant sought treatment from Dr. Westwood for complaints of pain in his upper back as early as May 27, 1993. The claimant testified that the May 27, 1993 entry in Dr. Westwood's notes is his father's medical history which was recorded in the wrong chart. However, the claimant further testified that Dr. Westwood's office marked X's through his father's medical histories which were inaccurately recorded in his chart. There is no X marked through Dr. Westwood's May 27, 1993 note. Moreover, Dr. Westwood wrote a letter to the claimant's attorney which states:
This is in regard to your letter dated May 8, 1996, review of Mr. Kenneth L. West's chart #1217. He presented on May 27, 1993. He told the admitting nurse that he pulled a muscle in his upper back the evening before. He complained of pain, particularly with turning his head, and pain with lifting the left arm, etc. . . . On my presentation to him in the room, he complained of pain in the left medial scapular area. On examination, he had full range of motion. His chest and heart on auscultation were unremarkable without complaints, and the skin was unremarkable. He was given a prescription of Anaprox and Parafon Forte . . . Unfortunately, he continued to complain of pain in this specific area in the office visits in the first half of 1994.
The Commission would have to engage in speculation to find that Dr. Westwood's May 27, 1993, office note referred to the claimant's father and not the claimant himself. Conjecture and speculation, even if plausible, cannot take the place of proof. Ark. Dept. of Correction v. Glover, 35 Ark. App. 32, 812 S.W.2d 692 (1991). Dena Construction Co. v. Herndon, 264 Ark. 791, 575 S.W.2d 155 (1970). Arkansas Methodist Hospital v. Adams, 43 Ark. App. 1, 858 S.W.2d 125 (1993).
There was additional evidence that the claimant sought chiropractic treatment from Dr. Baker in September of 1993, for pain in his shoulders. The claimant has clearly failed to establish by a preponderance of the evidence that he sustained an injury to his shoulder and upper back and spine caused by a specific incident on April 22, 1994.
The respondent also contends that the claim is barred by the Shippers defense. The claimant's alleged injury occurred on April 22, 1994. With the enactment of the Americans with Disabilities Act (ADA), the employer may no longer ask the prospective employee about health problems before hiring without risking a charge of discrimination. Therefore, the elements of proof under the traditionalShippers defense are no longer available to employers. In the Shippers case, the Arkansas 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 our Workers' Compensation Act if the following are proven by the employer:
(1) the employee must have knowingly and willingly 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.
An employer had to prove each element of theShippers defense by a preponderance of the evidence before recovery was barred under the Act. Tahutini v. Tastybird Foods, 18 Ark. App. 82, 711 S.W.2d 173 (1986). The emphasis of the Shippers case was on the fact that the claimant misrepresented his health condition on a pre-employment application, that the employer relied on this misrepresentation in hiring the claimant and that there was a connection between the misrepresentation and the injury.
Since the enactment of the ADA, an employee can no longer ask a prospective employee about health problems. The more detailed questions an employer asks, the more the employer risks a violation of the ADA. The employer may ask health questions on a post-hire questionnaire but these questions can only be asked for the purpose of allowing an employer to make reasonable accommodations which will enable employees with disabilities to perform essential functions of the position held or desired and will enable employees with disabilities to enjoy equal benefits and privileges of employment of employees without disabilities. In other words, the purpose of the ADA is to put disabled individuals on a "level playing field" with employees who are not disabled.
The term disability is defined by the ADA (ADA 3 (2), 42 U.S.C. § 12102 (2)) as:
(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment.
In order for an individual to be qualified with a disability, that individual must satisfy the requisite skill experience, education, and other job related requirements of the employment position and with or without reasonable accommodation, that individual can perform the essential functions of the position. Reasonable accommodations include making the facilities accessible to disabled individuals, job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, modification of examinations, modification of training materials, modifications of policies, and providing qualified readers or interpreters (ADA § 101 (9), 42 U.S.C. § 12111 (9).
As stated above, the purpose of the ADA is to put disabled individuals that meet the qualifications for a particular position on a level playing field with qualified individuals who are not disabled. The ADA's purpose is not to help those individuals that are untruthful concerning their disability. In this case, the claimant admitted that he lied about his previous back injuries. We find the claimant's testimony lacks credibility because he admitted that he intentionally misrepresented his health condition. It is the function of the Commission to determine the credibility of the witnesses and the weight to be given their testimony. Grimes v. North American Foundry, 42 Ark. App. 137, 856 S.W.2d 309 (1993).
The claimant answered "no" to the question on the post hire Medical Information and History form dated January 19, 1994, regarding any prior back trouble, strain or operation. However, the claimant admitted that he previously had back pain and problems before he began working for the respondent. It is clear that the claimant knowingly and willfully made false representations as to his physical condition on his medical history form.
Ray Ellis, the respondent's Personnel Manager, testified that the Medical Information and History form completed at the time the employee is conditionally hired is used to determine whether the employee has any possible physical restrictions pertaining to lifting, bending, stooping, etc. It is used to actually place a prospective employee on a job that he can physically perform. The plant nurse reviews the form and informs Mr. Ellis of any possible physical restrictions the employee has. Mr. Ellis testified that if he had been told by the nurse that the claimant had some possible physical restrictions as a result of previous shoulder and back problems, he would not have accepted the claimant's bid for reassignment to the job of Line Support. He explained that the Line Support job is classified as a very heavy, physical job, and that there would be a possibility of him re-injuring himself. It is obvious that the respondent placed the claimant in the Line Support job based upon his false representations as to his medical history.
The evidence shows that the claimant would have not been given the Line Support position had he been truthful with the respondents on the Medical Information and History form. Mr. Ellis testified concerning the claimant's placement:
Q. Would you have — if you had known that he had had previous back problems, shoulder problems or the problems that he had, would you have placed him in that job?
A. Not in this line support job.
Q. Why?
A. If I had known he had had previous back injuries, we classify it as a very heavy, physical job. And probability is he could hurt himself very much so.
(Tr. 48)
The history form containing the misrepresentations as to the claimant's physical condition was completed after the claimant was hired by the respondent. Therefore, there was not an ADA violation. This questionnaire contained the information that was used to determine job placement for the claimant. It is clear that, had the claimant been truthful on the health questionnaire, he did not meet the qualifications of the job. However, even if the claimant had met the qualifications, there were no reasonable accommodations that the respondent could make that would have allowed him to perform the duties associated with the position that would not place an undue hardship on the respondent.
Based upon our de novo review, we find that, as a matter of public policy, the claimant should not be allowed to intentionally misrepresent his condition in order to gain desired employment, then later be allowed to receive workers' compensation benefits when he sustains an injury working in a position that is not within his restrictions. The ADA was not enacted to protect individuals such as the claimant who intentionally misrepresent their condition in order to receive desired employment. The ADA protects those individuals who are disabled that meet the qualifications for a particular job, but their disability restricts them somehow.
The claimant was fully apprised of the fact that the answers to the Medical Information and History questionnaire would be used in placing him in a job. Injury could have been avoided if he had been truthful in answering the health questionnaire. The evidence is clear that he would have been placed in a different position if the respondent had been fully apprised of the claimant's condition and restrictions. We find that the claimant has failed to prove by a preponderance of the evidence that he sustained a compensable injury caused by a specific incident. Additionally, if the claimant had proven that he sustained a compensable injury, which we do not find, we find that the claim is barred by the Shippers defense. Accordingly, we find that the decision of the Administrative Law Judge should be and hereby is affirmed.
IT IS SO ORDERED.
DISSENTING OPINION
I must respectfully dissent from the majority opinion finding that claimant has failed to prove, by a preponderance of the evidence, that he sustained a compensable injury on April 22, 1994, and that this claim is barred by the Shippers' defense.
At the time of his injury, claimant worked in a "line support" capacity for respondent employer. He explained his duties as follows:
Q. And tell me what line support entails? I want to know if it's an easy job or a hard job?
A. It's a hard job.
Q. Tell me why?
A. You get there first thing in the morning and you bring in your pallets of chicken. You take your pallets, unload the tubs on your trim table. Fill up the tubs for the trimmers to trim. And when the trimmers come in and start trimming, you try to keep the tubs off the trim table after they reach 70 pounds.
Q. How do you keep them off the trim table?
A. By carrying them to a scale and weighing them to 70 pounds.
Q. Okay. So, are you carrying 70 pound tubs of chicken?
A. Yes.
Q. How far are you carrying them?
A. 40 or 50 feet.
Q. And then what do you do with them?
A. Make sure they weigh 70 pounds.
Q. Then what?
A. Take them to a pallet, ice them down and cover them.
Q. Then what do you do next?
A. Start all over.
Claimant testified that he injured himself while "putting a tub of ice up on a freezer rack." He estimated that the tub weighed over 70 pounds and stated that when he put it up, he "felt a pulling pain in my back, upper neck." Claimant went on to describe his pain as "immediate" and "sharp," and recalled that "it felt like someone pulling your hair."
When asked why he did not immediately report his injury to a supervisor, claimant explained as follows:
Because it wasn't hurting. I had a sharp pain and then that was it . . . Well, I had aches and I just thought it was fatigue from having to raise all the tubs and it blended in, I guess. And didn't bother me really.
Claimant testified that he attempted to continue his employment duties until he "couldn't bear it any longer." Upon reaching that point, claimant consulted Dr. John Westwood on April 28, 1994. Dr. Westwood's notes indicate that claimant complained of a "pinched nerve" and appears to have presented with difficulties in his neck and back. While Dr. Westwood's notes relating to this office visit do not refer to a work-related accident, claimant's employment duties are described in notes pertaining to a follow-up visit on May 17, 1994. Dr. Westwood's records also reveal that claimant presented with a "pulled muscle" in his upper back approximately one year before his work-related injury.
Claimant eventually came under the care of Dr. Terry Green, an orthopedic surgeon. Dr. Green's records indicate that, as of June 20, 1994, claimant still complained of neck pain which occasionally radiated into his shoulders, arms, and fingertips. Dr. Green subsequently ordered a cervical MRI and on August 31, 1994, noted the resulting discovery of a left side disc herniation at the C4-5 level. Based on these findings, Dr. Green opined that:
I think we have adequately objectively documented a problem here. However, symptoms aren't advanced enough to require surgery. It is my opinion that he should continue on an anti-inflammatory medication such as Lodine and we will see him back PRN. His work activity should be restricted to lifting only amounts that he can tolerate without further worsening of his condition.
Unfortunately, Dr. Green's notes of January 19, 1995, suggest that claimant enjoyed little improvement with conservative measures. At this point, Dr. Green acknowledged that he could no longer "correlate . . . "clinical symptoms with the radiographic findings," and admitted that he had no further treatment suggestions beyond the continued use of over-the-counter medications. Thereafter, on May 20, 1996, Dr. Westwood offered the following recapitulation of claimant's difficulties:
He presented on May 27, 1993. He told the admitting nurse that he pulled a muscle in his upper back the evening before. He complained of pain, particularly with turning his head, and pain with lifting the left arm, etc. Again, this was written down by the office nurse's note, as you may see in the copy of your office medical records. On my presentation to him in the room, he complained of pain in the left medial scapular area . . . The patient was not seen until May 28, 1994, as again can be ascertained from your copy of the medical record. I am unable to comment as far as the relationship of the presentation of May 27, 1993, to any previous or future presentations to my office. Unfortunately, he continued to complain of pain in this specific area in the office visits in the first half of 1994.
Because claimant asserts the occurrence of a compensable injury after July 1, 1993, the provisions of Act 796 of 1993 are controlling. Claimant must thus demonstrate that he has sustained "an accidental injury causing internal or external physical harm to the body . . . arising out of and in the course of employment and which requires medical services or results in disability or death." In addition, an injury will be considered "accidental" only if it is "caused by a specific incident and is identifiable by time and place of occurrence." Ark. Code Ann. § 11-9-102 (5)(A)(i) (Repl. 1996).
Also, a compensable injury "must be established by medical evidence, supported by objective findings." Ark. Code Ann. § 11-9-102 (5)(D) (Repl. 1996). In turn, "objective findings are those findings which cannot come under the voluntary control of the patient . . . medical opinions addressing compensability and permanent impairment must be stated within a reasonable degree of medical certainty." Ark. Code Ann. § 11-9-102 (16) (Repl. 1996). A claimant's burden of proof concerning these issues is to demonstrate them by a preponderance of the evidence. Ark. Code Ann. 11-9-102 (5)(E)(i) (Repl. 1996).
Respondents contend that claimant's testimony is "clearly impaired," owing to certain inconsistencies and alleged conflicts with the medical evidence. However, my review of claimant's entire deposition and trial testimony persuade me that he is simply a poor historian and experiences conceptual difficulties when attempting to relate and interconnect the events at issue in this case. In my opinion, claimant has presented an entirely credible account of a work-related accident sustained during the performance of his employment duties. Also, I note claimant's express testimony that his neck and upper back were affected by this accident, which is entirely consistent with the eventual detection of the C4-5 disc herniation.
While it does appear that claimant may have suffered from some pre-existing back condition or injury, an employer takes an employee as he finds him, and employment circumstances that aggravate pre-existing conditions are compensable. Public Employee Claims Div. v. Tiner, 37 Ark. App. 23, 822 S.W.2d 400 (1992).
Following my review of claimant's credible testimony, I am persuaded to find that he sustained an aggravation of a pre-existing back condition on April 22, 1994, while engaged in the performance of his employment duties.
From the MRI findings noted above, I would also find that claimant has established a compensable injury with medical evidence supported by "objective findings," in the form of a left side disc herniation at the C4-5 level.
Based on the foregoing, I would find that claimant has proven, by a preponderance of the credible evidence, that he sustained a compensable injury on April 22, 1994 as the result of a specific incident identifiable by time and place of occurrence.
Respondents argue in the alternative that the present claim is barred by an application of the Shippers defense. Articulated in Shippers Transport of Georgia v. Stepp, 265 Ark. 365, 578 S.W.2d 232 (1979), the Shippers defense bars the collection of Workers' Compensation benefits where an employee has provided false answers regarding his or her health condition on an employment questionnaire. A proper application of the Shippers defense requires the following:
(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 employment; and
(3) There must have been a causal connection between the false representation and the injury.
In the instant case, claimant had to fill out an employment questionnaire in order to "bid" for the line support job. While he denied any previous back problems, claimant did admit to having previously consulted a chiropractor. In my opinion, this admission was sufficient to put respondent employer on notice that claimant may have suffered from some previous back problem or injury. It was thus incumbent upon respondent employer to investigate further at that point, and the failure to do so precludes a finding of reliance on claimant's admittedly false representation regarding the condition of his back.
In sum, I cannot find that respondents have demonstrated each of the elements necessary to a proper application of the Shippers defense.
Based on the foregoing, I would find that claimant has proven, by a preponderance of the credible evidence that he sustained a compensable work-related injury on April 22, 1994. I would therefore reverse the decision of the Administrative Law Judge, and must respectfully dissent from the majority opinion.
PAT WEST HUMPHREY, Commissioner