{
  "id": 12172925,
  "name": "KIMBERLY PURCELL, Employee, Plaintiff v. FRIDAY STAFFING, Employer, ZURICH NORTH AMERICAN, Carrier (GALLAGHER BASSETT SERVICES, Third-Party Administrator), Defendants",
  "name_abbreviation": "Purcell v. Friday Staffing",
  "decision_date": "2014-08-05",
  "docket_number": "No. COA13-1252",
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    "judges": [
      "Judges ROBERT C. HUNTER and McCULLOUGH concur."
    ],
    "parties": [
      "KIMBERLY PURCELL, Employee, Plaintiff v. FRIDAY STAFFING, Employer, ZURICH NORTH AMERICAN, Carrier (GALLAGHER BASSETT SERVICES, Third-Party Administrator), Defendants"
    ],
    "opinions": [
      {
        "text": "GEER, Judge.\nPlaintiff Kimberly Purcell appeals an opinion and award of the Industrial Commission denying her claim for workers\u2019 compensation benefits. Plaintiff contends on appeal that the Commission improperly applied N.C. Gen. Stat. \u00a7 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\u2019s interpretation of N.C. Gen. Stat. \u00a7 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\u2019s prior undisclosed work-related injury increased the risk of sustaining her present injury, we affirm.\nFacts\nOn 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 (\u201cFCE\u201d) 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\u2019s lifting restrictions to permit lifting of no more than 20 pounds, although he encouraged her to find sedentary-level work.\nAs a result of this injury, plaintiff filed a workers\u2019 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, \u201cIT IS UNDERSTOOD by and between the respective parties hereto that party of the second part\u2019s condition as the result of her accident may be permanent and may be progressive, that recovery therefrom is uncertain and indefinite . . . .\u201d The Settlement Agreement also noted that plaintiff did not dispute that she had a seven percent permanent partial impairment to her back.\nSubsequently, 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.\nOn 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 \u201cFriday Essential Functions Questionnaire\u201d and a \u201cMedical History Questionnaire.\u201d 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\u2019 compensation insurance claim, suffered any injury or undergone surgery, or received treatment or consultation about back pain or possible back injuries.\nTo complete her application, plaintiff signed the following verification: \u201cI 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 understand that Friday Services is an Employer-At-Will, and that my employment can be terminated at any time, with or without reason and with or without cause.\u201d\nFriday 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\u2019 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.\nPlaintiff 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.\nAt Continental, plaintiff worked a C02 line and a drum line. With regard to the C02 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 C02 line, \u201cwhich involved the more strenuous work of the lines Plaintiff worked.\u201d At approximately 1:00 a.m. on 18 July 2011, while at work, plaintiff re-injured her back. A subsequent MRI revealed a \u201cnew large focal disk [sic] extrusion at L5-S1 compressing the descending right SI nerve root.\u201d Since the 18 July 2011 injury, plaintiff has been out of work.\nPlaintiff completed an undated Form 18, \u201cNotice of Accident to Employer and Claim of Employee,\u201d and on 17 November 2011, defendant Friday Staffing filed a Form 61 denying liability for plaintiffs claim. The deputy commissioner denied her claim in an opinion and award filed 9 November 2012. Plaintiff appealed to the Full Commission.\nThe 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 plaintiffs claim should be denied pursuant to N.C. Gen. Stat. \u00a7 97-12.1 on the grounds that at the time plaintiff was hired: \u201c(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 reb-anee was a substantial factor in Defendant-Employer\u2019s decision to hire her; and (3) there was a causal connection between the false representation by Plaintiff and her claimed injury.\u201d Plaintiff timely appealed the Full Commission\u2019s opinion and award to this Court.\nDiscussion\nOur review of a decision of the Industrial Commission \u201cis 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.\u201d Cross v. Blue Cross/Blue Shield, 104 N.C. App. 284, 285-86, 409 S.E.2d 103, 104 (1991). \u201cThe findings of the Commission are conclusive on appeal when such competent evidence exists[.]\u201d Hardin v. Motor Panels, Inc., 136 N.C. App. 351, 353, 524 S.E.2d 368, 371 (2000). As the fact-finding body, \u201c\u2018[t]he Commission is the sole judge of the credibility of the witnesses and the weight to be given their testimony.\u2019 \u201d Deese v. Champion Int\u2019l 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)). \u201c[T]he Industrial Commission\u2019s conclusions of law are reviewable de novo.\" Johnson v. Herbie\u2019s Place, 157 N.C. App. 168, 171, 579 S.E.2d 110, 113 (2003).\nPlaintiff challenges the Full Commission\u2019s interpretation and application of N.C. Gen. Stat. \u00a7 97-12.1, which provides:\nNo 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:\n(1) The employee knowingly and willfully made a false representation as to the employee\u2019s physical condition;\n(2) The employer relied upon one or more false representations by the employee, and the reliance was a substantial factor in the employer\u2019s decision to hire the employee; and\n(3) There was a causal connection between false representation by the employee and the injury or occupational disease.\nPlaintiff does not dispute the Commission\u2019s 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 \u201cthat the herniated disc was caused or contributed [to] by the alleged fraud.\u201d Defendants, however, contend that plaintiff has applied the wrong causation standard.\nOur appellate courts have not interpreted and applied N.C. Gen. Stat. \u00a7 97-12.1 since its enactment in 2011. \u201cQuestions of statutory interpretation are questions of law[.] . . . The primary objective of statutory interpretation is to give effect to the intent of the legislature. The plain language of a statute is the primary indicator of legislative intent.\u201d First Bank v. S & R Grandview, L.L.C., _ N.C. App. _, _, 755 S.E.2d 393, 394 (2014) (internal citations omitted). \u201cIf the statutory language is clear and unambiguous, the court eschews statutory construction in favor of giving the words their plain and definite meaning. When, however, a statute is ambiguous, judicial construction must be used to ascertain the legislative will.\u201d State v. Beck, 359 N.C. 611, 614, 614 S.E.2d 274, 277 (2005) (internal citation and quotation marks omitted).\nStatutory language is ambiguous if it is \u201c \u2018fairly susceptible of two or more meanings.\u2019 \u201d State v. Sherrod, 191 N.C. App. 776, 778, 663 S.E.2d 470, 472 (2008) (quoting Abenethy v. Bd. of Comm\u2019rs of Pitt Cnty., 169 N.C. 631, 636, 86 S.E. 577 580 (1915)). Because our courts have defined the phrase \u201ccausal connection\u201d differently depending on the issues involved, that phrase is ambiguous when included in a statute, at least in the workers\u2019 compensation context. Compare Chambers v. Transit Mgmt., 360 N.C. 609, 618, 619, 636 S.E.2d 553, 559 (2006) (explaining that in order to prove \u201ccausal connection\u201d between specific traumatic event and injury, plaintiff must show that injury was \u201c \u2018the direct result of a specific traumatic incident\u2019 \u201d (quoting N.C. Gen. Stat. \u00a7 97-2(6) (2005)) with Morrison v. Burlington Indus., 304 N.C. 1, 39, 43, 282 S.E.2d 458, 481, 484 (1981) (requiring for \u201ccausal connection\u201d a showing that \u201coccupational conditions . . . significantly contributed to the [occupational] disease\u2019s development\u201d), and Gallimore v. Marilyn\u2019s Shoes, 292 N.C. 399, 402, 233 S.E.2d 529, 531 (1977) (holding decedent\u2019s death did not arise out of her employment due to lack of \u201ccausal connection\u201d between work and death since nature of work did not increase risk she would be slain by criminal act).\nWhen confronted with ambiguous statutory language, we may determine the intent of the legislature by \u201c \u2018considering [the statute\u2019s] legislative history and the circumstances of its enactment.\u2019 \u201d Lanvale Props., LLC v. Cnty. of Cabarrus, 366 N.C. 142, 164, 731 S.E.2d 800, 815 (2012) (quoting Shaw v. U.S. Airways, Inc., 362 N.C. 457, 460, 665 S.E.2d 449, 451 (2008)). Also, when construing an amendment, \u201c[i]n determining legislative intent, we may \u2018assume that the legislature is aware of any judicial construction of a statute.\u2019 \u201d Blackmon v. N. C. Dep't of Corr., 343 N.C. 259, 265, 470 S.E.2d 8, 11 (1996) (quoting Watson v. N.C. Real Estate Comm\u2019n, 87 N.C. App. 637, 648, 362 S.E.2d 294, 301 (1987)).\nPrior to the enactment of N.C. Gen. Stat. \u00a7 97-12.1, a majority opinion in Freeman v. J.L. Rothrock, 189 N.C. App. 31, 36, 657 S.E.2d 389, 392-93 (2008), rev\u2019d per curiam sub nom. Estate of Freeman v. J.L. Rothrock, Inc., 363 N.C. 249, 676 S.E.2d 46 (2009), attempted to adopt the \u201cLarson test\u201d:\nPursuant to the Larson test, an employee may be barred from recovering workers\u2019 compensation benefits as a result of a false statement at the time of hiring when the employer proves:\n(1) The employee must have knowingly and wilfully made a false representation as to his or her physical condition. (2) The employer must have relied upon the false representation and this reliance must have been a substantial factor in the hiring. (3) There must have been a causal connection between the false representation and the injury.\n3 Larson\u2019s Workers\u2019 Compensation Law \u00a7 66.04 (2006) (footnotes omitted).\nAlthough the Freeman majority opinion found \u201cno specific statutory basis for the Larson test,\u201d it nonetheless reasoned that common law doctrines provided implicit authority because \u201c \u215b construing the provisions of this State\u2019s Workers\u2019 Compensation Act, common law rules . . . remain in full force ....\u2019\u201d Id. at 37, 38, 657 S.E.2d at 393, 394 (quoting Tise v. Yates Constr. Co., 122 N.C. App. 582, 587, 471 S.E.2d 102, 106 (1996)). This Court, after applying the Larson test, reversed the Industrial Commission\u2019s award of compensation to Mr. Freeman on the grounds that he had made misrepresentations to his employer regarding a prior back injury and workers\u2019 compensation claim. Id. at 48, 657 S.E.2d at 399.\nJudge Wynn, however, dissented, noting: \u201cNot only have we previously rejected the Larson test, there is no legislative authority for this Court to adopt such a test.\u201d 189 N.C. App. at 49, 657 S.E.2d at 400 (Wynn, J., dissenting). The Supreme Court reversed \u201cfor the reasons stated in the dissenting opinion[.]\u201d Estate of Freeman, 363 N.C. at 250, 676 S.E.2d at 46.\nIn short, just two years preceding the enactment of N.C. Gen. Stat. \u00a7 97-12.1, the Supreme Court reversed Freeman because this Court had \u201cno legislative authority\u201d to read the Larson test into the Workers\u2019 Compensation Act. 189 N.C. App. at 49, 657 S.E.2d at 400 (Wynn, J., dissenting). Then, when the legislature enacted N.C. Gen. Stat. \u00a7 97-12.1, it used language identical to the Larson test as set out and applied in this Court\u2019s opinion in Freeman. We presume that the legislature was aware of this Court\u2019s decision in Freeman applying the Larson test and, under these circumstances, we conclude that the legislature intended to adoptthe Larson test as Freeman initially expressed and applied it.\nIn Freeman, this Court determined that the requirement of \u201ca causal connection\u201d between the plaintiffs misrepresentations and his earlier back injury presented \u201cthe issue . . . whether his undisclosed medical condition increased his risk of injury.\u201d 189 N.C. App. at 45,46, 657 S.E.2d at 398, 399. We, therefore, hold that when requiring a \u201ccausal connection\u201d to satisfy the third element of N.C. Gen. Stat. \u00a7 97-12.1, the legislature intended that a defendant show that a plaintiffs undisclosed or misrepresented injury, condition, or occupational disease increased the risk of the subsequent injury or disease.\nHere plaintiff concedes, and Dr. Harley\u2019s unchallenged expert medical testimony indicates, that plaintiffs prior back problems, which she concealed from defendant employer, increased the potential for her 2011 back injury if she violated her lifting restrictions. Nonetheless, plaintiff argues that because there was \u201cno evidence as to the exact parts being lifted\u201d while plaintiff worked with Continental, the Commission could not have concluded that plaintiff violated her lifting restrictions, and thus there could be no causal connection between her prior and recent back injuries. We disagree.\nThe Commission found that plaintiff developed severe right-sided pain and numbness on 18 July 2011 \u201cas she was having to constantly twist and bend over to pick up trailer arms from the pallet.\u201d In addition, the Commission found that the trailer arms weighed between 20 and 25 pounds, a weight in excess of her work restrictions. Although plaintiff argues that there was no evidence that she violated her work restrictions of lifting no more than 20 pounds, the Commission\u2019s finding regarding the weight of the trailer arms was supported by plaintiff\u2019s own testimony that the trailer arms weighed \u201cabout twenty - maybe twenty-five pounds.\u201d\nThe Commission was entitled to find based on plaintiffs testimony that she was exceeding her work restrictions when she injured her back. That finding, in conjunction with Dr. Harley\u2019s unchallenged expert testimony that plaintiff was at an increased risk of injury if she exceeded her work restrictions, supported the Commission\u2019s conclusion that a causal connection existed between plaintiff\u2019s false representation and her 18 July 2011 back injury. We, therefore, hold that the Commission did not err in denying plaintiff\u2019s claim for worker\u2019s compensation based on N.C. Gen. Stat. \u00a7 97-12.1. See Freeman, 189 N.C. App. at 47-48, 657 S.E.2d at 399 (holding that causal connection was established by expert testimony that plaintiff\u2019s undisclosed medical condition increased his risk of back injury at issue).\nPlaintiff alternatively argues that N.C. Gen. Stat. \u00a7 97-12.1, as applied in this case, is an unconstitutional ex post facto law. However, \u201c \u2018[a] constitutional issue not raised at trial will generally not be considered for the first time on appeal.\u2019 \u201d In re Cline, _ N.C. App. _, _, 749 S.E.2d 91, 102 (2013) (quoting Anderson v. Assimos, 356 N.C. 415, 416, 572 S.E.2d 101,102 (2002)), disc. review denied, _ N.C. _, 753 S.E.2d 781 (2014). \u201cSince this argument was not raised [below], it is not properly before us on appeal.\u201d Id. at _, 749 S.E.2d at 102.\nHowever, even if this issue were before us, it would be without merit since N.C. Gen. Stat. \u00a7 97-12.1 does not involve a criminal offense. See State v. Wiley, 355 N.C. 592, 625, 565 S.E.2d 22, 45 (2002) (explaining that ex post facto implicates four types of laws: \u201c \u20181st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender[]\u2019 \u201d (quoting Collins v. Youngblood, 497 U.S. 37, 42, 111 L. Ed. 2d 30, 38-39, 110 S. Ct. 2715, 2719 (1990)). Accordingly, we affirm the Commission\u2019s opinion and award.\nAffirmed.\nJudges ROBERT C. HUNTER and McCULLOUGH concur.",
        "type": "majority",
        "author": "GEER, Judge."
      }
    ],
    "attorneys": [
      "Ganly & Ramer, by Thomas F. Ramer, for plaintiff-appellant.",
      "McAngus, Goudelock & Courie, P.L.L.C., by Sally B. Moran and Colin E. Cronin, for defendants-appellees."
    ],
    "corrections": "",
    "head_matter": "KIMBERLY PURCELL, Employee, Plaintiff v. FRIDAY STAFFING, Employer, ZURICH NORTH AMERICAN, Carrier (GALLAGHER BASSETT SERVICES, Third-Party Administrator), Defendants\nNo. COA13-1252\nFiled 5 August 2014\n1. Workers\u2019 Compensation\u2014denial of benefits\u2014prior undisclosed work-related injury increased risk\nThe Industrial Commission did not err by denying plaintiffs claim for workers\u2019 compensation benefits. There was sufficient evidence that plaintiff\u2019s prior undisclosed work-related injury increased the risk of sustaining her present injury.\n2. Appeal and Error\u2014preservation of issues\u2014failure to raise constitutional issue at trial\nAlthough plaintiff alternatively argued that N.C.G.S. \u00a7 97-12.1, as applied in this case, was an unconstitutional ex post facto law, defendant failed to raise this argument at trial. Even if this issue were preserved, it would be without merit since N.C.G.S. \u00a7 97-12.1 does not involve a criminal offense.\nAppeal 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.\nGanly & Ramer, by Thomas F. Ramer, for plaintiff-appellant.\nMcAngus, Goudelock & Courie, P.L.L.C., by Sally B. Moran and Colin E. Cronin, for defendants-appellees."
  },
  "file_name": "0342-01",
  "first_page_order": 352,
  "last_page_order": 360
}