James River Corporation v. Walters

Annotate this Case
JAMES RIVER CORPORATION v. Terry J. WALTERS

CA 95-551                                          ___ S.W.2d ___

                  Court of Appeals of Arkansas
                           Division I
                Opinion delivered March 27, 1996


1.   Workers' compensation -- Shippers' Transport rule -- three-
     part test. -- In Shippers' Transport of Georgia v. Stepp, 265
     Ark. 365, 578 S.W.2d 232 (1979), the supreme court adopted the
     rule that a false representation about one's physical
     condition on an employment application will bar recovery under
     the Workers' Compensation Act if the employer meets the
     following three-part test: the employer must show that (1) the
     employee knowingly and wilfully made a false representation as
     to his physical condition; (2) the employer relied on his
     false representation, which reliance was a substantial factor
     in the employment; and (3) there was a causal connection
     between the false representation and the injury.

2.   Workers' compensation -- challenge to sufficiency of evidence
     -- standard of review. -- Where the sufficiency of the
     evidence is challenged on appeal in a workers' compensation
     case, the appellate court reviews the evidence and all
     reasonable inferences deducible therefrom in the light most
     favorable to the findings of the Workers' Compensation
     Commission and will affirm if those findings are supported by
     substantial evidence; the issue on appeal is not whether the
     evidence would support findings contrary to those made by the
     Commission or whether the appellate court would have reached
     a different result had it tried the case on its merits; if
     reasonable minds could arrive at the conclusion reached by the
     Commission, the appellate court must affirm.

3.   Workers' compensation -- credibility of witnesses and weight
     of testimony -- exclusively within Commission's province. --
     The credibility of witnesses and the weight to be given to
     their testimony are matters exclusively within the province of
     the Commission.

4.   Workers' compensation -- there was substantial evidence that
     appellant failed to prove that it was entitled to rely on
     Shippers' Transport defense. -- Where appellant employer
     failed to present testimony that it relied on the false
     representations contained in appellee's employment application
     and only presented testimony that it relied on documents that
     appeared to have been filled out by someone other than the
     appellee some four months after the appellee was hired, and
     where appellee admitted that those two documents contained
     incorrect information but denied that he filled out the
     documents or that they were part of his employment
     application, the Commission's finding that appellant failed to
     prove that it relied on false representations made by the
     appellee when it decided to hire him was supported by
     substantial evidence; the appellate court held that there was
     substantial evidence that appellant failed to prove that it
     was entitled to rely on the Shippers' Transport defense.


     Appeal from Arkansas Workers' Compensation Commission;
affirmed.
     Bethell, Callaway, Robertson, Beasley & Cowan, by: John F.
Beasley, for appellant.
     Walker Law Firm, by: Eddie H. Walker, Jr., and R. Scott
Zuerker, for appellee.

     John B. Robbins, Judge.


*ADVREP3*                  DIVISION I









JAMES RIVER CORPORATION
                     APPELLANT

V.


TERRY J. WALTERS
                      APPELLEE



CA 95-551

                                                   MARCH 27, 1996


APPEAL FROM THE ARKANSAS
WORKERS' COMPENSATION
COMMISSION, [E311347]




AFFIRMED





                     John B. Robbins, Judge.


     Appellant James River Corporation appeals from a decision of
the Workers' Compensation Commission which awarded appellee Terry
Walters benefits as the result of a work-related injury.  Appellant
contends on appeal that the Commission erred in finding that it had
failed to meet the second part of the Shippers' Transport defense
to this claim.  We find no error and affirm.
     In Shippers' Transport of Georgia v. Stepp, 265 Ark. 365,
578 S.W.2d 232 (1979), the court adopted the rule that a false
representation as to one's physical condition on an employment
application will bar recovery under our Workers' Compensation Act
if the employer meets the following three-part test.  The employer
must show that:
     1)  the employee knowingly and wilfully made a false
     representation as to his physical condition;
     2)  the employer relied on his false representation,
     which reliance was a substantial factor in the
     employment; and
     3)  there was a causal connection between the false
     representation and the injury.
Shippers' Transport, 265 Ark. at 369, 578 S.W.2d  at 234.
     In the present case the Commission held that the appellant
failed to prove by a preponderance of the evidence that it relied
upon false representations made by appellee in deciding to hire
the appellee.  The appellant argues on appeal that the Commission
erred in finding that it failed to prove reliance on these false
representations, essentially contending that the Commission's
opinion is not supported by substantial evidence.
     The evidence before the Commission showed that the appellee
sustained a work-related injury to his back on June 29, 1993, which
appellant initially accepted as compensable.  The appellant later
denied the claim contending that appellee had a long history of
back problems that pre-dated his employment with appellant. 
Appellant contended that, because appellee falsified information on
his employment application, the Shippers' Transport defense barred
his claim.
     The evidence presented to the Commission showed that the
appellee filled out an employment application with the appellant
on May 14, 1987, and was hired on May 18, 1987.  The Commission
found that several tacit false representations were made on the
application.  However, the appellant was not sent to the company
physician for a pre-placement health examination until September
21, 1987.  Three documents, which the appellant claims were either
completed by the appellee or by someone else at his direction,
were introduced into evidence.  Those documents were:  the
employment application dated May 14, 1987, and signed by the
appellee; a personal history form dated September 21, 1987,
which was not signed by appellee; and the pre-placement health
examination form.  The Commission found that each document was in
a different handwriting from the others, and that the personal
history and pre-placement documents were not completed by the
appellee.  Appellee testified that when he was hired in May 1987,
the personal history and pre-placement examination documents were
not part of his employment application.  Appellee admitted that the
personal history form contained incorrect information, but stated
that he did not fill out this document.
     Appellant's personnel department representative, Jonathan
Wright, testified that the appellant relied on the false
representations contained in the health questionnaires, but failed
to state that it relied on the appellee's employment application
at all.  The Commission found it difficult to believe that, when
appellant hired appellee in May, it relied on falsehoods in the
personal history and pre-placement examination forms because these
documents were not filled out until four months after appellee had
been hired.  Had the appellant presented proof that the appellee
had indeed filled out these forms, and that they were completed in
May 1987, the Commission may well have decided differently.
     Where the sufficiency of the evidence is challenged on appeal
in a workers' compensation case, this court reviews the evidence
and all reasonable inferences deducible therefrom in the light most
favorable to the findings of the Commission, and will affirm if
those findings are supported by substantial evidence.  Newsome v.
Union 76 Truck Stop, 34 Ark. App. 35, 805 S.W.2d 98 (1991).  The
issue on appeal is not whether the evidence would support findings
contrary to those made by the Commission or whether we would have
reached a different result had we tried the case on its merits; if
reasonable minds could arrive at the conclusion reached by the
Commission, we must affirm.  College Club Dairy v. Carr, 25 Ark.
App. 215, 756 S.W.2d 128 (1988).  It is well established that the
credibility of witnesses and the weight to be given to their
testimony are matters exclusively within the province of the
Commission.  Wade v. Mr. C. Cavenaugh's, 298 Ark. 363, 768 S.W.2d 521 (1989).
     The appellant failed to present testimony that it relied on
the false representations contained in the appellee's employment
application and only presented testimony that it relied on
documents which, as the Commission found, appear to have been
filled out by someone other than the appellee some four months
after the appellee was hired.  Appellee admitted that two documents
contained incorrect information but denied that he filled out these
documents and denied that they were part of his employment
application.  The Commission's finding that appellant failed to
prove that it relied on false representations made by the appellee
when it decided to hire him is supported by substantial evidence. 
As the Commission pointed out, how could the appellant have relied
on these false representations when the documents indicate that
they were filled out four months after the appellee was hired. 
There is substantial evidence that appellant failed to prove that
it was entitled to rely on the Shippers' Transport defense.
     Affirmed.

     Cooper and Stroud, JJ., agree.

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