Methodist Nursing Home v. Felicia Travis

Annotate this Case
ca04-676

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

METHODIST NURSING HOME

APPELLANT

V.

FELICIA TRAVIS

APPELLEE

CA04-676

February 23, 2005

APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION

[NO. F203060]

AFFIRMED

Josephine Linker Hart, Judge

Appellant, Methodist Nursing Home, challenges the finding of the Arkansas Workers' Compensation Commission that appellee, Felicia Travis, sustained a compensable low-back injury while working for appellant. Further, appellant argues that the Commission erred in concluding that appellant's claim for benefits was not barred under the doctrines enunciated in Shippers Transp. of Ga. v. Stepp, 265 Ark. 365, 578 S.W.2d 232 (1979), and in Thompson v. Washington Reg. Med. Ctr., 71 Ark. App. 126, 27 S.W.3d 459 (2000). We affirm.

In addressing appellant's first issue, we note that a compensable injury is an accidental injury arising out of and in the course of employment. Ark. Code Ann. § 11-9-102(4)(A)(i) (Supp. 2003). A compensable injury must be established by medical evidence supported by objective findings. Ark. Code Ann. § 11-9-102(4)(D) (Supp. 2003). "Objective findings" are findings that "cannot come under the voluntary control of the patient." Ark. Code Ann. § 11-9-102(16) (Supp. 2003). The claimant has the burden of proving his compensable injury by a preponderance of the evidence. Ark. Code Ann. § 11-9-102(4)(E)(i) (Supp. 2003). If an injury is caused by a specific incident and is identifiable by time and place of occurrence, then the injury is "accidental," and it is not necessary that the claimant prove that the injury was the major cause of the disability or need for treatment. Estridge v. Waste Mgmt., 343 Ark. 276, 33 S.W.3d 167 (2000); Ark. Code Ann. § 11-9-102(4)(E)(i) (Supp. 2003). We view the evidence in a light most favorable to the Commission's decision, and we uphold that decision if it is supported by substantial evidence. Id.

Here, appellee testified that on November 20, 2001, she began working for appellant. Her job duties included caring for patients, and in particular, she had to lift the patients. Appellee stated that she did not have problems with her back while working for appellant until January 30, 2002. On that day, she went into one patient's room to move a patient from a recliner to his bed. As she picked him up, he stiffened and began to slide. When she twisted around to put him back into the recliner, she injured her lower back and felt pain there and in her right leg. She reported the injury to a nurse and went to see a physician the next day. After four days off, she returned to work on light-duty status despite continuing to have back problems. She was again placed on regular duty, and on March 13, 2002, she was assisting another patient into bed when the patient grabbed her around the neck and pulled her down. She felt pain in the same places as before, and she considered it to be a continuation of the same problem that she had on January 30, 2002. She reported her injury immediately. An MRI was performed on March 26, 2002, that showed appellee had a "moderate size central disc herniation at the L3-4 level causing canal stenosis." The MRI results differed from an MRI performed on November 16, 1999, which showed a "[s]mall central disc protrusion" at L3-4 with "no spinal canal or foraminal stenosis" and an MRI performed on March 30, 2000, which showed at L3-4 a "degenerated disc, with an annular tear and a small moderate central disc protrusion" that was "similar" to the November 16, 1999, study.

In arguing that there was not substantial evidence that appellee sustained a compensable injury, appellant states that there were no witnesses to the injury, that there was no specific injury caused by a specific incident, and that appellee's need for medical care pre-existed the injury. With regard to this latter contention, appellant notes that appellee had back problems that preceded the January 30, 2002, incident.

Through her own testimony, appellee presented evidence that she suffered an injury caused by a specific incident and identifiable by time and place of occurrence that arose out of and in the course of employment. The injury was established by medical evidence supported by objective findings through the comparison of the pre-injury MRIs that showed a small or small-moderate central disc protrusion at L3-4 with no canal stenosis with the post-injury MRI that showed "moderate size central disc herniation at the L3-4 level causing canal stenosis." Further, the injury caused or precipitated the need for appellee's treatment. Viewing this evidence in the light most favorable to the Commission's decision, we conclude that the Commission's finding that appellant suffered a compensable injury was supported by substantial evidence.

In its second argument, appellant asserts that because appellee misrepresented her physical condition -- particularly her prior back problems -- to appellant in procuring employment, she was barred from recovery of workers' compensation benefits under Shippers Transp. of Ga. v. Stepp, 265 Ark. 365, 578 S.W.2d 232 (1979), and Thompson v. Washington Reg. Med. Ctr., 71 Ark. App. 126, 27 S.W.3d 459 (2000). In Shippers Transport, the Arkansas Supreme Court adopted the rule that a claimant's false representation regarding his physical condition in procuring employment will bar the claimant from obtaining benefits if the employer shows that (1) the employee knowingly and wilfully made a false representation as to his physical condition; (2) the employer relied on the 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. In Thompson, we considered Shippers Transport and discussed the doctrine of estoppel, holding that the Commission properly found that the claimant was barred from obtaining benefits for an injury resulting from a vehicle accident. There, the claim was barred because the claimant told his employer that he was not restricted from driving a truck in his employment even though the claimant knew that he was suffering from seizures and medically restricted from driving. We noted in Thompson that the claimant's misrepresentation was not made in the context of a pre-employment questionnaire, but was made to procure reinstatement to driving a truck in his employment.

With regard to this issue, appellee testified that on the morning of November 20, 2001, she filled out an application and was interviewed by Joan Maursey, who died at some time prior to the hearing. During the interview, Maursey asked appellee if she had any back problems, and appellee told her that she had minor back problems in the past but that she had been released without restrictions from her physician. She was not hired on the spot because she did not have her licensing up to date. Appellee, however, showed the nursing home administrator, Catherine Bittick, her Oklahoma license, and Bittick told her to come back later that day to begin work. Bittick told her to be there before 3:00 so that she could fill out paperwork and "go to the floor." Appellee filled out a "Post-Offer Questionnaire" later that day. On the questionnaire, she was asked, "Have you ever had or do you now have?" and appellee checked "No" for "Bone, Joint, or Other Deformity." Also, she was asked, "HAVE YOU - Back trouble of any kind?" Appellee marked "No." Appellee testified that while she had previously been placed on lifting restrictions, they were only temporary and she had been released.

Bittick testified that appellee had been hired prior to being presented with the questionnaire. She further stated that if appellee had answered affirmatively on the post-offer questionnaire and revealed her prior medical problems regarding her back, including her protruding discs and the previous restrictions placed on her, she would have asked her for written proof that she was released from her doctor, and she would not have hired her without it. She further agreed that if an employee could not fulfill a job because of physical duty required, they might be able to work elsewhere in the nursing home.

In considering this issue, the Commission concluded that appellant failed to establish that appellee's claim for benefits was barred. The Commission noted that appellee told her initial interviewer that she had prior back problems but was not under any ongoing restrictions and had been released by her physician. Further, the Commission observed that appellee was hired and it was not until then that she filled out the questionnaire failing to set out her prior back problems. The Commission also noted Bittick's testimony that if appellee had correctly filled out the questionnaire she still would have been employed but perhaps in a different position.

Appellant argues on appeal that appellee was barred from seeking benefits because she failed to disclose to appellant that she had previously sustained some back injuries and was under a twenty-five pound lifting restriction as well as no repetitive bending, and further, appellant relied upon the false representation. Appellant states that appellee never presented evidence to either appellant or the ALJ to prove that she was released from her restrictions and that only appellee's "self-serving testimony" established that she was released from her lifting and bending restrictions. Appellant notes Bittick's testimony that she would have required a written release and that appellee would not have been hired without it.

We conclude that the Commission's decision was supported by substantial evidence. Appellee's testimony, which was credited by the Commission, demonstrates that appellee advised the interviewer for appellant of her previous back problems and restrictions, and appellant hired her. Appellant could not have relied on any alleged false representation appellee made in the questionnaire in making its decision to hire appellee when it knew through the interviewer that appellee had previous back problems and restrictions before appellee was hired and the alleged false representation was made after appellee was hired. Appellant's claim that Bittick would only have accepted a written release is irrelevant, as appellant was advised of appellee's previous restrictions and was hired. Thus, appellee's claim for benefits was not barred by Shippers Transport. Furthermore, while appellant also contends that appellee's claim for benefits was further barred by the doctrine of estoppel discussed in Thompson, we conclude that Thompson is inapposite, as in that case the employer was never apprised of the claimant's disability.

Affirmed.

Glover and Neal, JJ., agree.

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