Purcell v. Friday Staffing

Annotate this Case

Download PDF

NO. COA13-1252 NORTH CAROLINA COURT OF APPEALS Filed: 5 August 2014 KIMBERLY PURCELL, Employee, Plaintiff, v. FRIDAY STAFFING, Employer, ZURICH NORTH AMERICAN, Carrier (GALLAGHER BASSETT SERVICES, Third-Party Administrator), Defendants. North Carolina Industrial Commission I.C. No. X57382 Appeal 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. 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. GEER, Judge. Plaintiff Kimberly Purcell appeals an opinion and award of the Industrial Commission compensation benefits. denying her claim for workers' Plaintiff contends on appeal that the Commission improperly applied N.C. Gen. Stat. § 97-12.1 (2013) when it concluded that the injury she suffered while working for -2defendant 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's interpretation of N.C. Gen. Stat. § 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's prior undisclosed work-related injury increased the risk of sustaining her present injury, we affirm. Facts On 6 August 1999, plaintiff suffered an injury to her back while working for Quality Assured Enterprises. A lumbar MRI revealed at a disc protrusion in her lower vertebrae and disc degeneration at the back L4-5 the L5-S1 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 ("FCE") and after reaching maximum medical improvement, plaintiff was given disability rating to her back. a seven percent partial Dr. Harley prescribed physical therapy and eventually relaxed plaintiff's lifting restrictions -3to permit lifting of no more than 20 pounds, although he encouraged her to find sedentary-level work. As a result of this injury, compensation claim against plaintiff filed a workers' Quality Assured. Plaintiff and Quality Assured signed a Compromise Settlement Agreement on 24 January 2002 plaintiff. for an Part of amount of $50,000.00 to be paid to the Settlement Agreement stated, "IT IS UNDERSTOOD by and between the respective parties hereto that party of the second part's condition as the result of her accident may be permanent and may be progressive, that recovery therefrom is uncertain and indefinite . . . ." The Settlement Agreement also noted that plaintiff did not dispute that she had a seven percent permanent partial impairment to her back. Subsequently, plaintiff various companies. worked in different jobs for 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 -4primary care provider that she was seeing a neurosurgeon, and said she might need back surgery. On 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 "Friday Essential Functions Questionnaire" and a "Medical History Questionnaire." 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. application, In plaintiff the Medical indicated that History she portion had never of the filed a workers' compensation insurance claim, suffered any injury or undergone surgery, or received treatment or consultation about back pain or possible back injuries. To complete her application, plaintiff signed the following verification: "I hereby state all information History Record is true and factual. . . . on this Work I understand that any false statement may result in my immediate dismissal. . . . I understand that Friday Services is an Employer-At-Will, and that -5my employment can be terminated at any time, with or without reason and with or without cause." Friday Staffing matched plaintiff with Continental Teves, a company then that manufactures conducted an automotive in-person parts. interview Friday in which Staffing plaintiff verified her ability to lift and carry up to and over 50 pounds and that she had not filed any workers' 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. Plaintiff initially began working for Continental Teves on 2 June 2010 as an assembly line worker. position included occasional walking The job profile for the 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. At Continental, line. plaintiff worked a CO2 line and a drum With regard to the CO2 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 CO2 line, "which involved the more -6strenuous work of the lines Plaintiff worked." At approximately 1:00 a.m. on 18 July 2011, while at work, plaintiff re-injured her back. A subsequent MRI revealed a "new large focal disk [sic] extrusion at L5-S1 compressing the descending right S1 nerve root." Since the 18 July 2011 injury, plaintiff has been out of work. Plaintiff completed an undated Form 18, "Notice of Accident to Employer and Claim of Employee," and on 17 November 2011, defendant Friday Staffing filed a Form 61 denying liability for plaintiff's claim. The deputy commissioner denied her claim in an opinion and award filed 9 November 2012. Plaintiff appealed to the Full Commission. The 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 plaintiff's claim should be denied pursuant to N.C. Gen. Stat. § 97-12.1 on the grounds that at the time plaintiff was hired: "(1) Plaintiff representation as knowingly to her and physical willfully condition; made (2) a false Defendant- Employer relied upon said false representation by Plaintiff, and the reliance was a substantial factor in Defendant-Employer's decision to hire her; and (3) there was a causal connection between the false representation by Plaintiff and her claimed -7injury." Plaintiff timely appealed the Full Commission's opinion and award to this Court. Discussion Our review of a decision of the Industrial Commission "is 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." Cross v. Blue Cross/Blue Shield, 104 N.C. App. 284, 285-86, 409 S.E.2d 103, 104 (1991). "The findings of the Commission are conclusive on appeal when such competent evidence exists[.]" Hardin v. Motor Panels, Inc., 136 N.C. App. 351, 353, 524 S.E.2d 368, 371 (2000). As the fact-finding body, "'[t]he Commission is the sole judge of the credibility of the witnesses and the weight to be given their testimony.'" Deese v. Champion Int'l 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)). Commission's conclusions of law are "[T]he Industrial reviewable de novo." Johnson v. Herbie's Place, 157 N.C. App. 168, 171, 579 S.E.2d 110, 113 (2003). Plaintiff challenges the Full Commission's interpretation and application of N.C. Gen. Stat. § 97-12.1, which provides: No 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 -8course 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: (1) The employee knowingly and willfully made a false representation as to the employee's physical condition; (2) The employer relied upon one or more false representations by the employee, and the reliance was a substantial factor in the employer's decision to hire the employee; and (3) There was a causal connection between false representation by the employee and the injury or occupational disease. Plaintiff does not dispute the Commission's 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 "that the herniated disc was caused or contributed [to] by the alleged fraud." Defendants, however, contend that plaintiff has applied the wrong causation standard. Our appellate courts have not interpreted and applied N.C. Gen. Stat. § 97-12.1 since its enactment in 2011. "Questions of statutory interpretation are questions of law[.] . . . The primary objective of statutory interpretation is to give effect -9to the intent of the legislature. The plain language of a statute is the primary indicator of legislative intent." First Bank v. S & R Grandview, L.L.C., ___ N.C. App. ___, ___, 755 S.E.2d 393, 394 (2014) (internal citations omitted). "If 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." State v. Beck, 359 N.C. 611, 614, 614 S.E.2d 274, 277 (2005) (internal citation and quotation marks omitted). Statutory language is ambiguous susceptible of two or more meanings.'" N.C. App. 776, 778, 663 S.E.2d if it is "'fairly State v. Sherrod, 191 470, 472 (2008) (quoting Abernethy v. Bd. of Comm'rs of Pitt Cnty., 169 N.C. 631, 636, 86 S.E. 577 580 (1915)). Because our courts have defined the phrase "causal connection" differently depending on the issues involved, that phrase is ambiguous when included in a statute, at least in the workers' 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 "causal connection" between specific traumatic event and injury, plaintiff must show that injury was incident'" "'the direct result of (quoting N.C. Gen. Stat. § a specific 97-2(6) traumatic (2005)) with -10Morrison v. Burlington Indus., 304 N.C. 1, 39, 43, 282 S.E.2d 458, 481, showing 484 that (1981) (requiring "occupational for conditions "causal . . connection" . a significantly contributed to the [occupational] disease's development"), and Gallimore v. Marilyn's Shoes, 292 N.C. 399, 402, 233 S.E.2d 529, 531 (1977) (holding decedent's death did not arise out of her employment due to lack of "causal connection" between work and death since nature of work did not increase risk she would be slain by criminal act). When confronted with ambiguous statutory language, we may determine the intent of the legislature by "'considering [the statute's] legislative enactment.'" 142, 164, history and the circumstances of its Lanvale Props., LLC v. Cnty. of Cabarrus, 366 N.C. 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, "[i]n determining legislative intent, we may 'assume that the legislature is aware of any judicial construction of a statute.'" 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'n, 87 N.C. App. 637, 648, 362 S.E.2d 294, 301 (1987)). Prior to the enactment of N.C. Gen. Stat. § 97-12.1, a majority opinion in Freeman v. J.L. Rothrock, 189 N.C. App. 31, -1136, 657 S.E.2d 389, 392-93 (2008), rev'd 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 "Larson test": Pursuant to the Larson test, an employee may be barred from recovering workers' compensation benefits as a result of a false statement at the time of hiring when the employer proves: (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. 3 Larson's Workers' Compensation Law § 66.04 (2006) (footnotes omitted). Although the Freeman majority opinion found "no specific statutory basis for the Larson test," it nonetheless reasoned that common law doctrines provided implicit authority because "'in construing the provisions of this State's Workers' Compensation Act, common law rules . . . remain in full force . . . .'" 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 -12the Industrial Commission's award of compensation to Mr. Freeman on the grounds that he had made misrepresentations to his employer regarding a prior back injury and workers' compensation claim. Id. at 48, 657 S.E.2d at 399. Judge Wynn, however, dissented, noting: "Not only have we previously rejected the Larson test, there is no legislative authority for this Court to adopt such a test." 189 N.C. App. at 49, 657 S.E.2d at 400 (Wynn, J., dissenting). Court reversed opinion[.]" "for the reasons stated in The Supreme the dissenting Estate of Freeman, 363 N.C. at 250, 676 S.E.2d at 46. In short, just two years preceding the enactment of N.C. Gen. Stat. § 97-12.1, the Supreme Court reversed Freeman because this Court had "no legislative authority" to read the Larson test into the Workers' Compensation Act. 657 S.E.2d at 400 (Wynn, J., 189 N.C. App. at 49, dissenting). Then, when the legislature enacted N.C. Gen. Stat. § 97-12.1, it used language identical to the Larson test as set out and applied in this Court's opinion in Freeman. We presume that the legislature was aware of this Court's decision in Freeman applying the Larson test and, legislature under these intended to circumstances, adopt the initially expressed and applied it. we conclude Larson test as that the Freeman -13In Freeman, this Court determined that the requirement of "a causal connection" between the plaintiff's misrepresentations and his earlier back injury presented "the issue . . . whether his undisclosed medical condition increased his risk of injury." 189 N.C. App. at 45, 46, 657 S.E.2d at 398, 399. We, therefore, hold that when requiring a "causal connection" to satisfy the third element of N.C. Gen. Stat. § 97-12.1, the legislature intended that a defendant show that a plaintiff's undisclosed or misrepresented injury, condition, or occupational disease increased the risk of the subsequent injury or disease. Here plaintiff concedes, and Dr. Harley's unchallenged expert medical testimony indicates, that plaintiff's prior back problems, which she concealed from defendant employer, increased the potential lifting because for her restrictions. there was "no 2011 back injury Nonetheless, evidence as if she plaintiff to the violated her argues that parts being exact lifted" while plaintiff worked with Continental, the Commission could not have concluded that plaintiff violated her lifting restrictions, and thus there could be between her prior and recent back injuries. no causal connection We disagree. The Commission found that plaintiff developed severe rightsided pain and numbness on 18 July 2011 "as she was having to constantly twist and bend over to pick up trailer arms from the -14pallet." 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, weight of the the Commission's finding regarding the trailer arms was supported by plaintiff's own testimony that the trailer arms weighed "about twenty -- maybe twenty-five pounds." The Commission was entitled to find based on plaintiff's testimony that she was exceeding her work restrictions when she injured her back. That finding, in conjunction with Dr. Harley's unchallenged expert testimony that plaintiff was at an increased risk of injury if she exceeded her work restrictions, supported the Commission's conclusion that a causal connection existed between plaintiff's false representation and her 18 July 2011 back injury. We, therefore, hold that the Commission did not err in denying plaintiff's claim for worker's compensation based on N.C. Gen. Stat. § 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's undisclosed medical condition increased his risk of back injury at issue). Plaintiff alternatively argues that N.C. Gen. Stat. § 9712.1, as applied in this case, is an unconstitutional ex post -15facto law. However, "'[a] constitutional issue not raised at trial will generally not be considered for the first time on appeal.'" 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). "Since this argument was not raised [below], it is not properly before us on appeal." Id. at ___, 749 S.E.2d at 102. However, even if this issue were before us, it would be without merit since N.C. Gen. Stat. § 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: "'1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and aggravates a committed. inflicts a punishes crime, 3d. or such action. makes it 2d. greater Every than it law that was, when Every law that changes the punishment, and greater punishment, crime, when committed. 4th. than the law annexed to the 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[]'" (quoting Collins v. Youngblood, 497 U.S. 37, 42, 111 L. Ed. 2d 30, 38-39, 110 S. -16Ct. 2715, 2719 (1990)). Accordingly, we affirm the Commission's opinion and award. Affirmed. Judges ROBERT C. HUNTER and McCULLOUGH concur.

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.