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Conner v. Legacy Carting, LLC

Commonwealth of Kentucky Court of Appeals
Jan 9, 2015
NO. 2013-CA-002108-WC (Ky. Ct. App. Jan. 9, 2015)

Opinion

NO. 2013-CA-002108-WC

01-09-2015

LEROY CONNER APPELLANT v. LEGACY CARTING, LLC; HON. OTTO DANIEL WOLFF, IV, ADMINISTRATIVE LAW JUDGE; AND WORKERS COMPENSATION BOARD APPELLEES

BRIEF FOR APPELLANT: Timothy J. Wilson Lexington, Kentucky BRIEF FOR APPELLEE: No brief filed.


NOT TO BE PUBLISHED PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-10-84657
OPINION
AFFIRMING
BEFORE: DIXON, NICKELL, AND TAYLOR, JUDGES. NICKELL, JUDGE: Leroy Conner has petitioned for review of an opinion of the Workers' Compensation Board (Board) affirming the opinion and order of the Administrative Law Judge (ALJ). Having reviewed the record, we affirm.

BACKGROUND

Prior to his employment with Legacy Carting, LLC (Legacy), Conner sustained a work-related low back injury on December 6, 2005, while employed by the City of Cynthiana. He underwent low back surgery, a course of physical therapy, and a work-hardening regimen.

On August 31, 2006, Conner's treating physician, Dr. Alexis Norelle, assigned a permanent impairment rating pursuant to the AMA Guides and imposed permanent work restrictions pursuant to an FCE, including lifting limits between 10 pounds frequently and 30 pounds occasionally. Conner testified Dr. Norelle's restrictions included "no real heavy lifting and not a whole lot of stooping and bending," and admitted he had never been released from these restrictions to his knowledge.

American Medical Association's Guides to the Evaluation of Permanent Impairment (Fifth Edition).

Functional Capacity Evaluation.

The specific lifting requirements were as follows: knuckle to shoulder 30 pounds occasionally, 15 pounds frequently; floor to knuckle 20 pounds occasionally, 15 pounds frequently; and floor to shoulder 15 pounds occasionally, 10 pounds frequently.

Conner's claim for workers' compensation benefits was settled for a compromised lump sum payment and approved on January 24, 2007. Conner later testified the surgery relieved his symptoms except for continued tingling in his toes, and that he required no additional medical treatment, and he returned to work—initially as an assembly line car driver and subsequently as a crew member cleaning and waxing department store floors.

On October 3, 2008, Conner applied to work as a garbage truck driver for Legacy. Conner read, completed, and executed a Driver's Application for Employment (application) form, and understood truck driving duties included collecting garbage cans from curbs, rolling the cans to the back of the truck, and positioning the cans on a lift. He also understood these duties occasionally required lifting and emptying of garbage cans weighing up to seventy pounds.

Despite his awareness of Dr. Norelle's longstanding permanent restrictions, Conner answered "No" on the application when asked, "Is there any reason you might be unable to perform the functions of the job for which you have applied?" He testified he believed the statement to be true when completing the application based on his improved symptoms, return to work, and understanding of his new duties.

On April 7, 2010, Conner sustained a work-related injury to his low back when he slipped and fell while lifting a garbage can. He underwent an MRI examination on September 24, 2010, that revealed a mild broad-based right paracentral protrusion, bilateral foraminal narrowing, and the effects of his previous surgery. As a result, Conner underwent a bilateral L5-S1 laminectomy and right discectomy on February 8, 2012.

On August 27, 2010, Conner filed an Application for Resolution of Injury Claim alleging the April 7, 2010 work-related low back injury and seeking medical and disability benefits. In response, Legacy filed a special answer on September 16, 2010, asserting Conner's claim was barred by KRS 342.165(2), which provides:

Kentucky Revised Statutes.

No compensation shall be payable for work-related injuries if the employee at the time of entering the employment of the employer by whom compensation would otherwise be payable falsely represents, in writing, his physical condition or medical history, if all of the following factors are present:



(a) The employee has knowingly and willfully made a false representation as to his physical condition or medical history;



(b) The employer has relied upon the false representation, and this reliance was a substantial factor in the hiring; and



(c) There is a causal connection between the false representation and the injury for which compensation has been claimed.

Aaron Hopper, owner and manager of Legacy, testified he told Conner the job required lifting garbage cans, the majority of which weighed more than 30 pounds. Aaron testified Conner did not advise him of his prior work-related low back injury, lumbar surgery, or permanent work restrictions, and that he would not have been hired had he been forthcoming and truthful with these requested and pertinent details.

Todd Hopper, co-owner of Legacy, also testified Conner never informed him of the prior work-related low back injury, lumbar surgery, or permanent work restrictions. He testified "under no circumstances" would Conner have been hired as a garbage truck driver for Legacy had these facts been revealed. Todd further testified he did not discover Conner's relevant prior medical history until after Conner filed for workers' compensation benefits relative to the April 7, 2010, incident. Conner's employment was terminated by Legacy in July 2010 when these matters came to light.

The ALJ issued an opinion and order on August 6, 2013, dismissing the case in its entirety pursuant to KRS 342.165(2). Specifically, the ALJ found:

The persuasive proof is that [Conner] knowingly and willfully made a false representation as to his physical condition and medical history when applying for work with [Legacy]. Despite his knowing of his prior low-back injury, his low-back surgery, his permanent lifting restrictions, and that the work he was applying for required lifting far in excess of his lifting restrictions, he declined to indicate such when he was asked in the written application if there was "any reason you might be unable to perform the functions of the job for which you have applied . . ."

The ALJ also found persuasive the testimony of Aaron and Todd Hopper indicating Legacy would not have hired Conner for the garbage truck driver position had it been made aware of Conner's prior history of a work-related low back injury, lumbar surgery, and permanent work restrictions. The ALJ determined Conner's failure to disclose his prior medical history and permanent work restrictions was a substantial factor in Legacy's hiring of Conner as a garbage truck driver.

Finally, the ALJ found the independent medical examination (IME) report of Dr. Frank Burke persuasive in establishing a medical causal connection between Conner's prior work-related low back injury at the City of Cynthiana and subsequent work-related low back injury at Legacy. In particular, the ALJ noted Dr. Burke's opinion that, though Conner's subsequent low back injury occurred at a different level than the original, he was nevertheless "at higher risk of injuring his back because the scarification and so forth in there."

After his petition for reconsideration was denied by the ALJ, Conner appealed to the Board. In affirming the ALJ's opinion and award rendered August 6, 2013, and the order denying the petition for reconsideration rendered August 20, 2013, the Board held:

The ALJ performed the appropriate analysis pursuant to KRS 342.165(2) and provided sufficient explanation regarding each requirement.
The Board agreed Conner's testimony established he "knowingly and willfully made a false representation as to his physical condition and medical history when applying for work with Legacy." Citing McCloud v. Beth-Elkhorn Corp., 514 S.W.2d 46 (Ky. 1974), the Board held:
We find the medical records stemming from the undisputed 2005 work-related low back injury, and Conner's testimony constitute the requisite substantial evidence supporting the ALJ's factual determination. We acknowledge Conner is able to point to other parts of his testimony and the fact he worked with no issues for several years in support of his assertion he believed he was able to perform the job functions for which he was hired. However, the ability to point to conflicting evidence is not adequate for reversal on appeal.
The Board further held:
[W]e also specifically find Dr. Burke's . . . testimony constitutes substantial evidence supporting the ALJ's finding of a causal connection between the false representation and the low back injury for which Conner's (sic) now seeks compensation.
Although not appealed by Conner, the Board further affirmed the ALJ's finding of a causal connection between Conner's deception and his subsequent work-related low back injury while employed by Legacy, holding Dr. Burke's medical opinions provided sufficient substantive medical evidence of such a causal link. This petition for review followed.

STANDARD OF REVIEW

The ALJ, as fact-finder, has sole authority to determine the weight, credibility, substance, and inferences to be drawn from the evidence. Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418, 419 (Ky. 1985). When conflicting evidence is presented, the ALJ may choose whom and what to believe. Pruitt v. Bugg Brothers, 547 S.W.2d 123, 124 (Ky. 1977). The Board is charged with deciding whether the ALJ's finding "is so unreasonable under the evidence that it must be viewed as erroneous as a matter of law." KRS 342.285; Ira A. Watson Department Store v. Hamilton, 34 S.W.3d 48, 52 (Ky. 2000). On review, the function of this Court is to correct the Board only where the Court perceives the Board has overlooked or misconstrued controlling statutes or precedent, or has committed an error in assessing the evidence so flagrant as to cause gross injustice. See Western Baptist Hospital v. Kelly, 827 S.W.2d 685, 687 (Ky. 1992).

ANALYSIS

KRS 342.165(2) prevents an injured worker who has misrepresented his physical condition to the employer in the process of obtaining employment from receiving benefits for a later work-related injury causally related to the misrepresentation. Baptist Hospital East. v. Possanza, 298 S.W.3d 459, 462 (Ky. 2009). To garner the protection of KRS 342.165(2), an employer must establish by substantial evidence each of the statute's three elements—the employee knowingly and willfully made a false representation of his physical condition or medical history, the employer substantially relied upon the false representation in hiring the employee, and the existence of a causal connection between the false representation and the injury for which compensation is claimed. Id.

On appeal, Conner challenges only the ALJ's finding relative to the first element of Legacy's affirmative defense. Specifically, in regard to KRS 342.165(2)(a), Conner argues the ALJ erred in finding he made a false representation of his physical and medical history. The issue arises relative to his negative response to the question, "Is there any reason you might be unable to perform the functions of the job for which you have applied [as described in the attached job description]?" Conner asserts this question did not specifically ask about his physical condition or medical history, but was "so open-ended that it was impossible" to believe it pertained to his medical history. We disagree.

The ALJ found Legacy relied on Conner's misrepresentation and would not have hired him if apprised of the prior work-related low back injury, lumbar surgery, and permanent work restrictions, and further found Dr. Burke's opinion established a causal connection between Conner's false representation and his injury, thereby satisfying the factors set forth in KRS 342.165(2)(b) and (c). These findings are unchallenged on appeal.
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While the question asking whether "any reason" existed which would render Conner unable to perform his duties as a garbage truck driver is open-ended, we do not agree it was "impossible" for Conner to believe the question pertained to his medical history and physical capabilities. Rather, we hold the opposite to be true—any reasonable person should have understood Legacy's broad inquiry to include reference to any medical condition or physical restrictions impacting one's ability to perform the known duties of a garbage truck driver. Nothing in the inclusive wording of Legacy's question suggests these obviously pertinent facts were excluded from disclosure. With full knowledge that the physical requirements demanded of a Legacy garbage truck driver exceeded his longstanding, permanent work restrictions, Conner untruthfully answered "No." Thus, we hold the ALJ acted within sound discretion in finding Conner's undisclosed prior work-related low back injury, lumbar surgery, and permanent work restrictions to have been required under Legacy's "any reason" inquiry. As was the case in Possanza, supra, a "false representation" under KRS 342.165(2) may include a failure to disclose pertinent requested information.

In attempting to distinguish prior decisions upholding the denial of benefits pursuant to KRS 342.165(2)—including Guthermuth v. Excel, 43 S.W.3d 270 (Ky. 2001); Divita v. Hoppel Plastics, 858 S.W.2d 214 (Ky. App. 1993); and Honaker v. Duro Bag Mfg. Co., 851 S.W.2d 41 (Ky. 1993)—Conner asserts:

All three of these cases involved written misrepresentations of a claimant's specific work history. Unlike those cases, there is not a written misrepresentation as to Mr.
Conner's physical condition anywhere in the employment application that he made to [Legacy] because [Legacy] never asked him about his physical condition or medical history.
We disagree. Conner wrote "No" on his executed application when asked if there were "any reason" he might be unable to perform the job for which he was applying. Conner's response represented a written misrepresentation concealing his prior medical history and permanent work restrictions. Thus, the Board correctly held the ALJ did not err in finding Conner knowingly and willfully made a written false representation as to his physical condition or medical history.

Conner also alleges the ALJ's decision should be vacated because "there is good public policy" in prohibiting employers from asking questions about a physical condition until after a job has been offered. Although he mentions the Americans with Disability Act, Conner fails to cite to a specific provision he believes conflicts with KRS 342.165(2). Moreover, enunciation of public policy has been held to be the domain of the General Assembly, and any desired change in KRS 342.165(2) must originate there rather than the Judiciary. Sluder v. Marple, 134 S.W.3d 15, 17 (Ky. 2003).

Lastly, Conner suggests it is unreasonable for employers to rely upon the written responses of applicants to determine capability of performing the physical requirements of particular positions, rather than sending applicants for pre-employment physicals for such determinations. He claims "to deny [Conner] benefits based upon a question posed in this employment application presents a tremendous injustice to not only [Conner], but to any other perspective employee who attempts to fill out employment applications like the one presented in this case." Conner asserts Legacy could have sent him for a pre-employment physical, but was somehow remiss in not doing so, choosing instead to rely upon his written word. However, whether Legacy could have required Conner to submit to a pre-employment physical is irrelevant under KRS 342.165(2), as the statute imposes no such requirement on an employer. As such, we find no error.

We conclude that the ALJ made all of the findings required by KRS 342.165(2). Although Conner may point to evidence which might permit different findings, he has failed to demonstrate that any of the ALJ's findings were so unreasonable as to be viewed as erroneous as a matter of law. KRS 342.285; Hamilton, 34 S.W.3d at 52. Likewise, Conner has failed to demonstrate the ALJ misapplied KRS 342.165(2) when deciding to dismiss the claim.

For the foregoing reasons, the opinion and order of the Board is affirmed.

ALL CONCUR. BRIEF FOR APPELLANT: Timothy J. Wilson
Lexington, Kentucky
BRIEF FOR APPELLEE: No brief filed.


Summaries of

Conner v. Legacy Carting, LLC

Commonwealth of Kentucky Court of Appeals
Jan 9, 2015
NO. 2013-CA-002108-WC (Ky. Ct. App. Jan. 9, 2015)
Case details for

Conner v. Legacy Carting, LLC

Case Details

Full title:LEROY CONNER APPELLANT v. LEGACY CARTING, LLC; HON. OTTO DANIEL WOLFF, IV…

Court:Commonwealth of Kentucky Court of Appeals

Date published: Jan 9, 2015

Citations

NO. 2013-CA-002108-WC (Ky. Ct. App. Jan. 9, 2015)