Opinion
CLAIM NO. E500330
OPINION FILED JUNE 5, 1997
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by ZAN DAVIS, Attorney at Law, Little Rock, Arkansas.
Respondents represented by WILLIAM C. FRYE and MARY A. JONES, Attorneys at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed.
OPINION AND ORDER
Claimant appeals an opinion of the Administrative Law Judge filed on April 5, 1996.
The Administrative Law Judge found that claimant proved by a preponderance of the evidence that he sustained a compensable injury. This finding is not an issue on appeal. However, the Administrative Law Judge found that the claim was barred, not specifically by the Shipper's defense, but as a matter of public policy because claimant misrepresented his physical condition.
Under the defense set forth by the court inShipper's Transport of Georgia v. Stepp, 265 Ark. 365, 578 S.W.2d 332 (1979), or as a general matter of public policy in light of the Americans with Disabilities Act, respondent has the burden of proving by a preponderance of the evidence that claimant knowingly and willfully made a false representation as to his physical condition; that the employer relied on this false representation in hiring or assigning claimant to particular job duties; and that there is a causal connection between the false representation and the injury. In the present case, we find that respondent has failed to prove reliance and causation. Therefore, this claim is not barred.
This case is unique because of the relationship between the employer, Your Employment Service, a temporary employment agency, and its business client, Tenenbaum. The Commission discussed this type of relationship in Michelle Hendrick v. TEC, Full Commission opinion filed March 5, 1991 ( D915956), affirmed on April 8, 1992 by the Arkansas Court of Appeals in an opinion not designated for publication. InHendrick, the business client was found liable for a penalty due to a safety violation and the temporary employment agency was found to be jointly liable for this penalty. The Commission stated:
Furthermore, we find that liability for the increased compensation was properly imposed upon TEC, the respondent-employer. Where an organization is in the business of providing temporary laborers to its clients, this employer is considered the laborers "general employer," and the business' clients are considered the laborers "special employer." Larson, Workmen's Compensation Law, § 48.23 (1990). Consequently, the employee is the employee of both the business which provides the temporary laborer and the business' client during the time that the employee is assigned to the client. Beaver v. Jacuzzi Brothers, Inc., 454 F.2d, 284 (8th Cir. 1972) (applying Arkansas Law). Moreover, in such situations where an employee is simultaneously employed by two employers and is injured while performing a duty for the common benefit of both employers, both employers are jointly liable for all workers' compensation benefits awarded to the claimant. Dillaha Fruit Company v. Tourrette, 262 Ark. 434, 557 S.W.2d 397 (1977); Williams Johnson v. National Youth Corps, 269 Ark. 649, 600 S.W.2d 27 (1980).
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Moreover, the workers' compensation law may be circumvented unless the laborer is deemed to be the employee of both the general employer and the special employer. Unless the special employer is deemed to be the laborer's employer, the special employer would not be protected by the exclusive remedy provisions of the workers' compensation law, so the special employer would be subject to a tort action for any injury sustained by the laborer while assigned to the special employer. See, Beaver, supra; Larson, supra. Likewise, a tort action could potentially be brought against the general employer if the laborer is deemed to be an employee only of the client. (Citation omitted).
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. . . Therefore, liability for the increase in compensation due to a safety violation may be imposed upon an employer even though one other than the specific employer actually held liable violated the safety regulation. . . . Holiday Inns of America v. Wilson, 253 Ark. 915, 489 S.W.2d 806 (1973).
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In reaching this conclusion, we are aware that the Arkansas Supreme Court has held that an employer cannot be assessed a penalty for a safety violation in the absence of knowledge from which it may be inferred that a violation of the statute was occurring. Roberts v. Smith Furniture Appliance Co., 263 Ark. 869, 567 S.W.2d 947 (1978). However, under the facts of the present case, an employer, the special employer, admittedly had knowledge of the violation, so under the plain language of the statute, the additional compensation must be awarded to claimant. (Original emphasis).
At the hearing, respondent objected to claimant testifying about his conversation with Roy Simmons, apparently the owner of Tenenbaum. The Administrative Law Judge never made a ruling on his proffer of evidence. However, since Tenenbaum is an employer, and thus, a party, this testimony does not amount to impermissible hearsay. Additionally, claimant testified as to this particular conversation at his deposition, well before the hearing, and counsel for respondent knew, or should have known, that this conversation would form a basis for claimant's attempt to defeat the defense asserted by respondent. Therefore, we find that there is no evidentiary problem with this testimony.
Even though claimant admittedly failed to disclose his prior back injuries sustained while lifting heavy tires, Roy Simmons thereafter knew of claimant's prior injuries and physical limitations and continued to allow claimant to perform the same job duties. Simmons merely refused to make claimant a permanent employee and agreed to allow him to continue to lift heavy tires while maintaining his status as a temporary employee. Claimant was injured approximately one month following this conversation. This negates any possibility of reliance by respondents. See, Roberts-McNault, Inc. v. Williams, 15 Ark. App. 240, 691 S.W.2d 887 (1985). This is no different than imputing knowledge of a safety violation to the general employer (temporary employment agency) as noted above. Here, the general employer should not be able to rely on claimant's misrepresentation of his physical condition when the special employer learns the truth and continues to allow claimant to perform the heavy lifting duties.
Further, the mere misrepresentation of a previous injury on a pre or post-employment application does not preclude benefits for a subsequent injury, unless the previous and subsequent injuries are causally related.Mosely v. Heim Brothers Packing Co., 271 Ark. 722, 610 S.W.2d 276 (Ark.App. 1981). Although a causal connection between the injury and the work can ordinarily be proven by evidence less convincing than a definite medical diagnosis, more convincing evidence is required in cases where theShipper's defense (or a similar one) is an issue. Smith v. Carrier Air Conditioning, 21 Ark. App. 162, 730 S.W.2d 509 (1987). Except in the most obvious cases, the causal connection between the previous and subsequent injuries must be established by expert medical testimony. Baldwin v. Club Products Co., 270 Ark. 155, 604 S.W.2d 568 (1980). Respondents have clearly failed to prove a causal connection between the previous and subsequent injuries.
The greater weight of the evidence indicates that claimant's injuries have been musculoskeletal in nature. Further, the injuries sustained prior to the present injury involved lower back and right lower extremity symptoms. The medical evidence indicates that the present injury involves symptoms in the lower back and left lower extremity. Dr. Valentine found that claimant had muscle spasms in the left quadratus lumbrum muscle, with referred pain into the lateral aspect of the left leg. This appears to be a muscle strain on the left side, clearly a different injury from the prior back conditions. Further, a close review of Dr. Valentine's testimony indicates that he could not opine that a causal connection exists. He merely stated that the causal connection was in the realm of possibilities. Dr. Valentine added that if claimant "has strained a different area of the musculature of the low back, then that's a different injury."
Therefore, we find that respondent has failed to prove that it relied on claimant's misrepresentation or that claimant's prior and present injuries were causally related. Thus, this claim is not barred.
Another issue is whether claimant is entitled to benefits for temporary total disability from November 11, 1994 to January 6, 1995. Temporary total disability is that period within the healing period in which claimant suffers a total incapacity to earn wages. Ark. State Highway Transportation Dept. v. Breashears, 272 Ark. 244 613 S.W.2d 392 (1981). The healing period ends when the underlying condition causing the disability has become stable and nothing further in the way of treatment will improve that condition. Mad Butcher, Inc. v. Parker, 4 Ark. 124, 628 S.W.2d 582 (1982). Claimant has met his burden of proof on this issue.
Dr. Valentine first saw claimant on November 11, 1994 and excused him from work. Dr. Valentine last saw claimant on December 13, noting muscle spasms. Dr. Valentine's plan included another four weeks of physical therapy followed by a functional capacity evaluation. Dr. Valentine testified that he would have excused claimant from work during this period of time, unless claimant specifically asked for a release to a particular job. Claimant admittedly returned to work on January 6, 1995. Based on this evidence, we find that claimant was within his healing period and totally incapacitated to earn wages during the relevant period of time.
For the foregoing reasons, we reverse the opinion of the Administrative Law Judge finding that this claim is barred because claimant misrepresented his physical condition. Additionally, we find that claimant has proven by a preponderance of the evidence that he is entitled to benefits for temporary total disability from November 11, 1994 to January 6, 1995. Respondents are directed to comply with the award set forth herein. All accrued benefits shall be paid in a lump sum without discount and with interest thereon at the lawful rate from the date of the opinion of the Administrative Law Judge. For prevailing on this appeal before the Commission, claimant's attorney is hereby awarded an additional attorney's fee in the amount of $250.00.
IT IS SO ORDERED.
DISSENTING OPINION
I respectfully dissent from the majority's opinion finding that this claim was not barred by the Shipper's defense or as a matter of public policy because the claimant misrepresented his physical condition. Based upon my de novo review, I would affirm the decision of the Administrative Law Judge.
The claimant has a 10th grade education and has worked on tires all of his life. The claimant was employed by the respondent as a temporary employee. It was the respondent's responsibility to hire, place, pay and carry insurance on the claimant. The claimant testified that he wanted to work for Tenenbaum, but was told the company only accepted employees through the temporary service. The claimant applied for work with the respondent and immediately started working at Tenenbaum before completing the respondent's personnel records.
The claimant testified that he previously had sustained back injuries while working for Purcell and Goodrich but he had not sought medical treatment since March of 1991. The claimant had a 5% permanent impairment rating from Dr. John Wilson as a result of those injuries. Dr. Wilson's reports from 1990 indicated a back strain with right hip pain. An MRI showed that the claimant was normal with mild degenerative disc disease at L5-S1. In 1991, Dr. Wilson noted that the claimant had low back and left leg pain. A repeat MRI disclosed a disc bulge at L5-S1, but no evidence of nerve root impingement. The claimant stated that his back condition did not require him to take medication or miss work although he had occasional pain and that he did not seek medical attention again until October 17, 1994.
The claimant testified that he hurt his back in October of 1994 when he picked up a tire to load on a truck. He indicated that the pain was on the left side of his lower back running down into his left leg. The claimant sought medical treatment from Dr. Cynthia Almond on October 17, 1994. Dr. Almond treated the claimant for approximately two months then referred him to Dr. Robert Valentine. The claimant has not seen Dr. Valentine since December 13, 1994, because he could not pay for his treatment. The claimant asserted that he also had to quit physical therapy because the therapist did not want to work on him anymore because he would not pay the bills. The claimant returned to work on January 6, 1995, testing lumber at Greenfield Mills. The claimant testified that he continues to have trouble with his back on the left side, but his right side did not bother him.
The claimant admitted that he did not tell the respondent that he had prior back problems. The claimant testified that he did, however, discuss these problems with Roy Simmons (an employee of Tenenbaum) after he completed an application for a permanent position at Tenenbaum. The claimant testified that Mr. Simmons informed the claimant that he could not give the claimant a permanent job but that the claimant could continue working temporary. The majority maintains that because Mr. Simmons had knowledge of the claimant's prior back problems, this negates any possibility of reliance by the respondent. I cannot agree with this reasoning. In my opinion, the claimant's testimony with respect to what Mr. Simmons told him is inadmissible hearsay. Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing offered in evidence to prove the truth of the matter asserted. The claimant testified as to what Mr. Simmons told him. The respondents did not have an opportunity to cross-examine Mr. Simmons to determine if this is indeed what he told the claimant. Therefore, this testimony cannot be used by the claimant to support his claim for compensation. There are numerous exceptions to the hearsay exclusion, but this testimony does not fall into one of the recognized exceptions. Therefore, in my opinion, this testimony is clearly hearsay.
The majority also states that because Tenenbaum is an employer it is a party to this proceeding and therefore this testimony is not impermissible hearsay. No claim has been filed against Tenenbaum; it has not appeared in this action, and is not represented by counsel. Tenenbaum's possible liability as a "special employer" does not make its employee's hearsay statement admissible in evidence in this case. Tenenbaum is not a party to this proceeding.
The majority also cites the case of Roberts-McNutt, Inc. v. Williams, 15 Ark. App. 240, 691 S.W.2d 887 (1985) in support of its finding that the respondents cannot maintain that they relied on the claimants misrepresentations when they hired the claimant. TheWilliams case is distinguishable from the facts in this case. In Williams, the respondent knew of the claimant's prior back injury before the claimant was hired. In the facts of this case, neither the respondent nor Tenenbaum were aware of the claimant's prior back injury before he was hired.
The claimant admitted that it is his practice not to disclose his back condition on employment applications because of the possibility that he will not be hired. He testified that his job mounting tires required him to lift tires weighing 150-175 pounds. This exceeds the recommendation of Dr. Wilson. In a report dated February 8, 1991, Dr. Wilson instructed the claimant to do "lighter work." The claimant also stated that each time he returned to tire work his back problems would flare up.
Stephanie Fuller, personnel coordinator and office manager for the respondent, testified that she interviews applicants and makes job assignments. She testified that the claimant did not disclose his prior back injuries or the fact that he had received disability compensation. Ms. Fuller makes job placement based upon the applicants' skills and physical limitations. She testified that the applicant is hired or considered an employee before their health history is disclosed. However, she stated that the health history is relied upon in making the appropriate job placements.
The health history form itself has an explanatory paragraph which states: "The information you provide about your medical history is necessary to assess proper job assignment to avoid injury to yourself or to others." The health history form goes on to say "By signing this Personnel Record, I understand and agree that the preceding information will be used to determine my physical qualifications for proper job assignment. I certify that my answers to the medical questionnaire are complete and true . . ." In response to the questions regarding any back injuries or weak back, the claimant answered no. In addition, he did not answer the section dealing with occupational injury and disease. He merely put N/A (not applicable) in one section. Furthermore, he answered the question "Have you ever been advised by a medical professional to avoid or to limit any physical activity?" in the negative. He also indicated that he could lift 50 to 100 pounds for 8 hours.
With the enactment of the Americans With Disabilities Act, an employer may no longer ask theprospective employee about health problems before hiring without risking a charge of discrimination. Therefore, the traditional Shippers defense is no longer available to employers. In the Shippers case, the Arkansas Supreme Court recognized that public policy places an obligation on an employee to give truthful answers to a prospective employer's questions about his pre-employment health condition. The Court held that a false representation on an employment application will bar recovery under our Workers' Compensation Act if the following are proven by the employer:
(1) the employee must have knowingly and willingly made a false representation as to his physical condition;
(2) the employer must have relied upon the false representation and this reliance must have been a substantial factor in the hiring; and
(3) there must have been a causal connection between the false representation and the injury.
An employer had to prove each element of theShippers defense by a preponderance of the evidence before recovery was barred under the Act. Tahutini v. Tastybird Foods, 18 Ark. App. 82, 711 S.W.2d 173 (1986). The emphasis of the Shippers case was on the fact that the claimant misrepresented his health condition on a pre-employment application, that the employer relied on this misrepresentation in hiring the claimant and that there was a connection between the misrepresentation and the injury. Since the enactment of the ADA, an employee can no longer ask a prospective employee about health problems. In my opinion, the enactment of the ADA has necessarily modified the Shipper's defense to apply to post-hire questionnaires.
The purpose of the ADA is to put disabled individuals that meet the qualifications for a particular position on a level playing field with qualified individuals who are not disabled. The ADA's purpose is not to help those individuals that are untruthful concerning their disability. In this case, the claimant admitted that he lied about his previous back injuries. He also testified that he intentionally does not answer questions about his condition because he is afraid he will not get the job. The claimant was aware that because of his prior back injuries, that working with tires was too strenuous for him. He stated that each time he had gone back to doing tire work, he would hurt his back. In addition, by doing tire work, the claimant blatantly disregarded his doctor's restrictions placed upon him. It is evident that the claimant allowed the temporary agency to place him in a position where re-injury was imminent. I find the claimant's testimony lacks credibility because he admitted that he intentionally misrepresented his health condition. It is the function of the Commission to determine the credibility of the witnesses and the weight to be given their testimony. Grimes v. North American Foundry, 42 Ark. App. 137, 856 S.W.2d 309 (1993).
The evidence shows that the claimant would have been given employment elsewhere had he been truthful with the respondents on the health questionnaire. Ms. Fuller testified as follows:
Q: Ms. Fuller, if Mr. Garrett had marked (on the health questionnaire) that he had a weak back and that he had received disability compensation in the past, that he had prior workers' compensation claims, or more importantly, that he had been advised to limit his activities and not go back to tire work, what would you have done and what was you all's procedure?
A: I would have discussed with him alternatives on job options. If he wanted tire work, I would have discussed with him other jobs that would have been better in his field, better able for him to handle.
Q: Would you have sent him out to the job at Tenenbaum where he was required to do heavy lifting and tire work?
A: No, sir.
Q: Okay. And why is that?
A: Because if he had been told by a doctor not to do that kind of work, I wasn't going to send him out there to do that kind of work.
Q: Were you afraid that he might re-injure himself?
A: Yes, sir.
Q: And that's the purpose of this questionnaire . . .
A: Yes, sir.
Q: *** is to determine what they can do. Correct?
A: Yes, sir.
Ms. Fuller explained that the purpose of the health questionnaire is to make a determination as to what an employee can do. She stated that she relies on the answers to this questionnaire to make job assignments and had the claimant been more honest about his physical restrictions, she would have assigned him a job which fit within those restrictions. She stated that there were other jobs available that would fit within the claimant's restrictions.
The health questionnaire containing the misrepresentations as to the claimant's physical condition was completed after the claimant was hired by the respondent. Therefore, there was not an ADA violation. This questionnaire contained the information that was used to determine job placement for the claimant. It is clear that, had the claimant been truthful on the health questionnaire, he did not meet the qualifications of the job because he was restricted from lifting the amount of weight that was required by tire work. However, even if the claimant had met the qualifications, there were no reasonable accommodations that Tenenbaum could make that would have allowed him to perform the duties associated with the position that would not place an undue hardship on Tenenbaum.
There is also a safety issue involved as well. The claimant clearly posed a safety threat to other individuals in the workplace. It was unsafe for him to be lifting tires that weigh approximately 150-200 pounds. He was specifically restricted by Dr. Wilson from lifting that much weight; he could have caused an accident injuring another individual.
Based upon my de novo review, I find that the claimant failed to prove by a preponderance of the evidence that he sustained a compensable injury. The claimant was fully apprised of the fact that the answers to the health questionnaire would be used in placing him in a job. Injury could have been avoided if he had been truthful in answering the health questionnaire. The evidence is clear that he would have been placed in a different position if the respondent had been fully apprised of the claimant's condition and restrictions. Therefore, I respectfully dissent from the majority opinion.
MIKE WILSON, Commissioner