/opinions/HTMLFiles/SC/25710.htm

THE STATE OF SOUTH CAROLINA
In The Supreme Court

---

Sandra Jones,        Appellant,

v.

Georgia-Pacific Corporation, Self-Insured Employer,        Respondent.

---

Appeal From Spartanburg County
John C. Hayes, III, Circuit Court Judge

---

Opinion No. 25710
Heard April 23, 2003 - Filed August 25, 2003

---

AFFIRMED

---

Albert V. Smith, of Albert V. Smith, P.A., of Spartanburg, for Appellant.

Grady L. Beard, and Marcy J. Lamar, of Sowell Gray Stepp & Laffitte, L.L.C., both of Columbia, for Respondent.

---

CHIEF JUSTICE TOAL: Sandra Jones (Claimant) appeals the affirmance of the Worker's Compensation Commission's (Commission) finding that she was not entitled to benefits because she committed fraud in filling out her employment application.

Factual/Procedural Background

Claimant applied for a job at Georgia Pacific (Respondent) in 1991. The application requested that Claimant respond to the following question: Do you have any physical or mental disability which would interfere with or impair your ability to perform the job(s) for which you have applied? Claimant checked the No box on the application. Claimant had to fill out a health history form as a part of her pre-employment physical exam, on which she was asked to check off whether or not she had various prior medical conditions. Claimant failed to disclose that she had had back trouble, leg pain and Bursitis on the health history form. [1] In her testimony before the Hearing Commissioner, Claimant admitted to lying on the application and health history form.

Claimant received a job offer from Respondent and began working as a General Laborer. While working for Respondent over the ensuing six years, Claimant repeatedly returned to her doctor, Dr. Poole, due to nagging back and leg pain. Then, on August 7, 1997, Claimant was picking up large pieces of cardboard and felt something pop in her back. She complained of the pain to her superiors, and they sent her to the Respondents doctor, Dr. Hodge, who determined that nothing major was wrong with Claimants back. [2] Claimant sought help from Dr. Poole and three other doctors over the next two years, had two back surgeries, and finally had to stop working in 1999.

Claimant filed a claim seeking benefits under the South Carolina Workers Compensation Act, S.C. Code Ann. 42-1-10 et seq., stemming from her August 7, 1997, back injury. Commissioner Catoe agreed with Claimant that she suffered an accidental injury on August 7, 1997, and that her continued back problems and eventual surgery resulted from the injury. The Commissioner determined that Respondent should pay all of Claimants post August 7, 1997, medical bills and ordered that Respondent pay Claimant a weekly temporary total disability payment of $321.12.

Respondent appealed the decision, and the full Commission reversed, finding that the Claimant did not establish that her back problems were directly and causally related to the August 7, 1997, incident and that, regardless, her claim was barred by this Courts holding in Cooper v. McDevitt & Street Co., 260 S.C. 463, 196 S.E.2d 833 (1973) because she committed fraud in filling out her application for employment.

The Circuit Court affirmed the Commissions holding, and Claimant appeals the court decision raising the following issues on appeal:

1. Did the Circuit Court correctly determine that the Commission did not err in finding that Claimants back problems did not directly and causally relate to her accidental injury on August 7, 1997?
   

2. Did the Circuit Court err in affirming the Commissions finding that Claimants claim for Workers Compensation is barred because she committed fraud in filling out her employment application?
   

3. Did the Circuit Court err in finding that the Commissions decision in Oglesby v. Manpower of Seneca, S.C. Workers Compensation file number 9643449/9714003 (September 25, 2000), was not controlling?

Standard of Review

This Court will not overturn a decision by the Commission unless the determination is unsupported by substantial evidence. Lark v. Bi-Lo, Inc., 276 S.C. 130, 276 S.E.2d 304 (1981). Substantial evidence is evidence which, considering the record as a whole, would allow reasonable minds to reach the conclusion that the administrative agency reached to justify its action. Howell v. Pacific Columbia Mills, 291 S.C. 469, 354 S.E.2d 384 (1987).

Law/Analysis

I. Injury

Claimant asserts that the Commission erred in determining that her existing back problems are not directly and causally related to her August 7, 1997, injury. We disagree.

Claimant saw many doctors after her accident on August 7, 1997, and there is conflicting testimony as to whether the doctors believed that the accident caused Claimants subsequent back problems. Claimant saw Dr. Mitchell shortly after the accident. Dr. Mitchell prescribed physical therapy for Claimant, which seemed to suppress some of the pain. Dr. Mitchell opined that Claimant had significant back problems prior to the accident.

Dr. Poole referred the Claimant to Dr. Robert E. Flandry in March 1999. Dr. Flandry was unaware of Claimants long history of back problems, yet he also opined that she had back problems prior to the 1997 accident. Claimants regular doctor, Dr. Poole, testified that Claimant had a history of back problems, but also stated that Claimant had a major problem as of August 8, 1997.

Dr. Flandry referred Claimant to Dr. Robert Stephen Harley, who performed surgery on Claimant in June 1999. Harley testified that he believed that the August 7, 1997, incident caused Claimants resulting back problems:

I feel that the straw that broke the camels back was when she lifted those heavy pieces of cardboard when she was on the job in September of 1997 as she describes. I think indeed she may have had some aches and pains in her back before but that indeed it was the last straw that broke the camels back that caused her to have this aggravation of her problems.

While the doctors testimony is inconsistent as to whether the August 7, 1997, injury triggered Claimants subsequent back problems, we find there was substantial evidence presented upon which the Commission could conclude that Claimants injuries were not directly and causally related to the August 7, 1997, accident. Our standard of review does not permit us to weigh the evidence and make our own determination. We are bound to uphold the Commissions decision unless its factual determination is not supported by substantial evidence. Howell, 291 S.C. 469, 354 S.E.2d 384: see also S.C. Code Ann. 1-23-386(A)(6) (Supp. 2002) ("the court shall not substitute its judgment for that of the agency as to the weight of evidence on the questions of fact.")

II.               Fraud in the Employment Application

Claimant argues that the Commission erred in holding that her claim for benefits was barred since she committed fraud in filling out her employment application. We disagree.

Claimant testified that she lied when she filled out the employment application when she failed to disclose that she had prior back problems. According to this Courts decision in Cooper, a Claimants claim for Workers Compensation benefits will be barred if the following factors are proven: (1) The employee must have knowingly and willfully 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. (3) There must have been a causal connection between the false representation and the injury. 260 S.C. at 468, 196 S.E.2d at 835 (citation omitted).

The Respondent put forth substantial evidence that satisfied the three prongs of this test. First, Claimant testified that she lied on the application and health history form when she failed to disclose her history of back and leg problems. She testified that she was afraid that she would not get the job with Respondent if she responded truthfully on the forms. Second, Respondents Human Resource Manager, Philip Stilwell (Stilwell), testified that the fact that Claimant had prior physical ailments would not have barred her from working for Respondent. [3] Rather, Respondent would have attempted to find a job for Claimant that would not subject a pre-existing physical impairment to further deterioration. Stilwell also testified that Respondent relies on the answers given by applicants on the employment application and considers them as a substantial factor in hiring the applicants. Finally, there is a causal connection between Claimants injuries and the false representation as she had documented back problems prior to employment and claims that she injured her back while working for Respondent.

We hold that the Respondent presented substantial evidence that that the three prongs of the Cooper test were satisfied.

III. The Oglesby Decision

Claimant argues that the Commissions prior decision in Ogelsby is controlling. We disagree.

Ogelsby was decided the day before the Comission made its decision in this matter. In Ogelsby, the same panel members involved in this case determined that the Cooper decision had been overruled by the Americans with Disabilities Act (ADA), 42 U.S.C. 12101, et seq. (2000). Claimant alleges that the Commissions conclusion in the present case was arbitrary and capricious given the prior holding in Ogelsby, and that this Court should reverse the decision based on a provision of the Administrative Procedures Act, S.C. Code Ann. 1-23-380(A)(6)(f) (Supp. 2002). [4]

In our opinion, the ADA does not trump the Cooper determination of when fraud in the application process bars the applicants attempt to collect Workers Compensation benefits. The ADA permits employers to make preemployment inquiries into the ability of an applicant to perform job-related functions. 42 U.S.C. 1211(d)(2)(B). The section mentioned above authorizes the Respondents question on its employment application regarding the existence of a physical or mental impairment. Further, the ADA does not have a section that provides protection to an applicant who commits fraud in the application process.

We find that the Commission was neither arbitrary nor capricious in concluding that the three Cooper factors were met because there was substantial evidence presented to support that determination.

Conclusion

For the reasons set forth above, we AFFIRM the Circuit Courts determination that the Commission did not err in concluding that Claimants claim for benefits was barred.

MOORE, WALLER, BURNETT and PLEICONES, JJ., concur.

---