Can a worker who failed to disclose a prior back injury collect workers’ compensation benefits after injuring his back while working for a new employer?
If the new injury can’t be medically proven to be related to the old injury, it is possible.
The South Carolina Court of Appeals issued a decision April 27, 2022, that reversed the state’s Workers’ Compensation Commission’s denial of a claim based on the worker’s failure to disclose a previous back injury to his new employer.
The appeals court found there was no evidence the worker’s prior injury complicated or in any way affected the new injury.
Nurse: Back pain is normal in this job
Isaac Brailey was hired April 17, 2017, by Michelin North America to work as a rubber stretcher for very large mining tires. Before being hired, he passed a physical and was cleared by the company for full duty.
Brailey’s back started bothering him not long after he began doing the physical labor at Michelin, but his supervisor and the company’s nurse told him it was normal to have back pain when stretching rubber.
On June 11, 2017, Brailey went to the emergency room for back pain and received a prescription for Flexeril to help with the pain. The ER doctor didn’t place any restrictions on him.
The back pain continued, so Brailey went to his family doctor on June 13, 2017, and again he received no restrictions on work. He didn’t notify Michelin about the ER or family doctor visits.
Trip to ER results in 3 days off work
On June 24, 2017, Brailey suffered sharp back pain while stretching rubber. He tried to see Michelin’s nurse but the office was closed, so he went to the ER and was prescribed multiple pain medications and restricted from work for three days.
While in the ER, Brailey called his supervisor and was told to see the Michelin nurse. Brailey told the supervisor the nurse’s office was closed and the supervisor told him to wait until Monday. The nurse eventually called Brailey and told him to relax, take Aleve and see Michelin’s doctor on Monday morning.
Michelin’s doctor told Brailey to take Ibuprofen and Flexeril and return to work on June 27, 2017, with no restrictions. The company doctor also told Brailey he shouldn’t follow up with a neurosurgeon. Brailey missed a follow-up appointment with the company doctor because he didn’t want to drive while taking the pain medication. He refused Michelin’s offer of transportation to the appointment.
Neurosurgeon finds lumbar spine problem
Brailey didn’t return to work at Michelin. He went back to the ER on June 27, 2017, because of continuing back pain and received an x-ray and a shot and was told to stay out of work for another three days.
The ER referred Brailey to a neurosurgeon, who ordered an MRI and physical therapy in July 2017. The neurosurgeon felt Brailey had injured his lumbar spine at work on June 24, 2017. In his notes, the neurosurgeon mentions that Brailey told him about a 25-year-old back injury he’d had with another employer that resolved without treatment.
Meanwhile, Brailey had filed a workers’ compensation claim which Michelin denied.
Commission says he committed fraud
In a hearing before the state’s Workers’ Compensation Commission, the neurosurgeon said, “I believe, based on his history and in his records, that (the injury) was related to his work at Michelin in the continuum with some event on about June 24 that made things worse.”
Brailey testified about his previous back injury, stating he’d had middle-back pain three weeks after starting work at Richtex Brick in 1997. He’d been placed under a no-heavy-lifting restriction until he saw a surgeon, but he never went to see the surgeon and instead settled a workers’ compensation claim with the company. Brailey left this job to work at Westinghouse, where he was employed for 16 years before being laid off. He suffered no back pain while working for Westinghouse.
During the hearing, Brailey admitted he didn’t list Richtex Brick as a previous employer and that he failed to mention the prior back injury. He also stated that the new injury was in a different area of his back.
The Workers’ Compensation Commission denied the claim, finding Brailey wasn’t credible and had committed fraud because of his failure to report his previous back injury to Michelin.
Prior injury not connected to new one
On appeal, Brailey argued that the commission erred in finding that he wasn’t credible and had committed fraud.
The appeals court agreed, stating that the 1997 injury was “not a reasonable and meaningful basis for the commission’s determination that he did not suffer an accidental injury arising out of his employment at Michelin in 2017.”
Why? Because there was no medical evidence on record connecting that injury to Brailey’s injury at Michelin. Further, the appeals court pointed out that he worked at Westinghouse for 16 years without a back injury.
Instead, all the medical evidence regarding the 2017 injury at Michelin, which consisted of an MRI and the medical opinion of a neurosurgeon, supported a reversal of the commission’s decision.