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FERGUSON v. R.F. MOORE CONSTR. CO.6/5/1989
Heard April 18, 1989.
Decided June 5, 1989.
This is a workers' compensation case in which the single Commissioner awarded the claimant, Robert L. Ferguson, temporary disability and continuing medical care; the single Commissioner's order was affirmed by the full Commission and the order of the full Commission was affirmed by the appealed order of the Court of Common Pleas. We affirm.
FACTS
Prior to working with R.F. Moore Construction Company (the employer), the claimant was employed in construction work in the State of Nevada. The claimant admittedly injured his back while performing such work and was awarded 11 percent partial disability to his back from the State of Nevada. The claimant was released from the doctor's care in October 1985, and returned to work. He moved to Greenville in January 1986. He applied for a job with the employer; he did not fill out a written employment application and was not asked any questions about his health or physical condition; however, on vigorous and unrestricted cross-examination the claimant admitted that he told the employer that he was strong, a good laborer, and could operate a jackhammer.
The claimant suffered a back injury on June 5, 1986, allegedly while attempting to lift the front end of a tamper weighing approximately 125 to 150 pounds. There is evidence of record that the claimant told his foreman the next day about his injury. The claimant went to Dr. Robert G. Schwartz who referred him to Dr. Stephen Gardner, a neurosurgeon of Greenville, South Carolina, to determine if surgical intervention would be required. On August 20, 1986, Dr. Gardner performed a hemilaminectomy with excision of scar tissue with foraminotomy. Dr. Schwartz provided post-surgery medical attention with the exception of one visit to Dr. Gardner on September 23, 1986.
As a result of a criminal charge against him, the claimant was convicted and sent to prison on October 24, 1986. During his incarceration, he continued to receive medical care and treatment for his back and leg. He was still incarcerated at the time of the hearing in Greenville, South Carolina, on January 21, 1987.
The claimant filed a Form 50 by August 11, 1986, in which he alleged injury to his back and leg as a result of an
We summarily hold that there is substantial evidence of record which supports the findings of the Commission and the holdings of the appealed order that (1) the claimant suffered an injury by accident arising out of and in the course of his employment, (2) the claimant effectively notified the employer within 90 days of his injury and (3) the claimant had not reached maximum medical healing.
Certain medical records from the Department of Corrections were introduced without objection by the claimant. We summarily hold that the question presented on appeal with reference to the admissibility of these records is without merit.
ISSUE
The employer's theory of defense is two-pronged; the employer contends (1) that the claimant had a duty to disclose his prior injury without being asked, and (2) that the claimant's telling the employer that he was a good laborer, had a strong back, and could operate a jackhammer amounted to an affirmative misrepresentation. The Commissioner rejected both of these theories which constitute the issues of merit of this appeal.
DISCUSSION
I.
In the case of Cooper v. McDevitt & Street Company, supra., the Supreme Court stated:
The issue here is whether the appellant is entitled to
recover workmen's compensation for his injury when he
The general r
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