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Methodist Nursing Home v. Travis2/23/2005
that if appellee had answered affirmatively on the post-offer questionnaire and revealed her prior medical problems regarding her back, including her protruding discs and the previous restrictions placed on her, she would have asked her for written proof that she was released from her doctor, and she would not have hired her without it. She further agreed that if an employee could not fulfill a job because of physical duty required, they might be able to work elsewhere in the nursing home.
In considering this issue, the Commission concluded that appellant failed to establish that appellee's claim for benefits was barred. The Commission noted that appellee told her initial interviewer that she had prior back problems but was not under any ongoing restrictions and had been released by her physician. Further, the Commission observed that appellee was hired and it was not until then that she filled out the questionnaire failing to set out her prior back problems. The Commission also noted Bittick's testimony that if appellee had correctly filled out the questionnaire she still would have been employed but perhaps in a different position.
Appellant argues on appeal that appellee was barred from seeking benefits because she failed to disclose to appellant that she had previously sustained some back injuries and was under a twenty-five pound lifting restriction as well as no repetitive bending, and further, appellant relied upon the false representation. Appellant states that appellee never presented evidence to either appellant or the ALJ to prove that she was released from her restrictions and that only appellee's "self-serving testimony" established that she was released from her lifting and bending restrictions. Appellant notes Bittick's testimony that she would have required a written release and that appellee would not have been hired without it.
We conclude that the Commission's decision was supported by substantial evidence. Appellee's testimony, which was credited by the Commission, demonstrates that appellee advised the interviewer for appellant of her previous back problems and restrictions, and appellant hired her. Appellant could not have relied on any alleged false representation appellee made in the questionnaire in making its decision to hire appellee when it knew through the interviewer that appellee had previous back problems and restrictions before appellee was hired and the alleged false representation was made after appellee was hired. Appellant's claim that Bittick would only have accepted a written release is irrelevant, as appellant was advised of appellee's previous restrictions and was hired. Thus, appellee's claim for benefits was not barred by Shippers Transport. Furthermore, while appellant also contends that appellee's claim for benefits was further barred by the doctrine of estoppel discussed in Thompson, we conclude that Thompson is inapposite, as in that case the employer was never apprised of the claimant's disability.
Affirmed.
Glover and Neal, JJ., agree.
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