THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Lawrence Brayboy, Employee, Respondent,

v.

WorkForce, Employer and American Home Assurance, Carrier, Defendants,

Of Whom WorkForce, Employer, is the Appellant.

Appeal From Charleston County
 R. Markley Dennis, Jr., Circuit Court Judge

Unpublished Opinion No. 2008-UP-199
Heard February 5, 2008 – Filed March 20, 2008

REVERSED

Kirsten Leslie Barr, of Mount Pleasant, for Appellant.

John S. Nichols, of Columbia and Matt Jackson, of North Charleston, for Respondent.

PER CURIAM:  WorkForce appeals the circuit court’s decision affirming the Appellate Panel of the Workers’ Compensation Commission’s order awarding benefits to Lawrence Brayboy.  We reverse.

FACTS

In 1970, Brayboy joined the Navy and worked as a deck hand.  While onboard a naval ship, Brayboy fell, slid on the deck, and hit a rail.  Following the fall, Brayboy’s back was sore for a few weeks.  Doctors took an x-ray and prescribed acetaminophen.  Brayboy received no other treatment.  Subsequently, Navy doctors diagnosed Brayboy as having a missing piece of bone, which Brayboy described as a birth deformity.  As a result of this accident, Brayboy received approximately $85 a month in benefits for thirty years to date.

In 1996, Brayboy was involved in a work-related accident while employed by McCrory Construction (McCrory).  While Brayboy was in a thirty to forty foot hole, the sides collapsed.  As a result of this accident, Brayboy injured his middle to lower back and right ankle.   After filing a claim for benefits under the South Carolina Worker’s Compensation Act (the Act), Brayboy received approximately $8,500 to $8,700 as a settlement.  Further, Brayboy received a five percent impairment rating for both his back and his ankle.  Brayboy testified his claim with McCrory was the only workers’ compensation claim he had ever filed.

Following his employment with the Navy and McCrory, WorkForce hired Brayboy.  As part of the pre-employment process, WorkForce required Brayboy to fill out an application.  In the application, Brayboy answered questions regarding his medical history, whether he previously filed for workers’ compensation claims, and whether he had any current disabilities.  In answering these questions, Brayboy represented he had never been treated for any disease or condition.  During the application process, Brayboy also signed the following statement:

If I do not give accurate and truthful information in this Medical History Questionnaire, which forms the second and final part of my employment agreement, the entire employment shall be considered null and void.

MISREPRESENTATIONS AS TO PREEXISTING PHYSICAL OR MENTAL CONDITIONS MAY CAUSE FORFEITURE OF YOUR WORKERS’ COMPENSATION BENEFITS.

On April 18, 2003, while at work, Brayboy was injured while pulling up a chain-link fence.  Brayboy believed he had pulled a major muscle in his lower back.  After informing his supervisor, Brayboy sought medical treatment.  As a result of this accident, Brayboy has impaired mobility and walks with a crutch.  He experiences pain in his legs and lower back, and he takes medication for the pain.

Brayboy notified his employer and timely filed a workers’ compensation claim.  Brayboy’s misrepresentations in his job application became the basis for WorkForce’s denial of his entitlement to compensation.  Specifically, WorkForce argued Brayboy’s misleading answers in its pre-employment questionnaire vitiated the parties’ employment relationship and precluded Brayboy from receiving benefits under the Act.  The single commissioner presided over a hearing and concluded Brayboy was a WorkForce employee when he sustained his back injury.  WorkForce appealed the single commissioner’s findings to the Appellate Panel which affirmed the order of the single commissioner.   Thereafter, WorkForce appealed the order of the Appellate Panel to the circuit court, which affirmed the Appellate Panel’s order.  This appeal followed. 

STANDARD OF REVIEW

“The employee relationship is a jurisdictional issue for the purposes of workers’ compensation benefits and thus, our review is governed by the preponderance of the evidence standard.”  Vines v. Champion Bldg. Products, 315 S.C. 13, 16, 431 S.E.2d 585, 586 (1993).

LAW/ANALYSIS

The sole issue presented on appeal is whether the circuit court erred as a matter of law in summarily concluding Brayboy was a WorkForce employee. For the reasons set forth below, we find Brayboy’s misrepresentations vitiated the parties’ employment relationship and precluded Brayboy from receiving benefits under the Act.  Accordingly, we reverse.

In Cooper v. McDevitt & Street Co., 260 S.C. 463, 468, 196 S.E.2d 833, 835 (1973), the Supreme Court of South Carolina adopted a three-part test for determining when a false statement in an employment application will bar benefits.  This test, as explained in Givens v. Steel Structures, Inc., provides the employment relationship will:

be vitiated where false statements were made on a job application in the presence of three factors: (1) knowing and wilful nature of the false representation as to physical condition; (2) reliance by the employer upon the false representation as a substantial factor in the hiring; (3) causal connection between the false representation and the injury. 

279 S.C. 12, 13-14, 301 S.E.2d 545, 546-7 (1983).  We note the test in Cooper is an “and” test, meaning an employer must prove all three of its factors before an employee is barred from receiving workers’ compensation benefits.  Therefore, if an employer fails to prove any of these factors, a claimant will still be considered an employee under the Act.  See Vines, 315 S.C. at 16, 431 S.E.2d at 586 (“All factors must be present for the employer to avoid paying benefits.”). 

1)  Knowing and Willful False Representation of a Physical Condition

Under the first prong of Cooper, not only must an employee have made a misrepresentation of a physical condition on an employment application, this falsity must be known and the misrepresentation must have been willfully made. 

Undoubtedly, Brayboy made numerous misrepresentations on his employment application.  Specifically, Brayboy checked “no” in the section of the application questioning whether he had ever been treated for foot injuries, spinal injuries, or backaches.  Additionally, Brayboy indicated he had not experienced “[o]ne or more back injuries or a disease process of the back resulting in a disability.”  Brayboy also denied ever filing a workers’ compensation claim.  However, the record shows Brayboy had experienced an injury while working for the Navy, for which he has received thirty years of benefits.  Brayboy was also involved in a work-related accident while employed with McCrory.  As a result of this accident, he sought recovery under the Act and received a settlement of approximately $8,500 to $8,700 and a five percent impairment rating for both his back and his ankle. 

Given the record before us, we are convinced that Brayboy knew the falsity of his statements and willfully made the misrepresentations.   

2.  Employer’s Reliance Upon the False Representation as a Substantial Factor in Hiring

Under the second prong of Cooper, WorkForce bears the burden of proving it relied on Brayboy’s misrepresentations in its decision to hire him.    

Brian Ingles, a sales manager for WorkForce, testified WorkForce requires new applicants to fill out employment and medical history questionnaires to protect the applicant and the company.  Ingles stated WorkForce tries not to put workers in potentially harmful situations by carefully taking into consideration an applicant’s previous injuries.   Additionally, Ingles claimed information provided by an applicant regarding a previous injury would be a substantial factor in the hiring process.  Ingles also testified Brayboy was hired as a trim carpenter, and “the job he was hired on really [wasn’t] that physically demanding in nature.”  Finally, Ingles admitted there was a possibility Brayboy would have been eligible to work as a trim carpenter had he honestly filled out the employment application. 

Christopher Lee, a previous WorkForce employee, testified he had reviewed Brayboy’s employment application and medical history questionnaire.  Lee stated he had relied upon Brayboy’s statements in deciding to hire Brayboy and claimed the representations were a substantial factor in his hiring decision.  Lee testified WorkForce uses the questionnaires: “To protect us as employers and to protect the person going to work, both, so that we know what a person is capable of doing, so we don’t put them into a situation where they could hurt themselves.”    Lee also stated he would have taken into account Brayboy’s prior injuries in determining what type of work to give Brayboy.  When asked whether knowledge of Brayboy’s previous injuries would have prevented him from hiring Brayboy, Lee stated: “It wouldn’t prevent me from hiring him.  It would just lead to further analysis or lead to possibly finding something that was more suited to his capabilities.” 

Given the testimony of these two witnesses, we are convinced that, although it may have still hired Brayboy even if it knew of his previous injuries, Workforce relied on his false representations in assigning his job duties. Therefore, the second prong of Cooper is satisfied.  See  Jones v. Georgia-Pacific Corp., 355 S.C. 413, 418-19, 586 S.E.2d 111,114 (2003) (holding the second prong of Cooper was satisfied where “Respondent’s Human Resource Manager… testified that the fact that Claimant had prior physical ailments would not have barred her from working for Respondent. Rather, Respondent would have attempted to find a job for Claimant that would not subject a pre-existing physical impairment to further deterioration.”). 

3.  Causal Connection Between the False Representation and the Injury

Under the third prong of Cooper, WorkForce must prove a causal connection existed between Brayboy’s false representations and the injury sustained.

WorkForce argues the issue of a causal connection is undisputed because the Appellate Panel found, “[Brayboy] had a longstanding lower back pain, which was exacerbated after his injury.”  However, the employee relationship is a jurisdictional issue.  Accordingly, we must conduct our own review of the record.

Brayboy sought and received an increase in his Department of Veterans Affairs impairment rating from twenty percent to forty percent due to “an injury on April 18, 2003 that further aggravated [his] service” injury.  Furthermore, Brayboy’s patient’s progress notes from the Department of Veterans Affairs state that he suffered from “longstanding” lower back pain which was “exacerbated after an injury.”  Given this evidence, we find a causal connection has been established, satisfying the third prong of Cooper.  See Givens v. Steel Structures, Inc., 279 S.C. 12, 14, 301 S.E.2d 545, 547 (1983) (“Expert medical testimony clearly indicated that claimant’s condition was one… reflecting the cumulative effect of successive injuries. The only reasonable inference to be drawn from th[e] record was that a causal connection had been established sufficient for the purposes of Cooper.”).

CONCLUSION

For the foregoing reasons, we find WorkForce has proven all three prongs of the Cooper test.  Accordingly, the order of the trial court is

REVERSED.

ANDERSON, SHORT, and WILLIAMS JJ., concur.