                              NO. COA13-1252

                     NORTH CAROLINA COURT OF APPEALS

                           Filed: 5 August 2014


KIMBERLY PURCELL,
          Employee,
          Plaintiff,

      v.                               North Carolina
                                       Industrial Commission
FRIDAY STAFFING,                       I.C. No. X57382
          Employer,
ZURICH NORTH AMERICAN, Carrier
(GALLAGHER BASSETT SERVICES,
Third-Party Administrator),
          Defendants.


      Appeal by plaintiff from opinion and award entered 21 June

2013 by the North Carolina Industrial Commission.         Heard in the

Court of Appeals 5 March 2014.


      Ganly & Ramer, by Thomas F. Ramer, for plaintiff-appellant.

      McAngus, Goudelock & Courie, P.L.L.C., by Sally B. Moran
      and Colin E. Cronin, for defendants-appellees.


      GEER, Judge.


      Plaintiff Kimberly Purcell appeals an opinion and award of

the   Industrial     Commission   denying   her   claim   for   workers'

compensation benefits.      Plaintiff contends on appeal that the

Commission improperly applied N.C. Gen. Stat. § 97-12.1 (2013)

when it concluded that the injury she suffered while working for
                                      -2-
defendant Friday Staffing was causally connected to a previous

work-related injury that plaintiff concealed when she applied

for employment with Friday Staffing.                 However, we agree with the

Commission's interpretation of N.C. Gen. Stat. § 97-12.1 that a

causal     connection    exists     between      a       willfully   misrepresented

prior condition and a present injury if the former increases the

risk of the latter.         Because there was sufficient evidence in

this case that plaintiff's prior undisclosed work-related injury

increased the risk of sustaining her present injury, we affirm.

                                     Facts

       On 6 August 1999, plaintiff suffered an injury to her back

while working for Quality Assured Enterprises.                        A lumbar MRI

revealed    a   disc    protrusion    in   her       lower    back   at   the   L5-S1

vertebrae and disc degeneration at the                      L4-5   vertebrae.      Dr.

Stewart J. Harley treated plaintiff for those injuries, in part

with   a   surgical     procedure    called      a       microdiscectomy,    and   he

initially restricted plaintiff from doing any work that involved

bending, stooping, lifting, or twisting.                   Following a functional

capacity evaluation ("FCE") and after reaching maximum medical

improvement,     plaintiff     was    given          a    seven    percent   partial

disability rating to her back.             Dr. Harley prescribed physical

therapy and eventually relaxed plaintiff's lifting restrictions
                                             -3-
to    permit        lifting   of    no     more    than    20     pounds,       although      he

encouraged her to find sedentary-level work.

       As a result of this injury,                    plaintiff filed a workers'

compensation          claim     against     Quality       Assured.            Plaintiff      and

Quality Assured signed a Compromise Settlement Agreement on 24

January        2002    for    an    amount    of     $50,000.00          to     be    paid   to

plaintiff.            Part of      the Settlement Agreement stated, "IT IS

UNDERSTOOD by and between the respective parties hereto that

party     of    the    second      part's    condition       as    the    result       of    her

accident may be permanent and may be progressive, that recovery

therefrom is uncertain and indefinite . . . ."                                The Settlement

Agreement also noted that plaintiff did not dispute that she had

a seven percent permanent partial impairment to her back.

       Subsequently,          plaintiff       worked       in     different          jobs    for

various companies.            She continued to receive treatment for back

pain through her primary care providers.                           In 2007, plaintiff

complained of low back pain radiating down her left leg and

weakness       in     her   left    leg.     After     her      primary       care    provider

recommended a lumbar MRI and physical therapy, plaintiff told

her, on 20 July 2007, that she had a disc bulge at L4-5.                                     Her

doctor diagnosed degenerative disc disease, wrote a prescription

for   a   TENS        unit,   and    recommended       physical      therapy.           On    23

January 2008, plaintiff again complained of back pain, told her
                                        -4-
primary care provider that she was seeing a neurosurgeon, and

said she might need back surgery.

      On    28   May    2010,   plaintiff     applied       for    employment      with

defendant Friday Staffing, a company that fills the labor needs

of a clientele of employers with potential employees it hires.

The        employment      application            included         two      pertinent

questionnaires: a "Friday Essential Functions Questionnaire" and

a "Medical History Questionnaire."                 On the Essential Functions

questionnaire, plaintiff indicated that she could engage in the

following activities: lifting more than 50 pounds; carrying more

than 50 pounds; frequent bending, pulling, pushing, kneeling,

squatting, and twisting; standing for long periods; and sitting

for   long    periods.      In    the   Medical      History       portion    of   the

application,      plaintiff     indicated     that    she    had    never    filed   a

workers' compensation insurance claim, suffered any injury or

undergone surgery, or received treatment or consultation about

back pain or possible back injuries.

      To complete her application, plaintiff signed the following

verification:      "I    hereby   state     all    information       on   this     Work

History Record is true and factual. . . .                I understand that any

false statement may result in my immediate dismissal. . . .                          I

understand that Friday Services is an Employer-At-Will, and that
                                        -5-
my employment can be terminated at any time, with or without

reason and with or without cause."

       Friday Staffing matched plaintiff with Continental Teves, a

company    that    manufactures    automotive     parts.        Friday    Staffing

then     conducted    an    in-person     interview        in   which    plaintiff

verified her ability to lift and carry up to and over 50 pounds

and that she had not filed any workers' compensation claims

previously, did not have any condition that might limit her

ability to perform any work assignment, had not had any prior

injury    or    surgery,    and   had   not   ever    received     treatment   or

consultation for back pain or a back injury.

       Plaintiff initially began working for Continental Teves on

2 June 2010 as an assembly line worker.              The job profile for the

position       included    occasional   walking      and    stooping;     frequent

overhead reaching; pushing 40- to 45-pound baskets of automotive

parts; lifting automotive parts from baskets to the assembly

line; and carrying boxes of automotive parts from a staging area

to a table.

       At Continental,       plaintiff worked a CO2 line and a drum

line.     With regard to the CO2 line, the Commission found that

plaintiff was required to constantly lift trailer arms weighing

between 20 and 25 pounds.          In April 2011, plaintiff was working

80 percent of her time on the CO2 line, "which involved the more
                                      -6-
strenuous work of the lines Plaintiff worked."               At approximately

1:00 a.m. on 18 July 2011, while at work, plaintiff re-injured

her back.       A subsequent MRI revealed a "new large focal disk

[sic] extrusion at L5-S1 compressing the descending right S1

nerve root."      Since the 18 July 2011 injury, plaintiff has been

out of work.

       Plaintiff completed an undated Form 18, "Notice of Accident

to Employer and Claim of Employee," and on 17 November 2011,

defendant Friday Staffing filed a Form 61 denying liability for

plaintiff's claim.       The deputy commissioner denied her claim in

an opinion and award filed 9 November 2012.                Plaintiff appealed

to the Full Commission.

       The Full Commission filed an opinion and award on 21 June

2013, affirming the opinion and award of the deputy commissioner

with    minor    modifications.        The     Commission    concluded   that

plaintiff's claim should be denied pursuant to N.C. Gen. Stat. §

97-12.1 on the grounds that at the time plaintiff was hired:

"(1)    Plaintiff       knowingly     and      willfully     made    a   false

representation     as   to   her    physical    condition;    (2)   Defendant-

Employer relied upon said false representation by Plaintiff, and

the reliance was a substantial factor in Defendant-Employer's

decision to hire her; and (3) there was a causal connection

between the false representation by Plaintiff and her claimed
                                    -7-
injury."       Plaintiff   timely   appealed      the   Full    Commission's

opinion and award to this Court.

                               Discussion

       Our review of a decision of the Industrial Commission "is

limited to determining whether there is any competent evidence

to support the findings of fact, and whether the findings of

fact justify the conclusions of law."            Cross v. Blue Cross/Blue

Shield, 104 N.C. App. 284, 285-86, 409 S.E.2d 103, 104 (1991).

"The findings of the Commission are conclusive on appeal when

such   competent   evidence   exists[.]"       Hardin   v.     Motor   Panels,

Inc., 136 N.C. App. 351, 353, 524 S.E.2d 368, 371 (2000).                   As

the fact-finding body, "'[t]he Commission is the sole judge of

the credibility of the witnesses and the weight to be given

their testimony.'"     Deese v. Champion Int'l Corp., 352 N.C. 109,

115, 530 S.E.2d 549, 552 (2000) (quoting Adams v. AVX Corp., 349

N.C. 676, 680, 509 S.E.2d 411, 413 (1998)).             "[T]he Industrial

Commission's    conclusions    of   law    are    reviewable      de   novo."

Johnson v. Herbie's Place, 157 N.C. App. 168, 171, 579 S.E.2d

110, 113 (2003).

       Plaintiff challenges the Full Commission's interpretation

and application of N.C. Gen. Stat. § 97-12.1, which provides:

                No compensation shall be allowed under
           this Article for injury by accident or
           occupational disease if the employer proves
           that (i) at the time of hire or in the
                                -8-
         course of entering into employment, (ii) at
         the time of receiving notice of the removal
         of conditions from a conditional offer of
         employment, or (iii) during the course of a
         post-offer medical examination:

              (1)    The    employee     knowingly   and
                     willfully      made      a    false
                     representation      as     to   the
                     employee's physical condition;

              (2)    The employer relied upon one or
                     more false representations by the
                     employee, and the reliance was a
                     substantial   factor     in   the
                     employer's decision to hire the
                     employee; and

              (3)    There was a causal connection
                     between false representation by
                     the employee and the injury or
                     occupational disease.

    Plaintiff does not dispute the Commission's determination

that the first two elements were met, but contends on appeal

that that the Commission erred in finding a causal connection,

the third element.    In making this argument, plaintiff appears

to contend that defendants must show through expert testimony

"that the herniated disc was caused or contributed [to] by the

alleged fraud."   Defendants, however, contend that plaintiff has

applied the wrong causation standard.

    Our appellate courts have not interpreted and applied N.C.

Gen. Stat. § 97-12.1 since its enactment in 2011.   "Questions of

statutory interpretation are questions of law[.] . . .        The

primary objective of statutory interpretation is to give effect
                                           -9-
to the intent of the legislature.                      The plain language of a

statute is the primary indicator of legislative intent."                          First

Bank v. S & R Grandview, L.L.C., ___ N.C. App. ___, ___, 755

S.E.2d 393, 394 (2014) (internal citations omitted).                          "If the

statutory language is clear and unambiguous, the court eschews

statutory construction in favor of giving the words their plain

and definite meaning.              When, however, a statute is ambiguous,

judicial construction must be used to ascertain the legislative

will."     State v. Beck, 359 N.C. 611, 614, 614 S.E.2d 274, 277

(2005) (internal citation and quotation marks omitted).

       Statutory        language     is       ambiguous    if    it     is   "'fairly

susceptible of two or more meanings.'"                     State v. Sherrod, 191

N.C.     App.    776,    778,    663      S.E.2d   470,    472    (2008)     (quoting

Abernethy v. Bd. of Comm'rs of Pitt Cnty., 169 N.C. 631, 636, 86

S.E.   577      580   (1915)).      Because      our   courts    have    defined    the

phrase "causal connection" differently depending on the issues

involved, that phrase is ambiguous when included in a statute,

at least in the workers' compensation context.                    Compare Chambers

v. Transit Mgmt., 360 N.C. 609, 618, 619, 636 S.E.2d 553, 559

(2006) (explaining that in order to prove "causal connection"

between specific traumatic event and injury, plaintiff must show

that injury was          "'the direct result of            a specific        traumatic

incident'"       (quoting    N.C.      Gen.    Stat.   §   97-2(6)      (2005))    with
                                           -10-
Morrison v. Burlington Indus., 304 N.C. 1, 39, 43, 282 S.E.2d

458,    481,   484    (1981)    (requiring          for    "causal     connection"     a

showing    that      "occupational         conditions      .   .   .    significantly

contributed to the [occupational] disease's development"), and

Gallimore v. Marilyn's Shoes, 292 N.C. 399, 402, 233 S.E.2d 529,

531 (1977) (holding decedent's death did not arise out of her

employment due to lack of "causal connection" between work and

death since nature of work did not increase risk she would be

slain by criminal act).

       When confronted with ambiguous statutory language, we may

determine the intent of the legislature by "'considering [the

statute's]     legislative     history        and    the    circumstances     of     its

enactment.'"      Lanvale Props., LLC v. Cnty. of Cabarrus, 366 N.C.

142,    164,   731    S.E.2d   800,    815    (2012)       (quoting    Shaw   v.   U.S.

Airways, Inc., 362 N.C. 457, 460, 665 S.E.2d 449, 451 (2008)).

Also,     when       construing       an     amendment,        "[i]n      determining

legislative intent, we may 'assume that the legislature is aware

of any judicial construction of a statute.'"                       Blackmon v. N.C.

Dep't of Corr., 343 N.C. 259, 265, 470 S.E.2d 8, 11 (1996)

(quoting Watson v. N.C. Real Estate Comm'n, 87 N.C. App. 637,

648, 362 S.E.2d 294, 301 (1987)).

       Prior to the enactment of N.C. Gen. Stat. § 97-12.1, a

majority opinion in Freeman v. J.L. Rothrock, 189 N.C. App. 31,
                                 -11-
36, 657 S.E.2d 389, 392-93 (2008), rev'd per curiam sub nom.

Estate of Freeman v. J.L. Rothrock, Inc., 363 N.C. 249, 676

S.E.2d 46 (2009), attempted to adopt the "Larson test":

                Pursuant   to   the  Larson test,  an
           employee may be barred from recovering
           workers' compensation benefits as a result
           of a false statement at the time of hiring
           when the employer proves:

                (1)   The    employee    must    have
                knowingly and wilfully made a
                false representation as to his or
                her 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.

           3 Larson's Workers' Compensation Law § 66.04
           (2006) (footnotes omitted).

       Although the Freeman majority opinion found "no specific

statutory basis for the Larson test," it nonetheless reasoned

that common law doctrines provided implicit authority because

"'in    construing   the   provisions   of   this   State's   Workers'

Compensation Act, common law rules . . . remain in full force .

. . .'"    Id. at 37, 38, 657 S.E.2d at 393, 394 (quoting Tise v.

Yates Constr. Co., 122 N.C. App. 582, 587, 471 S.E.2d 102, 106

(1996)).    This Court, after applying the Larson test, reversed
                                            -12-
the Industrial Commission's award of compensation to Mr. Freeman

on    the    grounds    that   he     had    made    misrepresentations             to   his

employer regarding a prior back injury and workers' compensation

claim.      Id. at 48, 657 S.E.2d at 399.

       Judge Wynn, however, dissented, noting: "Not only have we

previously rejected the Larson test, there is no legislative

authority for this Court to adopt such a test."                         189 N.C. App.

at 49, 657 S.E.2d at 400 (Wynn, J., dissenting).                             The Supreme

Court       reversed    "for   the     reasons       stated     in     the    dissenting

opinion[.]"       Estate of Freeman, 363 N.C. at 250, 676 S.E.2d at

46.

       In short, just two years preceding the enactment of N.C.

Gen. Stat. § 97-12.1, the Supreme Court reversed Freeman because

this Court had "no legislative authority" to read the Larson

test into the Workers' Compensation Act.                      189 N.C. App. at 49,

657    S.E.2d    at    400   (Wynn,    J.,     dissenting).           Then,       when   the

legislature enacted N.C. Gen. Stat. § 97-12.1, it used language

identical to the Larson test as set out and applied in this

Court's opinion in Freeman.             We presume that the legislature was

aware of this Court's decision in Freeman applying the Larson

test    and,    under    these      circumstances,       we     conclude          that   the

legislature      intended      to     adopt    the     Larson        test    as    Freeman

initially expressed and applied it.
                                       -13-
      In Freeman, this Court determined that the requirement of

"a causal connection" between the plaintiff's misrepresentations

and his earlier back injury presented "the issue . . . whether

his undisclosed medical condition increased his risk of injury."

189 N.C. App. at 45, 46, 657 S.E.2d at 398, 399.                       We, therefore,

hold that when requiring a "causal connection" to satisfy the

third element of N.C. Gen. Stat. § 97-12.1, the                           legislature

intended that a defendant show that a plaintiff's undisclosed or

misrepresented      injury,      condition,        or     occupational        disease

increased the risk of the subsequent injury or disease.

      Here    plaintiff    concedes,       and    Dr.     Harley's       unchallenged

expert medical testimony indicates, that plaintiff's prior back

problems, which she concealed from defendant employer, increased

the   potential    for    her   2011   back      injury    if    she    violated    her

lifting      restrictions.        Nonetheless,          plaintiff       argues     that

because   there    was    "no   evidence    as    to     the    exact     parts   being

lifted" while plaintiff worked with Continental, the Commission

could not have concluded that plaintiff violated her lifting

restrictions,     and    thus   there   could       be    no     causal    connection

between her prior and recent back injuries.                    We disagree.

      The Commission found that plaintiff developed severe right-

sided pain and numbness on 18 July 2011 "as she was having to

constantly twist and bend over to pick up trailer arms from the
                                        -14-
pallet."      In addition, the Commission found that the trailer

arms weighed between 20 and 25 pounds, a weight in excess of her

work restrictions.         Although plaintiff argues that there was no

evidence that she violated her work restrictions of lifting no

more   than   20      pounds,    the   Commission's     finding   regarding   the

weight of the         trailer arms was supported by plaintiff's own

testimony that the trailer arms weighed "about twenty -- maybe

twenty-five pounds."

       The Commission was entitled to find based on plaintiff's

testimony that she was exceeding her work restrictions when she

injured    her     back.        That   finding,   in    conjunction    with   Dr.

Harley's unchallenged expert testimony that plaintiff was at an

increased risk of injury if she exceeded her work restrictions,

supported the Commission's conclusion that a causal connection

existed between plaintiff's false representation and her 18 July

2011 back injury.          We, therefore, hold that the Commission did

not err in denying plaintiff's claim for worker's compensation

based on N.C. Gen. Stat. § 97-12.1.               See Freeman, 189 N.C. App.

at 47-48, 657 S.E.2d at 399 (holding that causal connection was

established      by    expert    testimony     that    plaintiff's   undisclosed

medical condition increased his risk of back injury at issue).

       Plaintiff alternatively argues that N.C. Gen. Stat. § 97-

12.1, as applied in this case, is an unconstitutional ex post
                                            -15-
facto law.          However, "'[a] constitutional issue not raised at

trial will generally not be considered for the first time on

appeal.'"       In re Cline, ___ N.C. App. ___, ___, 749 S.E.2d 91,

102 (2013) (quoting Anderson v. Assimos, 356 N.C. 415, 416, 572

S.E.2d 101, 102 (2002)), disc. review denied, ___ N.C. ___, 753

S.E.2d 781 (2014).         "Since this argument was not raised [below],

it is not properly before us on appeal."                 Id. at ___, 749 S.E.2d

at 102.

    However, even if this issue were before us, it would be

without merit since N.C. Gen. Stat. § 97-12.1 does not involve a

criminal offense.          See State v. Wiley, 355 N.C. 592, 625, 565

S.E.2d 22, 45 (2002) (explaining that ex post facto implicates

four types of laws: "'1st.              Every law that makes an action done

before the passing of the law, and which was innocent when done,

criminal;       and    punishes      such    action.     2d.       Every   law     that

aggravates      a     crime,    or   makes    it   greater     than   it   was,    when

committed.          3d.   Every law that changes the punishment, and

inflicts    a    greater       punishment,     than    the   law   annexed    to    the

crime, when committed.               4th.    Every law that alters the legal

rules of evidence, and receives less, or different, testimony,

than the law required at the time of the commission of the

offence, in order to convict the offender[]'" (quoting Collins

v. Youngblood, 497 U.S. 37, 42, 111 L. Ed. 2d 30, 38-39, 110 S.
                              -16-
Ct. 2715, 2719 (1990)).   Accordingly, we affirm the Commission's

opinion and award.


    Affirmed.

    Judges ROBERT C. HUNTER and McCULLOUGH concur.
