         IMPORTANT NOTICE
    NOT TO BE PUBLISHED OPINION


THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED ."
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
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RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION
BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
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ACTION.
                                                           RENDERED : March 20, 2008
                                                              NOT TO BE PUBLISHED


                .SiMittrMt          Court Of
                                  2007-SC-000247-WC

                                                                            r.   1   9S



KROGER                                                                      APPELLANT


                       ON APPEAL FROM COURT OF APPEALS
V.                             2006-CA-001875-WC
                      WORKERS' COMPENSATION NO. 05-01030


NONDA JAMES ;
HON . JOHN B. COLEMAN,
ADMINISTRATIVE LAW JUDGE AND
WORKERS' COMPENSATION BOARD                                                 APPELLEES


                      MEMORANDUM OPINION OF THE COURT

                                       AFFIRMING

       KRS 342 .035(3) prohibits compensation insofar as disability is aggravated,

caused, or continued by a worker's unreasonable failure to follow competent medical

advice. KRS 342.165(2) prohibits compensation in certain instances where a worker

made a false representation on the employment application .

       An Administrative Law Judge (ALJ) rejected arguments that the claimant's

application for benefits must be dismissed based on her failure to follow medical advice

concerning an injury sustained in a previous employment and her failure to reveal the

injury and permanent restrictions on her employment application . Convinced that an

unreasonable failure to adhere to medical restrictions after a previous injury would

permit KRS 342.035(3) to be applied to the claim for the subsequent injury, the
Workers' Compensation Board (Board) vacated in part and remanded for further

consideration . The Court of Appeals determined that the evidence did not compel a

decision for the employer on either issue and affirmed . We affirm .

       The claimant was born in 1943 and has a twelfth-grade education with no

specialized or vocational training. Her most recent employments include work in

shipping/receiving at Dillard's department store and as a cashier at Dairy Mart and

Family Dollar Store . At issue is an injury that occurred subsequently during work at a

Kroger grocery store .

       The claimant testified that she was involved in an automobile accident in 1999 in

which she sustained a broken wrist, cracked sternum, ten broken ribs, and a T5

compression fracture . Later that year, she injured her back while lifting boxes at

Dillard's and experienced pain in her low back and in the lower portion of her mid-back.

After undergoing surgery, she returned to work with restrictions against lifting more

than 20 pounds, repetitive twisting or turning, and excessive walking . She stated that

Dillard's failed to honor the restrictions; thus, she re-injured her back and underwent a

second surgery . The claimant testified that Dr. Hodes made the restrictions permanent

in an attempt to get Dillard's to offer her lighter work but that Dillard's placed her on

medical leave .

       Dr. Hodes' records indicated that he performed surgery for a compression

fracture at L1 and later did so for compression fractures at T6 and T9. Based on the

sequence of events and diagnostic imaging, he related the fractures to the claimant's

work at Dillard's . In October 2000, he diagnosed osteoporosis and lumbar strain and

noted that surgery had provided excellent resolution of the acute discomfort from the
fractures . He also noted that the claimant would have permanent restrictions against

lifting more than 20 pounds and against repetitive bending and twisting. Records from

the Office of Workers' Claims indicated that the parties later agreed to settle a claim for

thoracic and lumbar strains for a period of temporary total disability as well as a lump

sum that was based on a 12% disability.

       The claimant testified that she did not understand that the permanent restrictions

would remain with her in subsequent employments . She stated that she worked

outside the restrictions when unloading trucks and filling coolers in her subsequent job

at Family Dollar Store. She left that job due to a non-work-related medical condition

and began working for Kroger as a cashier in 2003. Among other things, she scanned

items, operated a cash register, and performed general cleaning, such as mopping and

cleaning rest rooms. She testified that she lifted cases of soft drinks and water

frequently and that the heaviest things that she lifted were fifty-pound bags of dog food.

 The claimant stated that she was able to perform all of her duties with no problems

except an occasional backache.

       The claimant's application for benefits alleged that she lifted some cases of soft

drinks and water on February 19, 2005, after which she felt something snap between

her shoulder blades and also felt a burning pain. She sought medical attention four

days later and continued to work on light duty for about a month before being placed on

medical leave. She stated that her pain was similar to what she experienced in 1999

but more severe.

      Attached to the hearing transcript was a copy of the application that the claimant

completed on November 22, 2003 for a position as a cashier/bagger. A section entitled
"ESSENTIAL JOB FUNCTIONS," stated as follows:

               The work for which you are applying may involve one or
               more of the following job requirements: lifting, pushing,
               pulling or extending above the head items weighing 25 lbs.
               or more; lifting, bending and turning at the waist
               simultaneously; standing or walking at least two hours at a
               time ; operating mechanical equipment; exposure to
               temperature extremes. (If you do not know, please inquire
               about whether any of these are essential functions of the
               position for which you are applying .)

               Can you perform the essential job functions of the position
               for which you are applying with or without reasonable
               accommodation?

               Yes             No

The claimant checked "Yes." The application contained no specific place to report

previous injuries, but the claimant did indicate that Dillard's laid her off after placing her

on medical leave for a limited period of time that expired .

       Susanne Savage, the Kroger office manager, testified that she hired new

employees and conducted job orientation . She stated that the claimant failed to report

the previous injuries or any restrictions concerning her back at the interview. She

reported only that she had left her last employment due to a medical problem. Savage

stated that she was not aware of a previous injury and would not have hired the

claimant had she known of the restrictions. She testified that cases of cola weighed

20.89 pounds and that cases of water weighed 27 .5 pounds.

       On cross-examination, Savage acknowledged that she did not ask specifically

about previous injuries or permanent restrictions . She also acknowledged that the

claimant was able to perform all of her duties until she was injured. Savage explained

that she allowed the claimant to work within her restrictions after the alleged injury until
Kroger obtained her previous medical records and determined that the back condition

was not due to her work.

        Kroger raised two defenses. First, it asserted that the claim must be dismissed

under KRS 342.035 because the present injury resulted from an unreasonable failure to

comply with the restrictions imposed after the 1999 injuries. Second, it asserted that

the claim must be dismissed under KRS 342.165(2) because the claimant failed to

report her permanent restrictions on her employment application . The AU rejected

both arguments and awarded income and medical benefits.

                                       KRS 342 .035(3)

        KRS 342 .035(3) states, in pertinent part, as follows :

               No compensation shall be payable for the . . . disability of an
               employee . . . insofar as his disability is aggravated, caused,
               or continued, by an unreasonable failure to submit to or
               follow any competent surgical treatment or medical aid or
               advice.

        The AU concluded that KRS 342 .035 did not apply, noting the absence of any

evidence that the claimant failed to follow medical advice after the injury at Kroger or of

any evidence that the previous compression fractures worsened due to her failure to

comply with the work restrictions . Moreover, the AU found the claimant's testimony

that she thought the restrictions applied only to her attempt to obtain light-duty work at

Dillard's to be credible .

       Kroger asserted on appeal that the AU interpreted KRS 342.035(3) too

narrowly. It argued that the restrictions assigned after the claimant's previous back

injury continued to apply to her employment at Kroger. The Board agreed . It found the

statute to be unambiguous and considered Allen v. Glenn Baker Trucking, Inc. , 875
 S .W.2d 92, 94 (Ky. 1994), to be authority for the principle that a worker's unreasonable

failure to follow competent medical advice after a previous injury may be a proper basis

to deny compensation in the claim for a subsequent injury. The Board concluded that

the ALJ committed a legal error by failing to analyze the evidence under Luttrell v.

Cardinal Aluminum Co., 909 S.W.2d 334 (Ky. App. 1995) . On that basis, it vacated the

decision regarding KRS 342 .035 and remanded the claim for further analysis .

       Kroger argues that the Board erred by remanding the claim rather than

determining that the evidence compelled a favorable finding under KRS 342.035 .

Although the claimant maintains that Kroger's failure to petition for reconsideration bars

its present argument, Bullock v. Goodwill Coal Co ., 214 S.W.3d 890, 893-94 (Ky. 2007),

and Brasch-Barry General Contractors v. Jones, 175 S.W.3d 81 (Ky. 2005), explain that

a petition is unnecessary to preserve a legal question for the Board's review.

       KRS 342 .285(1) designates the ALJ as the finder of fact. It limits the Board to

reviewing the decision for legal errors, i .e . , whether the ALJ's action was authorized,

was the product of fraud, was in conformity with Chapter 342, was clearly erroneous

under "the reliable, probative, and material evidence contained in the whole record," or

was arbitrary and capricious, an abuse of discretion, or a clearly unwarranted exercise

of discretion . KRS 342.290 limits the scope of review by the Court of Appeals to that of

the Board and to allegations of legal errors by the Board .

       Luttrell v. Cardinal Aluminum Co ., supra, explains that KRS 342.035(3) requires

an ALJ to consider three factors : 1 .) whether the worker failed to follow medical advice;

2.) whether the failure was unreasonable ; and 3) whether the unreasonable failure to

follow medical advice caused the disability for which compensation is sought. Contrary
 to what Kroger would have us believe, this is not a case in which the evidence clearly

 requires a decision for either party . Thus, the Board committed no legal error in

 remanding the claim to the AU for further analysis .

                                        KRS 342 .165(2)

          KRS 342 .165(2) states as follows :

                No compensation shall be payable for work-related injuries if
                the employee at the time of entering the employment of the
                employer by whom compensation would otherwise be
                payable falsely represents, in writing, his physical condition
                or medical history, if all of the following factors are present :

                (a) The employee has knowingly and willfully made a false
                representation as to his physical condition or medical
                history;

               (b) The employer has relied upon the false representation,
               and this reliance was a substantial factor in the hiring; and

               (c) There is a causal connection between the false
               representation and the injury for which compensation has
               been claimed .

        The AL determined that KRS 342.165(2) did not apply, noting that the claimant

stated on her employment application that she could perform the duties of a cashier

and that she did so for a year and three months. Convinced that the claimant did not

understand that the restrictions her physician imposed after the previous injury

remained in effect after she left Dillard's, the AL determined that she did not knowingly

and willfully make a false representation . The AU acknowledged that Kroger may have

relied on her statement that she could perform the duties of a cashier but found no

causal connection between the previous injuries at T5, T6, T9, and L1 and the new and

distinct injury at T3.

       As the party seeking to prove that KRS 342.165(2) barred compensation, Kroger
had the burden to prove every element of the defense but failed to convince the ALJ .

As explained in Special Fund v. Francis , 708 S.W.2d 641, 643 (Ky. 1986), Kroger's

burden on appeal is to show that the decision was unreasonable in view of the

evidence . Kroger asserts that overwhelming evidence showed that the claimant failed

to reveal her previous injuries and restrictions, that she would not have been hired had

she done so, and that her failure to do so bore a causal relationship to her injury .

       KRS 342.165(2) requires an employer to prove the factors listed in subsections

(2)(a), (2)(b) and (2)(c) . It also requires a false representation concerning a worker's

physical condition or medical history to be written. Thus, it does not include oral

statements that a worker makes during an interview. Nor does it require a worker to

volunteer information that the application fails to request.

       The application that the claimant completed did not request information

concerning previous injuries or restrictions, and nowhere on the application did she

state that she had no previous injuries or restrictions. The application listed various

requirements that an individual might have to perform but did not list the essential

functions of a cashier's position . It directed the applicant to inquire about the essential

functions of the desired position . The claimant indicated on the application that she

was able to perform the essential functions of a cashier/bagger "with or without

accommodation ." Such evidence did not compel a finding that she knowingly and

willingly made a false representation, in writing, concerning her physical condition or

medical history.

       The decision of the Court of Appeals is affirmed .

      All sitting . All concur .
COUNSEL FOR APPELLANT,
KROGER:

JOEL W . AUBREY
POHL, KISER & AUBREY, P.S .C.
303 NORTH HURSTBOURNE PARKWAY
SUITE 110
LOUISVILLE, KY 40222-5143


COUNSEL FOR APPELLEE,
NONDA JAMES:

CHARLES E. JENNINGS
JENNINGS LAW OFFICE
239 SOUTH FIFTH STREET
SUITE 412
LOUISVILLE, KY 40202
