Pouncil v. Kansas Employment Security Board of Review

ROYSE, J.,

dissenting: The referee in this case determined that Tamatha Pouncil lied to Grede Foundries, Inc., when she indicated that she had never sustained any “serious injury or illness where hospitalization was not required.” The referee further determined, that Pouncil lied when she said she had never filed a compensation claim or received benefits as a result of an industrial injury or disease. The majority concludes that Pouncil failed to disclose a prior, material work injury and thus violated her duty to Grede. I respectfully disagree.

The prior injury in this case involves two “accidents” which occurred in December 1993 and January 1994. The medical records show that on December 17,1993, Pouncil reported she caught her right hand between two metal racks. She was seen that day by Dr. R. L. Wilson at the Broadway Occupational Medical Clinic, where the diagnosis was “contusion rt. hand.” She was instructed to use a splint and placed on light duty. On December 21, the doctor described her condition as “minor tendonitis.” By December 27, Dr. Wilson described Pouncifs hand as “recovered.” He ordered her return to regular work on January 4, 1994.

Pouncil returned to Dr. Wilson on January 6,1994. On that date she reported that, as she was moving a screen, she looked down and noticed her right wrist was swollen. She was again instructed to use a splint and received a prescription for Ibuprofen. Dr. Wilson diagnosed tendonitis and placed Pouncil on light duty for 2 weeks. She returned to her regular work on January 20, 1994. The record contains no documentation that Pouncil missed a single day of work because of these right wrist problems.

The record contains no indication that Pouncil suffered any lasting effects from these “accidents.” In fact, Dr. Wilson indicated that she had sustained no permanent impairment to her right wrist. He did not impose any permanent restrictions upon her use of her right hand. He advised that she did not require any further medical treatment.

I cannot concur with the majority’s determination that these two transitory episodes involving a bruise and inflammation amount to *752material injuries which Pouncil had a duty to disclose. The test of materiality, the majority seems to say, is whether the employer requires knowledge of the injury in order to assure that the employee is not put at risk of aggravating a preexisting condition or injury. Under that test, these injuries were not serious. Pouncil sustained no preexisting condition or injury which could be aggravated; she had recovered. While the referee and the majority appear to assume that there is a connection between Pouncil’s right wrist problems in 1993-94 and her subsequent claim for bilateral carpal tunnel syndrome, the record contains no evidence to support that assumption.

In addition, before we conclude that an employee is ineligible to receive unemployment benefits because she “bed” on an employer’s medical questionnaire, it seems only fair to require that the questionnaire be reasonably free from ambiguity. That is not the case here. Grede asked about “serious injury or illness” but made no effort to define that term. The other questions on the form certainly provide no contextual basis for defining that term; Grede’s questions cover everything from stroke, cancer, and tuberculosis to whether the employee has ever had problems of the lungs or a skin condition or wears contact lenses. In addition, women are asked when they had their last menstrual period. Questions truly designed to ferret out information that is material to an employer in its hiring and assignment of employees can surely be drawn with more clarity and precision.

If one gives “serious” injury its ordinary meaning, then Pouncil did not be when she failed to disclose her wrist problems. Webster’s Third New International Dictionary (1986) defines “serious” in the context of “injury” as “such as to cause considerable distress, anxiety, or inconvenience: attended with danger.” Reasonable people could certainly agree that Pouncil’s prior wrist problems were not “attended with danger.” Other common synonyms for “serious” are “grave,” “critical,” “severe,” and “profound.” Those terms seem equally inappropriate when applied to Pouncil’s bruised and inflamed wrist.

The referee and the majority indicate that Pouncil failed to disclose she received workers compensation benefits on two occa*753sions. While Pouncil did report that she had sustained a partial amputation of a finger, it is true that she failed to indicate on the Grede questionnaire that she had received compensation benefits in connection with that injury. What is not clear, however, is how her receipt of benefits would be material to the employer. To borrow a phrase, once Grede knew about the partial amputation, what independent significance does the fact that Pouncil received compensation for that injury have for Grede? The majority treats the receipt of benefits as material without ever applying its own definition; we are never told why this benefits information was required to enable Grede to assure that Pouncil was not put at risk of aggravating her partially amputated finger.

The majority’s determination that Pouncil failed to disclose compensation benefits received in connection with her prior wrist problems is also problematical. The record contains no notice of injury (see K.S.A. 44-520), no claim for compensation (see K.S.A. 44-520a), no application for hearing (see K.S.A. 1997 Supp. 44-534), no award (see K.S.A. 1997 Supp. 44-525), and no settlement agreement (see K.S.A. 44-526). In fact, the record shows that Pouncil’s employer did not file an Employer’s Report of Accident in connection with the December 17, 1993, incident until August 9, 1995. That report does not indicate that Pouncil ever received any compensation payments. While Pouncil did at one point in her testimony seem to say she had received compensation benefits, the only corroboration of that statement in the record is the fact that she was treated by Dr. Wilson.

K.S.A. 44-702 sets forth the legislature’s intent to protect Kansans from the burdens of involuntary unemployment. It is a remedial statute which should be liberally construed. See City of Lakin v. Kansas Employment Security Bd. of Review, 19 Kan. App. 2d 188, 190, 865 P.2d 223 (1993). In light of the legislative intent, this court should be cautious about imposing an additional duly on those who seek unemployment benefits. The record in this case is simply too flimsy to provide a basis for crafting and applying such a rule.