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Pouncil v. Kansas Employment Security Board of Review12/18/1998
Appeal from Sedgwick District Court; RICHARD T. BALLINGER, Judge. Opinion filed December 18, 1998. Reversed.
The Kansas Employment Security Board of Review (Board) and Grede Foundries, Inc. (Grede) appeal the district court's order granting Tamatha Pouncil unemployment benefits.
Tamatha Pouncil was hired on July 28, 1995, and began working on July 31, 1995, as a janitor for Grede. After she was hired, and before she began working, Pouncil filled out two questionnaires relating to medical history; one was titled "Health and Medical Record" (HMR) and the second was titled "Medical and Noise History Questionnaire" (MNHQ). At the bottom of the HMR, above the signature line, it stated: "I hereby state that the information given by me on this physical exam is true and complete to the best of my knowledge. I also understand that any false information given by me is grounds for discharge, now or later." Pouncil signed the form and dated it.
Question 1 on the HMR asked: "Have you ever been in a hospital or institution for observation, diagnosis, operation, or treatment?" Pouncil answered "Yes" and explained that she had an "amputation of left tip of index finger." Question 8 asked: "Have you ever filed a compensation claim or received benefits as a result of an industrial injury or disease?" Pouncil answered "No."
Approximately 2 weeks after Pouncil was hired by Grede, and approximately 1 week after she commenced her work as a janitor, she filed a workers compensation claim for carpal tunnel syndrome. Pouncil claimed "that the syndrome was either a direct result of or aggravated by her janitorial work."
At the preliminary workers compensation hearing, Pouncil stated that she had suffered no other serious job-related injuries. She also stated she had not had any other workers compensation claims. At a hearing before a workers compensation administrative law Judge (ALJ) on November 16, 1995, Pouncil stated that she had received workers compensation for the partial amputation of her finger.
Pouncil's employment was terminated by Grede on March 13, 1996, because her answers at the workers compensation preliminary hearing and her medical records showed that the answers she gave on her HMR at the time she was employed were not true. Pouncil filed for unemployment compensation.
A Kansas Department of Human Resources (KDHR) examiner determined that Pouncil was terminated "for conduct or an attitude," not for misconduct or breach of a duty to Grede. The examiner ruled that she was eligible for unemployment compensation. Grede filed a timely appeal. At the hearing before the KDHR referee, Pouncil was questioned about her testimony at the preliminary hearing for her workers compensation claim. At the preliminary hearing before the ALJ, Pouncil testified concerning the loss of the tip of her finger. When asked, "Now, have you had any other Workers' Compensation claims," she answered, "No, I have not." Then she was asked, "Have you ever had an injury on the job in any form?" She answered, "No. Other than this" (meaning her current claim against Grede).
At that same hearing, Grede then presented medical evidence that Pouncil had injured her right wrist and hand twice while working for Avery Dennison, on December 17, 1993, and again on January 6, 1994. Pouncil then stated that she thought she was off work for a period of time as a result of the December injury but could not recall exactly how long.
Medical records introduced at the KDHR hearing show that between December 17, 1993, and January 19, 1994, Pouncil had seven appointments with Dr. Wilson concerning problems with her right hand and wrist. Dr. Wilson's notes
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