LONGSTANDING PROTECTION FOR EMPLOYERS IN THE WORK COMP SYSTEM: How failure to disclose a prior injury/problem can void coverage for injuries on the job

Attorneys that represent injured workers are often asked whether the work comp case will hurt chances of re-employment. After all, whether someone has had a prior workers’ compensation case can be looked up on-line one way or another. There’s no clear cut answer to this question. I’m sure there may be employers that make the effort to find this information and then may use it in denying employment. But, the more important question is how should an injured worker, who is having to look for new employment, respond to questions about his or her prior injuries regardless of where or how they may have occurred?

Consider the worker with a prior injury to her back. This worker is applying for a position with a new company and completes a pre-employment questionnaire. The questionnaire asks if she has ever had a prior back injury or backache. She checks the “NO” box even though she has been suffering from a painful back condition for a number of years. The doctor for this back condition had advised her to wear a back brace when performing any heavy lifting and to find an easier job so as not to re-injure herself. The worker later explained that she was worried checking “YES” to this question would hurt her chances at getting the job, and she really needed the job. She also thought she could safely perform the job if she was careful with how she lifted things.

The company offered her a position (that was not necessarily any easier than her previous work), and she took the job. During her first six months on the job, her back condition got worse and affected her performance and attendance. She eventually filed a claim for workers’ compensation with the insurance carrier for her new employer because she could no longer perform the work she was hired to do. The insurance company sent the worker to a doctor’s appointment for the initial evaluation, and the worker honestly reported her prior back injury and problems to this doctor.

The insurance company received the report from the doctor and investigated the claim. Often times, an insurance company may not have to pay a claim if a prior condition is determined to be the major contributing cause of the current problems. During the investigation, the insurance company reviewed the pre-employment questionnaire and discovered the “NO” answer the worker had given to the question about prior back injuries or backaches. The claim was denied because the worker had falsified her pre-employment application.

The Florida Supreme Court heard and decided this type of case as earlier as 1961. It was decided that such dishonesty on the part of an employee would preclude the payment of work comp benefits. [See Martin v. Carpenter, 132 So. 2d 400 (Fla. 1961)]. To quote the Court:

“[T]his Court, and others, have … determined that there is a presumption that the employer takes the employee as he finds them. … [T]his presumption makes the employer responsible for compensation benefits to an employee who at the time of the employment suffered a disease or bodily infirmity which is accelerated or aggravated by a compensable injury. In other words, the presumption places on the employer the risks attendant upon hiring an infirm employee.

This presumption makes it wise that an employer determine before employment what state of health an employee enjoyed in order to avoid the risks which are resultant from hiring an infirm employee. We do not think the misrepresentations of an employee should be allowed to defeat the efforts of the employer to protect himself from this presumption and assumed risks. (Emphasis added).

…We therefore adopt the rule that a false representation as to physical condition of health made by an employee in procuring employment will preclude the benefits for the Workers’ Compensation Act for an otherwise compensable injury if there is shown to be a causal relationship between the injury and the false representation and if it is also shown that:

the employee knew the representation to be false;
the employer relied on the false representation; and
such reliance resulted in consequent injury to employer.” (Id. at 406)

So, the 1961 Supreme Court case of Martin v. Carpenter established protection for employers that were diligent in assessing the ability of potential workers to be able to physically perform the jobs available. An employee that has knowingly misrepresented the existence of a prior injury or problem, and then has a new injury on the job that is related to this prior problem will be denied work comp benefits regardless of the fault of the injury.

The take away advice here for those doing job searches is to carefully read applications for employment, and when asked about prior injuries/conditions, make sure any such conditions are disclosed. But, you don’t have to write a book about it. As with most situations, the short honest answer is the best.

If you have been denied workers’ compensation benefits, and have questions about your rights, please contact the work comp attorneys with Syfrett, Dykes & Furr at (850) 785-4442.

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