Misrepresentation of prior injuries doesn't topple claim

In Nebraska, a misrepresentation defense is not available to employers when a worker misrepresents her work-related injury history on a preemployment questionnaire.

Case name: Bassinger v. Nebraska Heart Hospital, No. S-10-653 (Neb. 12/09/11).

Ruling: The Nebraska Supreme Court held that a hospital could not defend against an aide's claim based on her misrepresentation of her work-related injury history.

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What it means: In Nebraska, a misrepresentation defense is not available to employers when a worker misrepresents her work-related injury history on a preemployment questionnaire.

Summary: A certified nurse aide began working for a hospital. The hospital's preemployment questionnaire asked for information about previous work-related injuries. The aide reported one prior back injury but not a second one. Later, she injured her back while lifting a patient. She said that the pain was different than what she experienced with her prior injury. She underwent a spinal fusion surgery that alleviated her symptoms. She sought workers' compensation benefits. The hospital argued that the aide should be denied benefits because she misrepresented her work-related injury history. The Nebraska Supreme Court held that a misrepresentation defense did not apply. The court sent the case back for a determination as to whether she was entitled to benefits.

The court explained that the statute did not authorize a misrepresentation defense for job applicants. The court pointed out that those misrepresenting their physical condition to obtain employment are applicants, not employees. The statute creates a defense for an injury caused by an employee's willful negligence.

The court said that some other states apply a misrepresentation defense even though it is not included in a statute. The court explained the defense is a rule of equity based on public policy. This might reflect a "laudable goal," but it is the legislature's function to declare the law and public policy. The court was concerned that a misrepresentation defense was inconsistent with the goal of workers' compensation to provide benefits without a determination of the worker's fault.

Read more at the WorkersComp Forum homepage.

January 30, 2012

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