The Claimant Lied About Their Pre-Existing Restrictions. Can You Deny Their Claim?

By: Paul C. McCoy

It is a well accepted legal principle that, if an otherwise compensable event aggravates or worsens a pre-existing condition to such a degree that an employee requires ongoing medical treatment and is disabled as a result of the incident, the employer and its carrier are nonetheless liable for workers’ compensation benefits despite an employee’s pre-existing condition. However, if an employee knowingly and willfully misrepresents their physical condition during the hiring process, an employer and its insurer may be able to deny an employee’s claim even if the event giving rise to plaintiff’s claim would otherwise be compensable.

N.C. Gen. Stat. § 97-12.1 provides as follows: “No compensation shall be allowed under this article for injury by accident or occupational disease if the employer proves that (i) at the time of the hire or in the course of entering into employment, (ii) at the time of receiving notice of removal of conditions from a conditional offer of employment, or (iii) during the course of a post-offer medical examination: (1) the employee knowingly and willfully made a false representation as to the employee’s physical condition; (2) the employer relied upon one or more false representations by the employee, and the reliance was a substantial factor in the employer’s decision to hire the employee; and (3) there was a causal connection between the false representation by the employee and the injury or occupational disease.” N.C. Gen. Stat. § 97-12.1 (2020).

In a typical scenario involving employee misrepresentations, an employer may request or require a potential employee to complete an essential functions questionnaire or medical questionnaire which sets forth various physical requirements of the potential job and asks if the employee is physically able to perform the essential functions of the job. For example, if the employee is applying for a job as a plumber, the questionnaire may inquire if the employee is able to lift up to 50 pounds. If the employee has pre-existing medical conditions and has been informed by a medical provider that he/she has restrictions prohibiting them from lifting in excess of 25 pounds, a truthful response would be that the potential employee cannot perform the physical requirements of the job. If that were the case, the employee would not be eligible for the job and would not be hired.

N.C. Gen. Stat. 97-12.1 contemplates the scenario where the potential employee falsely indicates that he/she is able to lift in excess of 50 pounds despite their pre-existing 25 pound lifting restriction. If the employer then elects to hire the potential employee and does so in reliance on the potential employee’s false certification that they are able to lift in excess of 50 pounds, the employer may be able to deny any future claims provided there is a causal connection between the false representation and the injury.

“In order to satisfy the causal connection element of the defense, the employer and insurer must be able to establish that the plaintiff’s undisclosed or misrepresented injury, condition, or occupational disease increased the risk of the subsequent injury or disease.” Purcell v. Friday Staffing 235 N.C. App. 342, 761 S.E. 2d 694 (2014). If, for example, the employee had a prior lower back injury which resulted in the imposition of the 25 pound lifting restriction and the employee re-injured their back after lifting in excess of 25 pounds, the employer and its carrier would likely be able to establish that there was a causal connection between the potential employee’s false representation and their subsequent alleged injury. Consequently, the employer and its carrier would be in a position to deny the employee’s new claim.

While helpful, it is not necessary that the willful misrepresentation be in written form. The representation could also occur during a verbal interview. If a potential employee is specifically asked questions regarding their ability to perform certain job functions during the interview process and they misrepresent their condition verbally, then the employer can also use the potential employee’s verbal statements in defense of the claim. However, the Commission would be required to make its findings of fact based upon a credibility determination as the employee would likely deny that they were asked about physical limitations during the interview. Written evidence of a false statement will always be the best evidence at a hearing.

Tips for Adjusters:

1.       Always request employment applications;

2.       Inquire of employers if employees are asked about their physical ability to perform job functions;

3.       Inquire if pre-employment physicals are required. If so, get a copy of the physical and review for employee representations;

4.       Run ISO reports to determine if an employee had prior injury claims; and

5.       Obtain pre-injury medical records to evaluate for pre-existing conditions and assigned restrictions.