Part II of Workers’ Comp & Pre-Existing Conditions: Not the End of the World, but Beware

Having established in Part 1 that pre-existing conditions are not an absolute bar to recovery in workers’ compensation cases, we have arrived at the “beware” part of this discussion. Beware of NCGS §97-12.1.

§97-12.1. Willful misrepresentation in applying for employment.

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 hire or in the course of entering into employment, (ii) at the time of receiving notice of the 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 false representation by the employee and the injury or occupational disease.

Ok so what does all this mean and why does it matter?

Let’s say a person goes through the normal job interview process. At some point during the process, the person is provided with the physical requirements of the job (either verbally or on paper). In response to getting the physical requirements, the person represents to the employer that they are fully capable of performing the job functions.

The new hire made these representations despite knowing that they had a pre-existing condition that would render them incapable of truly meeting the physical demands of the work.

If the new employee subsequently is injured in a workplace accident, and the pre-existing condition (that was essentially hidden from the employer) was connected to the workplace accident, the employer has a strong argument that NCGS §97-12.1 applies the new employee won’t be due any compensation for his work injuries.

Many of us reading this may be thinking, “I’m an honest person, I need not worry about this statute.” We all want to be honest and have good intentions, yet these misrepresentation circumstances arise more than you might think and rarely is it a matter of a new employee trying to scheme and pull a fast one over on the employer.

Take for example the new hire we discussed above. That new hire had a chronic, pre-existing condition for which they had worked with doctor ordered work-restrictions for years. They applied for social security disability several times and were denied. The work-restrictions severely limited their earning power and they were worried about being able to provide for their family. When the new job opening came up, they applied and interviewed, deluding themselves to think that they could muscle through the pain of their pre-existing condition, knowing that wasn’t really the case. As a last resort, they viewed the risk of reinjury to their pre-existing condition as a necessity to provide for their family. So, they signed off on the job description that laid out the physical demands. And that turned out to be a misrepresentation of their physical condition.

Back to the statute itself, when an NCGS §97-12.1 denial of a workers’ compensation claim is asserted, it is important to remember that defendants must prove all three prongs of the statute,

  1. willful misrepresentation,
  2. employer reliance, and
  3. causal connection.

In terms of pre-existing conditions and workers’ compensation claim impact, part 3 is very important. If, for example, you have a pre-existing condition of the back that limits your abilities, you made a willful misrepresentation to your employer about your ability to perform the functions of your job, and later a machine malfunctions and causes an injury to your hand, your claim is not barred due to your willful misrepresentation. That is because there would be no causal connection between your willful misrepresentation regarding your back and a machine malfunction that injures your hand.

Workers’ compensation claims involving pre-existing condition claims are complex and the injured workers involved should consult a qualified attorney. An experienced attorney can help answer questions you have and help you successfully navigate the system.