Mis-representations on Pre-Employment Questions Do Not Bar Workers' Compensation Benefits

Employees often have to fill out an application to apply for a job.  At many jobs where there are physical work requirements, the employer will also have the employee fill out a questionnaire stating whether they have ever had injuries prior to their employment.  You must be very careful to be honest about all prior injuries.  However, the Nebraska Supreme Court recently held that now an employer cannot deny Nebraska Workers' Compensation benefits simply because you failed to include all previous injuries on a pre-employment application or questionnaire.


Previously an employer could deny benefits because of an employee's misrepresentation of previous injuries in a pre-employment questionnaire.  However, based on equitable principles, the Nebraska Supreme Court overruled its decision in Hilt Truck Lines, Inc. v. Jones, 204 Neb. 115, 281 N.W.2d 399 (1979), regarding an equitable misrepresentation defense because it was clearly erroneous.  Bassinger v. Nebraska Heart Hospital, 282 Neb. 835, 806 N.W.2d 395 (2011),

In Bassinger v. Nebraska Heart Hospital, 282 Neb. 835, 806 N.W.2d 395 (2011), the Workers’ Compensation Court dismissed the employee's petition for benefits because employee misrepresented her prior injuries on a pre-employment questionnaire. The review panel reversed and remanded the case to the trial court to determine whether a direct causal  relationship existed between employee's misrepresentation and her later injury. The Supreme Court reversed the judgment of the review panel finding that the compensation court has no equity jurisdiction and thus cannot apply remedies of rescission and estoppel that are not statutorily authorized.

In 2000, the employee was working as a certified nurse aide and suffered a work-related low back
strain from which she fully recovered. In 2001, the employee injured her low back while working at
BryanLGH Medical Center, was assigned no permanent impairment, but was restricted to lightduty work. The employee agreed to a $5,000.00 lump-sum settlement for the 2001 injury. In 2006, the employee began working for defendant. Defendant’s pre-employment questionnaire asked for information on work-related injuries, and plaintiff did not report the 2001 injury. In the pre-employment physical, defendant’s nurse reported that plaintiff could perform the physical tests without pain. The employee was hired by defendant, and in 2008 plaintiff injured her back while lifting a patient. She testified that the pain was different from the pain she had in 2001. She did lightduty work until she was discharged in July 2008 because she could not work during the day, which was the only time light-duty work was available.

Defendant claimed the review panel erred in interpreting Hilt Truck Lines, Inc. v. Jones, 204 Neb. 115, 281 N.W.2d 399 (1979) to require a direct causal relationship between employee's misrepresentation and her work injury.  In her cross-appeal, the employee argued that the review panel exceeded its authority in permitting an employer to deny benefits based on an affirmative misrepresentation defense since that defense, which was adopted by the Supreme Court in Hilt, is a limitation on benefits not authorized by the Nebraska Workers’ Compensation Act (i.e., an equitable remedy of rescission and estoppel).

The judge dismissed the employee's petition for benefits because the judge found that Bassinger had willfully misrepresented her work-related injury history when she failed to disclose any information about her 2001 injury. In concluding that the hospital could deny benefits because of Bassinger's misrepresentation, the
judge relied on the rule adopted in Hilt Truck Lines, Inc.  He concluded that the hospital satisfied the causation component of the rule because the hospital would not have hired her had she truthfully reported her previous injury: " It is clear that [Bassinger's] misrepresentations allowed her to pass through the [hospital's] efforts to screen out people who are physically limited in some way that would make them either incapable of performing the tasks required or somehow be put in danger of reinjury."

However, the Supreme Court held that the plain language of § 48-102 creates an affirmative defense for injury caused by an employee's willful negligence. Persons who misrepresent their physical condition to obtain employment are applicants, not employees.  The Court concluded that the statutory defense under § 48-102 does not apply to applicants.

Courts holding that misrepresentations to obtain employment cannot defeat the right to compensation benefits have concluded that because of the compromise that their workers' compensation laws represent, the issue is one for legislatures to resolve: " ‘ This problem is a legislative one and in the absence of a clear legislative intent, the Court did not feel at liberty to impose any limitations or exceptions upon the employee's statutory right to recover compensation." ’ Marriott Corp. v. Industrial Comm'n of Arizona, 147 Ariz. 116, 121, 708 P.2d 1307, 1312 (1985).  Other courts have concluded that judicially engrafting an affirmative defense onto their workers' compensation law to deny benefits months or years after the employee was hired is inconsistent with liberally construing these statutes in favor of providing benefits.  And they have reasoned
that a misrepresentation defense would resurrect barriers to compensation based on an employee's fault and conflict with a legislative intent to reduce litigation by eliminating most employer defenses.

The Court agreed with the employee and held that Hilt created a limitation on workers’ compensation
benefits that the Act does not authorize; therefore, the Court held that its prior decision in Hilt was clearly erroneous. Defendant contended that plaintiff waived her argument that the Hilt decision was erroneous since she did not raise it to the review panel. The Court found defendant’s argument without merit because the lower court’s decision was consistent with the doctrine of stare decisis which compels lower courts to follow higher court decisions. Therefore, the employee could not be required to ask a lower court not to follow a controlling decision from a  higher court which she claimed was incorrectly decided. Defendant also contended that § 48-102 creates an affirmative defense for injuries caused by an employee’s willful negligence, and misrepresentation constitutes willful negligence. The Court concluded that the willful negligence defense under § 48-102 applies to employees, not applicants, and plaintiff was an applicant
when she completed the pre-employment questionnaire.  The Court concluded that the Workers’ Compensation Court does not have equity jurisdiction,

The Court concluded that the Workers’ Compensation Court does not have equity jurisdiction, so it cannot apply remedies of rescission and estoppel that are not statutorily authorized. Therefore, the Court’s adoption of the equitable misrepresentation defense in Hilt was clearly erroneous. The Court overruled Hilt and reversed the judgment of the review panel, directing the review panel to remand the case to the trial court for further proceedings to determine whether plaintiff was entitled to benefits without regard to defendant’s misrepresentation defense.

If you have been injured at work and want to file for Workers' Compensation Benefits, you should consider contacting Angela Madathil.  Madathil Law Office specializes in employment and Workers' Compensation law in Nebraska, and offers free consultations.   

Madathil Law office serves Nebraska Workers' Compensation clients in Omaha, Lincoln, Lancaster County, Douglas County, Otoe, and Cass County Nebraska.  If need a Nebraska Workers' Compensation lawyer, consider contacting Angela Y. Madathil and the Madathil Law Firm.  

Contact us at angela@madathil-law.com or by telephone at 402.577.0686.  The firm offers free consultations.  For more information feel free to look at our website www.madathil-law.com.

Image from here.