Pre-Employment Injuries May Haunt Injured Workers

Tuesday, August 19, 2008 | 0

By Robin Martinek

In a recent case before the North Carolina Court of Appeals, a Judge Jackson and Judge Hunter found that an employee's undisclosed medical condition increased his risk of a back injury combined with other elements, barred the injured employee from workers' compensation benefits.

In their analysis of the case, the judges noted that the plaintiff had pre-existing restrictions from a 1996 back injury; however, in early 2000, he applied for a position with the Employer, despite his previous restrictions. As part of the application, the employer's application process included questions about prospective employee's medical history, including questions about back aches, back injuries, work restrictions, and disabilities/impairments. In this situation, the employee failed to answer these questions truthfully. In addition, when he submitted for a physical, he failed to report to the physician that he had been previously injured.

Less than two years after he was hired, the employee experienced a traumatic incident while cranking a dolly that caused pain and injury to his back. When the employer challenged the employee's right to receive disability payments, the matter was presented to the Industrial Commission. Both a deputy commissioner and a panel of full commissioners found in favor of the employee, finding that his claim was compensable and he was entitled to ongoing medical and temporary total disability compensation benefits.

Defendant's appealed this decision to the North Carolina Court of Appeals where it came before a panel of three judges for review and argued that the employee should be prevented from recovering any benefits because he had been untruthful in the information he gave to the Employer regarding his previous back problems based on a principle known as the Larson Test. The Larson Test is a three-pronged test that bars an employee from recovering workers' compensation benefits when the employer proves:

"(1) The employee must have knowingly and wilfully made a false representation as to his or her physical condition. (2) the employer must have relied upon the false representation and this reliance must have been a substantial factor in the hiring. (3) There must have been a causal connection between the false representation and the injury."

Based on the employer's evidence proving that the three prongs of the Larson test had been met, two of the judges in the three judge panel found that the employee was barred from receiving workers' compensation benefits for his injury sustained on March 11, 2002.

It should be noted that the Court of Appeals had previously disapproved of the Larson test, since the test is effectively grants employer's a defense not found in the Workers' Compensation Act.

Judge Wynn filed a dissenting opinion with the two judge's decision based on the Court of Appeals' previous previous rejection of the Larson test and noted that there was no legislative authority for the Court to adopt the test, and found that the two judge's decisions was impermissible judicial legislation.

I understand that this matter is being appealed to the North Carolina Supreme Court.

Robin Martinek is a graduate of the University of North Carolina at Chapel Hill's School of Law and has been practicing law in North Carolina since 2002. This column originally appeared on Injuryboard.com and was reprinted with his permission.