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Many will remember “Liar Liar” the 1997 comedy starring Jim Carrey. In the movie, a lawyer lies to win his cases, at the expense of his family, career and self. Eventually he learns that honesty is the best policy. As the Proverbs tell us, “The Lord hates dishonest scales but accurate weights are His delight.” Prov. 11:1.

Perhaps a worker is afraid that if he tells the truth on his job application about a previous injury, he won’t hired. So he figure a little while lie won’t hurt. But will it?

What happens to an injured worker who lies on a job application and is later injured on the job?

Cascaden v. Winn-Dixie Montgomery, LLC, 2011 Ala. Civ. App. LEXIS 204 (Ala. Civ. App. Aug. 5, 2011) gives us the answer.

Alabama Code § 25-5-51 addresses misrepresentations in job applications:

“No compensation shall be allowed if, at the time of or in the course of entering into employment or at the time of receiving notice of the removal of conditions from a conditional offer of employment, the employee knowingly and falsely misrepresents in writing his or her physical or mental condition and the condition is aggravated or reinjured in an accident arising out of and in the course of his or her employment. At the time an employer makes an unconditional offer of employment or removes conditions previously placed on a conditional offer of employment, the employer shall provide the employee with the following written warning in bold type print, "Misrepresentations as to preexisting physical or mental conditions may void your workers' compensation benefits." If the employer defends on the ground that the injury arose in any or all of the last above stated ways, the burden of proof shall be on the employer to establish the defense.”

To understand what happened in the Cascaden case, first thing about how Alabama courts used to interpret the law. In the past, Alabama courts held that a misrepresentation of a preexisting medical problem only mattered if a worker injured that same body part again. For example, if a worker didn’t admit a previous back injury on a job application but later hurt his shoulder at work, the misrepresentation wouldn’t necessarily prevent the worker from receiving compensation for the shoulder injury. One of the reasons for the past decisions is that the employer wasn’t relying on the misrepresentation of the worker’s back problems to decide whether to hire the employee.

The recent Cascaden decision changes all that.

It is NO LONGER REQUIRED for an employer to prove it relied on the misrepresentation.

The Court of Civil Appeals held that it is not required that employers rely on the misrepresentation. Instead, for an employer to raise the defense under § 25-5-51, the employer must prove: that (1) in the course of the worker entering into his employment relationship with the employer, (2) the employer provided the worker with the written warning set forth in § 25-5-51, (3) the worker knowingly and falsely misrepresented his physical or mental condition, (4) the worker's misrepresentation was made in writing, and (5) the worker's condition was aggravated or reinjured in an accident arising out of and in the course of his employment.

Avoid this problem in advance by telling the truth! The truth is a simple insurance policy to prevent a misrepresentation defense.

Tracy W. Cary currently services as chair of the Alabama Association for Justice Workers’ Compensation Section. He earned his B.S. from the University of Florida and his J.D. from the University of Alabama. He is licensed to practice law in Alabama, Florida, Georgia, Tennessee and the District of Columbia. He practices with the Dothan firm of Morris, Cary, Andrews, Talmadge & Driggers, LLC. He is past chair of the Alabama State Bar Workers’ Compensation and has an extensive workers’ compensation practice throughout dozens of Alabama counties.

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