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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.
Here is a link to the Alabama Workers' Compensation Act. Remember that decisions of the Alabama Supreme Court and Alabama Court of Civil Appeals interpret and apply the Act every week, so reading the language of the Act itself isn't the end of the story.
Senate Removes Louisiana Judge
By JENNIFER STEINHAUER
The Senate on Wednesday found Judge G. Thomas Porteous Jr. of Federal District Court in Louisiana guilty on four articles of impeachment, the first time the Senate has removed a federal judge from the bench in more than two decades.
Judge Porteous was impeached by the House in March on four articles stemming from charges that he received cash and favors from lawyers who had dealings in his court, used a false name to elude creditors and lied to the Federal Bureau of Investigation during his confirmation. The behavior amounted to a “pattern of conduct incompatible with the trust and confidence placed in him,” according to the articles against him.
Mr. Porteous, the eighth federal judge to be convicted and removed from office through impeachment in the history of the Senate, got an early indication that things would not go his way when all 96 Senators present voted “guilty” on the first article against him. One of his lawyers then reached over to touch his arm, as if in consolation.
Mr. Porteous, 64, was appointed to the federal bench by President Bill Clinton in 1994 and has been suspended with pay since 2008; as part of his removal, which begins immediately, he will not receive his federal pension.
Northeastern University Law School Dean Emily A. Spieler recently testified before Congress (Subcommittee on Workforce Protections Committee on Education and Labor) concerning the American Medical Association’s (AMA) Guides to Permanent Impairment.
Doctors in workers' compensation cases often use the AMA Guides to determine whether an injured worker has an impairment rating after a job-related accident. As Dean Spieler noted, The AMA Guides have been in effect since 1971 and are now in widespread use. Some states even require workers’ compensation programs to use the latest edition of the Guides. The Guides were originally designed to be used by physicians in making a scientific assessment of a worker’s level of impairment---or loss of function---due to a work-related injury. The determination of whether a worker is permanently disabled and entitled to workers compensation is based upon his or her impairment rating, which is then applied to the specific case of a given worker. For example, a worker who loses a hand may not suffer permanent disability if he or she is a teacher, but that same worker would be permanently disabled if he or she works in construction. In 2007, the AMA published the 6th edition of the Guides, and witnesses today will describe how this new edition has dramatically reduced impairment ratings for many types of conditions, without apparent medical evidence, and transparency. The 6th edition has become so controversial that many states, including Iowa, Kentucky and Vermont have decided not to adopt them. It also appears that the 6th edition was developed in near secrecy, without the transparency and consensus which should necessarily accompany the development of standards that will have widespread use by state governments. In addition, it appears that the physicians who developed this latest edition may have ties to insurance companies, and are making a profit training doctors on the use of the 6th edition, which is complicated and very difficult to apply. The National Technology Transfer Advancement Act of 1996 sets forth minimum criteria for the development of voluntary consensus standards: openness; balance of interests; due process protections; and consensus. The process used for developing the 6th edition appears to significantly deviate from these standards and is a focus of testimony before us today. Workers who are wholly dependent on this ‘grand bargain’ when they are injured on the job, are the ones paying the price. The subcommittee invited the AMA to testify today, but unfortunately, it declined.