The North Carolina Workers’ Compensation Act now allows an employer to plead an affirmative “Misrepresentation Defense” when an employee intentionally misrepresents his/her physical condition when entering into the employment relationship.

The “Misrepresentation Defense” is available to employers when the workers’ compensation claim arises or occurs on or after June 24, 2011.

The “Misrepresentation Defense” is an affirmative defense, which means that the employer is responsible for pleading it and is responsible for carrying the burden of proof by the preponderance, or greater weight, of the evidence.

Specifically, no workers’ compensation benefits will be payable if the employer can prove the following three elements:

(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 that reliance was a substantial factor in the employer’s decision to hire the employee;

and

(3)          There was a causal connection between the false representation and the employee’s injury or occupational disease.

The employer must show the misrepresentation occurred:

(1) At the time of hire;

(2) At the time of receiving notice of the removal of conditions from a conditional offer of employment;

or

(3) During the course of a post-offer medical examination.

It is important to note that other employment issues or considerations may come into play, such as the Americans with Disabilities Act.  The recommended strategy for an employer to protect the right to assert the Misrepresentation Defense is to implement a post-offer, pre-hire questionnaire and/or physical to gather the necessary information about the applicant appropriately.

Two Takeaways for Post-Offer, Pre-Hire Questionnaires:

(1) Gear the Questionnaire towards the physical requirements and demands of the particular position and require full disclosure of the applicant’s pre-existing conditions;

and

(2) Require the applicant to certify that all facts and representations he/she makes are true and accurate, as well as made willingly and intentionally.

Don’t have a Post-Offer, Pre-Hire Questionnaire or “Pre-Hiring” Procedure in place? Please contact me directly at (919) 863-8846 or jjones@cshlaw.com.