Since the 2011 Workers’ Comp Reform, North Carolina employers now have another defense available to assist with considerable savings in workers’ compensation claims management.  An Employer can plead the affirmative “Misrepresentation Defense” when:

  1. An employee intentionally misrepresents his/her physical condition to the employer at the time the employee is entering into the employment relationship, AND
  2. The employee later alleges a work injury with a causal tie or connection to the misrepresentation.

The key to successful implementation of the misrepresentation defense is a top notch hiring program, which requires thoughtful planning before a claim occurs.  Below are key points for employers to preserve this cost saving defense:

  1. Prepare accurate job description detailing with specificity the essential functions and physical demands of their positions. Have the prospective employee sign off on the job description.  There signature should confirm his understanding of the requirements and functions of the position AND his affirmative representation that he is physically capable of performing the job with or without reasonable accommodation.
  2. Use a post-offer, pre-hire questionnaire. Ask for information such as prior work injuries, medication usage, work restrictions, surgeries, and permanent partial disability ratings.  The time to use this tool is once a conditional offer has been extended.  Successful completion of the post-offer, pre-hire questionnaire is a condition precedent to the employment offer being finalized.
  3. Use post-offer, pre-hire physical examination. This will help determine the prospective employee’s fitness for duty.  This is very similar to the questionnaire discussed in #2 with regards to the time period and completion being condition precedent.

While employers can develop the required questionnaires and examination procedures on their own, it is always a good idea to have an attorney review them.  A recent Deputy Commissioner decision illustrates this point- the Employer’s questionnaire was not concise enough, and as a result, the Employer lost the opportunity to utilize the Misrepresentation Defense to escape liability for the claim.

If you have questions about the defense, or would like assistance in reviewing your hiring procedures, please give me a call.  You can reach me at or 919-863-8846.