Misrepresentation on Application for Employment Not a Valid Defense

Until late 2011, a misrepresentation on an application for employment was a viable defense to disqualify an employee from receiving workers’ compensation benefits if: (1) the employee knowingly and willfully made a false representation as to his physical condition; (2) the employer relied on the false representation and this reliance was a substantial factor in the hiring; and (3) there was a causal connection between the false representation and the injury. Hilt Truck, Inc., v. Jones, 204 Neb. 115, 281 N.W.2d 399 (1979). However, the Nebraska Supreme Court determined in Bassinger v. Nebraska Heart Hosp., 282 Neb. 835, 806 N.W.2d 395 (2011), that Hilt was contrary to the Nebraska Workers’ Compensation Act and that misrepresentation on an application for employment was no longer a valid defense to a workers’ compensation claim.

In Bassinger, the claimant argued that the misrepresentation defense adopted in Hilt was a limitation of benefits that was not authorized by the Nebraska Workers’ Compensation Act. The Nebraska Supreme Court agreed, noting that the Nebraska Workers’ Compensation Court only has authority to act if that authority is conferred upon it by statute. The Court held that the plain language of Neb. Rev. Stat. §48-102 (providing a defense for willful negligence) applied only to employees, and when a misrepresentation is made on an employment application, the applicant is not yet an employee.

The Bassinger court went on to discuss the fact that no other provision allows the compensation court to limit benefits based on misrepresentation on an employment application. The Court stated that while such a defense may be laudable, it is up to the Legislature to create the defense through the enactment of legislation. Thus, until the Legislature creates a statutory misrepresentation defense, the defense is not viable in the Nebraska Workers’ Compensation Court.

For more information on defenses available to employers in defending workers’ compensation claims, please contact Sara Hughes at shughes@baylorevnen.com or call (402) 475-1075 to speak with any of the Baylor Evnen Workers’ Compensation attorneys.