Posted in: Back/lifting injuries, In this week's e-newsletter, Injuries, Latest News & Views, Workers' comp
A hospital aide injured her back when lifting a patient. She applied for workers’ comp benefits. However, her employer said she didn’t deserve the benefits because she didn’t list a previous injury on her employment application.
Jennifer Bassinger was employed as a certified nurse aide at Nebraska Heart Hospital. On her employment applications, she listed one previous back injury in 2000 but didn’t list a different back injury she suffered a year later.
While lifting a patient at Heart Hospital, Bassinger injured her back. Physical therapy and medication didn’t alleviate her symptoms, so she was put on light duty. Then the hospital discharged her because she couldn’t work during the day and light-duty work was only available on the day shift.
Later she had spinal fusion surgery that alleviated her symptoms.
Bassinger applied for workers’ comp benefits which were denied by the hospital. She appealed. A judge denied the appeal because Bassinger had willfully misrepresented her work-related injury history on her application. Bassinger appealed again.
A three-judge appeals panel sent the case back, saying a causal relationship had to be found between her misrepresentation on the application and her current injury.
Despite that ruling, Bassinger appealed on a different matter. She argued that the state supreme court case that judges were relying on to decide the case violated the state’s workers’ comp law.
Specifically, she said a misrepresentation defense regarding applicants didn’t exist in Nebraska’s comp law.
Old ruling was ‘erroneous’
It’s not unheard of that a state supreme court will overturn a previous decision by the same body. After all, members of the courts do change over time.
And that’s what happened here. The Nebraska Supreme Court said the state’s workers’ comp law contained a provision for not paying benefits because of an employee’s willful negligence.
But in this case, Bassinger wasn’t an employee when she filled out the pre-existing injury information. At the time, she was an applicant.
The Nebraska Supreme Court called its 1979 decision that linked nonpayment to what was listed on an application “erroneous.”
Result: The supreme court sent the case back to the review panel to determine whether Bassinger should get comp benefits without regard to any misrepresentation she may have made on her employment application.
This case isn’t over yet. But it appears if the hospital doesn’t find some other reason to deny Bassinger benefits other than her omission about information about a previous injury on her application, she’ll get workers’ comp.
How do other states handle these cases? In its opinion, the Nebraska Supreme Court noted:
Some states have workers’ compensation statutes that exclude coverage for employees who knowingly made false statements about their physical condition in an application or pre-employment questionnaire … At least 12 courts … currently apply the defense … Conversely, many courts … currently hold that an applicant’s misrepresentations to obtain employment cannot bar workers’ compensation benefits … the issue is one for legislatures to resolve.
Do you think workers’ comp benefits should be denied to an employee who omitted a previous injury on an employment application? Let us know what you think in the comments below.
(Bassinger v. Nebraska Heart Hospital, NE Supreme Court, No. S-10-653, 12/9/1011; you can download a PDF of the court’s opinion here)