Injured worker didn’t report previous back problem: Will she get comp?
December 19, 2011 by Fred HosierPosted in: Back/lifting injuries, In this week's e-newsletter, Injuries, Latest News & Views, Workers' comp
PDF 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)
SafetyNewsAlert.com delivers the latest Safety news once a week to the inboxes of over 270,000 Safety professionals.
Click here to sign up and start your FREE subscription to SafetyNewsAlert!
Tags: back injury, employment application, lifting a patient, pre-existing injury, Workers' comp
Loading ...
December 19th, 2011 at 6:19 pm
Sounds like the Nebraska legislature has some work to do in amending the law to account for non-disclosures of pre-existing conditions at the time of hiring.
I can’t help but ask the question that if they hired her even with a previous back injury in 2000, would they have still hired her if they would have known about the more recent injury? I think their argument here is that they wouldn’t have hired her.
If she would have disclosed it and they had hired her anyways, then comp would be paying for it without a question. Aggravation of pre-existing conditions should be paid by employers, provided they are properly disclosed during the initial hiring phase.
Sounds like a no-brainer to change the law in Nebraska.
Employees who omit information during the hiring process should get no rights when issues arise related to thier omission.
December 20th, 2011 at 8:38 am
I think if the employer can show that it routinely uses medical history disclosures to manage the assigned duties of its personnel to keep them from performing activities that they might be physically or otherwise challenged or incapable of performing safely, then certainly any ommisions could be thought of as grounds for denial of benefits - the ommission prevented the employer from properly exercising its safety hazard mitigation activities. But of course that only holds where the employer can show that it reviews and uses the information to actually modify/adjust work assignments, otherwisee simply knowing about any past injury makes no difference (it could even be held as a negative, since the employer would apparently know about a higher than normal risk but not have taken any mitigation measures). So in this case the key question to me would be: If the hospital had known about the second prior back injury would they have not assigned the employee to lift patients? Do they have a prior record of taking such measures? (and BTW, the fact that one previous back injury was disclosed and apprently didn’t affect the work assignment makes the Hospital’s argument way more tenuous in my eyes).
P.S. IMHO the part about whether the person was an employee at the time or just an applicant is legal B.S. The person signed a statement that said they were telling the truth, drawing a paycheck shouldn’t affect that.
December 21st, 2011 at 1:59 pm
Maybe she just forgot about the second injury in 2001. I honestly can’t tell you what I was doing 10 years ago. Besides when can employers ask for a medical history. In Oregon, I can’t ask and they don’t have to tell. If a prospective employee listed all their medical history and then were not hired because of it, isn’t that discrimination? Whether or not she had a previous injury to her back, she injured it at work. Benefits should be paid. If the laws are full of loopholes, then it is an attorney’s job to find them on behalf of their clients.
December 22nd, 2011 at 3:38 pm
She forgets the back injury in 2001 but remembers the injury a year earlier in 2000? I can tell you what I was doing every time I had a serious injury. Employers can ask for a medical history if the job at hand requires them to do physical work. Don’t you think the health of soemone’s back may be something the employer should know about in a job that requires lifting? It is in the employer’s and employees’ best interest to have these injuries disclosed so that the employee is not put in a position that they cannot do their job safely.
Employers are frequently allowed to disqualify potential applicants for health reasons, especially when it comes down to safety.
December 23rd, 2011 at 1:32 pm
OSHA says that if employment aggravates an existing injury, it is compensable! Why wouldn’t it be legal for employers to hold applicants accountable for accurate reporting of possible existing conditions on an application? By the way we ask on our application if applicants have any condition which may limit their ability to perform job requirements. In a recent court case in which the applicant had checked no in this category it was disclosed through admission and through investigation that this employee had a ten year history of medical treatment and recommended surgery for an existing condition. Thus her existing condition was aggravated by every position we tried to fit her to. After a year of employment she sued for work comp. The case went to mediation. I pointed out to the Judge that she had lied on the application! It had no effect on the case! OSHA says: aggravation of existing injuries are compensable!!! The only recommendation the judge gave was extensive physical evaluation during pre-hire process. In Oklahoma there is no equal playing field!!!
December 29th, 2011 at 6:22 pm
As she disclosed a pre-existinig injury and non-disclosure of the other related injury why would the employer be held under compensability for such a statement. A person whom suffered or suffers from back problems requirng care for such should have enough comon sense, personnel respect and dignity for the life and freedoms she has in the U.S.A. to be women enough to admit she has done wrong! The entire work-comp. system is completely out of hand, it needs to be remodeled to provide the employee and employer fair bounderies. We cannot continue to hand out comp-claims for some one who is a little sore because they have not worked for a year and now goes to a Dr., what the heck are they, (the Dr.) suppose to do, the Dr. slip will say (tendonitus) with a presciption, a comp-claim because 90% of new employee have no work ethic or pride in the American built freedoms they despartely abuse. Get off your a_ _ and get to work. Anyway, the lady wtih the back problem knew without a doubt she did not and would not have the capacity to perform CNA duties as described, (sorry), there are other professions, what caused the back related incidents to begin with? There is nothing erroneous about it! Using your best judgement and just a bit of common sense would tell you that being a CNA with all its duties would not work for you. With back problems that may be career ending their is always more money to go to school and advance your career options, don’t make the system the enemy and certainly don’t blame the system for your own wrong doing.
Heart felt sympathy, but, I have had (8) back and neck surgeries, L4,L5, and S1 are fused, C6 & C7 are fused, can hardly get out of bed some mornings but don’t miss work, haven’t been late either, deal with it and move on!!!
January 12th, 2012 at 9:53 am
Bob,
OSHA does not deal with injury compensation. The OSHA Guidelines are to determine if it is work related and if it is recodable on the OSHA 300 Log.
The individual States Workers Comp laws determine compensability.