Georgia Elec. Co. v. Rycroft, 46487

• Decision Date: 06 April 1989
• Docket Number: No. 46487,46487
• Citation: 378 S.E.2d 111,259 Ga. 155
• Parties: GEORGIA ELECTRIC COMPANY, et al. v. RYCROFT.
• Court: Georgia Supreme Court

Page 111

378 S.E.2d 111

259 Ga. 155

GEORGIA ELECTRIC COMPANY, et al. v. RYCROFT.

No. 46487.

Supreme Court of Georgia.

April 6, 1989.

N. Sandy Epstein, L. Lou Allen, Wilson, Strickland & Benson, P.C., Atlanta, for Georgia Elec. Co., et al.

William H. Hedrick, Hodges, Erwin & Hedrick, Albany, for John Rycroft.

J. Michael Upton, Janet E. Hill, Amici Curiae.

MARSHALL, Chief Justice.

The Workers' Compensation Board awarded John C. Rycroft workers' compensation for temporary total disability. OCGA § 34-9-261. The board denied the subsequent request of the claimant's employer and its workers' compensation insurer for an order authorizing them to suspend payment of compensation on the ground of the claimant's alleged fraudulent procurement of employment with the employer. The superior court upheld the board's denial of the requested order. The Court of Appeals denied an application for discretionary appeal. We granted a petition for the writ of certiorari and the application for discretionary appeal. We reverse.

In 1984, while working for a previous employer, the claimant-appellee sustained a herniated-disc back injury. A workers' compensation claim for that injury was settled in 1985. The claimant underwent two bilateral decompressive lumbar laminectomies, a diskectomy, and a bilateral fusion at the L-4 to S-1 level. He sustained a second back injury on June 12, 1986. He filed a second claim against that same previous employer; however, the previous employer controverted this claim on the ground that the claimant was working for a subsequent employer at the time of the second injury. He dismissed his claim.

In filling out a pre-employment application for his present employer (the appellant) on July 18, 1986, the claimant did not list his prior employment with the employer at the time he suffered his 1984 injury. To the question of whether he then or ever had back trouble or injury, he checked "No." He made dashes in answer to a series of questions as to whether or not he ever: had serious injuries; received workers' compensation for an injury; had or been advised to have operations; worn a back support or brace; lost time in the past two years because of illness or injury; or collected disability income benefits in cases of illness or accident. In answer to a question about prior hospitalizations, he indicated that he had been hospitalized for a broken finger. He did not indicate his prior hospitalization for back problems. When he first reported to work, one of the principals of the employer specifically asked him about his prior employment and prior on-the-job injuries. The claimant again denied any injuries other than the broken finger, and again failed to disclose the prior employment during which he sustained the first back injury.

On August 19, 1986, the claimant was moving some 2 inch by 8 inch boards from the back of a trailer to use in unloading a lawn mower which was on the trailer. The claimant's right hand was pinched and cut by the boards; as he moved back to extricate his hand from the boards, he stumbled and fell, fracturing his lower spine at the site of the previous spinal fusion operation--the injury for which he is presently receiving compensation.

The claimant admitted his misrepresentation on the pre-employment form and an oral misrepresentation during an interview, testifying that he knew that he could do the work and that he would not have been hired if he had answered the questions truthfully. The employer's testimony was that it would not have hired the claimant initially if he had answered the questions truthfully and would have terminated him if this knowledge had been discovered. Held:

We review our three statutes which specifically bar compensation. OCGA § 34-9-17 bars compensation for on-the-job injury

due to the employee's willful misconduct, including intentionally self-inflicted injury, or growing out of his attempt to injure another or due to intoxication or willful failure or refusal to use a safety appliance or perform a duty required by statute or the willful breach of any rule or regulation adopted by the employer and approved by the board, of which rule or regulation the employee has knowledge prior to the accident.

OCGA § 34-9-19 subjects a person who willfully makes a false or misleading statement or representation for the purpose of obtaining a benefit or payment, to a misdemeanor prosecution. OCGA § 34-9-291 provides:

No compensation shall be payable for an occupational disease if the employee, in the course of or in the course of entering into the employment of the employer by whom the compensation would otherwise be payable, falsely represented himself in writing to such employer as not having previously been disabled, laid off, or compensated in damages or otherwise because of such disease.

OCGA § 34-9-280(2) defines occupational disease:

"Occupational disease" means those diseases which arise out of and in the course of the particular trade, occupation, process, or employment in which the employee is exposed to such disease, provided the employee or the employee's dependents first prove to the satisfaction of the State Board of Workers' Compensation all of the following:

(A) A direct causal connection between the conditions under which the work is performed and the disease;

(B) That the disease followed as a natural incident of exposure by reason of the employment;

(C) That the disease is not of a character to which the employee may have had substantial exposure outside of the employment;

(D) That the disease is not an ordinary disease of life to which the general public is exposed;

(E) That the disease must appear to have had its origin in a risk connected with the employment and to have flowed from that source as a natural consequence.

An opinion in a case from another jurisdiction has held:

As indicated, our statutes are silent on the effect of a false representation, except as to "occupational disease" and where the statement was made for the purpose of collecting benefits. By implication, we think public policy requires an obligation on the part of an employee, upon inquiry, to be truthful to an employer about pre-employment health conditions. Therefore, even if we agree with the appellee that an "injury" and "occupational disease" are separate and distinct from each other and appellee's back injury is not a "disease" within the meaning of [§ 34-9-291], we are of the view that public policy, in the absence of a clear legislative intent to the contrary, requires the application here of the test as stated in 1B Larson's Workmen's Compensation Law § 47-53:

The following factors must be present before a false statement in an employment application will bar benefits: (1) The employee must have knowingly and wilfully made a false representation as to his physical condition. (2) The employer must have relied upon the false representation and this reliance must have been a substantial factor in the hiring. (3) There must have been a causal connection between the false representation and the injury.

Shippers Transport of Georgia v. Stepp, 265 Ark. 365, 578 S.W.2d 232, 233 (1979).

In the following cases, the appellate court of each state has adopted this defense without action from the legislature: Martin Co. v. Carpenter, 132 So.2d 400 (Fla.1961); Air Mod Corp. v. Newton, 59 Del. 148, 215 A.2d 434 (1965); Volunteers of America of Madison, Inc. v. Industrial Commn., 30 Wisc.2d 607, 141 N.W.2d 890 (1966); Federal Copper & Aluminum Co. v. Dickey, 493 S.W.2d 463 (Tenn.1973); Cooper v. McDevitt & Street Co., 260 S.C. 463, 196 S.E.2d 833 (1973); Shippers Transport of Georgia v. Stepp, 578 S.W.2d 232, supra; Blanton v. Workmen's Comp. Bd., 531 S.W.2d 518 (Ky.1976);...