EG Gazette- July 2022

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Can You Even Lift, Bro?—Using Pre-Employment Physicals to Defend TN Claims

Author: Ben Norris, Associate, Nashville

When hiring for a position that involves physically demanding work, it is important for employers to verify each job candidate can do the work required without putting themselves or others at increased risk of an on-the-job injury. To make this determination, employers are allowed under Tennessee law to require job applicants to undergo a pre-employment physical as part of the hiring process. A comprehensive pre-employment physical usually involves asking the individual about their medical history and whether they have any pre-existing conditions that may interfere with their ability to perform their job duties. In the event an employee fails to disclose a pre-existing condition during a pre-employment physical and later suffers an injury on the job related to that condition, Tennessee employers can use the information provided by the employee during their pre-employment physical to assert a rarely used defense to compensability known as the False Representation of a Physical Condition defense. 

            The False Representation of a Physical Condition defense was first recognized by the Tennessee Supreme Court in Federal Copper & Aluminum Company v. Dickey, a 1973 case where the court decided the defense was necessary despite the Tennessee General Assembly failing to include it in a specific provision of the Tennessee Workers’ Compensation Act. In that case, the court found an employee is barred from recovering workers’ compensation benefits where the employer is able to prove:

  • The employee knowingly and willfully made a false representation as to his physical condition;
  • The employer relied upon the false representation and this reliance must have been a substantial in the hiring; and
  • a causal connection exists between the false representation and the injury.

While Dickey is an “old law” case, the Court of Workers’ Compensation Claims at Memphis, the Court of Workers’ Compensation Claims at Jackson, and the Court of Workers’ Compensation Claims at Chattanooga have all held the False Representation of a Physical Condition defense remains a viable defense for employers even after the 2013 reforms to the Tennessee Workers’ Compensation Act.

            To satisfy the first prong of the defense, the employee “knowingly and willfully made a false representation as to his physical condition,” the employer must be able to prove, first and foremost, that the employee falsely represented his physical condition. Given any employer looking to assert this defense will likely have to do so weeks, months, or years after the employee was hired, having documentation from the employee’s pre-employment physical that is signed by the employee is critical. Without such documentation, satisfying this first prong of the defense at a trial will be difficult as it will inevitably lead to a “he said, she said” situation that will not be convincing one way or another for the court. Another issue that has come up in cases involving the False Representation of a Physical Condition defense is whether an employee with diminished mental capacity can “knowingly and willfully” make a false representation. Factors the courts have looked at in deciding this include whether the employee has been previously diagnosed with a mental illness or deficiency and their level of education.

            The second prong of the defense, which involves two elements, is often the prong that makes or breaks the defense. Regarding the first element of the second prong, the phrase “substantial in the hiring” coined by the Dickey court has been interpreted by the Court of Workers’ Compensation Claims to mean the false representation of a physical condition by the employee has to occur during the hiring process. In Scott v. Hollywood Feed, LLC, a 2021 case in the Court of Workers’ Compensation Claims at Memphis, the employer tried to assert the false representation defense when a truck driver, who was hired four years prior, injured his back on the job but failed to report prior back issues to the doctor performing his yearly DOT physical. Citing Dickey, the court held the defense failed because the false representation was not made at the time of hiring. The other element of the second prong of the defense requires the employer to have relied upon the false representation in deciding to hire the employee. In deciding whether the employer has proven this element, the courts look at whether a representative of the employer actually reviewed the documentation from the pre-employment physical and considered it in deciding to hire the employee. In most cases, testimony from an employer’s representative that they reviewed the pre-employment physical documentation prior to making the decision to hire the employee will suffice to satisfy this element.

            The third and final prong—whether a causal connection exists between the false representation and the injury—is generally the easiest to determine. To satisfy this prong of the test, the employer must show the false representation made by the employee in the pre-employment physical was, generally speaking, in regard to the same body part the employee subsequently injured on the job. For example, if a job applicant with prior lower back issues answers “no” to a question asking about a history of back issues on a questionnaire given to him as part of his pre-employment physical, and that job applicant is later hired and suffers a lower back injury on the job, it is very likely a court would find a causal connection exists between the false representation and the injury.

Key Takeaways for Tennessee Employers

  • Documentation is key. Many urgent care clinics offer pre-employment physicals and, as part of the physical, will have the employee complete and sign a questionnaire about their medical history. Employers should make sure the medical provider performing the physical requires such a questionnaire and, after the physical, obtain all of the documentation from the provider and keep it in the employee’s personnel file.
  • The employee’s false representation must occur during the hiring process and the employer must rely upon the false representation in making the decision to hire the employee.
  • The on-the-job injury suffered by the employee must involve the same body part/physical condition the employee misrepresented during the hiring process.

If you have any questions about the False Representation of a Physical Condition defense and the steps employers can take now to set themselves up to successfully assert this defense in the future, feel free to shoot me an email at

When a Major Contributing Cause Questionnaire Won’t Help: Understanding the Concepts of Waiver and Estoppel

Author: David Halpern, Partner, West Palm Beach

We’ve all seen carriers unintentionally provide treatment for a pre-existing condition. This happens for several reasons. Sometimes, an assistant tasked with setting an appointment authorizes treatment for a body part without realizing the claimant’s past medical history. Other times, an overworked claims examiner accidentally pays a bill without noticing a diagnosis of osteoarthritis or degenerative disc disease on a DWC-25. And often a carrier just has no way of knowing a pre-existing condition exists because a medical evaluation is needed to make that determination.

If you asked someone with no WC knowledge “what should I do if I’ve accidentally paid a doctor for six months of treatment for a pre-existing condition?”, the person might suggest “just stop paying and get your money back.” If you asked someone with WC knowledge, they might suggest sending the doctor a “major contributing cause” questionnaire, thinking that a favorable response may allow you to appropriately suspend care.

Unfortunately, Florida law has trended to a point where both of these people might be wrong. The reason are oft-misunderstood concepts known as “estoppel” and “waiver”.

Florida law instructs that “a carrier that fails to deny compensability within 120 days after the initial provision of benefits or payment of compensation…waives the right to deny compensability, unless the carrier can establish material facts relevant to the issue of compensability that it could not have discovered through reasonable investigation within the 120-day period”.[1]

It’s important to understand that this concept applies to the compensability of specific injuries, not just the original accident. So if a claimant sustains a lumbar strain and you authorize treatment for “the back”, or if he sustains a lower extremity skin abrasion and you authorize treatment for “the knee”, you run the risk of being “estopped”, or prevented, from later trying to deny treatment for “the back” or “the knee”, on grounds that you accepted the entire body part and treated it for 120 days. Put another way, an enterprising claimant attorney might claim you “waived” the right to deny treatment for a clearly pre-existing condition which you knew or should have known was pre-existing by Day 120.

Once compensability of an injury is established by a carrier treating it for 120 days, a carrier can no longer contest that the accident is the major contributing cause of an injury or condition[2] – regardless of whether the condition is clearly non-work-related, and regardless of how favorable the doctor responds to your trusty major contributing cause questionnaire.

While it is true that the major contributing cause of treatment for the accepted injury or condition can still be challenged at that point, doing so is an uphill battle for carriers. The reason is that a carrier must then show a “break in the causation chain” to avoid liability for treatment of an accepted injury.[3] The prevailing logic is that such a “break” must be a new accident or injury. Arguments that a claimant has “returned to baseline” or “has a significant pre-existing condition” are unlikely to qualify as a “break in the causation claim” once 120 days of treatment have been provided for an injury.

So what can carriers do to avoid this situation? Here are some suggestions:

  1. At the outset of a claim, clearly identify the 120th day from the initial provision of benefits in your file and make a determination by then as to whether any injuries noted in medical documentation are clearly pre-existing and should be denied.
  2. File partial denials related to those conditions prior to Day 120 as appropriate.
  3. When authorizing a doctor to evaluate/treat, be very specific on your authorization letters as to the conditions the doctor is authorized to treat. Do not authorize treatment for entire limbs, joints or sections of the spine unless you know for sure that such body parts are compensable. If you do not know initially which conditions are compensable, limit authorization to ‘evaluation and treatment of the specific acute injuries sustained in the accident at issue’, and then narrow down that authorization once you receive more information (making sure this is done within 120 days from the date you initially provided benefits).

Being specific about the injuries which are accepted at the outset of a case may remove procedural obstacles to raising an otherwise viable major contributing cause defense. This defense, along with timely raised challenges to medical necessity, can help carriers ensure that appropriate medical benefits are provided to an injured worker.

Should you have any questions on this topic, please feel free to contact us.

[1] Section 440(4), Florida Statutes

[2] See Cespedes v Yellow Transp, Inc., 130 So. 3d 243, 248 (Fla 1st DCA 2013)

[3] See Perez v Southeastern Freight Lines, 1559 So. 3d 412, 414 (Fla 1st DCA 2015)

Death Claims: Who receives the benefits in the event the Claimant does not have a surviving spouse or children?

Author: Shari’ Mann, Associate, Atlanta

The families of injured workers that pass away as the result of a work accident may be able to receive compensation (death benefits) which can include weekly benefits (indemnity) and burial expenses. There are several rules that govern death benefits altogether; however, what we may not consider is what happens in the event the claimant does not leave behind a wife or children as beneficiaries.

Prior to discussing who would receive the death benefits, O.C.G.A. § 34-9-265(b) must be satisfied to determine whether death benefits are payable. For a death claim to be compensable, the claimant-decedent must have suffered an injury that arose out of and in the course of their work for the employer.  Alternatively, if the disabling injury leads to death but the claimant-decedent’s death is not instantaneous, proximate cause must be proven.

                When there is a compensable claim and there is not a wholly dependent spouse and/or dependent children, other family members (namely parents) can assert claims against the employer/insurer for death benefits. For instance, the mother of the deceased claimant can file a notice of a claim and request death benefits such as funeral expenses (for which up to $7,500 is payable) and weekly indemnity benefits. To obtain death benefits, the party asserting the right to compensability must show that he or she falls within the definition of “next of kin” as defined by OCGA §34-9-13 (surviving spouse, child, or parent) and that he or she was either wholly or partially dependent on the deceased claimant for financial support for at least ninety days prior to the accident. There can be exceptions to whom, in fact, is a dependent of the claimant-beneficiary. Any questions about the subject matter should be determined by the Board with the claimant-beneficiary bearing the burden of proof. See, St. Paul-Mercury Indemnity Co. v. Robinson, 88 Ga. App. 217, 76 S.E.2d 512 (1953). Being wholly dependent usually speaks to situations where the claimant-decedent has provided financial support for the beneficiaries living (i.e., the paying of rent or mortgage) whereas partial dependents are those that received support from the claimant-decent in a lesser capacity (e.g., financial aid with the paying of a utility bill). Partial dependency can be established even where the contributions made by the claimant-decent were done so in irregular intervals and at various amounts. Glen Falls Indemnity Co. v. Jordan, 56 Ga. App. 449, 193 S.E. 96 (1937).

Should the beneficiary be successful in showing that he or she wholly relied on the claimant for support at the time of death, that party is to be paid compensation benefits equivalent to two-thirds the average weekly wage at the time of the accident.  When the beneficiary cannot show total dependence on the claimant-decedent and instead supplies evidence to show partial reliance on the claimant-decedent for support, they can receive benefits in an equal proportion to the average amount which was provided by then claimant-decedent not to exceed the computed indemnity rate. (OCGA §34-9-265(b)(3)).

To calculate partial dependency, we utilize the average amount contributed by the claimant-decedent (A) divided by their average weekly wage (B) multiplied by their worker’s compensation rate (C). For example, in a claim where a partially dependent mother received (on average) $200.00 per week from her deceased son (who had an average weekly wage of 1,200.00 and a compensation rate was $675.00), she will receive $112.50 in weekly benefits (A/B x C = $200.00/$1200.00 x $675.00). Dependency terminates at the age of sixty-five (65) or at the end of four hundred (400) weeks, whichever provides the greater benefit to the claimant. In the event the claimant-beneficiary passes (in a scenario where this is not a wholly dependent spouse or child(ren)) the benefits dissipate altogether. O.C.G.A. 34-9-25(c).

It is important to note, that benefits are not to be paid to the claimant-decedent’s beneficiaries prior to the claimant’s death (in the event, death is not instantaneous). Any benefits paid directly to the claimant prior to his or her passing are deducted from the overall amount the claimant-beneficiary is eligible to receive. O.C.G.A. §34-9-265(b)(4).

Editor: Betsy Campo, Partner, Jacksonville

Editor: Karysa Eraclides, Associate, Sarasota