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18 Workers' Comp. L. Rev. 3 (1995-1996)
Proving a Defense of Fraudulent Employment Application in Workers' Compensation Accident Claims

handle is hein.journals/wrkco18 and id is 25 raw text is: PROVING A DEFENSE OF FRAUDULENT EMPLOYMENT APPLICATION IN WORKERS' COMPENSATION ACCIDENT CLAIMS By James P. Murphy* As workers' compensation costs increase, employers and their insurance carriers have more and more reason to attempt to take full advantage of all defenses available to them. One de- fense that deserves careful attention is that of fraudulent mis- representation of physical condition in the employment applica- tion. It is a non-statutory defense that has evolved judicially over the past few decades. It is a complete defense. It has the blessing of Professor Larson. A number of states have adopted the defense,1 while a number of states have rejected it.2 The put- * Professor of Law, Quinnipiac College School of Law. 1. Ex parte Southern Energy Homes, Inc., 603 So. 2d 1036 (Ala. 1992); Robinet v. Enserch Alaska Constr., 804 P.2d 725 (Alaska 1990) (defense adopted by statute: ALASKA STAT. § 23.30.022 (1988)); Shippers Transport of Georgia v. Stepp, 578 S.W.2d 232 (Ark. 1978); Artcraft Sign v. McGrath, 679 P.2d 1103 (Colo. 1983); Air Mod Corp. v. Newton, 215 A.2d 434 (Del. 1965); Martin Co. v. Carpenter, 132 So. 2d. 400 (Fla. 1961); Ledbetter v. Pine Knoll Nursing Home, 350 S.E.2d 299 (Ga. 1986); Divita v. Hopple Plastics, 858 S.W.2d 214 (Ky. 1993); Shaw's Supermarkets. Inc. v. Delgiacco, 575 N.E.2d 1115 (Mass. 1991); Jewison v. Frerichs Constr.. 434 N.W.2d 259 (Minn. 1989); Martinez v. Driver Mechanbier, 562 P.2d 843 (N.M. 1977); Hilt Truck Lines, Inc. v. Jones, 281 N.W.2d 399 (Neb. 1979); Cooper v. McDevitt & Street Co., 196 S.E.2d 833 (S.C. 1973); Federal Copper v. Aluminum Co. v. Dickey, 493 S.W.2d 463 (Tenn. 1973); McDaniel v. Colonial Mechanical Corp., 350 S.E.2d 225 (Va. 1986); Oes- terreich v. Canton-Inwood Hosp., 511 N.W.2d 824 (S.D. 1994). Two other states, while not explicitly adopting the defense, have considered it more than once and pointedly left the issue open for the right case. Acox v. GMC, 481 N.W. 2d 749, 752 (Mich. 1991) ([we agree with defendant that to date the 'Larson Rule' has not been adopted as the law of this state, to be read in conjunction with sec. 431 [statutory bar for misrepresentation of occupational disease). We similarly de- cline to address the issue because it would also be dicta in this case, given our conclusion that sec. 431 does not apply to the facts of this case by its plain terms. We leave the issue to another case and another day.); Cawthon v. Alcan Aluminum Corp, 599 So. 2d 925, 928 (Miss. 1991) (This state has not adopted the defense of estoppel by fraudulent procurement of employment .... In a future case where all three elements of the estop- pel are present, the question of whether this Court should judicially recognize the de- Copyright© 1993, reprinted by permission from 13 Bridgeport L Rev. 857; 1993.

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