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In our practice, we have observed that employees are not always forthright in describing prior injuries to prospective or current employers. Fortunately, Florida statutory and case law provides a defense to employers in such situations. The statutory support for this defense is found in Florida Statutes, Section 440.15(5)(a). Moreover, the Florida Supreme Court in Martin Company v. Carpenter, 132 So. 2d 400 (Fla. 1961) held that a claimant who intentionally misrepresents a pre-existing condition to his employer, and who is later injured in a job related accident, will be barred from collecting compensation and medical benefits if certain elements are met. Those elements require the employer to prove: 1) the claimant knew the misrepresentation was false; 2) the employer would not have hired the claimant had the employer known the truth about the claimant's condition; and 3) there is a causal connection between the pre-existing condition and the subsequent job-related injury.

From an evidentiary standpoint, for this defense to apply there first needs to be a pre-employment/post-hire medical questionnaire that poses specific questions about the employee's medical history. Courts have held that phrases such as "Have you ever received compensation for injuries?" or "Have you even been injured?" are sufficient for the defense to be used, if a claimant gives a negative answer to the questions. Other sufficient questions may be "Have you ever injured the following body parts," that includes a list, such as back, neck, knees, and/or shoulders. The questions can also include "Have you ever received medical treatment for the following body parts," again with a list of specific body parts. Keep in mind that if a claimant does not actually answer the questions, but instead leaves the answers blank, this will not meet the requirements of a misrepresentation, pursuant to case law. Therefore, not only do you need a pre-employment/post-hire medical questionnaire, but it needs to be completed, and preferably signed by the claimant.

Next, the employer needs to show, through testimony, that they relied on the claimant's medical questionnaire in hiring him or her. The case law in this area has established that there must be an inference that the employer would not have hired the claimant had they known of the pre-existing conditions. Finally, the injury sustained must be connected to, or related to, the pre-existing condition. The connection or relation must be shown by medical evidence, including testimony, demonstrating that the Claimant's present, post-injury condition is related to his or her prior undisclosed injury.

If all of the three criteria can be met, the Employer/Carrier will be able to assert a Martin v. Carpenter defense, and deny all medical and compensation benefits.

   Laura A Buck, Associate
  lbuck@mcconnaughhay.com
  (352) 378-4422