Applicants who intentionally misrepresent physical ability during the hiring process may be barred from collecting workers compensation benefits if injured later, according to a recent North Carolina Court of Appeals decision.1 Freeman v. Rothrock is on appeal to the Supreme Court and currently not in effect. If, however, the decision is upheld, three facts must be proved to be successful in mounting a workers compensation defense.

• Your employee knowingly and willingly made a false representation as to his or her physical condition.
• Your reliance on that false representation was a substantial factor in the hiring decision.
• There was a causal connection between the false representation and the subsequent injury.

Causal connection must be established by medical evidence, but information from your employment files will be critical in proving the first two items.

We anticipate a final ruling from the Supreme Court in 2009. To be in the best position to take advantage of this defense, Key Risk recommends that you immediately put in place the following procedures:

• Provide applicants with a detailed job description before extending an employment offer.
  • Spell out the job’s physical requirements in addition to its essential functions.
    Example: This position requires frequent lifting of 35-50 pounds and occasional lifting of 51-100 pounds.
  • Have the candidate sign and date a certification, or place language directly on the job application, that:
    • Acknowledges his or her review of the job description and understanding of the position’s physical require-ments, and
    • Attests that there are no physical limitations affecting his or her ability to perform the job, as outlined in the job description.
• Consider extending a written conditional offer of employment for heavy labor positions, contingent upon completion of a medical questionnaire or pre-employment physical.
• Ensure that the physician’s report from any pre-employment physical addresses the applicant’s ability to perform the physical requirements of the job.