March 11, 2011

Employee’s Willful Misrepresentation May Bar Recovery of Benefits

By: David W. Willis, Esq. and Michael E. Memberg, Esq.

In Georgia Elec. Co. v. Rycroft, 259 Ga. 155, 378 S.E.2d 111 (1989), the Georgia Supreme Court set forth a three part test, whereby an employee’s intentional misrepresentation of his medical condition at the commencement of his employment could bar recovery of workers’ compensation benefits.

The 3 Part Test:

The employee knowingly and willfully made a false representation as to his physical condition at the time of hire;
The employer relied upon the false representation, and this reliance was a substantial factor in the hiring; and
A causal connection existed between the false representation and the employee’s injury.

The Rycroft defense provides employers/insurers with a defense to a workers’ compensation claim if all three elements can be proven by a preponderance of the evidence. A common scenario where the Rycroft defense may arise is when medical records obtained following a work injury indicate the injured worker had a previous injury to the same body part, and this injury or condition was not disclosed to the employer at the time of hire. However, it is incumbent upon employers to ask the right questions. This is most often done in the form of an employment “physical” and/or post-hire medical questionnaire.

Any statements made by the employee, whether written or oral, which intentionally misrepresented his or her medical condition, would satisfy the first element of the Rycroft defense. However, subjective statements such as “I will have no problem performing a job that requires frequent lifting over 50 pounds” may not be specific enough. Statements such as “I have never had a previous back surgery” (when later found to be false) are more along the lines of what is contemplated by Rycroft. The nature of such statements is a fact-specific analysis and will be made on a case-by-case basis.

The second element of Rycroft requires an employer to prove they relied upon the injured worker’s misrepresentation in their hiring decision. The best measure of employer reliance is whether the company still would have hired the employee for the position if that person had not misrepresented his or her condition. Such evidence would usually be obtained through testimony of representatives(s) from the employer. A judge would consider the physical demands of the job when determining whether the employer relied on the misrepresentation—the more strenuous the job, the more likely an employer would turn away a job applicant who reported a previous injury. Additionally, employers who require physicals may have a difficult time establishing reliance on false statement(s) if the employee otherwise passes the physical.

The third element of Rycroft requires a causal connection between the misrepresentation/prior condition and the work injury. An employer does not have to prove the pre-existing condition led to the injury, but there must be some connection between the two. One way to establish this is for an employer/insurer to demonstrate the work injury was more severe because of the misrepresented condition. For example, if an employee re-injures his or her lumbar spine at the site of an undisclosed prior surgical fusion, medical evidence (from records or a medical deposition) may support a causal connection between the injury and the misrepresentation.

In practice, it is often challenging for an employer/insurer to establish the three elements needed for a Rycroft defense, but it should always be considered if the above circumstances arise. The real lesson of Rycroft is that an ounce of prevention is worth a pound of cure. While it may sometimes be cost-prohibitive to require job applicants to undergo a physical or complete a medical questionnaire, there are several opportunities in the hiring process to discover information which could prove invaluable should an injury result down the road.

If you have questions or comments, please reply to this post or contact your David & Rosetti attorney at 404-446-4488 or by visiting our website at

Nothing contained in this blog should be construed as legal advice or opinion on specific facts. For editorial comments or suggestions, please contact David W. Willis at (404) 446-4491 or

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