Baptist Hospital East v. Possanz, No. 2009-SC-000563-WC (Kentucky Supreme Court 2009). Causation with regard to a misrepresentation under KRS 342.165(2) is a medical question.

In Possanz, the Court considered KRS 342.165 (2) regarding a claimant’s misrepresentation prior to hiring. KRS 342.165 (2) provides as follows:

No compensation shall be payable for work-related injuries if the employee at the time of entering the employment of the employer by whom compensation would otherwise be payable falsely represents, in writing, his physical condition or medical history, if all of the following factors are present:

(a) The employee has knowingly and willfully made a false representation as to his physical condition or medical history;

(b) The employer has relied upon the false representation, and this reliance was a substantial factor in the hiring; and

(c) There is a causal connection between the false representation and the injury for which compensation has been claimed.

The claimant suffered what would otherwise have been a compensable neck injury, but according to the employer he had misrepresented his physical condition to the employer upon application for the position by failing to disclose he had suffered a previous low back injury. The employer testified that had it been made aware of the previous injury the claimant would not have been placed in the job that resulted in his neck injury.

The Administrative Law Judge found in favor of the employer, concluding that the claimant would not have been hired if he had told the truth and, thus, would not have performed the work which exceeded his lifting restrictions and resulted in injury.

The Supreme Court disagreed and found that whether there is a causal connection between the misrepresentation and the injury is a medical question and the medical evidence before the ALJ required dismissal since it did not support a causal connection between plaintiff’s misrepresentation of a prior low back injury and the compensable neck injury.

COMMENT: The court’s interpretation of KRS 342.165 (2) is sound. However, it may have engaged in some fact-finding by concluding on its own that the medical evidence did not support a dismissal.

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