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Workers comp due despite not revealing prior injury: Neb. high court


LINCOLN, Neb.—The Nebraska Supreme Court says workers compensation benefits can't be denied to a former hospital employee who did not disclose prior work injuries in a pre-employment screening, a reversal of a longstanding employer right.

In a unanimous ruling, the court last week reversed a 1979 state Supreme Court decision—Hilt Truck Lines Inc. vs. Rajean Jones—that had allowed companies to claim a common-law defense against employees or job applicants who misrepresent their background to employers.

The latest decision centers on a workers comp claim by Jennifer Bassinger, who began working as a certified nurse aide for Nebraska Heart Hospital in March 2006, according to court records.

In a questionnaire completed before her hiring, Ms. Bassinger failed to report a work-related back injury that she suffered in 2001, though she mentioned a separate back injury that she suffered in 2000.

Ms. Bassinger hurt her back again in March 2008 while lifting a patient at the hospital. She applied for workers comp benefits after losing her job in July 2008, records show.

However, a workers comp judge denied the claim and ruled that Ms. Bassinger misrepresented her injuries during the hospital's application process. Citing the Hilt Truck ruling, the judge said the hospital likely would not have hired Ms. Bassinger had she mentioned her 2001 work accident.

A Nebraska Workers' Compensation Court panel reversed that decision last year. It said that the hospital needed to prove a connection between Ms. Bassinger's 2001 injury and her 2008 injury to apply a misrepresentation defense under Hilt Truck.

On appeal, Nebraska Heart Hospital contended that Ms. Bassinger showed willful negligence under the state's workers comp law by not listing all of her workplace injuries.

However, the state Supreme Court ruled that Nebraska's negligence provision applies only to company employees, and does not include negligence by job applicants.

Ms. Bassinger also alleged that the Hilt Truck decision exceeded the bounds of Nebraska's workers comp law. The state Supreme Court agreed and said the ruling in Hilt Truck was "clearly erroneous," in part because Nebraska's workers comp law does not include language for a misrepresentation defense.

The decision noted that common law is used by various courts to decide whether employees and applicants who misrepresent themselves can receive workers comp benefits. However, the court said that such provisions should be defined by statutory law, rather than case law.

Ms. Bassinger's case was remanded to the Nebraska workers comp court, which will decide whether her 2008 work injury qualifies for benefits.