The Rycroft defense allows a claim to be denied based on an employee misrepresentation.  In Georgia Elec. Co. v. Rycroft, 259 Ga. 155, 378 S.E. 2d 111 (1989), the Court held that an employment contract can be terminated when an employee misrepresents his pre-employment physical condition during the interview process.  A misrepresentation can also preclude an employee from receiving workers’ compensation benefits. 

            A three-factor test was used by the Court to determine whether a misrepresentation by the employee can be used to bar workers’ compensation benefits.  In order to effectively assert the  Rycroft defense, all three elements must be satisfied: (1) the employee must have knowingly and willfully made a false representation as to his physical condition; (2) the employer must have relied upon the false representation, and thus this reliance must have been a substantial factor in the hiring of the employee; and (3) there must have been a causal connection between the false representation and the injury.  Rycroft at 114.    

            In Rycroft, the Claimant settled a workers’ compensation claim while working for his previous employer where he sustained a herniated-disc back injury which required surgery while working for his previous employer.  Id. at 112.  He then suffered another back injury with Georgia Electric Company.  In his application with Georgia Electric, he checked “No” when asked if he had back trouble or injury.  Among the other questions he failed to answer in the affirmative were whether or not he ever had serious injuries, received workers’ compensation for an injury, or had been advised to have operations.  Id.   

            If the Rycroft defense fails, it is often because the employer has failed to meet the third prong.  The employee in Capital Atlanta, Inc. v. Carroll, 213 Ga. App. 214, 44 S.E. 2d 592 (1994), injured his right knee while on the job.  He had undergone surgery for the same knee about 15 years earlier.  Id. at 593.  The Claimant’s treating physician testified that the Claimant’s prior injury had completely healed.  Id.  The IME physician also determined that there was “probably no relationship” between the prior and current injuries.  Id. 

            The employer/insurer asserted the Rycroft defense in an effort to deny benefits.  Carroll at 593.  The Administrative Law Judge held that the first two elements were met, but there was no causal connection between the misrepresented prior injury  and current injury.  Id.  As a result, the ALJ rejected the Rycroft defense and awarded benefits to the claimant.  Id.  The Court affirmed the ALJ’s decision that a denial of the Rycroft defense was proper, because there was no causal connection between the preexisting injury and the subsequent injury.  Id. at 594.  The employer/insurer had argued there is a causal connection between the misrepresentation and the current injury because the claimant would not have been employed, and would not have received the current work-related injury, if he had not misrepresented his medical history.  Id. at 593.  The Court reasoned, however, that if this kind of causal connection was sufficient, the third element of causal connection would essentially be satisfied every time the second element of reliance was met.  Id. at 593-594.  Therefore, a Rycroft defense is severely weakened when a physician has determined the pre-existing medical condition was healed prior to the subsequent injury. 

            As a result, it is imperative that one acquire as much medical evidence as possible before asserting the Rycroft defense.  It would be wise to interview the treating physician and an independent medical examiner after they have evaluated the employee.  An example of some pertinent questions that should be asked of the doctor include: 1) whether the employee’s on the job injury, or at least the aggravation of his or her condition which resulted from that accident, would not have occurred if he or she had been truthful with the employer about their medical history; 2) whether the employee had pre-existing permanent restrictions based on past medical notes that would not allow the employee to satisfy the essential duties of the job set out by the employer; and 3) whether the employee’s current medical condition is better, the same, or worse than their pre-existing medical condition. 

            Obtaining testimony from the employer will also go a long way in helping establish the elements for the Rycroft defense.  The individual who hires the employee who misrepresented a pre-existing medical condition will be needed to testify that the employee would not have been hired, or at a minimum, given a heavy work load if they had known about the pre-existing condition.  Moreover, the person in charge of hiring could testify that the matter would certainly have been investigated more before the employee was hired and sent out to perform certain job duties. 

            If a misrepresentation is discovered after a workers’ compensation claim was accepted, the law is very specific on what steps must be done in order to controvert the claim.  The Court in Spiva v. Union County, 172 Ga. App. 151, 322 S.E. 2d 351 (1984), held that a misrepresentation by an employee will extend the time the employer/insurer has in order to controvert the claim.  In Spiva, the employer and the employee misrepresented to the insurer that that the employee was hurt at work when he was actually hurt at home.  After finding the claim compensable, the insurer was notified by the F.B.I. 23 months after the accident that they were interested in the claim file.  Id. at 352.  The insurer presented evidence that they had no reason to question the compensability of the claim until the newly discovered evidence.  Id. at 353.  Ultimately, the Court of Appeals determined the insurer was thwarted in its opportunity prior to the basis to the payment of benefits to discover the evidence supporting its claim the employee’s accident was not suffered during the scope of employment.  Id. at 353-354.  As a result, the Court of Appeals held that the evidence constituted “newly discovered evidence” since it would not have been reasonably discovered in a timely manner and allowed the insurer to toll the time within which it could controvert the claim.  Id. 

            Under O.C.G.A. § 34-9-221(i), the employer/insurer can elect to controvert on the grounds of newly discovered evidence.  Once a misrepresentation has been discovered, and there is solid evidence to support the Rycroft defense, the employer/insurer must file a WC-3 Notice to Controvert and a WC-2 Notice of Suspension of Benefits based on the newly discovered evidence.  The employer/insurer then must pay the employee an additional ten days of benefits before cutting the employee off.   The employer/insurer can also file a WC-14 Request for Hearing asking for a reimbursement of all the paid benefits based on the newly discovered evidence. 

            The Rycroft defense should also encourage all employers to require incoming employees to fill out a pre-employment medical questionnaire before beginning their respective employments.  These questionnaires may seem routine at the time, but can turn out to be pertinent pieces of evidence in the defense of potential workers’ compensation claims.