dissenting.
I respectfully dissent from the holding of the majority in this case. Since the accident in this case occurred after July 1, 1985, the scope of review in this Court on issues of fact is de novo upon the record of the trial court, accompanied by a presumption of the correctness of the finding, unless the preponderance of the evidence is otherwise. T.C.A. § 50-6-225(e) (Supp. 1988). As Chief Justice Harbison stated in Humphrey v. David Witherspoon, Inc., 734 S.W.2d 315 (Tenn.1987), “this standard of review differs from that previously provided and requires this Court to weigh in more depth factual findings and conclusions of trial judges in workers’ compensation cases.”
John Edwards applied for a job, was hired, and immediately began work on July 3, 1986, with Service Construction Company. Three months later on October 2,1986, he was seriously and permanently injured while operating a jackhammer on a 12 foot scaffold. The jackhammer weighed 90 to 120 pounds and was running when Edwards’ left foot slipped through the scaffold flooring and he lost his balance. He was thus trapped with the jackhammer running and was shaken around like “a rubber snake” for about 30 seconds before another employee shut off the compressor. Dr. John H. Bell testified that as a result of this accident Edwards had a ruptured disc at the L-4-5 level, and surgery was recommended for removal of the disc. Dr. Bell related the ruptured disc to the injury sustained by Edwards on October 2,1986. Dr. *537Bell assigned a permanent medical impairment rating of 10% attributable to this injury. It is thus undisputed that Edwards was injured in the course and scope of his employment and that he sustained a permanent medical impairment.
U.S.F. & G., the workers’ compensation insurance carrier for Service Construction Company relies upon the affirmative defense of fraudulent misrepresentation on the job application. The trial judge found that the evidence supports such a defense and dismissed Edwards’ claim to worker’s compensation benefits.
The majority opinion, in affirming the trial judge, points out a tripartite test when dealing with misrepresentations on an employment application. In order to prevail, the employer must prove: (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 this reliance must have been a substantial factor in the hiring; and (3) there must have been a causal connection between the false representation and the injury suffered by the employee. Laminite Plastics Mfg. Co. v. Greene, 561 S.W.2d 458 (Tenn.1978). All three factors are required to bar recovery.
The trial court found “the Defendant knowingly and willfully made false representations of his physical condition at the time he was hired by answering ‘no’ to the inquiry relative to previous back injury.” The trial court also found that the employer relied upon the representations made by Edwards and such reliance constituted a substantial factor in the decision to hire. I disagree.
Edwards testified that Allen Tipton, who was a job foreman, was the man who interviewed him for employment and to his knowledge was the man who hired him.1 Edwards testified that one of the questions on the application concerned prior back injuries and was marked “No”, when, in fact, he had sustained a prior back injury in 1981, while putting out a fire as a Chicago fireman. Edwards stated that in 1981, two firemen were falling into a basement and in an attempt to save them, he grabbed them and in so doing, injured his back. He stated that six months after his injury he was in good physical condition. He received no worker’s compensation benefits or benefits from the City of Chicago. After this injury and prior to being hired by Service Construction Company, he had worked on other construction jobs with McNulty Brothers and L & R Management, and had no problems with his back. As the majority opinion points out, within a week after Edwards was hired, he received a company rule book and advised his job foreman, Allen Tipton, that he had suffered a previous back injury with the Chicago fire department. His foreman did not take any action to terminate him or change the job he was doing. His foreman testified that he did in fact recall the conversation a few days after Edwards was hired and remembered generally that he had been injured in Chicago. They discussed how it occurred and the rehabilitation process he had undergone. Tipton was satisfied both before and after the conversation that Edwards was physically able to do the job. Edwards’ work habits, ability and his attitude were good and Tipton had no negative statements to make in that regard.
In addition to discussing his prior back injury with Tipton, Edwards also disclosed his prior back injury to Charles Pyles, Jr., who became his foreman after Tipton left Service Construction Company’s employment. Pyles also took no action after receiving the information concerning the pri- *538or back injury. There was obviously no attempt by Edwards to conceal his prior back injury.
There being no dispute that Edwards was injured in the course and scope of his employment, the sole issue before this Court is whether he should be barred from recovery due to a misrepresentation on an employment application, when he made a good faith attempt to cure the defect within a week of filling out the application.
The trial judge found Edwards knowingly and willfully made false representations. This is not the typical case of an applicant having been previously turned down for other jobs, thus willfully making false representations in order to be hired. Edwards had never been denied employment by an employer because he had told that employer about his previous back injury. He was in a hurry, and admittedly made a mistake. The employer relies upon the case of Foster v. Esis, Inc., 563 S.W.2d 180 (1978). In Foster, the employee intentionally and fraudulently failed to disclose her history of prior back trouble on her application. In Foster, the employee was engaged in a conspiracy with a supervisor to conceal her medical history from her employer. In the case at bar, Edwards mistakenly failed to disclose. However, there is absolutely no proof that such failure was fraudulent or intentional. The record clearly shows that within a week of his hiring he made a good faith attempt to cure his mistake.
The trial judge also held that there was sufficient expert medical testimony to establish a causal connection between the previous non-disclosed back injuries and the injury suffered by Edwards on the job. The only expert medical proof in this record is that of Dr. John H. Bell, an orthopedic surgeon. Dr. Bell testified that Edwards had a completely ruptured disc at L4-5 level and that the disc was surgically removed on October 16, 1986. He stated that the ruptured disc was caused by the injury of October 2, 1986, and the injury sustained would have occurred even if Edwards had had no previous injury.
The majority found that “the evidence does not preponderate against the trial court’s finding in relation to a causal connection between the concealed condition and the injury sustained by defendant.” Dr. Bell testified that it was his impression that the October 2nd injury caused the ruptured disc, and this had no relation to the prior injuries. There is no evidence in this record that Edwards attempted to conceal his prior injury, in fact, he not only advised his foreman who took his application, but also advised the foreman who replaced Tipton. Neither foreman took any action. Under the majority’s holding, once a mistake has been made in filling out a job application, notice to the employer will not cure the defect and the employer can always rely upon the misrepresentation in the job application, if the employee is subsequently injured. Such a result is totally unacceptable.
I am of the opinion that when an employee is retained in employment after the employer has acquired knowledge of an incorrect answer in an application, and when such knowledge is acquired prior to the employee’s subsequent injury, such misrepresentation by the employee and reliance by the employer are no longer valid defenses and cannot defeat an employee’s recovery of worker’s compensation benefits.
As a result of the majority opinion, an employee will not be allowed to overcome a mistake on an application by a good faith disclosure following employment. I cannot approve of such a result. I find that the evidence preponderates against the holding of the trial judge in this case.
. Cf. Kirk v. Magnavox Consumer Electronics Co., 665 S.W.2d 711 (Tenn.1984) wherein we held, "notice to the agent or representative of the employer is a sufficient notice to the employer, provided the agent or representative to whom notice is given has actual or apparent authority to receive notice on behalf of the employer. [Citations omitted] It must be someone whose position justified the inference that authority has been delegated to him by the employer as his representative to receive notice of accidental injury. [Citations omitted] ... notice to a superior of the employee may be sufficient to notify the employer, it is not true that “superiors" of the injured employee are the only persons authorized by the employer to receive notice on his behalf; such authority may be found in the nature of the employee’s duties as well as in his “rank” in the employment hierarchy. [Citations omitted]”