concurring.
The simple answer to the appellant Jacobson’s point concerning the defense of fraudulent misrepresentation, is that such a defense does not, and never has had an existence in Missouri.
I concur with the result reached by the majority, but, rather than analyzing the pros and cons of adopting the affirmative defense for fraudulent misrepresentation, would now rule that this defense should not be judicially engrafted into the fabric of the statutory scheme of our Workers’ Compensation Law as set out in chapter 287. I would reject the appellant’s invitation to recognize this affirmative defense for the following reasons:
1. Workers’ compensation is a creature of statute, and contrary to a showing of a dire problem, any total bar to recovery by workers should be made by the legislature, rather than by the courts. Present law conclusively presumes previous awards continue undiminished, § 287.190.6, RSMo 1994, and previous injuries are regularly taken into account where there are multiple injuries qualifying for payment under the second injury fund, § 287.220.
2. Adoption of this defense is contrary to the spirit of no-fault in compensation laws as pointed out by the Arizona Supreme Court in Marriott Corporation v. Industrial Commission, 147 Ariz. 116, 708 P.2d 1307, 1312 (1985), a case cited in the majority opinion:
... absent express statutory authority, a misrepresentation as to physical health to a prospective employer should present no bar to recovery of compensation benefits for industrial injury. If employers were allowed to deny benefits based on the bargaining process that led to the claimant’s employment, the disfavored idea that the employee must be free from fault in order to receive compensation would be resurrected.
That Court has further elaborated:
Misconduct should be — and is — irrelevant ... Payment of benefits does not depend on a claimant’s good moral character, but is based simply on an injury within the scope of the workers’ compensation statutes.
Arizona Department of Public Safety v. Industrial Commission, 176 Ariz. 318, 861 P.2d 603, 608 (1993).
3. Adoption of this defense would complicate rather than simplify compensation claims. In line with the Arizona interpretation, our Supreme Court has said:
The workmen’s compensation law ... has for its legitimate purpose the amelioration of losses sustained by ... employees ... in the interest of employees and the public *391welfare.... The purpose is to provide a simple and nontechnical method of compensation for injuries sustained ... out of and in the course of employment and to place the burden of such losses on industry. Innumerable decisions indicate that the law is intended to enable an injured employee to recover compensation and to do away with common law defenses and disabilities. (Emphasis added and footnote deleted).
Bethel v. Sunlight Janitor Service, 551 S.W.2d 616, 618 (Mo. banc 1977).
This defense and the subsequent bar it carries, sounds in contributory negligence, a doctrine abandoned in our tort law in favor of contributory fault.