Gordon County Farms v. Edwards

Carley, Presiding Judge,

concurring specially.

I reluctantly concur with the majority that the judgment of the superior court affirming the full Board should be affirmed. However, I do so only on the basis that, under the “any evidence rule” the superior court and this Court are bound by the determination of the full Board that there was not a sufficient causal connection between the false representation and the injury. This is the third element of the Rycroft defense as enunciated by the Supreme Court in Georgia Elec. Co. v. Rycroft, 259 Ga. 155 (378 SE2d 111) (1989).

However, I strongly disagree with the majority’s conclusion that the employer was precluded from relying upon the Rycroft defense because the alleged misrepresentation was not “newly discovered” evidence. A review of the record shows the application for employment *773by the claimant wherein he clearly and unequivocally denied any prior injury to his back and any prior work injury at all. Based upon the severity of the current injury, the employer in good faith paid all medical expenses and commenced income benefits. It was only in 1989 when the employer learned that there had been a prior serious back injury and this knowledge came from the employer’s discovery that claimant settled that prior claim for $30,000.

The majority incorrectly relies upon the fact that at the time of the commencement of employment of claimant by employer, a physician engaged by employer conducted a physical examination of the claimant. It is clear that the physician conducted the examination and submitted his report based upon claimant’s application wherein he asserted that he had no previous back problems or injury. “Since there is a presumption that an employer takes an employee as he finds him, the courts cited above have found it persuasive that an employer be able to rely on the employee’s description of his physical condition. Thus, the defrauding employee cannot hide behind the argument that the employer has not engaged in extensive and expensive physical examinations and investigations in order to ascertain the potential employee’s health history.” Georgia Elec. Co. v. Rycroft, supra at 159. The mere fact that an ordinary and usual pre-employment physical examination was done in which the examining physician relied upon the fraudulent misrepresentation of the employee should not preclude assertion of the Rycroft defense in a proper case.

It is true that the majority does limit its preclusion of the assertion of a Rycroft defense to the situation where, as in this case, the “employer undertook to conduct a physical examination from which the true facts were discoverable. . . .” (majority opinion, page 772.) However, the effect of this holding is to penalize an employer for requiring a pre-employment physical exam if that examination does not uncover the fact that the employee has made blatantly false statements and misrepresentations. I respectfully submit that the situation would be different if the examining physician had discovered that the employee’s statement concerning his medical history was untruthful and the employer had hired the applicant. Here no such discovery was made.

Accordingly, I concur in the judgment of affirmance only because we are bound by the finding of fact that there was no causal connection between the misrepresentation and the compensable injury.

I am authorized to state that Judge Johnson joins in this special concurrence.

*774Decided June 17, 1992 Reconsideration denied July 2, 1992 Kinney, Kemp, Pickell, Sponcler & Joiner, Maurice Sponcler, Jr., for appellants. Mundy & Gammage, John M. Strain, for appellee.