dissenting.
With all due respect to my colleagues comprising the majority, I disagree with their holding. I cannot join in the majority’s reliance on Gray v. J.P. (Bum) Gibbins, Inc., 75 N.M. 584, 408 P.2d 506 (1965), and Sanchez v. Memorial General Hospital, 110 N.M. 683, 798 P.2d 1069 (Ct.App.), cert. denied, 110 N.M. 653, 798 P.2d 1039 (1990), to affirm the workers’ compensation judge (judge). Instead I would hold that, as a matter of law, the specific question asked of Worker in this appeal was so broad, vague, or general so as to make it insufficient to trigger a duty to disclose on the part of Worker and to permit reliance on the part of Employer. Any ambiguity in the question, in my view, should be construed against Employer. The majority having decided otherwise, I dissent.
The relevant question asked Worker on her job application was:
I. PERSONAL: Do you have any condition which might limit you in job assignments or ability to work in the position for which you are applying: yes _ no _
Worker checked “no” in response to this question.
I consider the following factors associated with this question as important to my determination that reversal of the judge’s decision is warranted. First, the question focuses on an overly broad “condition,” not a specific kind, such as a medical or physical condition.1 In this regard, the question lends itself to an answer that calls for a purely subjective opinion. Second, it is undisputed that Employer asked Worker no other questions regarding her health or health history. Third, despite Worker having openly given references concerning Worker’s previous employer and a general release signed by Worker authorizing Employer to investigate her work and medical history, Employer did not investigate further. Fourth, the evidence also showed that, had Worker checked “yes” in her application, she would not even have been interviewed for the position. Finally, it is worth noting that, after being hired, Worker fully performed her job duties for a little more than one-and-one-half years before being injured. This last factor buttresses Worker’s opinion (on which she based her answer to the question) that she honestly believed she possessed no condition that would prevent her from doing the job required.
In discussing the facts of this appeal, I do not intend to give the impression that I believe the issue on appeal is whether or not substantial evidence supported the judge’s determination. Nor do I wish to leave the reader with the false impression that these facts were all-encompassing. To be sure, there was other evidence that could be reasonably viewed as supporting the judge’s findings. I mention these facts only because they lend strong support to Worker’s contention that the question asked was overly broad and thus ineffective to trigger a duty to disclose. I should add, however, that, had a substantial evidence question been raised on appeal, I would probably have still proposed reversal because I believe substantial evidence in the whole record did not support the judge’s determination. In any event, the basis for my proposed reversal would make it unnecessary to reach the substantial evidence question.
The “false representation” attributed to Worker in this appeal, first by the judge below, and now by the majority’s holding on appeal, is a far cry indeed from the deception perpetrated by the worker in Sanchez. In Sanchez, the worker, who years earlier had filed a workers’ compensation claim for injuries sustained while working for another employer, expressly denied in his job interview and in the written application that he had ever injured his back or ever received any workers’ compensation benefits. 110 N.M. at 686, 798 P.2d at 1072. He also answered “no” to the question: “If you are employed, do you have any limitations which must be •considered for the position to which you have applied?” Id. at 687, 798 P.2d at 1073. When he was asked to list his previous employers, he purposely omitted the employment during which he had previously injured his back. Id. The worker in Sanchez also failed to disclose his previous back injury in his response to the employer’s initial interrogatories propounded to him, and finally, on appeal, the worker did not contest the judge’s findings that the worker’s “failure to complete the question on previous employment was for the purpose of avoiding investigation of his physical background and discovery of earlier back problems.” Id.
In contrast, here, the form application did not ask whether Worker had a previous back injury or whether she had filed a workers’ compensation claim. She was not asked about her medical or claims history at the interview. She did not omit listing the employer where she was injured as a reference on her application form. In fact, she listed her work with the Capitan School Cafeteria as part of her experience and listed two Capitan School personnel as references. Finally, she signed a general release for Employer to investigate her employment and medical history.
Additionally, Worker relies on the following factual aspects of this case. Worker’s chiropractor and doctor testified that she was generally fit, cooperative, did not malinger, was energetic, and driven to work and to keep busy. Dr. Diven testified in his deposition that part of her continuing back problems arising out of the previous injury was a stiffness in the hamstrings and in her back that seemed to improve with activity and exercise. Worker also testified that, at the time she filled out the job application, neither the chiropractor nor Dr. Diven had placed any restrictions on her work. On the contrary, Worker testified that they told her to keep working and that work was “the best thing for her.”
In light of this glaring contrast between the facts in Sanchez and the facts in this appeal, I find it difficult to accept the majority’s holding. Instead, I would propose adopting the rule followed by the Arkansas .courts, a rule essentially rejected by the majority.
Like New Mexico, Arkansas allows employers to raise the false representation defense. See Shippers Transp. v. Stepp, 265 Ark. 365, 578 S.W.2d 232, 234 (1979) (en banc). However, Arkansas mitigates the harshness of the rule by placing on the employer the burden of asking questions that elicit factual information regarding a worker’s health and physical condition, rather than asking questions that require a worker to respond with an opinion. See College Club Dairy v. Carr, 25 Ark.App. 215, 756 S.W.2d 128, 129 (1988). The policy underlying this requirement is that:
“[t]he employer knows which physical conditions or maladies would be relevant to fitness for the particular tasks he expects the applicant to perform. Therefore, employers relying upon the [false representation] affirmative defense must show that the employee was questioned in some degree regarding health and history and present condition in such a way as to elicit responses likely to be worthwhile in assessing the employee’s health history, condition, and capacity for performing the employment. The question posed in this case is so general and broad that it conveys no message about any aspect of one’s health that it may be germane to employability.”
Id. Additionally, in Knight v. Industrial Electric Co., 28 Ark.App. 224, 771 S.W.2d 797 (1989), the Arkansas appellate court stated:
In light of the fact that the [false representation] defense relieves an employer of liability for otherwise compensable injury, it does not seem unreasonable to require questions calling for factual information rather than opinion. Whether one has ever had a workers’ compensation claim or lost work because of an on-the-job injury are questions not hard to understand or difficult to answer. But the question on the application in this case not only calls for an opinion, it almost guarantees litigation____ We think the public policy that gave birth to the [false representation] defense should also seek to prevent, not promote, litigation.
Id. 771 S.W.2d at 799-800. I fully agree with the reasoning of the Arkansas courts that, in light of the complete loss of benefits that a worker might suffer, it is only fair to require an employer to ask specific questions about an applicant’s physical condition that do not require an applicant to speculate concerning his or her “condition.”
I consider it somewhat peculiar that the majority does not totally reject the reasoning of the Arkansas courts and in fact acknowledges that “a question may be so general or so ambiguous that it cannot be answered falsely.” The. majority’s proposed “refined approach” to the first prong of the false representation defense incorporates the concept that a question can be so overly broad as a matter of law that an employee could not be expected to provide an accurate response. Nonetheless, the majority concludes that the specific question asked of Worker was not so general as a matter of law that Employer could not rely on Worker’s response to raise the false representation defense. I respectfully disagree with the majority’s determination. Because in my view an employer should bear the burden of formulating a question that would be reasonably understood to trigger the duty to disclose, I believe the employer should be precluded from relying on the worker’s answer when the question is too general or vague. The majority apparently treats the first and second prong of the Larson rule separately. I, on the other hand, see them as connected.
If the question asked of Worker was not so vague as to preclude Employer relying on it as a matter of law, I cannot imagine what question would be. The word “condition” fails to even specify that it is requesting Worker to self-evaluate her health or physical abilities; the word could refer to a multitude of things, both physical and personal. The Arkansas courts have held that similar questions are too broad and general for an employer to rely upon them in raising the false representation defense. See Sawyer v. Mtarri, 33 Ark.App. 125, 806 S.W.2d 7, 8 (1991) (en banc) (“Do you have any physical limitations that preclude you from performing any work for which you are being considered?” held to be too vague); Knight, 28 Ark.App. 224, 771 S.W.2d at 797 (“Do you have any physical condition which may limit your ability to perform the job applied for?” held to be too vague); College Club Dairy, 756 S.W.2d at 129 (“Do you have any physical defects?” held to be too vague); cf. Newsome v. Union 76 Truck Stop, 34 Ark.App. 35, 805 S.W.2d 98, 99, 101 (1991) (holding that questions that “[h]ave you ever received workers’ compensation or disability income?” and “[i]f yes, for what reason did you receive workers’ compensation or disability income?” sought “factual information that ... bears directly on one’s health history.”). In fact, the questions held to be too broad and general by the Arkansas courts were more specific than the question at issue here because they specified physical condition. See Sawyer, 806 S.W.2d at 8; Knight, 771 S.W.2d at 797; College Club Dairy, 756 S.W.2d at 129.
If this hurdle is surpassed (and, considering that the question asked of Worker in this case apparently survives this part of the majority’s analysis, just about any question, no matter how vague, would), the majority’s proposed analysis requires the fact-finder to pursue a factual inquiry, applying a reasonable person standard. I believe this test makes an otherwise straightforward inquiry much too complicated and may even cause more problems than it solves, despite the majority’s genuine efforts to formulate a test that provides some guidance to the trier of fact.. There are some things in the law that are better left untouched. I suspect such may be the case in the majority’s attempt to clarify the fact finder’s task.
Because I have concluded above that the question asked of Worker was overly broad as a matter of law, it should be obvious that any further inquiry, whether fact based or not, would be unnecessary under my proposed disposition. Even if it were possible to conclude this particular general question is not too broad, I would then determine, as a matter of law, that a reasonable person in Worker’s situation, knowing that she was applying for the same type of work she had been performing and that she had no restrictions on her work, would not have understood that her medical history had to be disclosed in response to this question. In fact, I view the objective test discussed by the majority as merely a part of the first question — whether the question asked is too general or vague to permit an employer to rely on it. It is also not clear to me whether the majority intends its analysis to apply to eases that would be governed by NMSA 1978, Section 52-1-28.3 (Repl.Pamp.1991), or instead intends to limit the analysis to only those eases to which that statute does not apply. As I noted previously in Footnote 1, the statute codifies the false representation defense in very specific language. I am uncertain whether the majority’s analysis lends itself to a proper interpretation of the section’s detailed provisions. As an alternative to the analysis adopted by the majority, I would favor the faef/opinion distinction adopted by the Arkansas courts.
The majority also holds that Employer was entitled to rely on the “no” answer Worker gave to the only question asked about any “condition.” In so holding, the majority relies on Kalbes v. Armour Industrial Security & Claims Center, 483 So.2d 124 (Fla.Dist.Ct.App.1986), claiming that “[tjhis case is indistinguishable from Kalbes.”
I disagree; Kalbes is plainly distinguishable. In Kalbes, the claimant expressly denied any prior back problem or previous injury on the employment application, and he did not even answer the question concerning whether he had received workers’ compensation benefits. Here, in contrast, Worker was not asked any specific questions about her medical or claims history. Besides, the only question asked and the answer given in this case were not specific enough to obtain specific medical history and physical condition information related to job performance or to trigger an obligation to disclose. Consequently, as a matter of law, Employer’s reliance on the question and answer was not justified or reasonable.
I believe that, in order for an employer to rely on the false representation affirmative defense, more should be required. An employer should ask questions designed to elicit relevant factual responses concerning a work applicant's physical condition and health history, rather than broad questions that require a worker, at his or her own risk, to express an opinion. Such a requirement would be in accord with previous New Mexico case law. Compare Gray, 75 N.M. at 587, 408 P.2d at 507-08, with Sanchez, 110 N.M. at 690, 798 P.2d at 1076.
In contrast, I believe the majority’s holding undermines the legislature’s stated public policy that the Worker’s Compensation Act, NMSA 1978, §§ 52-1-1 to -70 (Repl. Pamp.1991), is “not to be given a broad liberal construction in favor of the claimant or employee on the one hand, nor are the rights and interests of the employer to be favored over those of the employee on the other hand.” NMSA 1978, § 52-5-1 (Repl.Pamp.1991) (effective until January 1, 1991) (emphasis added); accord § 52-5-1 (effective January 1, 1991). Allowing an employer to raise the false representation defense based on an applicant’s response to a broad, general question concerning “condition,” such as the one asked of Worker here, unjustifiably favors the employer’s interests over those of the claimant. In my view, with its decision in this appeal, the majority has lent support to the criticisms that the Act has encountered in the past few years, namely that, instead of being neutral (neither pro-worker nor pro-employer), the Act places additional burdens on claimants, burdens that are unfair and were not intended by the legislature.
In summary, I would hold that, as a matter of law, the question asked of Worker by Employer was so broad and vague that it was not sufficient to trigger a duty to disclose. As a result, Employer should not be allowed to claim that it relied on Worker’s answer. For these reasons, I would reverse.
. The majority acknowledges that NMSA 1978, Section 52-1-28.3 (Repl.Pamp.1991), codifies the false representation defense. That statute contains very specific provisions now governing the defense. Although the statute applies only prospectively, as the majority recognizes, nonetheless one cannot escape the specificity with which the defense is discussed in the statute. This specificity includes use of the phrase "worker’s medical condition.” (Emphasis added.) In using that phrase, the legislature left no doubt that the question must be understood clearly by the worker to trigger the necessary disclosure, a requirement I am advocating in this dissent. I should comment that, if the provisions of Section 52-1-28.3 were to apply to the facts of this appeal, Worker would most likely have prevailed, in my opinion. In contrast, under the majority's analysis, an unreasonable burden has been placed on Worker that is difficult to overcome.