George Ronald SMALL, Petitioner,
v.
ONEITA INDUSTRIES, Employer, and Zurich Insurance Company, Carrier, Respondents.
No. 24270.
Supreme Court of South Carolina.
Heard May 17, 1995. Decided July 3, 1995. Rehearing Denied July 31, 1995.Stephen W. Evans of Friddle and Waikart, Greenville, for petitioner.
Duke K. McCall, Jr. and Jack H. Tedards, Jr. both of Leatherwood, Walker, Todd and Mann, Greenville, for respondents.
WALLER, Justice:
We granted certiorari to review the Court of Appeals' opinion reported at ___ S.C. ___, 442 S.E.2d 213 (Ct.App.1994). We affirm.
FACTS
Small filled out an employment application for Respondent, Oneita Industries, in which he denied ever having any back problems. In fact, Small had a twenty-five percent disability rating due to back injuries suffered in prior employment. Unaware of his back problems, Oneita hired Small as a materials handler.[1] Small injured his back in March 1991 while pushing a 200 pound box full of cloth. He did not return to work but was not officially terminated subsequent to his injury. Small's application for worker's compensation was denied by the Single Commissioner on the ground the claim was barred by this Court's opinion in Cooper v. McDevitt & Street Co., 260 S.C. 463, 196 S.E.2d 833 (1973). The Full Commission affirmed, as did the Circuit Court and the Court of Appeals.
ISSUE
If, subsequent to an employee's injury, an employer discovers the employee misrepresented his physical condition, is the employer liable for worker's compensation benefits if it fails to terminate the employee?
DISCUSSION
In Cooper v. McDevitt & Street Co., we adopted the rule enunciated by Professor Larson that an employee's false statement in an employment application bars recovery of worker's compensation benefits if: (1) the employee knowingly and wilfully makes a false representation as to his physical condition, (2) the employer relies upon the representation and the reliance is a substantial factor in the hiring, and (3) there is a causal connection between the false representation *307 and the injury. 1B Larson, The Law of Workmen's Compensation § 47.53 (1994).
Small concedes the elements of Cooper are met in this case. However, he contends certain language in Cooper requires, in addition, that an employer terminate the employment relationship upon learning of an employee's false statement.[2] We disagree.
In Cooper, there is dictum to the effect that an employee's false representation inducing his employment does not make his employment contract void but merely voidable at the employer's option. Contrary to Small's contention, this language did not add a fourth element to Cooper. We find no authority to hold that the failure to terminate an employee upon discovery of a misrepresentation subsequent to an injury vitiates the employer's reliance. To so hold would be to require an employer who learns of a misrepresentation subsequent to an injury to elect either termination, in which case it may be subject to a wrongful discharge suit, or retention of the employee, in which case it is liable for worker's compensation. We decline to put the employers of this state on the horns of such a dilemma.
We adhere to our opinion in Cooper and subsequent decisions reaffirming the three elements set forth therein. See Vines v. Champion Building Products, ___ S.C. ___, 431 S.E.2d 585 (1993); Givens v. Steel Structures, Inc., 279 S.C. 12, 301 S.E.2d 545 (1983); Carroll v. Jackson National Life Ins., 304 S.C. 491, 405 S.E.2d 425 (Ct.App. 1991); Ferguson v. R.F. Moore Constr. Co., 298 S.C. 457, 381 S.E.2d 496 (Ct.App.1989); McLeod v. Piggly Wiggly Carolina, 280 S.C. 466, 313 S.E.2d 38 (Ct.App.1984).
The Court of Appeals' opinion is
AFFIRMED.
FINNEY, C.J., TOAL and MOORE, JJ., and JOHN C. HAYES, III, Acting Associate Justice, concur.
NOTES
[1] An agent of employer testified that knowledge of Small's prior injury would not have affected its decision to hire him, but would have affected its job placement of Small.
[2] We need not address, in the present case, whether Cooper applies in a situation where an employer learns of a misrepresentation prior to an injury but nonetheless retains the employee. We note however that other jurisdictions are divided as to whether such knowledge vitiates an employer's reliance on the misrepresentation. See generally Annotation 12 A.L.R. 5th 658 (1993).