1 PROVING A DEFENSE OF FRAUDULENT EMPLOYMENT APPLICATION IN WORKERS' COMPENSATION ACCIDENT CLAIMS By James P. Murphy* As workers' compensation costs increase, employers and their insurance carriers have more and more reason to attempt to take full advantage of all defenses available to them. One defense that deserves careful attention is that of fraudulent misrepresentation of physical condition in the employment application. It is a non-statutory defense that has evolved judicially over the past few decades. It is a complete defense. It has the blessing of Professor Larson. A number of states have adopted the defense, 1 while a number of states have rejected it. 2 The pur- * Professor of Law, Quinnipiac College School of Law. 1. Ex parte Southern Energy Homes, Inc., 603 So. 2d 1036 (Ala. 1992); Robinet v. Enserch Alaska Constr., 804 P.2d 725 (Alaska 1990) (defense adopted by statute: ALASKA STAT (1988)); Shippers Transport of Georgia v. Stepp, 578 S.W.2d 232 (Ark. 1978); Artcraft Sign v. McGrath, 679 P.2d 1103 (Colo. 1983); Air Mod Corp. v. Newton, 215 A.2d 434 (Del. 1965); Martin Co. v. Carpenter, 132 So. 2d. 400 (Fla. 1961); Ledbetter v. Pine Knoll Nursing Home, 350 S.E.2d 299 (Ga. 1986); Divita v. Hopple Plastics, 858 S.W.2d 214 (Ky. 1993); Shaw's Supermarkets, Inc. v. Delgiacco, 575 N.E.2d 1115 (Mass. 1991); Jewison v. Frerichs Constr., 434 N.W.2d 259 (Minn. 1989); Martinez v. Driver Mechanbier, 562 P.2d 843 (N.M. 1977); Hilt Truck Lines, Inc. v. Jones, 281 N.W.2d 399 (Neb. 1979); Cooper v. McDevitt & Street Co., 196 S.E.2d 833 (S.C. 1973); Federal Copper v. Aluminum Co. v. Dickey, 493 S.W.2d 463 (Tenn. 1973); McDaniel v. Colonial Mechanical Corp., 350 S.E.2d 225 (Va. 1986); Oesterreich v. Canton-Inwood Hosp., 511 N.W.2d 824 (S.D. 1994). Two other states, while not explicitly adopting the defense, have considered it more than once and pointedly left the issue open for the right case. Acox v. GMC, 481 N.W. 2d 749, 752 (Mich. 1991) ("[wle agree with defendant that to date the 'Larson Rule' has not been adopted as the law of this state, to be read in conjunction with sec. 431 [statutory bar for misrepresentation of occupational disease]. We similarly decline to address the issue because it would also be dicta in this case, given our conclusion that sec. 431 does not apply to the facts of this case by its plain terms. We leave the issue to another case and another day."); Cawthon v. Alcan Aluminum Corp, 599 So. 2d 925, 928 (Miss. 1991) ("This state has not adopted the defense of estoppel by fraudulent procurement of employment... In a future case where all three elements of the estoppel are present, the question of whether this Court should judicially recognize the de-
2 BRIDGEPORT LAW REVIEW. [Vol. 13:857 pose of this Article is not to consider on the merits the wisdom of the defense, or to evaluate the numerous arguments for and against it. The purpose of the Article is to explain the defense, analyze its elements, and to examine the kinds of evidence useful in asserting or opposing it. This Article is intended to assist employers and their insurance carriers as well as claimants' attorneys. Professor Larson describes the defense as a "common-sense rule made up of a melange of contract, causation, and estoppel ingredients." 3 He sets out the following factors as requirements: (1) the employee must have knowingly and wilfully 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." States that have adopted the defense accord essentially statutory status to Professor Larson's statement of it. The factors of the defense will be referred to as the misrepresentation, reliance, and causation factors in the discussion that follows. I. THE MISREPRESENTATION FACTOR The two elements comprising the misrepresentation factor are (1) the knowingly and wilfully element, which describes the mental state of the job applicant, and (2) the false representafense may require this Court to weigh the pros and cons of whether Mississippi should recognize this defense.") At least four states have statutory bars for the fraudulent misrepresentation of an occupational disease. The existence of such statutes has fueled the argument for the judicial creation of a similar statutory bar when the misrepresentation causes an accidental injury. Marriott Corp. v. Industrial Comm'n. of Ariz., 708 S.W.2d 1314 (Ariz. 1985); Blanton v. W.C. Bd., 531 S.W.2d 518 (Ky. 1976); Dressler v. Grand Rapids Die Casting Corp., 262 N.W.2d 269 (Mich. 1978); Dept. of Hwys. & Pub. Transp. v. Thrasher, 805 S.W.2d 798 (Tex. 1990). 2. Teixera v. Kavikeolan Children's Hosp., 652 P.2d 635 (Haw. 1982); Fontenot v. Cagle Chevrolet, Inc., 417 So. 2d 1338 (La. 1982); Goldstine v. Jensen Pre-Cast, 729 P.2d 1335 (Nev. 1986); Harris v. Syracuse Univ., 564 N.Y.S.2d 227 (N.Y. App. Div. 1990); H.J. Jeffries Truck Line v. Grisham, 397 P.2d 637 (Okla. 1964); Stovall v. Sally Salmon Seafood, 735 P.2d 18 (Ore. 1987); Blue Bell Printing v. W.C. App. Bd., 539 A.2d 933 (Pa. 1988). 3. LARSON'S LAW OF WORKMEN'S COMPENSATION, (1993). 4. Id.
3 19931 FRAUDULENT EMPLOYMENT tion of physical condition element. It is important to understand, in the discussion that follows, that the first element is influenced by the second. A false representation knowingly and wilfully made is an intentional misrepresentation, or, as it is often termed in this area of the law, a fraudulent misrepresentation. The defense being considered requires an intentional misrepresentation, not merely one that is negligent or innocent. Apart from an employer's positive attempt to acquire relevant health and prior injury information through the written and oral application process, there is no affirmative duty on the job applicant to disclose on his own initiative. The misrepresentation factor does not place such a burden on the applicant, nor should it. This principle is well illustrated by the case of Ferguson v. R.F. Moore Const. Co., 5 where the claimant, before applying for work with the present employer, had previously injured his back in construction work and had been awarded an eleven percent partial disability. He was not asked to fill out a written application, nor was he asked any question about his health or physical condition. He did, however, tell his employer that he was "a strong, good laborer, and could operate a jackhammer. '6 The employer argued, in defending against the subsequent claim for additional back injury, that the defense of misrepresentation of physical condition should be enlarged to include the affirmative duty to disclose prior injuries, here the partial back disability. The court declined to enlarge the defense. As to the representation by the claimant that he was a good, strong laborer, the court indicated that there was nothing in evidence suggesting that claimant believed the representation to be untrue. One lesson to be learned here is that oral representations of being a good laborer, or a strong laborer, while technically positive representations, and thus subject to the defense, are usually too vague, indefinite, and opinion-laden to satisfy the knowing and wilful element of the misrepresentation factor. Such statements, particularly when unsolicited, seem best likened to puffing one's own attributes. There is a point to be appreciated about the absence of an S.E.2d 496 (S.C. 1989). 6. Id. at 497.
4 BRIDGEPORT LAW REVIEW [Vol. 13:857 affirmative duty to disclose, even when the employer does utilize an application form that is fairly precise. It is simply that there is no residual duty on the job applicant to make up for laxly, carelessly phrased questions, by disclosing injuries or conditions that the application form or questionnaire should have zeroed in on with precision. This point is demonstrated in Simmons v. Trinity Industries, 7 where the applicant answered "no" to the following questions on the written job application: 1. Do you have any physical handicaps preventing you from doing certain types of work? (If yes, describe handicaps, and work limitations.) 2. Have you had a serious illness within the past five years? (If yes, describe.) 8 In fact, the applicant had been out of work for three months because of a back injury. The applicant had just come from his doctor who had on that very day medically released him for work. In addition, at the time of the job interview, the applicant was experiencing back pain and was using a cane. Since he knew that carrying the cane with him to the interview would jeopardize his chance of being hired, he left it in the car. He was hired. On his very first day of employment he suffered a back injury, resulting in permanent disability. Employers and insurers might, at this juncture of the discussion, regard this as an extreme case. It is not an extreme case. It is an instructive case. The court acknowledged, in affirming the conclusions of the fact finder, that claimant had not fully disclosed his condition. However, it went on to hold that the evidence did not show that he knowingly had made a false representation. A consideration of the interrelated knowingly and wilfully element and the misrepresentation element reveals why the employer did not prove the defense. First, let us look at the first element, which describes the mental state of the applicant. He had been released for work by his doctor the very day of the application "with no permanent impairment and no restrictions." He apparently thought, and was so given to understand by the doctor, that he had suffered a mere "sprain." Arguably, this therefore was not a "physical handicap" preventing him from working or a "serious illness." The evidence supported an inference that claimant hon So. 2d 1337 (Fla. 1988). 8. Id. at 1339.
5 1993] FRAUDULENT EMPLOYMENT estly believed he had no physical handicaps preventing him from working, despite the fact that he was in pain and had to use a cane. He wanted to work, and his mode of response must be looked at in light of that motivation. The representation of physical condition element focuses on the wording of the questions. The terms "physical handicap," ''serious illness," and "work limitations" are vague descriptions that suffer from inexactness, to say the least. The court stated that there was no affirmative duty to disclose all shortcomings, especially in light of the doctor's release and other advice. By the same token, there could be no affirmative duty to bring his cane to the interview. The court concluded: "[w]hen employers ask nonspecific broad questions as to physical condition on employment applications, they cannot then depend upon the... defense to bar subsequent claims when their broad questions have not been answered truthfully." 9 Several comments are in order. First, it is clear that there is no affirmative duty to disclose. In short, there is no duty to take one's cane to an interview. Second, an employer cannot regulate or guarantee what may be in an applicant's mind when he fills out a job application form. Ultimately, the evidence and the credibility of witnesses will determine whether the false representation was knowing and wilful. An employer cannot control what a doctor has previously given an applicant to understand, or what the applicant has inferred from a doctor's statements. An employer cannot control what an applicant has been told and may actually believe, relative to his condition. In the Simmons case, despite the fact that claimant had been out of work for three months with a back injury, was experiencing back pain, and was even using a cane, he was still found not to have knowingly and wilfully misrepresented. An employer cannot directly influence the mental state of the applicant. But an employer can control directly, and in turn influence the mental state of the applicant indirectly, the wording of the questions. In Simmons, the questions on the employment application could have easily been phrased or worded to accomplish the twin ends of (1) alerting this particular applicant to the information being sought from him, and (2) surviving, by an objective standard, a chal- 9. Id. at
6 BRIDGEPORT LAW REVIEW [Vol. 13:857 lenge of inexactness and nonspecificity. There is a principle at work here. The broader and more nonspecific the questions asked of the applicant, the less the likelihood of proving that the misrepresentation was knowing and wilful, or intentional. Draftsmen of pre-employment questionnaires should recognize that employers and job applicants have motivations that are not compatible. The employer wants to weed out those applicants who are not physically fit for the job and, therefore, particularly subject to injury. He has a legitimate reason to know of the prior injuries and health conditions that bear on the job the applicant is seeking. The applicant, on the other hand, wants the job. He naturally will minimize his previous health condition. He is not going to bring his cane to an interview. There is no requirement on him to resolve vague, ambiguous, and nonspecific questioning in favor of disclosure. 10 The questions in Simmons, in fact, are so badly worded that one almost gets the impression that they were drafted with the applicant's goals, rather than the employer's, in mind. Broad, nonspecific questions of this nature will normally scuttle any chance of successfully asserting the defense. In the Simmons case, the employer was required to pay substantial benefits for permanent disability of an employee who worked less than one day on the job. These costs could have been easily avoided in either of the two following scenarios: (1) assuming an honest job applicant, by weeding him out as inappropriate for employment at the application and verification stage, or (2) assuming a dishonest applicant, by successfully asserting the misrepresentation defense to his workers' compensation claim. A word that recurs time and time again in employment applications, and one that is typically useless, is "defect," or "de- 10. As one court expressed it: "[a] person who is seeking employment normally wants to put his best foot forward and may not want to be as candid about his prior medical problems as he might be otherwise." Krauzer v. Farmland Indus., Inc., 626 P.2d 1223, 1226 (Kan. 1981). The court intimated that the determination of whether the misrepresentation was knowingly and wilfully made must be rendered in the context of applicant's pursuit of the legitimate goal of getting a job. Id. The natural tendency is for him to minimize his defects. In short, he wants to put his best, not his worst, foot forward.
7 19931 FRAUDULENT EMPLOYMENT fects." In Public Gas Co. v. Smith, 1 the applicant was asked by the form to "list any physical defects," and responded "none," despite an abnormal back x-ray taken some years before. The factfinder held that the word "defects" could have been reasonably interpreted by claimant to mean defects that he believed to be presently existing. Again, the uselessness of this word is shown, at least from the standpoint of the successful assertion of the defense, in College Club Dairy v. Carr," 2 where the negatively answered question on the job application form was: "Do you have any physical defects?" In fact, the applicant had sustained a permanent knee injury in a traffic accident some four years earlier. Claimant testified that he understood the word "defects" to mean congenital defects, testimony that was believed by the factfinder. The court concluded that the employer had failed to prove that the claimant's misrepresentation had been made knowingly and wilfully.' 3 Nor was the court impressed with the fact that during the oral interview aspect of the application process the supervisor had explained the strenuous nature of the job and asked if applicant had any "physical problems."" In explaining its decision, the court adopted as its So. 2d 258 (Fla. 1980) S.W.2d 128 (Ark. 1988). 13. See also Artcraft Sign Co. v. McGrath, 679 P.2d 1103 (Colo. 1983), where applicant, in response to a question on the application asking him to list his physical defects, wrote "none." In fact, less than a year before he had suffered a back strain and disk damage while employed by a previous employer. As a result, he had undergone a laminectomy. The hearing officer concluded, and was upheld by the court, that although claimant had made a false representation, it had not been shown to have been made "knowingly and wilfully." Claimant "could have reasonably believed that he did not have a physical defect." Id. at Of particular evidentiary significance here is that after the laminectomy applicant was released by his physician and had returned to heavy lifting with the same employer. Id. at A physician's release in these cases can be quite useful to an attorney representing the claimant. In a proper case, it may be used as evidence of the reasonableness of the belief of a claimant, especially an unsophisticated claimant, that he no longer had a "defect," "problem," or "limitation." See also Simmons, 528 So. 2d 1337 (Fla. 1988) (noting that the court gives considerable weight to the physician's release of the applicant on the issue of the knowingly and wilfully element). Id. 14. College Club Dairy, 756 S.W.2d at 128, 129. The supervisor did not ask any questions regarding "physical condition, past injuries, or medical problems." The court seems to be saying that the oral question "Do you have any physical problems?" by itself is too broad and general. This thinking makes sense in light of there being no affirmative duty to disclose. The word "problem" is vague and nonspecific. It can be taken to include, or exclude, just about anything. The implication is that specific questions, designed to zero in on and elicit information about particular conditions, injuries,
8 BRIDGEPORT LAW REVIEW [Vol. 13:857 own a particularly well-phrased statement by the Workers' Compensation Commission: The employer knows which physical conditions or maladies would be relevant to fitness for particular tasks he expects the applicant to perform. Therefore, employers relying upon the... affirmative defense must show that the employee was questioned in some degree regarding health 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 may be germane to employability. 5 Distilling the significant elements from this quotation provides a useful guide to employers, without adverting to legal doctrine, of what must be done to meet the requisites of the misrepresentation factor. It is the employer, first of all, who knows what physical conditions are relevant to the job. Therefore, the burden is on the employer to question "in some degree" with regard to those conditions, past and present. Second, it is also the employer's burden to convey this message to the applicant. General, broad questions do not work. Because of their generality and breadth, moreover, such questions plant unnecessary obstacles in the path of the employer when he attempts to prove the knowingly and wilfully element. Ironically, this heavy burden of proof that results for the employer is self-imposed. Yet it is largely avoidable with forethought and planning. and problems would have fared better. Reliance by employers on the oral interview to explain otherwise nebulous questions on the application form, and thereafter serve to provide a basis for the defense, is not recommended. First, there is no guarantee that a supervisor will explain the form at all or, if he does, that his explanation will be effective. In the Simmons case, for example, the supervisor testified that he "did not go into detail" with the applicant about what was meant by "physical handicaps" or "serious illness." 528 So. 2d at Second, conflicts in testimony between the claimant and supervisor, as to what was said, will be resolved by the factfinder's credibility determinations. All the advantage here is with the claimant since the employer shoulders the burden of proof on the defense. See also Sauders v. Bailey, 423 S.E.2d 688 (Ga. 1993) (information given orally by claimant in response to "vague verbal questions" provided the employee with an opportunity to form his own subjective opinion as to any impairment; accordingly, his affirmative answers to questions concerning whether his health would permit him to perform the job duties was his good faith opinion and not a knowing misrepresentation). 15. College Club Dairy, 756 S.W.2d at 129.
9 19931 FRAUDULENT EMPLOYMENT A few other cases will sufficiently demonstrate the essential uselessness of general, broad, nonspecific questions. The problem with such questions is, as previously pointed out, twofold: (1) they make it extremely difficult for the employer to prove the knowingly and wilfully element, and (2) they do not convey a clear message as to the information being sought. In Stillman v. Multi-States Electric, 16 the applicant was asked: "Do you have any physical limitations that preclude you from performing any work for which you are being considered?" He answered, "No." In fact, applicant had sustained several prior back injuries, for which he had been awarded a permanent disability. In his subsequent claim for an additional back injury, the factfinder determined that claimant had made, knowingly and wilfully, a false representation, and dismissed the claim. But on appeal the court reversed because the claimant had not been asked specifically about prior injuries or prior workers' compensation claims. Alternatively, in an interesting evidentiary proposition, the court pointed out that claimant had, in fact, until the subsequent back injury, that is, fully performed the duties for which he had been employed. That he was able to perform these duties for four months after being hired, without injury, was strong evidence that the representation made was true. There were, then, no physical limitations precluding him from performing his job duties, at least at the time of the application and for some months following. Judged by this evidentiary proposition, there was no misrepresentation at all. 7 It can be easily S.W.2d 807 (Ark. 1989). 17. This evidentiary proposition is of doubtful validity. When the question asked, as in Stillman, is so general that it calls for no more than what is essentially a personal opinion, evidence that the applicant was able to perform his duties ably and effectively for some period of time, is clearly probative on the good faith with which the opinion is held. However, the more specific the question, the less valid the evidentiary proposition. The question asked by the employer ought not to be whether the applicant can perform, or thinks he can perform, certain tasks. The questioning ought to be directed, instead, to matters such as whether he has sustained an injury, filed a workers' compensation claim, and the like. This should be the kind of information elicited by an inquiry into his physical condition, not the applicant's opinion or judgment as to its present relevance. It should be the role of the employer to pass judgment on the relevance of the condition, not the applicant's. See Anderson v. Chattanooga Gen. Serv. Co., 631 S.W.2d 380, 385 (Tenn. 1981) ("[elvidence that the plaintiff may have been able to perform a job involving lifting in spite of having a twenty-year history of injuries, episodic pain, and the presence of accelerated degenerative disc syndrome is not material evidence that there was no misrepresentation.") (emphasis in original).
10 BRIDGEPORT LAW REVIEW [Vol. 13:857 seen that the question asked of the applicant could not have been more badly designed. The very same question, word for word, was asked of the applicant in Sawyer v. Mtarri. 8 In fact, the applicant had been diagnosed, three years earlier, as having the necrosis of the hip, and had been advised by his doctor to get into some work outside the construction trade. The court reiterated the evidentiary proposition enunciated in the Stillman case that his performance of duties for eight months after being hired was evidence that he had not misrepresented at all, at least with reference to the fuzzily-phrased question to which he answered "no." The court went on, however, to require that, to provide a basis for the misrepresentation factor, employment application questions should call for factual information, not opinion. In another case, Knight v. Industrial Electric Co.,' 9 the applicant was asked a similar question: "Do you have any physical limitation which may limit your ability to perform the job applied for?" In fact, the applicant had sustained serious injuries to his back and neck five years earlier, when he was blown off an oil drilling rig. He testified that he did not mention the prior injuries on the application form because he was not asked and because he felt he was in good physical condition at the time of the application. The factfinder resolved the claim in favor of the employee with a succinct, pungent comment worth thinking about: "[s]uch a general question requires an applicant to make a self-diagnosis of his physical condition at his own risk. ' 20 The court affirmed, holding the question too broad and general to support the defense, adding the reminder that such questions should call for fact, not opinion. The question in this case is S.W.2d 7 (Ark. 1991) S.W.2d 797 (Ark. 1989). 20. Id. at The court stated: [w]hether 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. In fact, the president of the appellee employer testified that the application was probably furnished by the insurance carrier. The appellant said he did not think his physical condition would limit his ability to do the job applied for, but the carrier said the appellant knowingly and wilfully made a false representation. Thus, a lawsuit resulted. We think the public policy that gave birth to the... defense should also seek
11 19931 FRAUDULENT EMPLOYMENT probably the most badly worded one that we have looked at in this discussion. Its drafting seems to have taken place under the preposterous impression, explored so well by the factfinding commissioner, that (1) the applicant had a legal obligation to diagnose his own condition, and that (2) the diagnosis should be at the applicant's own risk. A few earlier cases from Arkansas, the jurisdiction in which the Knight, Sawyer, Stillman, and College Club Dairy cases were decided, had been more receptive to opinion-based questions providing a foundation for the defense. Thus, in DeFrancisco v. Arkansas Kraft Co., 22 applicant was asked the familiar question, explored above, about his "physical limitations" and whether he was "in good health to the best of his knowledge." In fact, two years before he had been diagnosed as having bursitis of the heel and chronic tendinitis and was being treated with cortisone and other drugs. The defense was upheld, largely because of claimant's poor credibility assessment and inconsistencies in his testimony. 2 3 In Sanders v. Alan White Co., 24 the applicant was asked the old stand-by question: "Do you have any physical, mental, or medical impairment or disability that would limit your job performance for the position for which you are applying? ' 25 In fact, three years earlier the applicant had sustained a work-related back injury for which he had, within the past year, received a substantial settlement. He testified that he believed he had recovered from the earlier disability. The commission upheld the defense since it was clear that he "concealed his pre-existing disability on the application. "26 The successful assertion of the defense in these cases hinged to prevent, not promote, litigation. 771 S.W.2d at If, as the employer testified, the question was furnished by the insurance carrier, this circumstance speaks rather badly for the intelligence of that carrier. As the court points out, very simple questions could have been furnished which would have unmistakably conveyed to the applicant that information about his back and neck injuries was being requested. See also Wilbanks v. Kentucky Fried Chicken, 439 S.E.2d 300 (S.C. 1993) S.W.2d 291 (Ark. 1982). 23. Id. at 293. "There was substantial evidence on which the commission could find that his failure to disclose the earlier treatments and the apparent severity of them was not the result of ignorance or mistake but was knowingly concealed from his employer." Id S.W.2d 939 (Ark. 1984). 25. Id. at Id. at 941.
12 BRIDGEPORT LAW REVIEW [Vol. 13:857 primarily, however, on the poor impression the claimants made on the factfinder as witnesses. Moreover, both cases were criticized in Knight, 27 which laid down the sensible and workable requirement, described above, differentiating fact from opinion. Their present usefulness may accordingly be questioned. As methods of proof develop and are refined in other states allowing the defense, there is no reason to suspect that the Arkansas experience on the fact-opinion dichotomy will not be repeated. Questions calling for opinion are a poor substitute for those calling for fact. Even if opinion-based questions are allowed as a basis for the defense, it can be readily seen that they provide the claimant rich opportunity to testify that he misunderstood the question or that he thought he had recovered sufficiently to do the job. The success of the defense in cases like DeFrancisco and Sanders will consequently hinge on credibility determinations, which can go one way or the other. How readily factfinders and reviewing courts will accept the defense is influenced by the precision and specificity of the application questions. In Newsome v. Union 76 Truck Stop, 28 the applicant applied for a job requiring heavy lifting. He was asked the following questions to which he replied "No" and "None": "'Have you ever received workers' compensation or disability income?' and 'if yes, for what reason did you receive workers' compensation or disability income?' "29 In fact, two years earlier he had injured his back while working for a trucking firm and had been awarded, as a result, a ten percent permanent partial disability. The factfinder rejected claimant's testimony that he answered the questions falsely "because he misunderstood them and was in a hurry... ",30 On appeal, he argued that the questions called for opinion, not fact. Distinguishing the earlier cases that essentially expected the applicant to perform a self-diagnosis, the court disagreed. These two questions, it said, clearly called for factual information. 3 1 The employer prevailed. Employers can win these cases. They should never be lost because S.W.2d at 799. "We strayed from the [proper] standard in DeFrancisco... In College Club Dairy we got back on... course." Id S.W.2d 98 (Ark. 1991). 29. Id. at Id. at Id. at 101.