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Potter v. Schlegel Finishing12/12/2000
bar recovery for an injury to the employee, the employer must show the employee knowingly and willfully made a false representation as to his or her physical condition, that the employer relied upon the false representation and the reliance was a substantial factor in the hiring, and that there is a causal connection between the injury currently in question and the previous, unrevealed condition.
The causal connection must be a factual connection between the previous injury or condition which was concealed and the current injury. Federal Copper and Aluminum Company v. Dickey, 493 S.W.2d 463 (Tenn. 1973), Beasley v. United States Fidelity and Guaranty Company, 699 S.W.2d 143 (Tenn. 1985). All of these factors must be proven in order to establish the defense of false representation in the hiring process. Raines v. Shelby Williams Industries, Inc., 814 S.W.2d 346 (Tenn. 1991).
The statements, the plaintiff's deposition, and the other discovery material in the record show conflicting facts with respect to each of the elements the defendant was required to prove in order to show the plaintiff could not proceed because of his alleged willful concealment of the previous back injury . Obviously, the trial judge had to weigh the evidence to reach the summary judgment entered. A summary judgment was inappropriate in this case.
The trial court's order awarding the defendant discretionary cost is set aside as well. The matter shall abide the trial of the case on the merits.
The issue of the plaintiff's affidavit in response to the defendant motion for a summary judgment is moot. We would have reached the same opinion in the case had the affidavit not been considered.
The cost of the appeal is taxed to the defendant.
JUDGMENT
This case is before the Court upon the entire record, including the order of referral to the Special Workers' Compensation Appeals Panel, and the Panel's memorandum Opinion setting forth its findings of fact and conclusions of law, which are incorporated herein by reference;
Whereupon, it appears to the Court that the memorandum Opinion of the Panel should be accepted and approved; and
It is, therefore, ordered that the Panel's findings of facts and conclusions of law are adopted and affirmed and the decision of the Panel is made the Judgment of the Court.
Costs on appeal are taxed to the Defendant, Schlegel Finishing, Inc. and Cigna, for which execution issue if necessary.
12/12/00
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