There is no doubt that Ronald Babin, an electrician in Louisiana, was injured at work. He was in the bucket of a truck, working on a transformer, when the bucket mechanism malfunctioned, crushing the bucket into the transformer for several minutes. Babin huddled in the bottom of the bucket until co-workers were able to gain control of the mechanism. He hurt his back.
This sounds like a straight-forward workers comp case, but Babin ran into a complication. This was not the first time he had hurt his back.He had four prior back injuries involving two herniated discs. At one point he was out of work for nearly two years with back problems.
When he applied for the job with Ernest Breux Electric, he filled out several pre-employment questionnaires. One asked if he had any “current or prior back injuries” (this question could well be illegal, but that’s an issue for another day). He answered “no.” On another form, he admitted to having a “back strain” – but again, did not mention serious disc problems.
Thus, Babin misrepresented his medical history. His employer relied upon that misrepresentation in hiring him. And his subsequent injury was directly related to the condition he failed to disclose. Bottom line for Babin: his claim was denied.
Rock and a Hard Place
One can sympathize with Babin. He probably felt that full disclosure would have resulted in his not getting the job. It is possible, of course, that Breux Electric would have taken the information into consideration and hired him anyway. With clear documentation on the prior injuries, Breux would likely have had access to Louisiana’s second injury fund:
– The applicant had a permanent partial disability
– The employer would have hired him with knowledge of that disability
– The new injury merged with the old injury to produce a claim for the second injury fund
By hiding the truth, Babin essentially was working without a safety net. This might not have mattered if the injury had not aggravated the pre-existing condition. But as soon as his aching back became involved, Babin lost access to the protections of the comp system.
Abolish Second Injury Funds?
Speaking of second injury funds, our colleague Peter Rousmaniere has recommended that they all be abolished. He makes a compelling case. The money in second injury funds is derived from fees paid by all insureds. However, the primary beneficiaries of these funds has not been the employers, who took the risk in hiring disabled workers, but the insurance companies, who generally pocket the payments from the funds. They are not obligated to recalculate experience modifications and return premium dollars to the insureds. Some are diligent about doing this, others are not.
Second Injury funds may not be the most effective means of encouraging employers to hire partially disabled workers. And it’s clear from this particular story that these workers should not try to lie their way into a job. In the best of all possible worlds, disabled workers would not be penalized for their candor in disclosing disabilities and employers would not be penalized for the additional risk of hiring them. But in case you have not noticed, this is hardly the best of all possible worlds.
Special thanks to Work Comp Central (subscription required) for their heads up on this and many other interesting cases.
Tags: Louisiana, second injury fund
