By Jane Salem, staff attorney, Nashville

An injured worker who gets a job using a false identity is still entitled to workers’ compensation benefits, because a valid contract for hire existed. The plain language of the statute defining “employee” compels this conclusion, according to the Appeals Board in an opinion released earlier this week, Torres Antunez v. MG Dyess, Inc. The Board further held that the misrepresentation defense doesn’t extend to include identity fraud.

Christian Torres Antunez completed a written job application listing another person’s name, date of birth, address, and social security number. He was hired and later suffered serious injuries at work.

MG Dyess denied the claim, citing his misrepresentation of his identity and fraud, and Torres Antunez requested an expedited hearing. After the hearing, the trial court awarded benefits, considering the definition of “employee” in section 50-6-102, which includes the language “whether lawfully or unlawfully employed.” The court also held that the misrepresentation defense didn’t apply because his misrepresentation didn’t involve his physical condition.

On appeal, MG Dyess argued it never would’ve hired Torres Antunez “but for” the misrepresentation of his identity, so no valid contract of hire exists and no benefits are owed.

The Board disagreed, writing that MG Dyess “has taken the statutory phrase ‘under any contract of hire’ as used in subsection 102(10)(A) out of context.”

They explained, “That phrase is part of a single sentence that also includes the phrase ‘every person . . . whether lawfully or unlawfully employed.’ Moreover, the phrase ‘under any contract of hire’ is modified by the phrase ‘written or implied,’ indicating that a written agreement is not a critical element of the formation of an employment contract.”

Precedent says that the scope of the Workers’ Compensation Law “was intended to encompass all persons who provide services to an employer for pay, whether lawfully or unlawfully employed,” the Board continued. Further, the definition of “employer” includes any entity “using the services of not less than five (5) persons for pay.” MG Dyess was using Torres Antunez’s services for pay, and, “[t]he fact that he was not lawfully employed due to his use of a false identity does not change that fact.”

Turning to the misrepresentation defense, decades ago, the Supreme Court gave a three-part analysis: 1) The employee knowingly and willfully made a false representation as to his physical condition; 2) The employer relied on that and its reliance was a substantial factor in the hiring; and 3) A causal connection exists between the false representation and the injury.

The Board cited Silva v. Martin Lumber Co., in which an employee presented falsified documentation to gain employment and was later injured at work. The employer denied the claim and questioned whether an undocumented worker who obtains employment by presenting fraudulent documents may recover workers’ compensation benefits. A Supreme Court panel held that the injured worker was an employee within the meaning of the Workers’ Compensation Law, despite his use of falsified documentation, and “there was no evidence that the misrepresentation increased his risk of a work-related injury.”

The Board also pointed out that lawmakers specifically addressed undocumented workers’ entitlement to benefits. Section 50-6-207(3)(F) states that employees who are “not eligible or authorized to work in the United States” can receive medical benefits, temporary disability benefits, and certain permanent disability benefits but can’t recover increased benefits under subsection 207(3)(B).

“Thus, the General Assembly has considered situations in which workers not eligible to work in the United States are injured,” they wrote. “Yet, it did not disqualify such workers from receiving any workers’ compensation benefits but instead limited the amount of permanent disability such workers could receive. Had the legislature intended to exclude undocumented workers who obtained employment by misrepresenting their identities from the class of undocumented workers entitled to certain benefits, it could have so stated.”

The misrepresentation defense is limited to false statements about the worker’s physical condition. In this case, Torres Antunez’s misrepresentations were aimed at obtaining employment and didn’t seek to conceal a physical condition that increased his risk of injury.

“In short, there is not a sufficient nexus between the misrepresentation and Employee’s injuries to bar Employee’s recovery of workers’ compensation benefits. If the misrepresentation defense is to be expanded to identity fraud, that task must be left to the Tennessee Supreme Court or the General Assembly,” the Board concluded.

But, the Board agreed with MG Dyess that it should only be responsible for medical bills using Torres Antunez’s real name. That “is necessary to prevent Employer from potentially being complicit in any fraudulent activity[.]”

In a footnote, though, the Board wrote that nothing in their opinion prevents Torres Antunez’s medical providers from reissuing medical bills he incurred for reasonable, necessary, and causally-related treatment with his real name.

The misrepresentation defense is rarely raised. This might be the first time in a dozen years that the Appeals Board has considered it. This opinion reinforces the specific circumstances in which it can be invoked and doesn’t expand its application.

Finally, if you want a little “extra credit,” here’s the case about the constitutionality of prohibiting undocumented workers from receiving increased benefits.