A. When an employer asks by written questionnaire for the disclosure of a worker's medical condition, no compensation is payable from that employer for an injury to that worker under the provisions of the Workers' Compensation Act if:
(1) the worker knowingly and willfully concealed information or made a false representation of his medical condition;
(2) the employer:
(a) was not aware of the concealed information that, if known, would have been a substantial factor in the initial or continued employment of the worker; or
(b) relied upon the false representation, and this reliance was a substantial factor in the initial or continued employment of the worker; and
(3) a medical condition that was concealed or falsely represented substantially contributed to the injury or disability.
B. The provisions of this section do not apply unless, in the written questionnaire, the employer clearly and conspicuously discloses that the worker shall be entitled to no future compensation benefits if he knowingly and willfully conceals or makes a false representation about the information requested.
C. Nothing in this section shall be construed to deny or limit compensation benefits paid or being paid for prior injuries.
D. This section shall apply only prospectively. It shall not alter, as to prior reports, the law governing questionnaires and information reported that was in effect prior to the effective date of this section.
History: Laws 1990 (2nd S.S.), ch. 2, § 31.
ANNOTATIONSEffective dates. — Laws 1990 (2nd S.S.), ch. 2, § 153 Laws 1990 (2nd S.S.), ch. 2, § 31 effective January 1, 1991.
Adequacy of application question. — To bar a worker from receiving benefits based on a knowing and willful false representation defense, the question the worker answers must be one which the worker knows, expects, or foresees, or that a reasonable person in the worker's position would expect or foresee employer would rely upon. To establish foreseeability, employer must show: worker understood the duties required with the job applied for; the employer asked a question which a reasonable person would have understood required disclosure of relevant medical history: and worker had a medical history which a reasonable person would have viewed as relevant and within the scope of the question asked. Lamay v. Roswell Indep. Sch. Dist., 1994-NMCA-109, 118 N.M. 518, 882 P.2d 559.
Application question which read: "Do you have any condition which might limit you in job assignment or ability to work in the position for which you are applying" is neither overly broad or vague and an employer has a right to rely on the response. Lamay v. Roswell Indep. Sch. Dist., 1994-NMCA-109, 118 N.M. 518, 882 P.2d 559.
Notice requirements. — Denial of an employer's false application defense was not error since the employer failed to comply with the notice of requirements of Subsection B. Pena v. Mines, 1995-NMCA-035, 119 N.M. 735, 895 P.2d 257.
Law reviews. — For survey of 1990-91 workers' compensation law, see 22 N.M.L. Rev. 845 (1992).