Current Status of Rycroft Defense in Georgia Workers’ Compensation 

Though it has always been a difficult defense to apply, the common law Rycroft defense – whereby an employer/insurer can outright deny a claim in its entirety – has now become even more limited in its functionality based on a recent decision of the Georgia Court of Appeals. Previously, in Georgia Electric Company, et al. v. Rycroft, 378 S.E.2d 111 (Ga. 1989), the Supreme Court of Georgia adopted a three-factor test from Professor Arthur Larson and his publication Workmen’s Compensation (§§ 47-53), as utilized in Arkansas.  

The test determined whether an employee’s false statement regarding their physical condition post-hire bars the employee’s workers’ compensation claim. The Supreme Court held if (1) the employee knowingly and willfully made a false representation as to his physical condition, (2) the employer relied upon the false representation and the reliance was a substantial factor in the hiring, and (3) there is a causal connection between the false representation and the injury, the workers’ compensation claim is barred. With the absence of any prior clear legislative intent, the Supreme Court found legislative intent from a review of the workers’ compensation statutes, relying on sections O.C.G.A. §§ 34-9-17, 19, and 280(2) of the Georgia Workers’ Compensation Act (Title 34, Chapter 9). The Supreme Court made it clear that all three elements must be present for the defense to apply. Normally, the third element can be the most challenging one to prove. This is because often a causal medical opinion is necessary to prove a clear and significant connection between the impaired body part misrepresented and the accident. However, the trial judge can also infer the same, such as an injured worker with impaired vision crashing a forklift into a steel beam. Yes, this was an actual case where the employer prevailed.  

The Rycroft Defense was revisited in a February 27 decision of the Georgia Court of Appeals in the case of McKay v. Inalfa Roof Systems, Inc. et al., The McKay court determined the Rycroft Defense is not a limitless defense. The Court considered in McKay whether the Rycroft defense is still available after the employer gained knowledge of the employee’s preexisting physical condition prior to a second work injury.  

In McKay, the employee began working as an assembly operator in December 2020. Although the employee sustained several injuries to her cervical spine, shoulder, ribs and wrist following a 2012 accident before working with Inalfa Roof Systems, she specifically denied prior injuries to her neck, back, shoulder or knee on her post-hire medical questionnaire (and a physical examination) in 2020. In June 2021, she injured her back while at work. Following this accident, the employer learned of her 2012 accident and injuries. However, after undergoing medical treatment, she returned to work in the same position in September 2021. By this point, the employer had learned about her preemployment injury and her false representation and, despite this knowledge, retained the employee in her position. Shortly thereafter, the employee was involved in a second work accident, this time sustaining injuries to her neck and back. 

Following this second accident, the employee requested hearings for both accidents. The State Board of Workers’ Compensation denied both claims under the Rycroft defense, even though the employee mentioning the 2012 injuries to the employer during the time between the first and second accidents. Despite having no Georgia authority on the issue, the employee took a chance and appealed the denial of her second work accident claim, arguing the Rycroft defense was inapplicable to the September 2021 injury because the employer learned of the 2012 accident and preexisting conditions following her first accident and placed her back in the same position prior to her second accident.  

In this recent decision, the Court of Appeals overturned the award of the state board by holding that the Rycroft defense does not apply when the employer obtains knowledge of an employee’s false representation and/or preexisting condition post-hire but before the work injury and retains the employee despite this knowledge. As a result of this decision, an employer can waive their potential Rycroft defense in this scenario. Furthermore, because the Court of Appeals indicated the validity of the Rycroft defense was also under attack but that it was without the authority to overturn it, an appeal to the Georgia Supreme Court may be forthcoming. 

This decision is important for employers as it confirms the Rycroft defense is still available. However, if an employer learns of an employee’s false representation at any point post-hire yet retains the employee, the Rycroft defense is waived. Of course, other potential strategies exist, such as a return to baseline for an aggravation of a preexisting condition. It is always best to explore your legal options with your workers’ compensation insurance defense attorney .  

Marc Sirotkin, a partner at law firm Swift Currie, defends employers and insurance carriers in workers’ compensation claims, handles recovery of client judgments through garnishment and protects judgments in bankruptcy court, and handles subrogation claims. He can be reached at marc.sirotkin@swiftcurrie.com. 

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