Ebbtide Enterprises v. Tucker

NEWMAN, J.,

specially concurring.

I believe that EBI’s backup denial was proper. The majority states that claimant’s failure to disclose a prior injury to the same body part was not a material misrepresentation. The majority reasons that, because EBI knew of one prior injury, it would have necessarily accepted the claim had it known of two. Because the misrepresentation did not change EBI’s decision, the reasoning continues, it was not material. I disagree. Claimant’s nondisclosure concerned the same body part involved in the claim. Moreover, the medical evidence indicates that her 1977 injury…