Cases

Petition for Death Benefits filed by personal representative of deceased at a time prior to the appointment of the personal representative.  Petition did not include the Certificate of Good Faith and Fraud Statement that by statute is required in the filing of a petition.  JCC dismissed petition and appeal taken.  Appellate court reversed.  Failure to provide a Certificate of Good Faith and Fraud Statement is no basis upon which a Petition for Benefits should be dismissed.  Section 440.105(7) does not provide for the dismissal of a claim for failure to provide the statements with the petition.  In this case, the personal representative filing the petition was appointed personal representative after the filing of the petition.  Court determined that such appointment related back to the date of the filing of the petition.  Accordingly, court determined that JCC's dismissal of petition was in error.

Court affirmed the JCC's finding of fraud denying workers' compensation benefits due to the claimant's fraudulent provision of an invalid Social Security number.  Claimant was an illegal alien without a valid Social Security number and was injured at work.  Claimant admitted that she entered an invalid Social Security number on a registration form of the medical care provider providing treatment for her work related injury.  The employer/carrier argued that the claimant had violated Section 440.105(4)(b)9 by fraudulently providing an invalid Social Security number to obtain workers' compensation benefits and therefore was not entitled to said benefits.  Claimant asserted that Section 440.105(4) was unconstitutional as applied to her because it is pre-empted by the Immigration Reform and Control Act of 1986.  Appellate court denied the constitutional challenge and affirmed the denial of benefits to this claimant.

Court determined that the JCC had erred in rejecting the employer/carrier's misrepresentation defense.  On multiple occasions, the claimant gave false and misleading statements made for the purpose of obtaining workers' compensation benefits.  The claimant had denied preeexisting medical problems to physicians.  Admissible medical records documenting the claimant's past history of these medical complaints and problems prior to the work accident were introduced into evidence. 

Section 440.09(4) and Section 440.105, Florida Statutes, are the mechanisms that create the "fraud defense."  Not all prohibited acts in Section 440.105 entail a fraud element.  Accordingly, per Section 440.09(4), Florida Statutes, the commission of any act of an employee prohibited by Section 440.105, Florida Statutes, results in the forfeiture of benefits, not just those statutorily designated as fraudulent.  It is not necessary that the misrepresentation be material in actuality to the issues in the case.  In addition, the statements are not required to have been made under oath so long as the claimant knew at the time the statements were made that they were false.  

In establishing the fraud defense, it does not matter that the physician to whom inaccurate statements were made actually possessed accurate medical information showing the claimant's preexisting medical problems.  Also, there was no affirmative duty on the part of the doctor/evaluating physician to interrogate the claimant regarding known misrepresentations.  It matters not whether the doctors were provided with accurate information regarding etiology of injuries or preexisting medical condition and treatment by a source other than the claimant.

On Motion for Rehearing. Original Opinion at 41 FLW D698 withdrawn. 

Employer/Carrier defended workers' compensation claim for benefits based on misrepresentation defense.  Two days before the final hearing, claimant asserted for the first time that employer/carrier's misrepresentation defense lacked the specificity required by Rule 60Q-6.113(2)(h).  On the same date that the claimant's attorney filed his Trial Memorandum, the employer/carrier filed its Trial Memorandum providing substantial additional factual detail and legal argument about the basis of the misrepresentation defense.  JCC ultimately rejected the misrepresentation defense because the alleged misrepresentation did not relate to the claimant's right knee which was the basis of the claim for benefits but only to his back injury which was not the basis of the claim for benefits.  On appeal, JCC's order reversed.

JCC erred in determining that the employer/carrier had to link alleged false statements to the particular injury and benefits being sought, i.e., the claimant's knee in this instance.  Section 440.105, F.S., makes it illegal for any person to knowingly make any false, fraudulent or misleading statement and Section 440.09(4)(a), F.S., denies benefits to the employee who knowingly or intentionally engages in any acts described in Section 440.105, F.S., for the purpose of securing workers' compensation benefits.  It is not necessary that a false, fraudulent or misleading statement be material to the claim; it only must be made for the purpose of obtaining benefits. 

In the response to the claimant's Petition for Benefits, the employer/carrier only asserted that it was denying the entire claim based on misrepresentation with nothing more.  Likewise, in the pretrial stipulation, the employer/carrier only identified two broad categories of alleged misrepresentation without detailing the misrepresented conduct.  However, in the legal memorandum, details of misrepresentation were made.  The additional detail satisfied the employer/carrier's pleading burden and served as the additional functional equivalent of the amendment that Rule 60Q-6.113(2)(h) prescribed which permitted the employer/carrier to provide details of the alleged misconduct within 10 days after a claimant objects on the grounds of lack of specificity.  Case remanded for JCC to determine whether the claimant made any statement that precluded the award of benefits based on misrepresentation.

Employer/carrier asserted misrepresentation defense because of misstatements made by the claimant to his treating physician had been untruthful.  The JCC rejected the misrepresentation defense because of the fact that the misrepresentation made by the claimant to the doctor related to a back condition.  The Petition for Benefits filed by the claimant related to disabilities allegedly associated with a knee injury.  On appeal, the appellate court determined that the JCC too narrowly analyzed the misrepresentation defense by considering only whether the alleged misrepresentation related to the claimant’s knee.  Section 440.105, Florida Statutes, makes it illegal for any person to knowingly make any false statement for the purpose of obtaining workers’ compensation benefits. It is not necessary that a false, fraudulent or misleading statement be material to the claim; it only must be made for the purpose of obtaining benefits.  Accordingly, if the claimant made any misrepresentation for the purpose of obtaining benefits, then he is barred from entitlement to benefits, even if the misrepresentation is unrelated to his knee injury or benefits based on that injury.

In asserting a misrepresentation defense, Rule 60Q-6.113(2)(h)FAC requires that the defense be raised with specificity, detailing the conduct giving rise to the defense with leave to amend within 10 days. In this case, in response to the claimant’s Petition for Benefits, the employer/carrier asserted that it was denying the entire claim based on “misrepresentation” with nothing more.  Then, in its pre-trial stipulation, the employer/carrier only identified two broad categories of alleged misrepresentations-physical abilities and post-accident earnings without detailing the misrepresented conduct.  In this situation, the court ruled that the employer/carrier failed to identify any statement upon which it was basing its misrepresentation defense.  Accordingly, the employer/carrier did not plead its defense in sufficient detail to satisfy the rule.

Case remanded for further proceedings on the defense and the claimed lack of specificity of the asserted defense.

JCC entered order finding that the claimant had made misrepresentation thereby forfeiting benefits under the Workers' Compensation Act pursuant to Section 440.09 and Section 440.105, Florida Statutes.  Surveillance revealed that the claimant was capable of performing physical tasks consistent with the job that he was performing at the time of the accident.  This was inconsistent with representations made by the claimant leading to the finding of fraud.

On appeal, the claimant did not controvert the finding of fraud but rather asserted that the denial of benefits only applied to claimed compensation and other benefits after the date of the misrepresentation and did not have applicability to claimed benefits prior to the date the misrepresentations were made.  Since entitlement to benefits prior to the date of misrepresentation had not been established, the court ruled that all contested and unresolved entitlements to benefits under Chapter 440 would be forfeited based on the claimant's fraud. 

Order by JCC affirmed denying all benefits claimed, even those benefits claimed prior to the date of the misrepresentation.  Decision distinguished from the case of Alvarez v. Unicco, 958 So. 2d 951 (Fla. 1st DCA 2007)since no reference was made in that case as to whether the disputed period of benefits related to a period before the date of the fraud. This case involved a claim for contested benefits pre-dating the date of the misrepresentations made by the claimant.

Defendant in criminal case charged with one count of fraud under Section 440.105(4)(b)9, Florida Statutes, based on the fact that he had used a fraudulent Social Security number when he was hired by an employer. The defendant also was an illegal alien who had completed a Homeland Security I-9 Employment Eligibility Verification Form that improperly listed the fraudulently obtained Social Security number.  Lower court ruled that in order to sustain a violation of Section 440.105(4)(b)9, the state is required in criminal proceedings to plead and prove not only that the defendant obtained employment by false, fraudulent or misleading oral or written statements as evidence of identity but also the accused did so with the intent to secure workers' compensation benefits.  On appeal, this decision reversed.  A defendant can be guilty of a criminal violation of this provision, irrespective of the existence of any workers' compensation claim.

In regards to a fraud defense, there is no specific time period in which a fraud defense must be asserted.   A party is not required to anticipate false testimony from the opposing party and is therefore not required to discover evidence which would refute false testimony.  The proper inquiry for the JCC is whether the employer/carrier's assertion of the fraud defense violated the claimant's right to due process.  The JCC in this case had struck the employer/carrier fraud defense as being asserted untimely.  The alleged false statements had been made to an Expert Medical Advisor.  On appeal, court determined that JCC erred in striking this defense since there was no ruling on the due process component of timelyasserting the defense.

Expert Medical Advisors can be appointed when there is conflicting medical evidence by doctors who can render opinions in workers' compensation cases.  This includes authorized treating providers.  A provider can be deemed authorized by operation of law when care is given in emergency situations and in a period during which an employer/carrier wrongfully denies medical treatment.  In order to demonstrate that the care at issue was authorized as a matter of law, however, the claimant must first convince the JCC, via admissible evidence, of certain prerequisite facts as set forth in Section 440.13(2)(c), Florida Statutes.  These facts are akin to elements of proof and as such the law is substantive as set forth in the statute in effect at the time of the claimant's date of accident. Once these facts are proven to the satisfaction of the JCC, the care from unauthorized providers become authorized and only then do the medical opinions of these providers become admissible.

In this case, the applicable version of Section 440.13(2)(c), Florida Statutes, required that the claimant prove that the care at issue was compensable and medically necessary, a specific request for treatment had been made by the claimant, and the employer/carrier had been given a reasonable time period within which to provide the treatment or care.  Since the claimant failed to establish causal relationship or medical necessity by the unauthorized doctor sought to be authorized as a matter of law, the unauthorized doctor's opinion was not admissible.  Accordingly, the JCC's appointment of an EMA based on conflicting medical opinions was improper since the supposed conflicting opinion was not admissible based on the claimant's failure to provide evidence that the unauthorized doctor became authorized as a matter of law.

Case remanded allowing claimant to obtain and present missing evidence showing authorization as a matter of law.  Claimant had relied on the JCC's favorable ruling admitting the unauthorized medical testimony.  The court pointed out that procedurally he could not appeal since the judge's ruling was wholly favorable to him. 

On Motion for Rehearing.  Original opinion at 36 FLW D1580.  Testimony of employer/carrier's independent medical examiner that claimant's behavior was inconsistent with her complaints of pain and that she was malingering was sufficient to support the order of the Judge of Compensation Claims denying benefits on the ground that the claimant made false or misleading statements for the purpose of obtaining benefits.  Although the basis of a misrepresentation defense must be a claimant's oral or written statement, an employer/carrier can prove that a statement constitutes misrepresentation by presenting evidence of the claimant's non-verbal conduct inconsistent with that of a statement.  See Dieujuste v. J. Dodd Plumbing, Inc., 2 So. 3d 1275.

JCC ruled that Petition for Benefits filed by claimant should be denied based upon the claimant's fraudulent activity pursuant to Section 440.105(4)(b), Florida Statutes, and Section 440.09(4)(a), Florida Statutes.  The JCC determined that false statements were made by the claimant based on pain complaints grossly out of proportion to the physical findings on examination and diagnostic studies. 

The reports of pain were made by the claimant but were not provably false or misleading.  The claimant's complaints of pain were not oral or written statements but behavior identical to behaviors captured on surveillance which does not serve as the predicate for disqualification from benefits under Sections 440.09 and 440.105, Florida Statutes.  See Dieujuste v. J. Dodd Plumbing, Inc., 3 So. 3d 1275 (Fla. 1st DCA 2009).  Because there was no evidence in the record that the claimant told anyone she could or could not perform a certain behavior that her actions proved to the contrary, there was no basis for a finding of fraud.

JCC did not have jurisdiction to entertain employer/carrier's motion seeking to terminate the claimant's entitlement to benefits based on the fact that the claimant had made false, fraudulent or misleading statements for the purpose of securing workers' compensation benefits in violation of Section 440.105(4)(b), Florida Statutes, and Section 440.09(4)(a), Florida Statutes.  At the time of the employer/carrier's motion, no petition for benefits had been filed.  Since there was no pending petition for benefits, the JCC lacked jurisdiction to make any determinations. 

The filing of a petition for benefits is specifically restricted to a filing by any employee.  The JCC has no powers beyond those conferred by statute and because of the fact that Chapter 440 authorizes only employees to file pleadings evoking the jurisdiction of the JCC, there was no jurisdiction by the JCC to enter an order in response to the employer/carrier's motion in this instance. 

Claim for permanent total disability filed by claimant's attorney.  Claim defended by employer/carrier based on the fact that the claimant was not permanently and totally disabled and based upon the affirmative defense contemplated by Section 440.09, Florida Statutes, and Section 440.105, Florida Statutes, frequently referred to as the "fraud defense".

JCC determined that the claimant was not permanently and totally disabled but rejected the fraud defense.  Because of the fact that the employer/carrier prevailed on the claim of permanent total compensation, costs were awarded by the JCC payable by the claimant and attorney's fees payable to the claimant's attorney were denied.  On appeal, the award of costs in the favor of the employer/carrier and the denial of attorney's fees was reversed.

Because of the fact that the workers' compensation act in effect on the date of the accident did not authorize an award of costs to the prevailing party, the award of costs in this instance was deemed error.  Attorney's fees were deemed awardable in this instance since the claimant's attorney prevailed on the issue of compensability by successfully defending the fraud defense, notwithstanding the fact that additional benefits were not deemed payable (permanent total) by the JCC.  By asserting the affirmative defense of fraud in this case, the employer/carrier placed compensability at issue.

The employer/carrier had asserted that precedent for denying fees was found in the concurring opinion of Lendsay v. Cotton, 123 So. 2d 745, 746 (Fla. 3rd DCA 1960) (However, concurring opinions have no binding effect as precedent; such an opinion represents only the personal view of the concurring judge and does not constitute the law of the case. 

Claimant injured in compensable accident and thereafter left his employment with the employer.  He made a written statement when he left his employment stating that he was leaving because of economic reasons and being able to work in alternate employment 40 hours per week on a regular basis.  Thereafter, he claimed workers' compensation benefits alleging that he quit working for the employer because he could not do the duties required of him.  The question was whether the statement made by the claimant constituted a fradulent statement when the claimant thereafter admitted that his statement as to why he resigned his position with the employer was false.  The claimant admitted that he made the false statement because he wanted to "keep the door open" in case he experienced medical recovery sufficient to allow him to return to work with the employer.

When an objective misrepresentation is made, the question a JCC must answer involves intent and whether the claimant subjectively believed or intended the statement, when made, to be false and whether the claimant subjectively believed the statement would assist him in securing workers' compensation benefits.  A claimant's state of mind is an issue of fact to be determined by the JCC by evaluating the evidence including the credibility and demeanor of the witnesses.  Just because false information following a compensable accident is made does not automatically disqualify a claimant from receiving benefits. 

Even though the claimant in this case made a false statement as to why he was quitting his job with the employer, this did not preclude him from obtaining workers' compensation benefits thereafter.  There was no specific intent to deceive in this instance for the specific purpose of securing compensation benefits.  The JCC believed the claimant's testimony that he failed to tell the employer of the true reasons for his resignation to protect his employment opportunities in the future, not to enhance or advance his compensation claim.

The claimant testified that the job where he was going following his termination with the employer was not very physical.  The JCC accepted this testimony as truthful.  Generally, opinion testimony (expressed in good faith) is not actionable as a misrepresentation because it involves opinions not facts. 

The JCC does not have authority to impose sanctions against the employer/carrier for making false fraudulent or misleading statements for the purpose of denying benefits.  Statutorily, the JCC does have jurisdiction to deny benefits to an injured worker for making false statements in order to obtain workers' compensation benefits. 

At time of accident, claimant was not reporting his wages to the IRS. The following year, he did report the wages to the IRS and acknowledged that he filed the tax returns solely for the purpose of obtaining workers’ compensation benefits. Wages from other employments during the year of the accident were not included in the tax filings.

Employer/carrier had filed a post-hearing Motion to Amend its pre-trial stipulation to include a misrepresentation defense in accordance with Section 440.105(4)(b), Florida Statutes, because of the fact that it was discovered at the time of the hearing that the claimant had not reported all of his taxable income in the year of the accident to the IRS.

Court denied post-hearing motion determining that with due diligence, the employer/carrier should have or at least could have known of this potential defense prior to the final hearing. JCC did not abuse her discretion in denying the employer/carrier’s Motion to Amend the pre-trial stipulation to include a potential misrepresentation defense after the hearing was over and the record had been closed.

Court determined that post-accident IRS filings complied with Section 440.02(28), Florida Statutes, to include the claimant’s wages in the average weekly wage calculation. Although the filing of the wages with the IRS may not have been technically in accordance with IRS rules, the wages need only be reported to the IRS. Actions taken by the claimant in this instance satisfied the reporting requirement in Section 440.02(28), Florida Statutes.

Petitions for Benefits cannot be dismissed if the claimant does not sign a fraud statement or in the Petition for Benefits provide an OJCC number of verified Motion for Assignment of a substitute identification number. See Section 440.105(7), Florida Statutes, and Florida Administrative Code Rules 60Q-6.103(1)(d) and 6.105(4). Petitions for Benefits may only be dismissed for lack of specificity under Section 440.192, Florida Statutes.

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Surveillance evidence was introduced into evidence at the time of the hearing indicating that the claimant could perform physical activities in excess of what he testified to at the time of his depositions. JCC ruled that claimant made false statements for the purpose of securing workers’ compensation benefits and accordingly disqualified the claimant from receiving such benefits. See Sections 440.09(4), 440.105(4)(b1-3), Florida Statutes, (2005). On appeal, judge’s ruling reversed.

Activities observable on surveillance can serve as a basis for a finding of misrepresentation. However, only oral or written statements can serve as the predicate for the disqualification benefits in accordance with Sections 440.09(4) and 440.105(4)(b1-3), Florida Statutes. Surveillance films have value only to the extent that they contradict or disprove an oral or written statement made by the claimant.

In this case, the video did not contradict an oral or written statement made by the claimant to the doctor. The doctor testified that nothing on the surveillance was inconsistent with what the claimant had told him. Absent supporting medical evidence, a JCC lacks the prerogative to deny a claim based on a medical finding premised solely on his observation of the claimant. Claimant had testified in deposition as to the ability to perform physical activities which were not inconsistent with the surveillance film.

Parties settled case and benefits paid to claimant notwithstanding a fraud defense asserted by employer/carrier. Thereafter, additional petitions filed and employer/carrier defended based on fraud defenses. JCC rejected fraud defenses based on the legal theory of res judicata. On appeal, court reversed judge’s decision determining that res judicata did not apply in this instance.

Res judicata applies to all matters actually raised and determined as well as to all other matters which could properly have been raised and determined in the prior action, whether they were or not. In this case, the employer/carrier did not argue fraudulent misrepresentation prior to the earlier settlement but also that misrepresentations were made after the earlier settlement. Since the fraud defense was based upon facts that allegedly arose after the earlier settlement and concerned new petitions for benefits, the defense was not barred by the earlier settlement.

Claim made for a psychiatric/psychological evaluation and inpatient treatment for his addiction to prescription narcotics. Claimant was deposed and denied having been diagnosed with a prior addiction problem or having previously been a regular user of narcotics. Claim defended by employer/carrier alleging that the claimant lied about having had prior drug problem and attempted to introduce patient records from a drug and alcohol treatment center concerning the claimant indicating that he had received treatment for a long term addiction to narcotics.

In response to the attempt to introduce the drug treatment records, the claimant asserted that the records were privileged under federal law. 42 USC Section 290 dd-2 restricts the disclosure of information relating to the identity, diagnosis, and treatment of a patient in a federally assisted drug or alcohol abuse program. Court determined that judge did not err in concluding that there was good cause for the disclosure of the claimant’s treatment records and therefore, there was no confidentiality of the records in question. Additionally, by denying prior drug use or treatment for a narcotics addiction, the claimant placed himself within an exception to the confidentiality of these records because he offered testimony pertaining to the content of the confidential communications he sought to protect.

Claimant reported that he was not able to perform light work and accordingly, was placed on a "no work" status by his doctor. Surveillance, however, depicted the claimant involved in physical activities in excess of that which was reported to the doctor. Doctor who placed the claimant on no work status reviewed the surveillance footage and testified that the claimant was acting inconsistently with his earlier reports. JCC concluded that claimant had made certain representations to his physician which were refuted by video surveillance. Competent and substantial evidence supported the JCC’s denial of benefits based upon the misleading statements made by the claimant to his doctor. Sections 440.094 and 440.105(b), Florida Statutes, do not violate the due process provisions of the constitution.

Because the carrier did not deny benefits until almost seven months after initially accepting the injury as compensable and began paying benefits, it waived its right to thereafter deny compensability. Everything on which the carrier based its eventual denial of benefits was known by or available to the employer/carrier within the 120 day period. The carrier did not prove anything came to light after the 120 day period had expired that gave it additional reason to doubt that the injury was job related.

Even though the 120 day period had run, denial of the compensability of the claim by the JCC was affirmed on appeal. JCC determined and such determination was based on competent and substantial evidence that the claimant had made a false, fradulent, or misleading, oral or written statement for the purpose of obtaining benefits under the workers’ compensation statute. Dissenting opinion.

Section 440.09(4) provides sanctions against a workers' compensation claimant by denying benefits which he or she might otherwise be entitled if the claimant, in seeking benefits, knowingly provides any false, misleading, fraudulent or incomplete information as set forth in Section 440.105, Florida Statutes. The incorrect information includes an oral statement concerning a material fact that the claimant knows to be false, incomplete or misleading.

Under most circumstances, accurate medical histories, evidence of prior accidents, and statements regarding the extent of current injuries are relevant and material to the workers' compensation claim. These statements are relevant and material whether made to health care providers or during testimony given at depositions or at the merits hearing. In this case, the claimant made numerous oral statements at deposition, at the merits hearing, and to medical care providers that appeared to be false, misleading or at the very least incomplete. Regardless of whether the claimant was under oath, if at the time he made any of these statements, he knew they were false, incomplete or misleading, then the statements fall within the scope of Section 440.105(4)(b)2 and pursuant to Section 440.09(4), Florida Statutes, could result in the loss of workers' compensation benefits.

Case remanded to JCC to conduct a hearing to address whether the claimant, in support of his claim for benefits, made any oral or written statements concerning a fact material to his claim that he knew was false, misleading or incomplete at the time the statements were made. Inquiry can be made into prior accidents. If the JCC finds that the claimant knew he had been involved in prior accidents when he testified that he had not, this would constitute a false statement involving a material fact.
 

Section 440.09(4), Florida Statutes, states that benefits are not payable if an administrative hearing officer court or jury determines that the claimant knowingly or intentionally engaged in any fraudulent acts. Section 440.105(4) provides that it is unlawful for an individual to make a false fraudulent or misleading statement for the purpose of obtaining or denying workers' compensation benefits. In this case, there was no finding by an administrative hearing officer court or jury that the claimant had engaged in fraudulent statements. Section 440.09(4) contemplates that such a determination should be made in a proceeding collateral to the workers' compensation matter by either an administrative agency or a court. It is not sufficient for the JCC to make the finding of a false statement.