41
Fla. L. Weekly D698aTop of Form

Workers’
compensation — Temporary disability — Affirmative defenses —
Misrepresentation for purpose of obtaining benefits — Judge of compensation
claims applied too narrow an analysis to employer/carrier’s misrepresentation
defense by considering only whether alleged misrepresentation related to knee
injury for which benefits were being sought — Claimant is barred from
entitlement to benefits if he made any misrepresentation for purpose of
obtaining benefits — However, employer/carrier’s responses to claimant’s
petitions for benefits did not meet pleading requirement set forth in
administrative rule where e/c simply asserted that it was denying entire claim
based on “misrepresentation” and later stipulated that the alleged
misrepresentations involved “physical abilities” and “post-accident earnings”
without detailing conduct underlying defense — Because rule provides 10-day
period for amending defense, case remanded with instructions to give e/c ten
days to amend and thereafter to give claimant opportunity to object/respond to
the affirmative defense with specificity, as required by rule — Job search —
No merit to e/c’s argument that claimant needed to present evidence of
unsuccessful good-faith job search in order to establish entitlement to TPD
benefits in this case

THG RENTALS & SALES OF CLEARWATER, INC./SUMMIT HOLDINGS
— CLAIMS CENTER, Appellants, v. JAMES C. ARNOLD, Appellee. 1st District. Case
No. 1D15-970. Opinion filed March 17, 2016. An appeal from an order of the
Judge of Compensation Claims. Stephen L. Rosen, Judge. Date of Accident: August
6, 2013. Counsel: H. George Kagan of Miller, Kagan, Rodriguez & Silver,
P.L., West Palm Beach, for Appellants. Bradley Guy Smith of Smith, Feddler
& Smith, P.A., Lakeland, and Wendy S. Loquasto of Fox & Loquasto, P.A.,
Tallahassee, for Appellee.

(PER CURIAM.) In this workers’ compensation case, the
Employer/Carrier (E/C) appeals and Claimant cross-appeals an order of the Judge
of Compensation Claims (JCC) rejecting the E/C’s misrepresentation defense and
awarding benefits to Claimant. We reverse and remand because the JCC too
narrowly analyzed the E/C’s misrepresentation defense and because the E/C did
not plead its misrepresentation defense in sufficient detail as required by
Florida Administrative Code Rule 60Q-6.113(2)(h).

Facts

Claimant suffered compensable injuries to both his back and
right knee. During the proceedings below, Claimant filed five petitions for
benefits (PFBs) seeking medical and indemnity benefits with respect to both
injuries. By the time of Claimant’s third PFB, the E/C began denying
entitlement to benefits “based on misrepresentation,” which it subsequently
described in the joint pretrial stipulation as: “ ‘Misrepresentation,’ in
violation of §§ 440.09 and .105, F.S. (physical abilities and post-accident
earnings).”

By the time of the final hearing, Claimant sought medical
and indemnity benefits only for his compensable right knee injury. In a trial
memorandum filed two days before the hearing, Claimant asserted, for the first
time, that the E/C’s misrepresentation defense lacked the specificity required
by rule 60Q-6.113(2)(h). At the hearing, however, the JCC found that the E/C’s
defense was pled with sufficient specificity because it “put the Claimant on
notice as to what that defense means.” The E/C proceeded to present video
surveillance, evidence of earnings, and the testimony of doctors who treated
Claimant’s back injury to demonstrate that Claimant had not been truthful with
his doctors. But the JCC ultimately rejected the misrepresentation defense
because the alleged misrepresentation did not relate to Claimant’s right knee,
but only to his back injury. And, according to the JCC, “the issues regarding
the claimant’s back are not before me.” The JCC awarded Claimant’s request for
temporary partial disability (TPD) benefits.

Standard
for Establishing Misrepresentation

We find two things wrong with what occurred below, one
benefitting each party in this case. First, the JCC too narrowly analyzed the
E/C’s defense by considering only whether the alleged misrepresentation related
to Claimant’s knee. The JCC apparently believed that to prove misrepresentation,
the E/C had to link the allegedly false statements directly to the particular
injury and benefits being sought, to Claimant’s knee in this instance. But such
a requirement is not found in the law.

Section 440.105, Florida Statutes, makes it illegal for any
person to “knowingly make, or cause to be made, any false, fraudulent,
or misleading oral or written statement for the purpose of obtaining or denying
any benefit or payment under this chapter” (emphasis added). And section
440.09(4)(a), Florida Statutes, bars benefits for an employee found to have
“knowingly or intentionally engaged in any of the acts described in s.
440.105 . . . for the purpose of securing workers’ compensation benefits”
(emphasis added). Accordingly, this court has recognized that “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.” Village
of N. Palm Beach v. McKale, 911 So. 2d 1282, 1283 (Fla. 1st DCA 2005). Fraud
“does not limit a claimant’s forfeiture to those benefits that may have been
obtained by virtue of the claimant’s unlawful conduct.” Wright v. Unifs. for
Indus., 772 So. 2d 560 (Fla. 1st DCA 2000) (quoting Rustic Lodge v.
Escobar, 720 So. 2d 1014, 1015 (Fla. 1st DCA 1999)). Thus, 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.

Specificity
of the E/C’s Misrepresentation Defense

The second error below relates to the requirement for
pleading a misrepresentation defense under rule 60Q-6.113(2)(h), which
provides:

Any
defense raised pursuant to Sections 440.09(4)(a) and 440.105, F.S., and any
affirmative defense, must be raised with specificity, detailing the conduct
giving rise to the defense, with leave to amend within 10 days. Failure to
plead with specificity shall result in the striking of the defense. Any
objections/responses to the affirmative defenses must be pled with specificity.

(Emphasis added.) Here, in its responses to Claimant’s PFBs,
the E/C asserted that it was denying the entire claim based on
“misrepresentation,” with nothing more. Then, in its pretrial stipulation, the
E/C only identified two broad categories of alleged misrepresentations —
“physical abilities” and “post-accident earnings” — without detailing the
misrepresentative conduct. “Only oral or written statements can
serve as the predicate for disqualification from benefits.” Dieujuste v. J.
Dodd Plumbing, Inc., 3 So. 3d 1275, 1276 (Fla. 1st DCA 2009). And, here,
the E/C failed to identify any statement upon which it was basing its
misrepresentation defense. Thus, the E/C did not plead its defense in sufficient
detail to satisfy the rule.

But, in this instance, we cannot simply strike the E/C’s
defense under rule 60Q-6.113(2)(h) without affording the rule-prescribed 10-day
period for amending its defense. Although the rule does not impose a timeframe
for a claimant to object to a defense, it does give an E/C ten days from a
claimant’s specificity objection to amend. Because Claimant failed to object or
seek a ruling regarding the deficient defense until two days before the final
hearing, the E/C had no time to amend its defense to conform with the rule’s
specificity requirements.

And so, taking account of both parties’ rights, we remand
with instructions to the JCC to give the E/C ten days to amend its pleading,
and thereafter to give the Claimant an opportunity to object/respond to the
affirmative defense with specificity, as required by the rule. If the E/C
satisfies the rule’s specificity requirement, then the JCC should determine
whether Claimant made “any” statements afoul of subsection 440.09(4)(a), Florida
Statutes, irrespective of whether the statements relate to the specific
injuries for which Claimant is seeking benefits.

Lack
of Job Search

Finally, we find no merit in the E/C’s argument that the
Claimant in this case needed to present evidence of an unsuccessful good-faith
job search in order to establish entitlement to temporary partial disability
benefits. See Thayer v. Chico’s FAS, Inc., 98 So. 3d 766, 768
(Fla. 1st DCA 2012); Wyeth/Pharma Field Sales v. Toscano, 40 So. 3d 795,
802 (Fla. 1st DCA 2010).

Conclusion

For the reasons explained above, we AFFIRM, in part, and
REVERSE and REMAND for further proceedings in accordance with this opinion.
(ROBERTS, CJ., OSTERHAUS, and KELSEY, JJ., concur.)

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