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Fla. L. Weekly D1567aTop of Form
Fla. L. Weekly D1567aTop of Form
Workers’
compensation — Temporary partial 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 — Although employer/carrier did not initially plead its
misrepresentation defense in sufficient detail, reversal and remand for
repleading is not necessary because claimant did not assert objection until two
days before trial, and on same day employer/carrier filed its pretrial
memorandum setting forth the specific details of its misrepresentation defense
and evidentiary support for it — There is no merit to argument that claimant
needed to present evidence of an unsuccessful good faith job search in order to
establish entitlement to TPD benefits
compensation — Temporary partial 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 — Although employer/carrier did not initially plead its
misrepresentation defense in sufficient detail, reversal and remand for
repleading is not necessary because claimant did not assert objection until two
days before trial, and on same day employer/carrier filed its pretrial
memorandum setting forth the specific details of its misrepresentation defense
and evidentiary support for it — There is no merit to argument that claimant
needed to present evidence of an unsuccessful good faith job search in order to
establish entitlement to TPD benefits
THG
RENTALS & SALES OF CLEARWATER, INC./SUMMIT HOLDINGS — CLAIMS CENTER,
Appellants, v. JAMES C. ARNOLD, Appellee. 1st District. Case No. 1D15-970.
Opinion filed July 6, 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.
RENTALS & SALES OF CLEARWATER, INC./SUMMIT HOLDINGS — CLAIMS CENTER,
Appellants, v. JAMES C. ARNOLD, Appellee. 1st District. Case No. 1D15-970.
Opinion filed July 6, 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.
ON
MOTION FOR REHEARING
MOTION FOR REHEARING
(PER
CURIAM.) The Employer/Carrier (E/C) moves for rehearing on the merits, arguing
that repleading its misrepresentation defense is unnecessary and potentially
problematic in the unique procedural posture of this case. On consideration of
the E/C’s arguments and the pertinent portions of the record, we agree.
Accordingly, we grant the E/C’s motion for rehearing, withdraw our previous
opinion, and substitute the following in its place.
CURIAM.) The Employer/Carrier (E/C) moves for rehearing on the merits, arguing
that repleading its misrepresentation defense is unnecessary and potentially
problematic in the unique procedural posture of this case. On consideration of
the E/C’s arguments and the pertinent portions of the record, we agree.
Accordingly, we grant the E/C’s motion for rehearing, withdraw our previous
opinion, and substitute the following in its place.
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. We conclude that the E/C initially did not plead its
misrepresentation defense in sufficient detail as required by Florida
Administrative Code Rule 60Q-6.113(2)(h). Nevertheless, we decline to reverse
or remand for repleading because the record reflects that the Claimant did not
assert this specificity objection until two days before trial, and that very
same day the E/C filed its pretrial memorandum setting forth the specific
details of its misrepresentation defense and evidentiary support for it. The
specifics of the defense were then fully litigated at trial. Therefore,
repleading would serve no useful purpose here.
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. We conclude that the E/C initially did not plead its
misrepresentation defense in sufficient detail as required by Florida
Administrative Code Rule 60Q-6.113(2)(h). Nevertheless, we decline to reverse
or remand for repleading because the record reflects that the Claimant did not
assert this specificity objection until two days before trial, and that very
same day the E/C filed its pretrial memorandum setting forth the specific
details of its misrepresentation defense and evidentiary support for it. The
specifics of the defense were then fully litigated at trial. Therefore,
repleading would serve no useful purpose here.
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).”
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). That same day,
the E/C filed its trial memorandum, providing substantial additional factual
detail and legal argument about the basis of the misrepresentation defense. At the
hearing, 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.
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). That same day,
the E/C filed its trial memorandum, providing substantial additional factual
detail and legal argument about the basis of the misrepresentation defense. At the
hearing, 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
for Establishing Misrepresentation
We
conclude that 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.
conclude that 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 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.
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 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
of the E/C’s Misrepresentation Defense
Claimant
challenged the E/C’s misrepresentation defense as failing to satisfy the
requirements for pleading a misrepresentation defense under rule
60Q-6.113(2)(h), which provides:
challenged the E/C’s misrepresentation defense as failing to satisfy the
requirements 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.
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). In
these papers, the E/C failed to identify any statement upon which it was basing
its misrepresentation defense, and thus did not plead its defense in sufficient
detail to satisfy the rule.
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). In
these papers, the E/C failed to identify any statement upon which it was basing
its misrepresentation defense, and thus did not plead its defense in sufficient
detail to satisfy the rule.
Later,
however, in its pretrial memorandum filed on the same day as Claimant’s
memorandum asserting the specificity objection, the E/C provided very
substantial additional detail about the statements at issue and the evidence
supporting the misrepresentation defense. We find that this additional detail
satisfied the E/C’s pleading burden and served as the functional equivalent of
the amendment that rule 60Q-6.113(2)(h) prescribes must be permitted within ten
days after a claimant objects on grounds of lack of specificity. The parties
then proceeded to hearing fully informed of the specific grounds for the E/C’s
misrepresentation defense. Both parties’ rights were protected, and as the E/C
points out, remanding for a do-over now would serve no useful purpose and would
have the potential to reward Claimant’s belated assertion of the specificity
objection with a second bite at the apple after hearing and appeal.
however, in its pretrial memorandum filed on the same day as Claimant’s
memorandum asserting the specificity objection, the E/C provided very
substantial additional detail about the statements at issue and the evidence
supporting the misrepresentation defense. We find that this additional detail
satisfied the E/C’s pleading burden and served as the functional equivalent of
the amendment that rule 60Q-6.113(2)(h) prescribes must be permitted within ten
days after a claimant objects on grounds of lack of specificity. The parties
then proceeded to hearing fully informed of the specific grounds for the E/C’s
misrepresentation defense. Both parties’ rights were protected, and as the E/C
points out, remanding for a do-over now would serve no useful purpose and would
have the potential to reward Claimant’s belated assertion of the specificity
objection with a second bite at the apple after hearing and appeal.
And
so, taking account of both parties’ rights, we remand with instructions to the
JCC to 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.
so, taking account of both parties’ rights, we remand with instructions to the
JCC to 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
of Job Search
Finally,
we find no merit in the E/C’s argument that Claimant in this case needed to
present evidence of an unsuccessful good-faith job search in order to establish
entitlement to TPD 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).
we find no merit in the E/C’s argument that Claimant in this case needed to
present evidence of an unsuccessful good-faith job search in order to establish
entitlement to TPD 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, C.J., OSTERHAUS,
and KELSEY, JJ., concur.)
the reasons explained above, we AFFIRM, in part, and REVERSE and REMAND for
further proceedings in accordance with this opinion. (ROBERTS, C.J., OSTERHAUS,
and KELSEY, JJ., concur.)
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