IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
THG RENTALS & SALES OF NOT FINAL UNTIL TIME EXPIRES TO
CLEARWATER, INC./SUMMIT FILE MOTION FOR REHEARING AND
HOLDINGS – CLAIMS DISPOSITION THEREOF IF FILED
CENTER,
CASE NO. 1D15-970
Appellants,
v.
JAMES C. ARNOLD,
Appellee.
_____________________________/
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.
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
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.
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.
Facts
Claimant suffered compensable injuries to both his back and right knee.
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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
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Claimant’s request for temporary partial disability (TPD) benefits.
Standard 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.
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
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(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
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:
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). 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
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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.
Lack 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
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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.
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