Court finds that the judge’s findings were supported by competent, substantial evidence and, therefore, affirmed the judge’s order denying the employer’s misrepresentation defense.

The employer appealed the judge’s order denying their misrepresentation defense. The judge found that the employer did not prove that the claimant had violated section 440.105(4)(b), Fla. Stat. (2015), by knowingly and intentionally making, or causing to be made, any false, fraudulent, incomplete, or misleading oral or written fraudulent statement for the purposes of obtaining benefits. The judge awarded the claim for a psychological evaluation, holding that the employer waived its right to challenge the medical necessity. The First District Court of Appeal found that the judge’s findings were supported by competent, substantial evidence and, therefore, affirmed. They felt compelled to explain why they agreed with the judge’s rejection of the misrepresentation defense.

The employer contended that the claimant misrepresented her post-accident earnings while receiving temporary partial disability benefits. In her deposition, the claimant testified that her husband was delivering car parts for ADL Delivery but that the paychecks were issued in her name. She testified that her husband did not have a bank account and declined to elaborate further. She admitted that she rode with him often and sometimes did the paperwork while sitting in the car. In a second deposition, she testified that she never got out of the car during the deliveries. In a third deposition, she said that she had reported the earnings to the IRS, and the tax returns for two consecutive years showed that she was noted as a self-employed driver. ADL had no record of the husband’s employment but produced payroll records, personnel records, driving history, insurance, a W-9 and an independent contractor driver agreement for the claimant.

The employer presented two Employee Earnings Reports (DWC-19s) where the claimant denied any earnings, but explained: “Claimant does not receive income from any other source. Any checks issued to claimant’s name are for work done and performed by claimant’s husband.” At the final hearing, the claimant testified that she did not knowingly or intentionally provide false statements when completing the DWC-19s.

The employer also argued misrepresentation based on surveillance that contradicted her deposition testimony and what she told the doctors. Two authorized doctors testified that the video showed her engaging in activities beyond what was recommended and what she represented to them during her treatment.

The judge, however, concluded that she was a credible witness (although a “remarkably poor historian”), was sincere and testified to the best of her capacity. The judge noted specifically that the claimant had not performed labor sufficient to meet the definition of income; the surveillance videos supported that her husband performed the job and she did not; and she disclosed the situation in deposition before completing the DWC-19s.

The judge also found the surveillance combined with her statements were insufficient to show misrepresentation, noting that the video was not close in time to the depositions.

The First DCA agreed with the judge and held that the claimant did not earn the ADL wages because she did not perform the actual work. Therefore, she did not misrepresent the earnings that were paid on behalf of her husband. Neither court found any intent on the part of the claimant to misrepresent the ADL wages because she believed that they were for her husband’s work.

With regard to the surveillance, the court held that the judge had concluded, within her discretion, that, while there may have been come inconsistencies between her deposition testimony and presentation to the doctors versus the surveillance, there was no intentional misrepresentation. The doctors ultimately testified that the surveillance was not inconsistent with her diagnosis and that she would have “good days and bad days.”

The First DCA affirmed, finding competent, substantial evidence supported the judge’s holdings.

What’s Hot in Workers’ Comp, Vol. 24, No. 9, September 2020

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