                                     IN THE DISTRICT COURT OF APPEAL
                                     FIRST DISTRICT, STATE OF FLORIDA

TONY JOE LEGGETT,                    NOT FINAL UNTIL TIME EXPIRES TO
                                     FILE MOTION FOR REHEARING AND
      Appellant,                     DISPOSITION THEREOF IF FILED

v.                                   CASE NO. 1D14-4432

BARNETT MARINE, INC. AND
SEA BRIGHT
INSURANCE/ENSTAR U.S.
INC.,

      Appellees.


_____________________________/

Opinion filed June 4, 2015.

An appeal from an order of the Judge of Compensation Claims.
E. Douglas Spangler, Jr., Judge.

Date of Accident: May 9, 2013.

Bill McCabe, Longwood, and Stephanie Brunner, Cape Coral, for Appellant.

Timothy A. Dunbrack and Joshua Day of Kelley, Kronenburg, Gilmartin, Fichtel,
Wander, Bamdas, Eskalyo & Dunbrack, P.A., Orlando, for Appellees.



PER CURIAM.

      In this workers’ compensation case, Claimant, Tony Leggett, appeals an order

of the Judge of Compensation Claims (JCC) denying contested temporary total
disability (TTD) benefits on the grounds that Claimant made misrepresentations

forfeiting benefits under sections 440.09 and 440.105, Florida Statutes (2012). We

affirm.

                                         I.

      Claimant was a marine dock builder who injured his back on May 9, 2013,

while moving a piling. The Employer/Carrier (E/C) accepted compensability of the

accident and injuries, authorized medical treatment, and began paying TTD benefits.

Part of Claimant’s authorized treatment required physical therapy. During physical

therapy, Claimant injured his right hip; as a result, on August 16, 2013, Claimant

was referred for an orthopedic evaluation. The E/C contested the evaluation on the

grounds it was not related to the employment.

      The E/C subsequently conducted surveillance on Claimant and found that

over a three-day period in October 2013, he performed physical tasks consistent with

the construction of a dock. The E/C stopped paying TTD benefits as of December 2,

2013, and denied the entire claim (including the orthopedic evaluation), asserting a

fraud defense under sections 440.09 and 440.105, Florida Statutes. In 2014,

Claimant filed petitions for benefits (PFBs) seeking authorization of treatment and

reinstatement of TTD benefits beginning December 2, 2013. On July 11, 2014,

Claimant was deposed and denied doing any dock work since the date of the

accident, claiming he was only “hanging out” near the dock job.

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      After holding a hearing on the pending claims and reviewing surveillance of

Claimant performing dock construction, the JCC, rendered an order on September

4, 2014, finding fraud based on the representations made in Claimant’s deposition,

and denying the requested benefits on this same basis. On rehearing, Claimant

argued he should receive the requested benefits for dates before July 11, 2014, which

was the day he made the misrepresentations that led to the finding of fraud. The JCC

denied rehearing and ruled instead that “Claimant’s right to receive compensation

benefits ended before his demand for payment of benefits was adjudicated.”

Claimant appealed seeking the award of the evaluation and TTD benefits from

December 2, 2013, through July 11, 2014.

                                         II.

      Section 440.105(4)(b)(1) states it is 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.” Section 440.09(4) bars benefits for an employee found to have “knowingly

or intentionally engaged in” such acts “for the purpose of securing workers’

compensation benefits.” Notably, Claimant in this appeal does not challenge the

finding that he violated section 440.105(4)(b)(1); Claimant’s argument concerns the

date that forfeiture of benefits becomes effective (either the date of his

misrepresentation, July 11, 2014; or the date the JCC entered the order finding

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misrepresentation, September 4, 2014). Review is de novo. See Gilbreth v. Genesis

Eldercare, 821 So. 2d 1226, 1228 (Fla. 1st DCA 2002) (reviewing de novo JCC’s

conclusions involving questions of law).

      Claimant presumes, without legal or factual support, that he was legally

entitled to disputed benefits allegedly due for periods predating his

misrepresentation. But Claimant never established his entitlement to these disability

and medical benefits that the E/C was contesting. Instead, the JCC denied

entitlement to these benefits, which were the very benefits at issue when Claimant

made misrepresentations in deposition. Notwithstanding these facts, Claimant

argues that in every instance where section 440.09(4) is applied, entitlement to

benefits ends on a date certain—the date of the misrepresentation. But the plain text

of section 440.09(4) suggests something different: “An employee shall not be

entitled to compensation or benefits under this chapter if any judge of compensation

claims, administrative law judge, court, or jury convened in this state determines that

the employee has knowingly or intentionally engaged in any of the acts described in

s. 440.105 . . . .” The words “shall not be entitled . . . if” indicate, at the very least,

that where fraud has been found, all contested and unresolved entitlement(s) to

benefits under chapter 440 are thereafter resolved against the offending employee.

It follows that the JCC here did not err in denying the requested benefits in the PFBs

pending before him, regardless of when entitlement to such benefits would have

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accrued had there been no fraud and had the JCC reached the merits of the pending

claim, which he was not required to do on account of the finding of fraud.

      Finally, we distinguish Alvarez v. Unicco, 958 So. 2d 951 (Fla. 1st DCA

2007). It does not completely resolve the issue here because it dealt with the denial

of “benefits for the period prior to the entry of the order [finding fraud],” but it did

not make clear whether the disputed period of benefits related to a period before the

date the fraud was committed. 958 So. 2d at 952. By contrast, this case squarely

involves a claim for contested benefits predating the misrepresentation. The cases

cited in Alvarez – Horizons Painting v. Lessard, 688 So. 2d 941 (Fla. 1st DCA 1997),

and Pavilion Apartments v. Wetherington, 943 So. 2d 226 (Fla. 1st DCA 2006) – are

also distinguishable on their facts. At the time of Lessard, section 440.09(4) did not

allow JCCs to make determinations of fraud (instead limiting such determinations

to “any administrative hearing officer, court, or jury convened in this state”), so we

held there is no forfeiture where the E/C failed to show that “an administrative

hearing officer, court or jury had determined that claimant had knowingly or

intentionally made false statements.” Subsequent to Lessard, the Legislature

amended section 440.09(4) to permit JCCs to make factual determinations that fraud

had occurred. Ch. 98-174, § 3, Laws of Fla. (eff. Jan. 1, 1999). After the change, this

court in Wetherington affirmed, as supported by the record, a JCC’s finding that a

claimant had not committed fraud.

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                                        III.

       For the foregoing reasons, the JCC’s order is affirmed. Because fraud was

found in this case before adjudication of Claimant’s entitlement to the benefits at

issue, we do not reach the issue of whether a misrepresentation made after the

entitlement to benefits is legally established will disqualify an offending employee-

claimant from the right to the payment of benefits.

      AFFIRMED.

ROBERTS, WETHERELL, and OSTERHAUS, JJ., CONCUR.




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