                                    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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