                                    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 March 17, 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.



PER CURIAM.

      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 and because the E/C did not plead its misrepresentation

defense in sufficient detail as required by Florida Administrative Code Rule 60Q-

6.113(2)(h).

                                        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).”

      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).

At the hearing, however, 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

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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

      We find two things wrong with what occurred below, one benefitting each

party in this case. First, 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

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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 the 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

      The second error below relates to the requirement 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
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can serve as the predicate for disqualification from benefits.” Dieujuste v. J. Dodd

Plumbing, Inc., 3 So. 3d 1275, 1276 (Fla. 1st DCA 2009). And, here, the E/C failed

to identify any statement upon which it was basing its misrepresentation defense.

Thus, the E/C did not plead its defense in sufficient detail to satisfy the rule.

      But, in this instance, we cannot simply strike the E/C’s defense under rule

60Q-6.113(2)(h) without affording the rule-prescribed 10-day period for amending

its defense. Although the rule does not impose a timeframe for a claimant to object

to a defense, it does give an E/C ten days from a claimant’s specificity objection to

amend. Because Claimant failed to object or seek a ruling regarding the deficient

defense until two days before the final hearing, the E/C had no time to amend its

defense to conform with the rule’s specificity requirements.

      And so, taking account of both parties’ rights, we remand with instructions to

the JCC to give the E/C ten days to amend its pleading, and thereafter to give the

Claimant an opportunity to object/respond to the affirmative defense with

specificity, as required by the rule. If the E/C satisfies the rule’s specificity

requirement, then the JCC should 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.




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                                Lack of Job Search

      Finally, we find no merit in the E/C’s argument that the Claimant in this case

needed to present evidence of an unsuccessful good-faith job search in order to

establish entitlement to temporary partial disability 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, CJ., OSTERHAUS, and KELSEY, JJ., concur




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