         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
                 _____________________________

                         No. 1D18-4406
                 _____________________________

EDNA HERNANDEZ,

    Appellant,

    v.

FOOD MARKET CORP. dba
JOSEPH’S CLASSIC MARKET and
AMTRUST NORTH AMERICA OF FL
and ASSOCIATED INDUSTRIES,

    Appellees.
                 _____________________________


On appeal from an order of the Judge of Compensation Claims.
Thomas A. Hedler, Judge.

Date of Accident: July 17, 2017.


                        October 30, 2019



WINOKUR, J.

     Claimant Edna Hernandez appeals the order by the Judge of
Compensation Claims (JCC) denying her entitlement to any
workers’ compensation benefits due to her fraudulent provision of
an invalid social security number (SSN). We affirm.
     Claimant, an illegal alien without a valid SSN, was injured at
work and her employer/carrier later directed her to a medical care
provider. Claimant was advised that she would be required to
present a SSN, and the registration form indeed included a place
to enter a SSN and a statement that the “claim could be denied if
you do not provide the information.” Claimant admitted that she
entered an invalid SSN on the form because she believed she
needed to do so to obtain authorized medical care.

     Section 440.09(4)(a), Florida Statutes, prohibits an employee
from receiving workers’ compensation benefits if he or she commits
any act described in section 440.105, Florida Statutes, “for the
purpose of securing workers’ compensation benefits.” Section
440.105(4)(b) prohibits employees from making fraudulent, false,
or misleading statements. See, e.g., § 440.105(4)(b)9., Fla. Stat. (“It
shall be unlawful for any person . . . [t]o knowingly present or cause
to be presented any false, fraudulent, or misleading oral or written
statement to any person as evidence of identity for the purpose of
obtaining employment or filing or supporting a claim for workers’
compensation benefits.”). The employer/carrier argued that
Claimant violated section 440.105(4)(b)9. by fraudulently
providing an invalid SSN to obtain workers’ compensation
benefits, and thus was not entitled to benefits. “In deciding this
issue, the JCC had to answer two questions. The first is whether
Claimant made or caused to be made false, fraudulent or
misleading statements. The second is whether the statement was
intended by Claimant to be for the purpose of obtaining benefits.”
Arreola v. Admin. Concepts, 17 So. 3d 792, 794 (Fla. 1st DCA 2009).
The JCC answered both questions affirmatively and denied
Claimant’s claim.

    On appeal, Claimant argues that section 440.105(4) is
unconstitutional as applied to her because it is preempted by the
Immigration Reform and Control Act of 1986 (IRCA), citing
Arizona v. United States, 567 U.S. 387, 401 (2012), and State v.
Garcia, 401 P.3d 588 (Kan. 2017), cert. granted in part, 139 S. Ct.
1317 (2019). These authorities do not support relief.

     Part of a 2010 Arizona law made it a state crime for illegal
aliens “to knowingly apply for work, solicit work in a public place
or perform work as an employee or independent contractor in

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[Arizona].” Ariz.Rev.Stat. Ann. § 13–2928(C). Discussing the
IRCA’s “comprehensive framework for ‘combating the employment
of illegal aliens,’” the Supreme Court noted that employers are
penalized criminally and civilly for violating it, but employees are
not. Arizona, 567 U.S. at 404 (quoting Hoffman Plastic
Compounds, Inc. v. NLRB, 535 U.S. 137, 147, 122 S.Ct. 1275, 152
L.Ed.2d 271 (2002)). The Supreme Court held that Congress was
clear “that any information employees submit to indicate their
work status ‘may not be used’ for purposes other than prosecution
under specified federal criminal statutes for fraud, perjury, and
related conduct.” Id. at 405 (quoting 8 U.S.C. §§ 1324a(b)(5),
(d)(2)(F)–(G)). Thus, this section of the Arizona law was preempted
by IRCA because “Congress decided it would be inappropriate to
impose criminal penalties on aliens who seek or engage in
unauthorized employment.” Id. at 406.

     In Garcia, a false SSN an employee provided was used on an
I–9 form (an employment eligibility form authorized by the IRCA)
to verify his identity and employment authorization, and this
information was subsequently transferred to a W–4 tax form. 401
P.3d at 590. The State of Kansas charged Garcia with identity
theft and planned to use the W–4 as evidence, and the trial court
refused to suppress it. Id. Garcia argued that the W–4 could not be
used because the information on it was also on the I–9. See 8 U.S.C.
§ 1324a(b)(5) (“A form designated or established by the Attorney
General under this subsection and any information contained in or
appended to such form, may not be used for purposes other than
for enforcement of this chapter” or certain other federal statutes).
The state supreme court agreed, holding that “[s]tates are
prohibited from using the I–9 and any information contained
within the I–9 as the bases for a state law identity theft prosecution
of an alien who uses another’s Social Security information in an I–
9. The fact that this information was included in the W–4 and [a
related state tax document] did not alter the fact that it was also
part of the I–9.” Id. at 599. 1



    1 But see Garcia, 401 P.3d at 604 (Biles, J., dissenting)
(“Garcia was not convicted for using someone else’s identity on
Form I–9 to deceive his employer as to his work authorization.
Instead, Garcia was convicted for using another person’s Social
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     Regardless of whether we agree with Garcia, it does not
control, nor does Arizona. Here, Claimant does not allege that the
invalid SSN she provided to obtain workers’ compensation benefits
was ever previously provided for employment verification
purposes. 2 Instead, she argues that section 440.105(4) is
unconstitutional because her provision of a false SSN “implicates
and touches upon her immigration status” and thus is preempted
by IRCA. However, she cites no provision of IRCA prohibiting
information potentially relevant to an employee’s immigration
status—that was not provided to obtain employment—from being
used for any other purpose. 3 As we have previously held, a
claimant’s lack of lawful immigration status is not a defense to
providing fraudulent information to obtain benefits:

    [A]ny false, incomplete, or misleading information which
    the JCC concludes was provided to obtain benefits results
    in forfeiture of benefits. . . . Illegal aliens are, of course,
    covered by the Florida Workers’ Compensation Law.
    However, no special rules apply to undocumented
    workers. Like any other employee, they must comply with
    the statute in order to obtain the statute’s benefits. In



Security number on tax withholding forms.”); id. at 606 (Stegall,
J., dissenting) (“Can it really be true that the state of Kansas is or
could be expressly preempted from using—for any purpose—the
name of any citizen who has completed an I–9 form? A name is
‘information’ after all.”).
    2 At oral argument, Claimant asserted that she provided an
invalid SSN to obtain employment, but admitted that there is no
evidence that it was the same one—i.e., she does not assert that
“any information contained in” forms used to obtain employment
was also used to obtain workers’ compensation benefits. 8 U.S.C.
§ 1324a(b)(5).
    3 We do not need to decide whether preemption of state
imposition of criminal penalties—which was explicitly at issue in
both Arizona and Garcia—applies to the denial of workers’
compensation benefits, which is at issue here.

                                  4
    order to be self-executing, the statute requires everyone
    to be truthful, responsive, and complete.

Arreola, 17 So. 3d at 795 (citations omitted).

    Claimant has not shown error in the JCC’s final order, so we
AFFIRM. 4

JAY, J., concurs; RAY, C.J., concurs in result.

                  _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


David C. Wiitala of Wiitala & Contole, P.A., North Palm Beach, for
Appellant.

Rayford H. Taylor of Hall Booth Smith, P.C., Atlanta, GA, and
Andrew R. Borah of Hurley, Rogner, Miller, Cox, Waranch &
Westcott, P.A., Deerfield Beach, for Appellees.




    4We reject Claimant’s other arguments without further
comment.

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