Not So Fast! A Closer Look at 440.105(4)(b)(9)
Consider these facts. A prospective employee approaches a prospective employer about a job. The would-be employee completes a job application. He also provides the prospective employer with copies of his driver’s license, Social Security card, and because he is not a U.S. citizen, his alien registration card. Everything appears to be in order, so the employer offers the applicant a position. Two days later, the employee is injured in a horrific on-the-job accident. He is then rushed to the hospital where he is asked to complete a hospital intake form. Still conscious, he completes the form and provides the hospital with the identical biographical information that he previously listed on his job application. Thousands of dollars in medical bills begin to mount and the injured worker files a workers’ compensation claim which is accepted as compensable by the employer under the 120-day pay and investigate provision of F.S. §440.192. During its investigation, the employer learns that the injured employee completely falsified his records. In fact, the employee entered the U.S. illegally and was never authorized to work at all. His driver’s license, Social Security card, and alien registration card were all obtained fraudulently.
Sound familiar? This common factual scenario begs the question, are this employee’s injuries covered under Florida workers’ compensation laws? Or to put it another way, should the unwitting employer be expected to bear the burden of this employee’s substantial medical costs and lost wages even though the employee misrepresented himself in order to get hired? Right or wrong, unauthorized workers’ have almost inevitably been covered under this scenario. However, a careful review of legislative history pertaining to the 2003 statutory revisions, the statutory language itself, and the public policy generally relied upon to extend coverage to unauthorized workers, reveals that unabated coverage to unauthorized workers was not necessarily the result the Florida Legislature intended.
The Fraud Statutes
Generally, an accident is deemed compensable under Florida workers’ compensation laws so long as it occurred during the course and scope of the injured worker’s employment. One major exception to compensability is known as the “fraud defense.”1 Section 440.09 (4)(a), which codifies the “fraud defense,” states that “[a]n 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 or any criminal act for the purpose of securing workers’ compensation benefits.”2 As discussed above, §440.09 (4)(a) must be read together with §440.105 in order to prove the fraud defense.
Given our hypothetical, one subsection within 440.105 is particularly relevant. Namely, §440.105 (4)(b)(9) makes it unlawful “to 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.”3 Under a plain reading of §440.105 (4)(b)(9), it appears that regardless of whether a claimant is under oath, if at the time the claimant made any false material statement of identity, and at the time he made any of these statements, he knew the statements were false, incomplete, or misleading, then the statements fall within the scope of §440.105, and must result in the loss of workers’ compensation benefits.4
Case closed, right? Our hypothetical worker clearly lied about his identity to his employer, didn’t he? Therefore, he committed fraud and is not entitled to benefits, correct? The answer is a resounding maybe. Many would argue that the employer must show not only that the injured worker made a false statement as evidence of identity in order to obtain employment, but also that his misrepresentations were “for the purpose of securing workers’ compensation benefits.” That is, when it comes to workers’ compensation coverage, some would argue it does not matter that the claimant misrepresented his identity for the purpose of obtaining employment if his misrepresentations had nothing to do with an attempt to secure benefits.
The Florida Legislature considered the effect of §440.105 (4)(b)(9) on unauthorized workers’ entitlement to benefits in its Senate Staff Analysis and Economic Impact Statement
(March 10, 2004) and The Florida Senate Interim Project Report 2004-110 (December 2003). Therein, the legislature stated as follows:
As amended by Senate Bill-50A, the law now provides that it is a felony and insurance fraud for a person to knowingly present any false or misleading oral or written statement as evidence of identity for the purpose of obtaining employment. Therefore, if an illegal alien obtained his employment by misrepresenting his identity in order to get a job, then that person could be found to have committed insurance fraud and thus ultimately denied benefits if injured on the job.
Proponents of the amendment argue that undocumented workers should not be entitled to benefits because they are not legally working and are, therefore, not lawful employees.5
One could certainly extrapolate based upon these statements alone that it was the legislature’s intent to preclude benefits to unauthorized workers who misrepresent themselves in order to obtain employment, regardless of whether any misrepresentation of identity was “for the purpose of securing workers’ compensation benefits.” However, if we take this one step further and evaluate the specific language the legislature chose for §440.105 (4)(b)(9), and compare it with the other subsections in 440.105 (4)(b), the argument is even more compelling. For example, consider the language contained in §440.105 (4)(b)(9) versus the language contained §§440.105 (4)(b)(1)-(3).
Sections 440.105 (4)(b)(1)-(3) state that the following acts are unlawful:
1. 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 ;
2. To present or cause to be presented any written or oral statement as part of, or in support of, a claim for payment or other benefit pursuant to any provision of this chapter, knowing that such statement contains any false, incomplete, or misleading information concerning any fact or thing material to such claim;
3. To prepare or cause to be prepared any oral statement that is intended to be presented to any employer, insurance company, or self-Employer/Carrier program in connection with, or in support of, any claim for payment or other benefit pursuant to any provision of this chapter, knowing that such statement contains any false, incomplete, or misleading information concerning any fact or thing material to such claim. (Emphasis added.)
Conversely, subsection (9) makes it unlawful for any employee: “To 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.”
Notice that while §§440.105 (4)(b)(1)-(3) require that an employer show a nexus between the false, fraudulent, or misleading statement and an employee’s attempt to secure benefits, §440.105 (4)(b)(9) provides the employer with the alternative to show either that a false statement was made by the employee as evidence of identity for the purpose of obtaining employment or for the purpose of filing or supporting a claim for workers’ compensation benefits . Given that the legislature wrote §440.105 (4)(b)(9) differently and failed to revise it after it considered the fact that the section could have the effect of precluding unauthorized workers from workers’ compensation benefits, it is fair to assume that §440.105 (4)(b)(9) was intended to preclude workers’ compensation benefits to injured workers at the moment a worker is found to have misrepresented his or her authorized status and/or identity to obtain employment.
The Conjunctive Interpretation
The authors now turn your attention to the only other plausible reading of 440.09 (4)(a) and 440.105 (4)(b)(9) together, which has been labeled “the conjunctive interpretation” ( i.e. , that the employer/carrier’s burden is to show that an injured worker knowingly presented a false, fraudulent, or misleading oral or written statement as evidence of identity for the purposes of obtaining employment and for the purposes of obtaining workers’ compensation benefits, before it can properly deny an injured worker’s benefits). The “conjunctive interpretation” was previously discussed by Judge of Compensation Claims Diane B. Beck in Carrillo v. Employee Leasing Solutions, Final Compensation Order, OJCC No. 04-032723DBB (issued June 7, 2005).6 Like the hypothetical, Carillo involved a nonresident alien claimant who procured employment through the use of a manufactured Social Security number. Judge Beck held that although the claimant procured his employment by providing a false social security card, in violation of §440.105 (4)(b)(9), he was not precluded from workers’ compensation benefits under §440.09 (4)(a), because the employer/carrier failed to prove that the claimant misrepresented his Social Security number “for the purposes of obtaining workers’ compensation benefits.”7
The pertinent portion of Judge Beck’s order is as follows:
Although claimant did violate the statute, his claims are not barred pursuant to section 440.09(4)(a), because that section requires that the employee engage in the prohibited acts “for the purpose of securing workers’ compensation benefits[.”] Claimant’s purpose in providing a false social security card was to secure employment. No evidence was submitted that claimant was seeking to secure workers’ compensation benefits at the time he was hired. Subsequent to his injury, claimant did not provide the false social security card to the hospital or other medical providers and did not include it in his petition for benefits. Rather, he applied for a number to use in place of a social security number on his petition, clearly documenting that he was lawfully employed.. . . Therefore, he did not violate section 440.105 (4)(b)(9) because he did not use the false social security card for the purpose of filing or supporting his claim for workers’ compensation benefits.8
All should first agree that because §440.09 (4)(a) clearly states that engaging in any of the acts described in §440.105 is a violation, there must be some conceivable set of facts involving a false statement as evidence of identity in order to obtain employment, that could lead to a violation of the fraud statute, and thereby require a court to deny compensability. To suggest otherwise would be a clear contradiction to the plain language in §440.09 (4)(a). In her order, Judge Beck has anticipated essentially the only way where one could violate §440.105 (4)(b)(9) under the “conjunctive interpretation,” and, as a result of said violation, have benefits denied pursuant to §440.09 (4)(a). That is, in order for an employer to show that a claimant made false statements both as evidence of identity and “for the purpose of securing workers’ compensation benefits,” the employer would have to show that the injured worker made a false statement as evidence of identity to 1) a related medical provider subsequent to the industrial accident; 2) in a petition for benefits; or 3) during sworn testimony subsequent to the industrial accident. Absent admitting his wrongdoing, it is only under these circumstances that the claimant’s misrepresentations of identity could be construed as being “for the purpose of obtaining workers’ compensation benefits.”9
Injured workers often receive medical care on the same day as their industrial accident. In fact, it is some employers’ policy to send their injured workers to an authorized medical facility at the moment the injured worker reports his or her injury. Since unauthorized workers often provide employers with fake driver’s licenses, false Social Security numbers, etc., they also commonly provide the same false biographical information to health care providers, particularly when they are not advised by an attorney and/or given the opportunity to think about the potential consequences of providing false information to a medical provider. This is precisely what the hypothetical injured worker did. Therefore, our injured worker has made a false, fraudulent, or misleading oral or written statement both as evidence of identity and “for the purpose of securing workers’ compensation benefits.”10 Accordingly, even under the “conjunctive interpretation,” he has violated §440.09 (4)(a), and his benefits should be denied.
In Cenvill Devel. Corp. v. Candelo, 478 So. 2d 1168 (Fla. 1st DCA 1985), the First DCA held that “illegal aliens are indeed entitled under the statute to workers’ compensation benefits.” As a basis for its holding, the court stated that the public policy supporting a holding that unauthorized workers are covered under Florida workers’ compensation laws is that it “prevents unauthorized aliens from suffering at the hands of an employer who would knowingly hire the alien and then conveniently use the unauthorized alien status to avoid paying wage loss benefits.”11 One should first recognize that Candelo was decided prior to the enactment of §440.105 (4)(b)(9). Far more significant, however, is the fact that there is no evidence under our hypothetical that the employer knowingly hired the injured worker only to later utilize the worker’s unauthorized status in order to preclude benefits.
The U.S. Supreme Court considered the implications of public policy under a set of facts similar to ours in Minneapolis, ST. P. & S. S. M. RY. Co. v. Rock, 279 U.S. 410 (1929). In Rock, a railroad employee secured employment after an imposter submitted to a pre-employment physical examination on his behalf. The employee was hired, subsequently injured, and then attempted to recover for his injuries under the Federal Employers Liability Act. Recovery under the act was premised upon the employee establishing that an employer-employee relationship existed. In a very spirited opinion, the U.S. Supreme Court denied the employee’s right to recover. The High Court reasoned as follows:
It was at all times his duty to disclose his identity and physical condition to petitioner. His failure so to do was a continuing wrong in the nature of a cheat. The misrepresentation and injury may not be regarded as unrelated contemporary facts. As a result of his concealment his status was at all times wrongful, a fraud upon the petitioner, and a peril to its patrons and its other employees. Right to recover may not justly or reasonably be rested on a foundation so abhorrent to public policy.12
Note that the Supreme Court admonished the plaintiff not only because he withheld his physical condition, but also because he failed to disclose his true identity.13 The Supreme Court also intimated that it was illogical to require an employer to bear responsibility for what could amount to thousands of dollars in damages when it would not have hired the employee but for his misrepresentations.14
Our hypothetical worker went to a lot of trouble to deceive his employer in order to secure employment. Specifically, as unauthorized workers often do, he provided a false Social Security card, resident alien card, and driver’s license to the prospective employer. Our hypothetical employer satisfied any obligation it owed under the law to verify the worker’s documents at the moment it collected them;15 and there is no evidence that our employer intended to hire the worker only to later deny benefits in the event he was injured. Thus, the public policy argument often relied upon to substantiate affording benefits to unauthorized workers does not apply. In truth, there is a countervailing public policy that courts should consider. Namely, courts should be wary of the promotion of fraud by unauthorized workers who believe they are entitled to all the fruits of their employment regardless of the extent to which they misrepresent themselves to their employer.16
Our hypothetical worker is representative of many actual workers, and has specifically engaged in the type of fraud contemplated by Florida’s workers’ compensation “fraud statute” regardless of how §§440.09 (4)(a) and 440.105 (4)(b)(9) are construed. If one subscribes to a plain reading of the statutes, the injured worker committed fraud for which he or she could be denied benefits at the moment he or she provided false evidence of identity to his or her employer in an effort to obtain employment. If one subscribes to “the conjunctive interpretation” of the statutes, the injured worker conceivably committed fraud for which he or she could be denied benefits at the moment he or she provided false statements as evidence of identity to a health care provider subsequent to his or her industrial accident. Under either interpretation, emphasis should be placed squarely on the shoulders of the knowing employee, who has “unclean hands,” and not the unwitting employer. At the very least, courts should place some burden on unauthorized workers to show that their employer knew or should have known when they hired the worker that he or she was not authorized to work, before it determines that accidents such as these are compensable. In turn, workers’ claims such as these should be denied unless and until the Florida Legislature indicates through another statutory revision that it intends a different result.
1 Village Park Apts. v. Hernandez, 856 So. 2d 1140, 1142 (Fla. 2003).
2 Fla. Stat. §440.09(4)(a).
3 Fla. Stat. §440.105(4)(b)9.
4 Hernandez, 856 So. 2d at 1142.
5 Senate Staff Analysis and Economic Impact Statement (March 10, 2004); The Florida Senate Interim Project Report 2004-110 (December 2003).
6 Carrillo v. Employee Leasing Solutions, Final Compensation Order, OJCC No. 04-032723DBB (issued June 7, 2005), available at www.jcc.state.fl.us/jccdocs20/SRA/Manatee/2004/032723/2133045.pdf.
7 Id. at 8.
8 Id. at 9 (emphasis added).
9 Judge Beck did enter a second order, wherein she discussed legislative history. To view the order, see OJCC No. 04-032723DBB, available at www.jcc.state.fl.us.
10 But see Martinez v. Monier Lifetile, OJCC No. 02-037951MHH, available at www.jcc.state.fl.us (Order, J. Hofstad) (the use of a false Social Security number is irrelevant, even if provided to a treater or used on a petition for benefits subsequent to an industrial accident).
11 Cenvill Devel. Corp. v. Candelo, 478 So. 2d 1168 (Fla. 1st D.C.A. 1985); see also Reinforced Earth Co. v. Workers’ Comp. Appeal Bd., 749 A.2d 1036, 1039 (Pa. Cmwlth. 2000).
12 Rock, 279 U.S. at 415 (emphasis added).
15 See Cenvill, 478 So. 2d at 1170. The First DCA held that neither Florida nor federal law impose upon the employer the burden of verifying forged or borrowed green cards. Accordingly, our hypothetical employer satisfied any responsibility it owed under the law to investigate the injured worker’s authorized worker status.
16 See, e.g., Kilgore v. Hudson, 4 So. 2d 865 (Fla. 1941) (in action for personal injuries sustained on the job, employer may defend on the ground that employment was procured through fraud).
James F. Kidd is a partner and founder of the workers’ compensation department of Moran & Shams, P.A. Mr. Kidd has served as a seminar speaker on numerous workers’ compensation and employment issues for The Counsel On Management, Florida Workers’ Compensation Institute, Central Florida Hotel and Lodging Association, and the Hotel and Human Resource Association. He earned his J.D. from the University of Florida in 1992.
Rick Blystone is an associate at Moran & Shams, P.A., and focuses his practice on workers’ compensation defense. Rick appears before the judges of compensation claims throughout Florida to defend his clients on numerous issues, including compensability of accidents, occupational disease and exposure, controversy and contribution among carriers, permanent total disability, and temporary indemnity. He earned his J.D. from Nova Southeastern University in 2005.
This column is submitted on behalf of the Workers Compensation Section, Mark L. Zientz, chair, and Pamela L. Foels, editor.