LSG Sky Chefs, Inc. v. Santaella
| Decision Date | 20 July 2020 |
| Docket Number | No. 1D19-4073,1D19-4073 |
| Citation | 299 So.3d 1180 |
| Parties | LSG SKY CHEFS, INC./LIBERTY MUTUAL INSURANCE COMPANY, Appellants, v. Gertrudis SANTAELLA, Appellee. |
| Court | Florida District Court of Appeals |
Kimberly J. Fernandes of Kelley Kronenberg, P.A., Tallahassee, for Appellants.
Kimberly A. Hill of Law Offices of Anidjar & Levine, P.A., Fort Lauderdale, for Appellee.
The Employer/Carrier (E/C) in this workers’ compensation case appeals the Judge of Compensation Claims’ (JCC's) order rejecting their misrepresentation defenses and awarding Claimant a second psychological opinion evaluation. In the order, the JCC found that the E/C did not prove Claimant violated section 440.105(4)(b), Florida Statutes (2015), by knowingly and intentionally making, or causing to be made, any false, fraudulent, incomplete, or misleading oral or written fraudulent statement for the purposes of obtaining benefits. The JCC also found that the medical evidence supported the need for the psychological evaluation and that the E/C waived the right to challenge its medical necessity. Because competent, substantial evidence (CSE) supports the JCC's finding of medical necessity—and the E/C did not directly challenge the waiver ruling in this appeal—we affirm this issue without further comment. We also affirm the JCC's rejection of the misrepresentation defenses but write further to explain why.
In September 2015, Claimant sustained a compensable workplace injury to her low back, and the E/C provided medical care, including back surgery. In March and May of 2019, Claimant filed petitions for benefits seeking additional medical care, including a second-opinion psychological consultation for a spinal cord stimulator. The E/C initially denied that Claimant was entitled to the requested psychological consultation, but later asserted that Claimant forfeited any and all benefits by mispresenting her post-injury earnings and medical condition.
Under section 440.105(4)(b) 1.-3., Florida Statutes, it is unlawful for any person to make, or cause to be made, any false, fraudulent, incomplete, or misleading oral or written statement for the purpose of securing compensation. An employee who knowingly or intentionally violates section 440.105(4)(b) 1.-3. is not entitled to workers’ compensation benefits. See § 440.09(4)(a), Fla. Stat. (2015).
Under Florida Administrative Code Rule 60Q-6.113(2), a fraud or misrepresentation defense based on sections 440.09(4)(a) and 440.105 "must be raised [in the pretrial stipulation] with specificity, detailing the conduct giving rise to the defense." To establish the defense, the employer or carrier must prove violations of section 440.105(4)(b) by a preponderance of evidence. See Singletary v. Yoder's Ameritrust Ins. Corp ., 871 So. 2d 289, 291 (Fla. 1st DCA 2004). The JCC is then "required to determine whether [c]laimant knowingly or intentionally made any false, fraudulent, incomplete, or misleading statement, whether oral or written, for the purpose of obtaining workers’ compensation benefits, or in support of his claim for benefits." Village of N. Palm Beach v. McKale , 911 So. 2d 1282, 1283 (Fla. 1st DCA 2005) (citing § 440.105(4)(b) 2., Fla. Stat. (1999)). The false, fraudulent, or misleading statement does not need to be material to the claim; however, it must be made for the purpose of obtaining benefits. Id . ; see also Matrix Emp. Leasing v. Hernandez , 975 So. 2d 1217, 1219 (Fla. 1st DCA 2008).
The E/C asserted that Claimant misrepresented her postinjury earnings when she claimed and received temporary partial disability (TPD) benefits under section 440.15(4), Florida Statutes (2015). When deposed by the E/C in May 2018, Claimant testified that her husband began a job delivering car parts for ADL Delivery in November 2017, soon after her back surgery. She stated that he does all the work but admitted that the paychecks from this employment are issued in her name. She claimed this was because her husband does not have a bank account and declined to explain further. She acknowledged that she often rides with him when he works and that she sometimes does the paperwork while sitting in the car.
In a second deposition in August 2018, Claimant stated again that she receives paychecks from ADL for the deliveries performed by her husband. She indicated that she accompanies him most of the time but denied ever getting out of the car during deliveries. At a September 2018 merit hearing held on a prior claim, the E/C challenged Claimant's credibility based on her ADL employment. Consistent with her previous deposition testimony, Claimant testified that checks are made payable to her, but her husband performed the work. At one point, Claimant stated that she applied for the position because the company needed female drivers. When confronted with her deposition testimony that she applied for the job because her husband does not have a bank account, Claimant stated that this was also true.
In her third deposition in May 2019, Claimant confirmed that she was still receiving paychecks from ADL and that she only rode in the car while her husband made deliveries. She testified further that she had reported these earnings to the IRS. Her 2017 and 2018 federal tax returns showed the ADL payments as her income from work as a self-employed driver. An ADL representative subsequently produced Claimant's payroll and personnel records as well as her signed independent contractor driver agreement, driving history, automobile insurance declaration, and W-9 form. By contrast, ADL had no record of Claimant's husband's employment.
As evidence that Claimant misrepresented her post-injury earnings to obtain indemnity benefits, the E/C relied on two DWC-19 Employee Earnings Statement forms. The first form, signed by Claimant in October 2018, listed no earnings for the month of September and included a handwritten explanation that In January 2019, Claimant signed a similar form with the same information for the time period of October 2018 through December 2018.
At the final hearing, Claimant testified that she did not knowingly or intentionally give any false statements to obtain workers’ compensation benefits when she completed the DWC-19 forms. She explained that she did not list the ADL payments as earnings because her husband was doing the work. She admitted to testifying in May 2018 that she sometimes did paperwork in the car, but stated she stopped doing this because the paperwork was no longer required. On cross-examination, she conceded that the company was looking for both male and female drivers at the time she applied.
In addition to the alleged misrepresentations in the DWC-19 forms, the E/C argued that surveillance videos established that Claimant misrepresented her medical condition to her doctors and in her deposition. According to the E/C, Dr. Hodor and Dr. McCarthy both testified that the surveillance video showed Claimant engaging in activities beyond what was recommended and what she represented during treatment.
Although the E/C also argued that Claimant misrepresented her medical condition in her own deposition testimony, they specified only the May 2019 deposition in the pretrial stipulation. More specifically, the E/C contended that Claimant testified in May 2019 that "she cannot walk, climb stairs, dress, bathe, or tie shoes without support," but that the surveillance revealed Claimant "walking, ascending into a pickup truck, and hinged at 90 degrees at the waist without support and with no distress."
After observing Claimant's demeanor "before, during and after her live testimony," the JCC found Claimant "to be a credible witness, but a remarkably poor historian." The JCC also found her "to be sincere and that she testified to the best of her capacity."
The JCC concluded that Claimant did not intentionally misrepresent her post-injury earnings. In reaching this conclusion, the JCC accepted Claimant's testimony that she believes the ADL income is for her husband's labor, not her own. In addition, the JCC found that (1) Claimant had not performed labor sufficient to meet the definition of income; (2) the surveillance videos supported her testimony that the husband performs the duties of the delivery job and she does not; and (3) Claimant disclosed this unusual employment situation in her deposition before completing the DWC-19 forms.
The JCC also concluded that Claimant had not misrepresented her medical condition. Specifically, the JCC found that Dr. Hodor and Dr. McCarthy both testified that Claimant's activities, as shown in the surveillance videos, "were not inconsistent with her diagnosis of failed back syndrome" despite the fact that "she appeared to be engaging in activities over the levels recommended by [these] physicians." Although the JCC described Claimant's deposition testimony as "equivocal and often confusing," she determined that it was "insufficient to show misrepresentation ... particularly as the video surveillance was not close in time to [Claimant's] depositions."
A JCC's ruling on a fraud or misrepresentation defense is reviewed for CSE, and the factual findings will be upheld if any such evidence supports the JCC's decision, regardless of whether "other persuasive evidence, if accepted by the JCC, might have supported a contrary ruling." Pinnacle Benefits, Inc., v. Alby , 913 So. 2d 756, 757 (Fla. 1st DCA 2005) ; see also Paulson v. Dixie Cty. Emerg. Med. Servs ., 936 So. 2d 1109, 1110 (Fla. 1st DCA 2006). But to the extent the ruling involves the JCC's interpretation and application of a statute, it is a question of law subject to the de novo standard of review....
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