The Misrepresentation Defense: Honesty Is The Best Policy

We all know that honesty is important in everything we do. In fact, we have heard this all of our lives from our parents, teachers, and employers. All First Responders are held to a very high standard in their work lives, especially when testifying in court. Nine out of ten know that giving false testimony under oath is perjury and can subject the person committing perjury to criminal sanctions and job loss among other sanctions. But how many know that Chapter 440, Florida Statutes, the chapter outlining and prescribing Florida’s Workers Compensation laws, goes even further in sanctioning “dishonesty”?

Section 440.105 prohibits false or misleading statements and section 440.09 mandates a forfeiture of all workers compensation benefits if a Judge of Compensation Claims determines that the false or misleading statements were made to secure or obtain workers compensation benefits. Misrepresentation is an affirmative defense raised by Employer/Carriers to deny or stop providing workers compensation benefits. We see these defenses raised too often especially when injured workers are not represented at the onset of their claims. Here’s why:

Sections 440.105 and 440.09 read together provide that any knowingly false, fraudulent, or misleading oral or written statement, made for the purpose of obtaining any workers compensation benefits, will bar an injured worker/claimant from receiving both medical and indemnity payments. Sounds simple enough, right? Tell the truth and your benefits under workers comp will be safe. But what constitutes a “false statement” under Section 440.105? As we discussed above, we know the importance of giving truthful testimony under oath, such as in deposition or at trial. And as attorneys, we prepare our clients for formal testimony. But statements also refer to oral statements made to your doctor and to written statements given when completing medical questionnaires before your initial evaluation by the doctor. Even non-verbal conduct, such as activity caught on surveillance video, can be considered a “statement”. These are just a few examples of the types of statements that have been used against injured workers/claimants by the employer/carrier to deny benefits.

Once the employer/carrier identifies a statement that it believes contains false information, the burden is on the employer/carrier to prove that the injured worker/claimant knew that the statement was false or misleading when it was made. The employer/carrier can potentially carry its burden by showing that the injured worker/claimant gave an inconsistent statement at another time or to another doctor. Inconsistencies are not hard to find when more than one statement is given, and multiple doctors have evaluated the injured worker/claimant. And it is important to note that the false or misleading statement does not have to be material to the issues or the claim for benefits being made. Instead, the employer/carrier has to prove, and the Judge has to find, that the false or misleading statement was made for the purpose of securing workers compensation benefits. This is a question of fact for the Judge to determine after hearing testimony and examining the demeanor and credibility of the injured worker/claimant.

As you can see, there are plenty of opportunities to make a misstep along the way and this misstep can be fatal to your claim for benefits or your continued entitlement to benefits. So, what is the takeaway? Don’t give unnecessary oral or written statements to a representative for the employer/carrier. Be sure to be completely forthright with doctors and don’t try to guess if you don’t have an accurate recollection. Eliminate the words always and never from your vocabulary. These are three things that you can do to try to prevent misrepresentation from rearing its ugly head in your workers compensation case. Contact us for more information or if your benefits are in jeopardy.

Does all this sound a little bewildering? We understand.

Do you have more questions about workers’ compensation and taxes? Do you need assistance in obtaining temporary, total, or partial disability benefits because of a work-related injury?

At Bichler & Longo we focus on helping first responders who have been injured in the line of duty. If you have questions about your eligibility for a Line-Of-Duty pension under either municipal plans or FRS, we are happy to assist you. Contact us today to schedule a free evaluation of your case. Visit the Bichler & Longo YouTube channel for more informative videos.

Disclaimer: The information in this blog post (“post”) is provided for general informational purposes only, and may not reflect the current law in your jurisdiction. No information contained in this post should be construed as legal advice from the individual author or the law firm, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting on the basis of any information included in, or accessible through, this post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country or other appropriate licensing jurisdiction.

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