Not so fast! A closer look at section 440.105(4) (b) (9) reveals unauthorized workers should be precluded from workers' compensation benefits, under these circumstances.

• Author: Kidd, James F.

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. [section] 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, [section] 440.09 (4)(a) must be read together with [section] 440.105 in order to prove the fraud defense.

Given our hypothetical, one subsection within 440.105 is particularly relevant. Namely, [section] 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 [section] 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 [section] 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.

Legislative History

The Florida Legislature considered the...