By: Sean Callahan, Partner, Orlando

According to the Pew Research Center, unauthorized immigrants made up 4.8% of the U.S. labor force in 2016, a decline since their peak of 5.4% in 2007. However, Florida had 5.6% (again, from 2016), which is obviously above the national average. Florida’s top industries for unauthorized immigrants include construction and agriculture. The top occupations are in the service industry and in farming. If any of you reading this have clients in these fields, it is likely you’ve come across a workers’ compensation matter involving an undocumented worker. You may think that if the injured worker is undocumented, their case surely should be denied. However, the circumstances surrounding the compensability of an undocumented workers are nuanced, and oftentimes, the worker is entitled to benefits.

The Florida Statute governing this topic is 440.105(4)(b)(9), which states, “it shall be unlawful for any person 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 benefit.”

Additionally per statute, an employee shall not be entitled to workers’ compensation benefits if the employee has knowingly or intentionally engaged in any of the acts described in 440.105 or any criminal act for the purpose of securing workers’ compensation benefits.

In the case Matrix Employee Leasing Inc., v. Hernandez, 975 So. 2d 1217 (Fla. 1^st DCA 2008), the Claimant used a false social security number on his application for employment, but did not use a false social security number on the Petition for Benefits nor did he present the false SSN to authorized medical providers. Therefore, the claimant was not disqualified from receiving workers’ compensation benefits as the result of the use of a false SSN to secure employment, because the false SSN was not used for the purpose of procuring workers’ compensation benefits.

Another important decision was held in the case of Arreola v. Administrative Concepts, 17 So. 3d 792 (1^st DCA 2009). The issue was the provision of a false social security number on several occasions after the work injury, in connection with treatment and whether this was within the parameters of section 440.105. The JCC denied all claims under 440.09 on the ground that the Claimant violated section 440.105.  The First DCA upheld the JCC’s decision.

Lastly, in HDV Construction Systems v. Aragon, 66 So. 3d 331 (Fla. 1^st DCA 2011), the First DCA addressed whether undocumented workers could qualify for PTD benefits. The JCC found that the Employer knew or should have known that the Claimant was an undocumented immigrant from Mexico and that the Employer hired and continued to unlawfully employ the Claimant, until he was injured in a significant workplace accident. The Employer/Carrier was precluded from using the Claimant’s undocumented status as a defense to PTD. The First DCA agreed and went on to state that, “the Florida Legislature has long recognized that although the employment of illegal aliens is prohibited by federal and state law, violation of these laws is an unfortunate reality, and the cost of injuries sustained by unlawful workers, being no less real than those suffered by lawful workers, should be borne by the industry giving rise to the risk, not the general taxpaying public.” Essentially, the employer who knowingly hired an undocumented worker cannot use the defense that they are an undocumented worker to preclude them from workers’ compensation benefits.

In sum, it does not matter if the claimant used a false social security number to gain employment, but if they use fraudulent identification (preferably more than once) in their workers’ compensation claim to obtain benefits, you may have a fraud defense.