By Morgan Indek | Partner

Greetings,

In the past few weeks I have received a number of questions about undocumented/illegal alien workers and WC benefits, so I thought I would send a refresher.

In the statute, under 440.105 (4)(b)(9), it states “it shall be unlawful for any person:”

9. 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.

So it does state that it is WC “fraud” to give a fake ID or SS # to get the job or in the claim.  BUT, the punishment for doing so only involves “for the purpose of obtaining benefits”, under 440.09(4):

4)(a) An 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.

So, the three important cases in the area are below.   If I could sum it all up in a sentence it would be…

It does not matter if the claimant used a false SS to get the job, but if they use it (preferably more than once) in the WC claim, and the employer really didn’t know they were illegal, you may have a fraud defense.

Enjoy….

Matrix Employee Leasing, Inc.v. Hernandez, 975 So.2d 1217 (Fla. 1st DCA 2008)
The claimant used a false SSN on his application for employment, but did not use a false SSN on the PFB 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.  See §440.09(4) (a).

Arreola v. Administrative Concepts, 17 So. 3d 792 (1st DCA 2009)
The issue is the provision of a false social security number (SSN) on several occasions after the injury, in connection with treatment and whether this is within the parameters of section 440.105, F.S.  The JCC denied all claims under 440.09 on the ground that the Claimant violated section 440.105.  The 1st DCA held that there was competent, substantial evidence to support the JCC’s finding and affirmed the decision.  The JCC had to answer two questions to make his findings.  The first is whether the Claimant made or caused to be made false, fraudulent or misleading statements.  The second is whether the statement was intended by the Claimant to be for the purpose of obtaining benefits.  There is no requirement that the misrepresentation be material in actuality, rather, that the Claimant made it with the intent to secure benefits.  The JCC found that on two occasions the Claimant used a fake SSN after the accident (at a pharmacy and when he was interviewed by E/C’s investigator).  The only question left involves intent.  Claimant argues that the provision of the SSN was solely as a means of identification and he had no intent for it to be used to obtain benefits.  Had the JCC bought that argument, the Claimant would have won his case.  However, the Claimant’s state of mind is a question of fact for the JCC to decide and the JCC did not accept that account.  claimant then attempted to argue the real reason for the denial of benefits is because he was an illegal alien.  The 1st DCA stated that illegal aliens are entitled to benefits under the WC law, but must comply, like everyone else, with the statute to obtain benefits.
In HDV Construction Systems v. Aragon, 66 So.3d 331 (Fla. 1st DCA 2011), the 1st DCA addressed the issue of PTD for illegal aliens. The Judge of Compensation Claims  found that the Employer knew or should have known that Claimant an illegal immigrant from Mexico, was without the legal right to work in the United States. The JCC further found that notwithstanding this knowledge, the Employer hired and continued to unlawfully employ Claimant, until he was injured in a significant workplace accident.  They then used his illegal status as a defense to PTD, as the reason he could not work was his legal status, not the injury.

The JCC concluded, based osn the authority of Cenvill Development Corp. v. Candelo, 478 So. 2d 1168 (Fla. 1st DCA 1985), that, because the Employer knew or should have known of Claimant’s illegal status prior to his injury, but continued his employment nonetheless, the E/C was precluded from using Claimant’s illegal status as a defense.  The JCC required the E/C to respond to the disability imposed by Claimant’s significant and objectively demonstrated work-related injuries and physical restrictions, and his vocational limitations which include, but are not limited to, his unauthorized work status.

The 1st DCA found that the evidence established that Claimant was physically disabled from performing any of the strenuous jobs he held before his injury, and was likewise physically precluded from most occupations or trades, making his employment opportunities severely limited — even without consideration of the vocational impediments, which include (in addition to an illegal status) a limited education, an inability to read, write, or speak English, no driver’s license, and no transferrable skills. Based on the expert vocational testimony introduced by the E/C, the JCC found that Claimant’s injury, combined with his vocational impediments, rendered him permanently and totally disabled (incapable of securing and engaging in even sedentary employment), satisfying one of the three disjunctive tests for establishing permanent total disability recognized by this court. See Blake v. Merck & Co

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 (and best positioned to avoid the loss), not the general taxpaying public. In the instance of employers that employ illegal workers, this court has held that such an employer is precluded from asserting the status of an illegal alien as a defensive matter so as to avoid liability for disability benefits otherwise due only when the employer “knew or should have known of the true status of the employee.” Candelo, 478 So. 2d at 1170 (“This holding 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.”). The holding in Candelo, in addition to being binding authority on this court, advances the principle that an entity that knowingly employs unlawful labor should not be able to shirk the cost of the injuries it creates — and in turn, shift the cost of the damages that it has knowingly created on the taxpaying public — ultimately placing it in a unfairly superior financial position to those employers who operate lawfully.