Amendments to 440.105

1. Jacobson v. Se. Pers. Leasing, Inc.

   113 So. 3d 1042 (Fla. Dist. Ct. App. 2013)   Cited 6 times

   In this workers' compensation appeal, Claimant Eugene Jacobson appeals orders of the Judge of Compensation Claims (JCC) that grant, in part, the Employer/Carrier's (E/C's) motion to tax costs against him under section 440.34(3), Florida Statutes (2007), and deny Claimant's motion to approve a retainer agreement between him and Michael J. Winer, under which Winer would have provided legal services to Claimant limited to representation in the defense to oppose the E/C's motion to tax costs. Claimant challenges the constitutionality of sections 440.105( 3)(c) and 440.34 insofar as these sections preclude him from contracting for legal services to defend against the E/C's motion to tax costs. We conclude to the extent that sections 440.34 and 440.105( 3)(c), Florida Statutes, prohibit Claimant from retaining counsel to defend a motion to tax costs against him, those statutes infringe upon Claimant's constitutional rights under the First Amendment of the Constitution. Accordingly, as applied here, sections 440.34 and 440.105( 3)(c) are unconstitutional. For the reasons set forth herein, we reverse the orders of the JCC, and remand for a new hearing on the…

   PAGE 1045
2. Pavilion v. Wetherington

   943 So. 2d 226 (Fla. Dist. Ct. App. 2006)   Cited 5 times

   On appeal, as below, Pavilion Apartments and Claims Center invoke section 440.09(4), Florida Statutes (2004), which renders an employee ineligible for workers' compensation benefits if it is "determine[d] that the employee has knowingly or intentionally engaged in any of the acts described in s. 440.105 . . . for the purpose of securing workers' compensation benefits." § 440.09(4)(a), Fla. Stat. (2004). Section 440.105 places requirements on claimants not unlike the duty of candor an attorney owes a tribunal she is addressing. See R. Regulating Fla. Bar 4-3.3(a) (2006) ("Candor Toward the Tribunal"). Section 440.105 provides in relevant part:

   PAGE 228
3. Polston v. Hurricane Is. Outward Bd.

   920 So. 2d 766 (Fla. Dist. Ct. App. 2006)   Cited 3 times

   • Motion to dismiss

   The E/C then filed a petition for benefits, requesting "a determination pursuant to Fla. Stat. 440.09(4) whether the Employee/Claimant has knowingly made false, fraudulent or misleading oral or written statements for the purposes of securing workers' compensation benefits in violation of Fla. Stat. 440.105(4)(b)." Polston filed a motion to dismiss the petition, in which she argued the JCC had no jurisdiction. This motion was denied. After a final hearing, the JCC issued an order finding Polston had violated section 440.105(4)(b)(2), and was not entitled to compensation or benefits pursuant to section 440.09(4).

   PAGE 767
4. Chapman v. Nationsbank

   872 So. 2d 390 (Fla. Dist. Ct. App. 2004)   Cited 6 times

   Section 440.105(4)(b)1. states it is unlawful for anyone "[t]o knowingly make, or cause to be made, any false, fraudulent, or misleading . . . statement for the purpose of obtaining . . . any benefit or payment under this chapter."

   PAGE 393
5. Matrix v. Hernandez

   975 So. 2d 1217 (Fla. Dist. Ct. App. 2008)   Cited 7 times

   The E/C, on one hand, asserts that section 440.09(4)(a) should be read to mean that an employee shall not be entitled to compensation or benefits under this chapter if a JCC determines that the employee has knowingly or intentionally engaged in any of the acts described in section 440.105. Thus, according to the E/C, because it is clear that claimant violated section 440.105( 4)(b)(9) by procuring work with a false social security card, claimant should not be entitled to workers' compensation benefits. Claimant, on the other hand, interprets section 440.09(4)(a) differently. Specifically, claimant argues that pursuant to the statute, an employee shall not be entitled to compensation benefits only if a JCC determines that the employee has knowingly or intentionally engaged in any of the acts described in section 440.105 for the purpose of securing workers' compensation benefits. The question thus becomes whether the Legislature intended "for the purpose of securing workers' compensation benefits" to modify just "any criminal act" or, also, "any of the acts described in s. 440.105. " Because at first glance both interpretations appear reasonable…

   PAGE 1219
6. McArthur v. Mental Health Care, Inc.

   35 So. 3d 105 (Fla. Dist. Ct. App. 2010)   Cited 6 times

   The process by which an employee may be sanctioned for violating section 440.105 is set forth in section 440.09(4). That statute, which is commonly referred to as the "fraud defense," provides that the employee is not entitled to any compensation or benefits under chapter 440 if the JCC (or an administrative law judge, court, or jury) determines that the employee knowingly and intentionally engaged in any of the acts prohibited by section 440.105. See§ 440.09(4)(a), Fla. Stat. Thus, not only does section 440.09(4) specifically authorize the JCC to determine whether an employee has violated section 440.105, but it also sets forth the sanction that the JCC is required to impose upon finding that a violation occurred.

   PAGE 107
7. Foods v. Howard

   225 So. 3d 898 (Fla. Dist. Ct. App. 2017)   Cited 1 times

   2 more...

   Sections 440.09(4) and 440.105, Florida Statutes, are often referred to as the mechanisms that created the "fraud defense." This "misnomer appears to have narrowed the application of the sanction beyond that intended by the legislature." Village Apartments v. Hernandez, 856 So.2d 1140, 1141 (Fla. 1st DCA 2003). Not all prohibited acts in section 440.105 entail a "fraud" element. See § 440.105(4)(b) 2.–3., Fla. Stat. In interpreting a statute, "full effect must be given to the language selected by the legislature." Hernandez, 856 So.2d at 1141. Accordingly, per section 440.09(4), the commission of "any" act of an employee prohibited by section 440.105 results in forfeiture of benefits, not just those statutorily designated as "fraudulent." This Court has previously emphasized that the 2003 Amendments to section 440.09(4)(a), adding the phrase "or any criminal act," broadened the subsection to cover not only acts described in section 440.105, but also other criminal acts, as long as "all of those acts are done for the purpose of securing workers' compensation benefits." Matrix Emp. Leasing, 975 So.2d at 1219.

   PAGE 902
8. State v. Brock

   No. 4D13-962 (Fla. Dist. Ct. App. Apr. 30, 2014)   Cited 1 times

   • Motion to dismiss

   The trial court granted the motion to dismiss, stating that it appeared the purpose of the statute related to insurance coverage and insurance claims, and that section 440.105(4)(b)9 required that the obtaining of employment or filing or supporting a claim had to be connected to workers' compensation benefits. The court ruled that to sustain a violation under section 440.105(4)(b)9, the State was required to plead and prove not only that Defendant obtained employment by a false, fraudulent, or misleading oral or written statement as evidence of identity, but that he did so with the intent to secure worker compensation benefits. This was error.

   PAGE 2
9. Arreola v. Admin

   17 So. 3d 792 (Fla. Dist. Ct. App. 2009)   Cited 7 times

   It is prohibited by section 440.105(4)(b) for any person to "make, or cause to be made," any false, fraudulent, or misleading statements for the purpose of obtaining workers' compensation benefits. § 440.105(4)(b)1., Fla. Stat. (2006). An employee found to have knowingly or intentionally committed one of these prohibited acts is not entitled to compensation or benefits under the workers' compensation statute. § 440.09(4)(a), Fla. Stat. (2006). Whether a claimant has violated section 440.105 is a factual determination to be made by the JCC, which is reviewed by this court for competent substantial evidence. Paulson v. Dixie County Emergency Med. Servs., 936 So.2d 1109, 1110 (Fla. 1st DCA 2006). "It matters not that 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).

   PAGE 794
10. Isaac v. Green Iguana, Inc.

    871 So. 2d 1004 (Fla. Dist. Ct. App. 2004)   Cited 16 times

    Section 440.09(4) provides that an employee will not be allowed compensation benefits if the JCC "determines that the employee has knowingly or intentionally engaged in any of the acts described in s. 440.105 for the purpose of securing workers' compensation benefits." Section 440.105(4)(b) contains numerous examples of false, fraudulent or misleading activity which are prohibited.

    PAGE 1006