Put it in Practice June 2022: Monthly Tips for Florida WC Professionals

MISREP DEFENSE

We’ve all observed incriminating surveillance footage that would appear to make claimant misrep a slam dunk … but it’s not that simple! Here are important points to keep in mind when raising a misrepresentation defense:

• Misrep is an affirmative defense, which means the E/C has the burden of proving each element.

• The  E/C must prove the claimant made a false, incomplete or misleading statement for the purpose of obtaining WC benefits.   All the hang gliding / Iron Man / weightlifting footage in the world won’t matter if you don’t have that statement.

• The statement could be to a physician or in a deposition, recorded statement, mileage submission, DWC-19, etc.   But, it must be a statement.   Non-verbal conduct is not evidence by itself.   

• Misrep defense is ideally raised when it can be paired with a major contributing cause defense (MCC) in an instance where the claimant failed to disclose a pre-existing condition.   The JCC may give the claimant a “pass” on misrep but find in favor of the E/C on MCC.

• Only raise this defense when all elements have been considered with input from the claims examiner, supervisor and defense counsel.  

• Be aware that you risk exposure to attorney’s fees and costs if you fail to prove your defense.

If there is ever a question, please feel free to reach out to one of us at HR Law and we will guide you through the issue.

This month’s author is Matt Bennett. mbennett@hrlawflorida.com