Workers’ Compensation Misrepresentation Defense: Proving the Lie, Getting Surveillance Admitted, and Knowing When Not to Plead It

This session opens with what constitutes misrepresentation, working through the statutory definitions state by state: Sections 440.09(4) and 440.105(4), Florida Statutes; Idaho Code § 72-1371, with its misdemeanor and felony tiers at the $1,000 threshold; R.I. Gen. Laws § 28-29, which supplies no definition and under which fraud is an intentional act of deceit while misrepresentation is without intent to deceive; New York § 114-a; Connecticut Sec. 31-290c, with class C and class B felony exposure and treble damages; and Georgia § 34-9-19. It then turns to burdens of proof, examining who must prove what and to what standard: the Employer/Carrier’s preponderance burden under Singletary v. Yoder’s, the subjective-belief question of fact under Arreola v. Administrative Concepts, and the materiality of medical-history statements under Lee v. Volusia County School Board in Florida; the clear-and-convincing standard in Hawaii under Sione Tauese and in Arizona under Malinski; and Louisiana’s 2026 decision in Cousain v. Smitty’s Supply, Inc., holding that forfeiture under La. R.S. 23:1208 is prospective only from the date of the misrepresentation.

This session addresses how a misrepresentation defense is asserted, pleaded, and investigated, and how the evidence is kept admissible: Med. Logistics, Inc. v. Marchines and 2K S. Beach Hotel, LLC v. Mustelier in Florida, on surveillance produced late against the pretrial order and a defense added too late; Pistella v. Workmen’s Comp. Appeal Bd. in Pennsylvania, on authentication of surveillance films under 77 P.S. § 834; Cunningham v. Leisure Inn and Stewart v. Amigo’s Rest. in Nebraska, on the Rule 4D and Rule 10 exchange requirements, due-process limits on the WC Court’s evidentiary discretion, and deposition use under Discovery Rule 32(a); and Matter of Morelli v. Tops Mkts. in New York, requiring disclosure of surveillance before the claimant testifies. It closes with the practical considerations (just because you can pursue a fraud defense does not mean you always should): Florida’s three elements (the information was false, the claimant knew it, and the claimant believed it would make benefits more likely), the essential evidence for each, and the risks, options, and reasons, including double fees; Montana’s liability for all benefits with penalties and interest, fines, premium reviews, and stop work orders; the reduced value of prevailing in Louisiana after Cousain; and Michigan’s case law limiting fraud defenses and requiring particularity.