Accident: July 17, 2017.
appeal from an order of the Judge of Compensation Claims.
Thomas A. Hedler, Judge.
C. Wiitala of Wiitala & Contole, P.A., North Palm Beach, for
H. Taylor of Hall Booth Smith, P.C., Atlanta, GA, and Andrew
R. Borah of Hurley, Rogner, Miller, Cox, Waranch & Westcott,
P.A., Deerfield Beach, for Appellees.
Claimant Edna Hernandez appeals the order by the Judge of
Compensation Claims (JCC) denying her entitlement to any
workers compensation benefits due to her fraudulent
provision of an invalid social security number (SSN). We
Claimant, an illegal alien without a valid SSN, was injured
at work and her employer/carrier later directed her to a
medical care provider. Claimant was advised that she would be
required to present a SSN, and the registration form indeed
included a place to enter a SSN and a statement that the
"claim could be denied if you do not provide the
information." Claimant admitted that she entered an
invalid SSN on the form because she believed she needed to do
so to obtain authorized medical care.
440.09(4)(a), Florida Statutes, prohibits an employee from
receiving workers compensation benefits if he or she commits
any act described in section 440.105, Florida Statutes,
"for the purpose of securing workers compensation
benefits." Section 440.105(4)(b) prohibits employees
from making fraudulent, false, or misleading statements.
See, e.g., § 440.105(4)(b)9, Fla. Stat.
("It shall be unlawful for any person ... [t]o 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."). The employer/carrier argued that Claimant
violated section 440.105(4)(b) 9. by fraudulently providing
an invalid SSN to obtain workers compensation benefits, and
thus was not entitled to benefits. "In deciding this
issue, the JCC had to answer two questions. The first is
whether Claimant made or caused to be made false, fraudulent
or misleading statements. The second is whether the statement
was intended by Claimant to be for the purpose of obtaining
benefits." Arreola v. Admin. Concepts, 17 So.3d
792, 794 (Fla. 1st DCA 2009). The JCC answered both questions
affirmatively and denied Claimants claim.
appeal, Claimant argues that section 440.105(4) is
unconstitutional as applied to her because it is preempted by
the Immigration Reform and Control Act of 1986 (IRCA), citing
Arizona v. United States, 567 U.S. 387, 401, 132
S.Ct. 2492, 183 L.Ed.2d 351 (2012), and State v.
Garcia, 306 Kan. 1113, 401 P.3d 588 (2017), cert.
granted in part, __ U.S. __, 139 S.Ct. 1317, 203 L.Ed.2d
563 (2019). These authorities do not support relief.
a 2010 Arizona law made it a state crime for illegal aliens
"to knowingly apply for work, solicit work in a public
place or perform work as an employee or independent
contractor in [Arizona]." Ariz.Rev.Stat. Ann. §
13-2928(C). Discussing the IRCAs "comprehensive
framework for combating the employment of illegal aliens,
" the Supreme Court noted that employers are penalized
criminally and civilly for violating it, but employees are
not. Arizona, 567 U.S. at 404, 132 S.Ct. 2492
(quoting Hoffman Plastic Compounds, Inc. v. NLRB,
535 U.S. 137, 147, 122 S.Ct. 1275, 152 L.Ed.2d 271 (2002)).
The Supreme Court held that Congress was clear "that any
information employees submit to indicate their work status
may not be used for purposes other than prosecution under
specified federal criminal statutes for fraud, perjury, and
related conduct." Id. at 405, 132 S.Ct. 2492
(quoting 8 U.S.C. § § 1324a(b)(5), (d)(2)(F)-(G)).
Thus, this section of the Arizona law was preempted by IRCA
because "Congress decided it would be inappropriate to
impose criminal penalties on aliens who seek or engage in
unauthorized employment." Id. at 406, 132 S.Ct.
Garcia, a false SSN an employee provided was used on
an I-9 form (an employment eligibility form authorized by the
IRCA) to verify his identity and employment authorization,
and this information was subsequently transferred to a W-4
tax form. 401 P.3d at 590. The State of Kansas charged Garcia
with identity theft and planned to use the W-4 as evidence,
and the trial court refused to suppress it. Id.
Garcia argued that the W-4 could not be used because the
information on it was also on the I-9. See 8 U.S.C.
§ 1324a(b)(5) ("A form designated or established by the
Attorney General under this subsection and any information
contained in or appended to such form, may not be used for
purposes other than for enforcement of this chapter" or
certain other federal statutes). The state supreme court
agreed, holding that "[s]tates are prohibited from using
the I-9 and any information contained within the I-9
as the bases for a state law identity theft prosecution of ...