Disability Law

When Are Misstatements "Knowingly" False?

By David A. McCranie, Esq.

Bologna v. Schlanger, though not a workers' compensation case, is an interesting recent decision from the Fifth District Court of Appeal on the issue of "fraud" which could have some application in the workers' compensation setting.  The trial court had dismissed Bologna's negligence claim after concluding that she had lied in her deposition about prior injuries.  Reversing, the Fifth DCA held that Bologna was entitled to an evidentiary hearing before the ultimate sanction of dismissal was warranted.

The court focused on whether Bologna's deposition testimony was knowingly false under the circumstances, particularly in light of the fact that it was only because of her previous truthful answers to interrogatories that defense counsel learned of the prior injuries in the first place. 

It is difficult to envision a scheme to conceal a prior injury that includes identifying the doctor who treated it.

 

The court also seemed to question the tactics of the defense counsel:

This record, as well as others, hints that there may now be a “fraud” strategy on the part of defense counsel. If a plaintiff denies a particular prior injury or treatment or pattern of pain, rather than probe in detail-which may risk the jogging of the plaintiff's memory-the questioning on this point just stops until the inevitable motion to dismiss for fraud is ruled on.

Judge Griffin's concurring opinion is also worth a read.

Full post as published by Florida Workers’ Compensation Law Blog on June 24, 2008 (boomark / email).