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

Amy B. Siegel, Partner and Business Unit Leader | Kelley Kronenberg

Amy B. Siegel is a Partner and Business Unit Leader at Kelley Kronenberg whose practice is devoted exclusively to workers’ compensation defense on behalf of employers, insurance carriers, self-insured corporations, third-party administrators, and claims servicing agencies. She has presented on “Misrepresentation Defenses: The Practical and Legal Considerations” and “Misrepresentation Defenses: The Practical Considerations” (2024) and “Types of Fraud” (2015), and the firm reports fraud-defense wins in her name, including a major fraud defense win alongside the settlement of 60 cases and a high-stakes workers’ compensation fraud case. Her background includes extensive litigation and appellate work, and she maintains a sub-specialty in catastrophic claims handling, defense, and settlement.

• Education & Credentials

Ms. Siegel earned her J.D. from Emory University School of Law in 2001 and her B.A. from Washington University in St. Louis in 1998. She is admitted to practice in Florida and Georgia and is certified by the State of Florida to conduct continuing education courses.

• Recognition & Leadership

Her recognitions include Florida Trend Legal Elite Notable, “Women Leaders in Law” (2023); Palm Beach Media and Palm Beach Illustrated “Top Lawyers,” Workers’ Compensation Law (2023); Best Lawyers: Ones to Watch, Workers’ Compensation Law – Employers (2021–2022); Best Lawyers “Women in the Law” (2021); South Florida Legal Guide “Top Lawyers” (2016–2021) and “Top Up & Comer” (2014–2015); Super Lawyers Florida “Rising Stars” (2013–2016); and a Martindale-Hubbell AV Preeminent rating. She has also been honored by the Executive Women of the Palm Beaches Foundation (“Women in Leadership,” 2021) and the Girl Scouts of Southeast Florida (Emerald Award, 2021).

• Professional Involvement

Ms. Siegel has served on the Workers’ Compensation Practice Committee of the Palm Beach County Bar Association, where she helped plan the annual Bench Bar Conference and spoke at it on numerous occasions, and is a member of the American Inns of Court. She is a Komen Advocacy Ambassador and member of the Regional Komen Leadership Council, and a past President of the Executive Board of Directors of Susan G. Komen Florida after four years on the organization’s board.

• Experience

Her speaking record centers on the investigation and proof issues at the heart of a fraud defense: “Accident Investigations” (2015–2024), “Adjuster Depositions: Mastering the Art of Testifying,” “Choosing the Best Tools for Discovery: Pick-Ax or Paintbrush,” “Burdens of Proof for Compensability in Workers’ Compensation Claims,” and annual Law and Ethics Updates. She regularly represents hospitals, clinics, nursing homes, municipalities and other government entities (including Heart/Lung Bill claims), retailers, restaurants, bars, and hotels, and provides training to supervisors, managers, and employers on claim reporting and handling. She has authored articles for the Daily Business Review, HR Florida Review, Modern Restaurant Management, and Lodging, and has written state-approved continuing-education seminars for clients.

Kimberly J. Fernandes, Partner | Kelley Kronenberg

Kimberly J. Fernandes is a Partner at Kelley Kronenberg handling workers’ compensation, general liability, and first-party property claims in Florida and Georgia. She has presented “Workers’ Compensation Guide to Fraud and Case Law” (2015) and “Fraud Upon the Court” (2013, 2015), has handled more than one hundred fifty appellate cases across a range of practice areas, and has been called to testify before the Florida Legislature on significant workers’ compensation legislation.

• Education & Credentials

Ms. Fernandes earned her J.D. from Florida State College of Law in 1996 and her B.A. from Florida State University in 1993. She is admitted in Florida and Georgia and before the United States Court of Appeals for the Eleventh Circuit, and is certified by the State of Florida to provide continuing education courses for employers and insurance carriers.

• Recognition & Leadership

She was named a Florida Trend Legal Elite Notable, “Women Leaders in Law,” in 2023. She has been quoted in the Daily Business Review on Florida appellate decisions and featured in Law360, Insurance Journal, and Politico on major Florida workers’ compensation rulings and legislation.

• Professional Involvement

Ms. Fernandes is a member of the Claims and Litigation Management Alliance (CLM) and the Florida Justice Reform Institute.

• Experience

Her seminar work for employers and carriers includes case law updates, “Work Product and Attorney-Client Privilege,” “Depositions,” “Accident Investigation,” “Compensability of the Claim,” and annual Law and Ethics Updates, together with Medicare Set-Aside analysis, Social Security and unemployment offsets, and permanent total disability. She advises on the Medicare Secondary Payer regulations and alternative paths to preserving settlements, defends insurance carriers in premises liability, automobile, and trucking litigation, and represents Florida property insurers in first-party coverage disputes. She has authored several Daily Business Review articles on Florida workers’ compensation decisions.

SESSION 1 – What Constitutes Misrepresentation and Burdens of Proof | Amy B. Siegel & Kimberly J. Fernandes | 12:00pm – 1:00pm

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.

BREAK | 1:00pm – 1:10pm

SESSION 2 – Asserting a Misrepresentation Defense, Pleading, Investigating, and Ensuring the Admissibility of the Evidence and The Practical Considerations | Amy B. Siegel & Kimberly J. Fernandes | 1:10pm – 2:10pm

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.