Fraud and Willful Misrepresentation
You may have noticed that the Department of Labor & Industries has been advertising for people to come forward and report injured workers they think are committing fraud. There are some clear-cut incidences of worker fraud such as working and receiving time loss at the same time. However, this type of fraud is not nearly as common as the Department would like you to think.
There has been a recent change in the law redefining fraud as “willful misrepresentation.” This is a much broader term. The Department’s website and their recent press releases point to the following suggestions for fraud indicators:
Not injured at work (or not injured at all):
- Appears to have been injured, but no one else witnessed the accident.
- Gives conflicting stories as to how the injury occurred
- Appears to have let a lot of time elapse between the injury and the date they first got medical treatment.
- Appears to have sustained the injury while off work.
- Appears to have been injured immediately prior to a planned strike or the completion of a job.
- Appears to have been injured immediately prior to or after a disciplinary action against them.
- Appears to have injured immediately prior to being terminated from their job.
- Moves out of the state or the country shortly after the alleged injury.
- Appears to have a history of filing multiple claims.
Unfair Benefits Fraud: Doing activities inappropriate for an injured worker
- Participate in recreational or other activities inconsistent with alleged injury.
- Claim dependents not in his/her legal/personal custody.
- Claim a spouse when not married.
- Misuse drugs or display drug-seeking behavior (prescription or non-prescription).
- Frequently change doctors (“doctor shopping”).
Disability Fraud: Working while on disability.
- Be working while on time loss.
- Be regularly away from home during normal business hours.
- Be receiving unemployment benefits while on time-loss.
- Be working and being paid “under the table” while receiving time loss benefits.
- Be doing “volunteer” work while receiving time loss benefits.
- Be providing care under DSHS’s COPES program while on time loss.
We have represented workers in such situations and it is difficult to prove that someone did not willfully misrepresent their disability. The Department and the self-insured employers hire investigators based on anonymous tips and sometimes just to try to catch a worker doing something he told his doctor he couldn’t do. The investigator films the worker around their house, driving their car, going to the grocery store, and visiting their doctors. If their doctor reported the worker said he couldn’t lift more than five pounds and then the investigator films the person lifting groceries weighing more than five pounds or doing some household chore requiring heavier lifting, the Department shows the film to the doctor. A “willful misrepresentation” order is then issued that the worker misrepresented his abilities to the doctor. The order assessed an overpayment of time loss compensation plus a penalty of 50% of that amount. Time loss compensation is terminated and the claim closed.
If you are injured on the job or currently receiving benefits, you should do the following:
1. Immediately report an injury to your employer and see a doctor. Don’t wait to file an injury claim;
2. Keep your business to yourself. Other than your doctor and your immediate family, it’s nobody’s business that you suffered an injury and that you receive benefits under your workers’ compensation claim.
3. Report any return to work or volunteer activities to your doctor and your claims manager. Don’t wait for your claims manager to figure out you returned to work or you are volunteering. Honesty is the best policy.
4. Let your doctor know your physical abilities and limitations. Don’t assume she knows what you can and can’t do. Don’t say “I can’t lift my arm” and then be filmed reaching overhead to close the hatchback of your car.
In this age of Big Brother, anyone could be under surveillance. If you have questions about what may or may not constitute “willful misrepresentation,” please contact our office.
Marilyn McAdoo is a paralegal with The Walthew Law firm and has more than 35 years workers’ compensation experience.
For more information about our firm, please visit our website www.walthew.com.