OSIA presentation: Management of a Potential Fraud Claim By Rod Randall- United Safety & Claims Early in my W orker’s Compensation career I attended a seminar where a representative from the Attorney General’s office was a speaker as to the subject of Work Comp Fraud. It was explained that there are 2 investigative elements of fraud: Misrepresentation and Perjury. The more serious criminal offence is False Swearing under Oath, or Perjury; this occurs in Depositions that are often taken on a litigated case. But what we often suspect is the misrepresentation of an employee’s injury to obtain benefits. This an element of fraud that I have had good luck with on several cases, where I was able to obtain restitution for the employer from the employee. What we normally hear of or are faced with is the employer calling to tell us that this so-called injured employee is faking or was not injured. And when we ask how does he/she know this or how do we prove this? It’s “well it is what I heard from an unnamed co-worker ” . And we ask, will he/she testify to that and what proof does he have? Usually the answer is: “ Let me get back to you on that ” , and it goes nowhere. Our normal reaction is to hire a Private Investigator to see if the activities/actions/movements of the employee are consistent with the complaints and description contained in the medical report. This is a good start. The first case that I submitted to the Fraud Unit at the Attorney G eneral’s office resulted in fraud charges against the employee AND his spouse. The case was that of an individual who ’d had a lumbar injury and had had a fusion. He required a wheelchair and was presenting with partial paralysis and the inability to walk. After several months of going to PT he never seemed to improve. We sent out a PI for surveillance/video. However, the claimant lived on a road across from railroad tracks and an open field so it was difficult to get in position to obtain good video. We got videos of a woman coming out of the house and a man walking out and getting into the passenger side of an automobile, but each time he covered his face so we could not say without a doubt that he was our guy.
It was enough however, enough to raise my suspicions and I then paid closer attention to the physical therapy notes. I called and alerted the therapist of my suspicions and asked that she push the employee a little in therapy to see if she really saw signs of paralysis. It became apparent he had muscle strength in his legs. The therapist mentioned in one of her reports that even though in a recent session she’d had her hands on his waist as if to assist, she did not provide aid and he was able to move himself from the wheelchair to the table and adjust himself on the table. I then contacted the Private Investigator and we planned a 2 car surveillance trip in which I rode with one of the PI’s. It was a great experience. We had decided to use 2 investigators on his next visit to the doctor. On that day as we watched, he drove to a gas station with his wife in the passenger seat. When he arrived at the station, he got out and was recorded on video putting gas in the car and washing the windows. The wife then got out of the auto and traded places with the claimant; he was now in the passenger seat and she was the driver. They then drove to OKC to the doctor’s office . I was in the automobile that went ahead of the claimant’s vehicle to OKC and we positioned in the parking lot. The claimant and his wife arrived and she got out, took a wheelchair out of the trunk, assisted him into the wheelchair and pushed him into the doctor ’s office . In the doctor’s report of that date, the claimant reported to the doctor that his symptoms were not getting any better and he still could not walk nor live a normal life. Once I had video showing that his actions were entirely inconsistent with his complaints, I submitted the case to the Attorney G eneral’s Fraud Unit. When submitting material to the Attorney General to support your allegations, it is very important to lay a chronological path for the AG ’s investigator to follow. It is my understanding that the investigator must contact the medical personnel and other persons who provided documentation/medical reports or information in the claim file so the investigator has first-hand knowledge of that information and it is not considered hear-say evidence. The case I just outlined lead to a criminal trial in OKC at which I had to testify. If you are put in this situation, request that the prosecuting attorney let you take your claim file to the stand and then let the claim
speak for itself and provide the facts of the case. When asked a question that pertains to your documentation, you can say “The claim file contain s documents that indicate (whatever was asked) ” I did not seek restitution on my first case, as I was not experienced enough to know that I could, or that the DA would really make my request a part of any probationary sentence. I had 3 other cases that I submitted to the AG Fraud unit and was successful in collecting restitution from the employee on 2 of the cases for benefits paid for mis-representation. The most recent case from which I was successful in collecting restitution and in fact, our client is still receiving monthly checks from the Tulsa DA’s office, occurred in Tulsa where a 19 year old claimed multiple injuries due to a fellow employee striking him with an auto while working at an auto dealership in 2013. This initial injury was legitimate and accepted. He was placed on light duty but after a month of conservative treatment, his injury did not seem to improve. He complained of pain upon rotation and filed his Form 3 for legal representation and to start Total Temporary Disability, as the light duty was “ aggravating ” his injury. TTD was started and he received an exam and treatment from an orthopedic surgeon, as directed by the Judge. After several visits to the orthopedic doctor and continued TTD and Physical Therapy, he still complained but we had suspicions. So on a clear, sunny day in August, we sent out a Private Investigator to watch this young man and we got lucky. He left his apartment and drove to LaFortune Golf Course and played 18 holes of golf. We had several video shots of him on the T box swinging away. So now that we have the video, what do we do with this?? I chose to send a copy of the DVD to the orthopedic doctor, just prior to his next visit. I requested that the doctor question him as to his activities and ability to rotate. The doctor’s report indicated that the employee continued to complain as to pain when he bent at the waist and rotated. The doctor released him at Maximum Medical Improvement with no restrictions, indicating that the patient’s complaints were inconsistent with his activities. That report was filed with the Court along with a Motion to stop TTD, which we did.
I sent the AG Fraud unit copies of the Physical Therapy reports, the orthopedic doctor’s medical reports, a copy of the PI video and also the Forms 2 and 3. I also sent copies of the TTD checks with dates/amounts of the payments and the medical expenses paid. I requested that if the individual was charged with criminal W orker’s Comp Fraud, that restitution be a part of any plea agreement and/or probationary agreement and gave them the total amount that was paid on this claim. I was contacted 30-60 days later by a Tulsa District Attorney who told me that a plea agreement was reached and a condition of the claimant’s probationary sentence was that the individual make restitution thru the DA’s office and checks will be issued to the employer thru United Safety & Claims. I take personal charge of any case that is to be submitted to the Attorney G eneral’s Fraud Unit. Once I have evidence that documents and demonstrates the alleged misrepresentation, I then contact the employer and specifically obtain written permission from the employer to submit the case on their behalf. The system can work when you know how to submit and request pay back for fraud, but it does take extra work; you cannot just send a letter to the Attorney G eneral’s office and tell them an employee is committing fraud and expect them to investigate without providing them with documentation or evidence! T hat’s my experience! I’ll conclude with somewhat of a disclaimer --- The cases I’ve mention ed were all handled under the old law. Section 6 of the new law addresses fraud and reads very aggressively, but I have not yet had any cases to submit to the Attorney General ’s Fraud Unit under the new law, so I cannot speak to how it works. (Question and Answer) Thank you!
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