Workers’ Comp in New York State is constantly changing. Recently, I was asked by union officials to give a second legal opinion about a situation where a union member (not my client) had been accused of Workers’ Comp (WC) fraud. Lately, insurance companies are raising such fraud charges against workers more and more often, regarding the issue known as “PAST MEDICAL HISTORY”, and that is what happened in the case I was asked to review.
When individuals are injured at work in New York State, those workers often assume that someone is looking out for their best interests and that somehow the system will automatically do the following: a) pay all of their work injury medical bills without a problem; b) pay them without a problem; and c) inform them of their rights.
However, this is what I find ACTUALLY happens after a work-related accident: the insurance company is concerned only with the well-being of the insurance company, not the injured worker. It looks for ways to NOT pay the worker.
Although it is perfectly reasonable for WC insurance companies to try to weed out fraud, it appears to me that these companies spend almost all of their time doing this type of anti-fraud investigation at the expense of doing other things to help workers.
Workers’ Comp Insurance companies ALWAYS —ALWAYS—-DO THE FOLLOWING AS A MAIN FOCUS OF “DEFENDING THE CLAIM” soon after anyone is injured on the job:
1. Review the claimant’s written statements and claim forms after the work injury word by word to determine if the worker ADMITTED, OR DENIED, EVER HAVING ANY PRIOR INJURIES—-EVER!
2. Review the medical reports from claimant’s own treating doctors plus the questionnaire given by the insurance company doctor to determine if the worker ADMITTED OR DENIED EVER HAVING ANY PRIOR INJURIES—-EVER .
3. If the insurance company determines that the injured worker omitted any mention of ANY prior injury that he or she actually had, (and believe me, they check this, without fail) FRAUD is often immediately charged against that worker. Yes- almost every omission of a prior injury is considered fraudulent by insurance companies even though the law says that this is not the standard by which to judge. (The law actually only says that forgetting about revealing a prior injury is a fraud if the omission is “knowing” and “material.”)
4. If found guilty, a worker can be charged with a felony. However, the more common penalty is permanent loss of Workers’ Comp money (but not medical) benefits in that particular case.
The problem here is that injured workers can be careless without being fraudulent. I have confronted my own clients when thay omit mentioning prior injuries to the insurance company or even to their own doctor. I have heard the following excuses, none of which are valid, among others:
1. I didn’t understand that the form I filled out was asking about previous injuries I had that were not the same as my current injury.
2. I thought they knew about the previous injuries because the previous injuries were for the same employer so I didn’t mention them.
3. I didn’t think mentioning my prior injuries was important.
ALL of my clients receive a complete explanation of this issue verbally and in writing when they retain us AND sign a paper that says that they understand it. I do not allow my clients to go forward without an education that basically says: NEVER EVER OMIT MENTIONING ANY PRIOR INJURIES YOU EVER HAD TO ANYONE IN THE WORKERS’ COMP SYSTEM!!!
If claimants would simply follow this rule, and be forthright about all prior injuries , discovering fraud would become less of a main focus of the WC insurance companies. Often, I find, clients APPEAR to be fraudulent when their omissions are simply the result of carelessness. But the insurance companies always assume the worst about injured workers.
Labor Day just passed, and for most of us it’s back to our day-to-day work lives. Some, however, have given their lives while performing their jobs. Rather than just celebration, Labor Day should bring us reflection, as well, and commemoration, for ALL workers, including those who have died in the course of their labor.
Currently, the top news stories are filled with stories of bravery among those who work and risk on-the-job illnesses and injuries.
The doctors who go abroad and face the Ebola virus are doing wonderful but dangerous work and should be applauded.
The two journalists who died recently at the hands of ISIS were of course the two most recent, horrific examples of people who died doing their jobs. In just one week, we will remember those who perished in 9/11. So terrorism is a real, continuing threat to the working world, unfortunately.
However, the "every day" type of accidents at work that take people’s lives are just as horrendous. It is my opinion that not enough is done in this country to ensure worker safety and to prevent accidents in the workplace.
Our military, police, fire and emergency workers risk their lives to protect us every day. They too must be honored.
How about the poor restaurant manager who lost his life at the Legal Sea Foods restaurant in Suffolk County this past February from carbon monoxide from a faulty water heater? Should he not be remembered too? Or all those construction workers who die on the job and get only a few paragraphs in the newspaper?
My point is, Labor Day is fun and all, but it should also cause us to take pause and celebrate, and remember, and commemorate, labor.