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.
My pet peeve of the week is New York employers who don’t assist their employees—and in fact obstruct them—from getting prompt, non-emergency medical care for injuries sustained at work- i.e., Workers’ Comp injuries.
According to Section 51 of the Workers’ Compensation Law, employers must post a notice of workers’ compensation coverage (Form C-105) in a “conspicuous” place in the workplace. EVERYONE HAS SEEN THIS FORM POSTED IN PLACES OF BUSINESS IN NEW YORK. FEW NOTICE IT OR READ IT. IT’S GOT A LOT OF FINE PRINT ON IT. USUALLY IT’S STAPLED TO A WALL NEAR THE EMPLOYEE TIME CLOCK. It tells employees the name and phone number of the workers’ comp insurance company, in the event of an on-the-job injury.
The Workers’ Compensation Board requires that the form include the name, address and phone number of the current insurer and the policy number of the employer. It must be posted in a conspicuous place in the employer’s place of business. Violations of this requirement can result in a fine of up to $250 per violation.
Here’s the problem: many employers don’t post it, or post an outdated one, and at the same time DON’T GIVE THEIR EMPLOYEES THIS IMPORTANT INFO ONCE AN EMPLOYEE IS INJURED ON THE JOB.
When an employee is injured on the job in New York State, they cannot obtain non-emergency medical treatment for their injuries UNLESS THEY KNOW THE IDENTITY OF THEIR EMPLOYER’S WORKERS’ COMPENSATION CARRIER. (Often, the insurance carrier changes year to year.) MANY EMPLOYERS HIDE OR WITHHOLD THIS INFORMATION FROM INJURED WORKERS, HOPING THE INJURED WORKER WILL GIVE UP AND NOT SEE A DOCTOR OR FILE A CLAIM FOR WORKERS’ COMPENSATION BENEFITS.
I have experienced many instances where I have instructed an injured employee to call their boss and obtain the employer’s workers’ comp insurance information. When they call, they often get the runaround are are totally ignored. Such employer behavior at the very least, delays treatment of workplace injuries. Why? Because private doctors simply won’t see a patient who was injured on the job without compensation insurance information. And often the required posting isn’t there at the workplace either. Obtaining this info directly from the Board, while possible, can be frustrating as well. Of course, many employers comply with the law. But many do not.
That’s why, if this has ever happened to you, please let me know. I am collecting data about employer witholding from employees, workers’ comp carrier information, and hope to compile such data to illustrate the problem to the powers- that- be at the Workers’ Compensation Board. After all, it’s a pet peeve of mine.
Every so often I get this call from an attorney I know:
“Hi Dan, my client has a small business in New York. One of his workers got into an accident at work. Now the employee has filed a claim against him. Even worse, the NYS Workers’ Comp Board has hit the company—and my client— with thousands of dollars in penalties and fines for not having comp insurance. What should we do?”
My answer is: “THEY SHOULD HAVE HAD WORKERS’ COMP INSURANCE IN THE FIRST PLACE. NOW YOU ARE GOING TO HAVE MONTHS OF AGGRAVATION AND HAVE TO PAY UP THE WAZOO TO GET OUT OF THIS MESS.”
Wazoo’s a legal term, isn’t it?
Of course, uninsured employers have rights, and they should be adequately represented and advised when they deal with the s—storm that ensues from not having comp insurance. But believe me, it is a full-blown s—storm—something to be avoided like the plague. The State WILL make the uninsured employer miserable.
So here’s the moral to my story. IF YOU OWN A BUSINESS, AND HAVE ANY EMPLOYEES WHATSOEVER, WHETHER ON THE BOOKS OR OFF THE BOOKS, AND YOU DON’T HAVE WORKERS’ COMP INSURANCE, YOU ARE INVITING DISASTER.
State law requires that the New York State Insurance Fund (NYSIF) MUST give you a policy of comp insurance if you cannot obtain a policy from a private carrier like Liberty Mutual, Hartford, etc. The NYSIF’s website is at www.nysif.com. Do yourself a favor. For a few hundred dollars, protect yourself from untold grief. Take it from an attorney who sees the aftermath of companies and employers having no comp insurance—-way too often.
Most people think that if they get injured at work, telling their boss and then seeing their family doctor is all they have to do. Actually, it isn’t. Here’s a little advice about what to do when you get injured on the job:
1. File a written incident report and keep a copy for your records.
2. Ask your boss or your HR Department for the name and phone number of your employer’s workers’ compensation insurance company (also called the “carrier.”)
3. Go for treatment with a Workers’ Compensation doctor who is a specialist – NOT your family doctor. Examples of doctors who you could see are orthopedists, neurologists, chiropractors or physical medicine and rehab doctors.
4. File a C-3 form with the New York State Workers’ Compensation Board. This step is required by law- yet most people don’t know about it and YOUR EMPLOYER WILL NOT TELL YOU ABOUT IT BECAUSE IT IS NOT THEIR RESPONSIBILITY TO DO SO! You can file a C-3 form online by going to the Board’s website at www.wcb.ny.gov. The law says you have two years from the accident or injury to file this form with New York State.
When filing for Workers’ Comp, keep in mind that you will be dealing with two completely separate entities: the carrier and the Workers’ Compensation Board. The carrier is your employer’s insurance company that is in business to make money and to pay as little as possible in benefits. The Board, on the other hand, is like a court. The Board, not the carrier, makes the final decisions in your case. Most carriers would like you to think that their decisions are final. However, any decision that a carrier makes about what treatment or surgery you are entitled to or how much money you get for your case can be challenged. You just have to know how. That’s where getting an experienced Workers’ Comp attorney comes into the picture.