I recently spoke to the 22nd Annual Workers’ Compensation Bench Bar conference and as I prepared for the talk, which touched on the subject of workers’ compensation fraud, I thought about how the insurance industry uses the threat of fraud accusations as a way of keeping injured workers from pursuing their rights.
Those of us in the workers’ compensation practice are in a unique system that has tried as best it can to separate fact from fiction, the reality from the perception, mostly in order to do the right thing when it comes to awarding benefits to injured workers.
Lately, I have seen that more and more often, our search for the truth and desire to do the right thing has taken a back seat to the search for the gotcha moment: every omission an injured worker makes to a doctor is treated as a fraud; every task a worker completes out of necessity that he or she states he cannot do is a lie. The casualness of these fraud accusations is a growing virus that will pulverize the practice and jeopardize the efficient administration of the Workers’ Compensation Court.
These days, an injured worker can actually be whipsawed into saying or swearing to almost anything. One recent example, and this is a true story, I represented a client who suffered a re-injury at work at work and reported it appropriately to his boss. His boss told him that they will send him to a doctor, but if the doctor says he cannot work, they will have to fire him. They asked him if that’s what he wanted and the worker said no and refused to go to the doctor. The employer then told him that if he didn’t go to the doctor, he would be fired unless he chose to resign in order to collect unemployment. The client filed for unemployment and, after he resigned, he contacted us asking for a doctor and wanting to apply for disability. If this man applies for Social Security, does the fact that he told unemployment he was capable of working prevent him from collecting Social Security? No, but, that fact will be used against him at a Social Security hearing.
These issues don’t even touch upon people who suffer from major depression after an accident which in and of itself can contribute to the debilitating process and make an injury even worse.
Once we fall into making assumptions that every worker is trying to gain the system, therefore, every worker is suspect and as such every inconsistency by an injured worker is treated in the harshest possible way. The legislature clearly did not intend for this to happen.