Thursday, January 22, 2009

Invasion of the Claimant Snatchers

Submitted for your approval: a claimant is injured on a perfectly ordinary bright sunny day in a perfectly ordinary Missouri town, but this time, the ‘accident’ is real, the symptoms are ‘real’, but the claimant is ‘not’.

Tonight, the story is not some crazy body-snatchers from outer space. Instead, the threat is more dangerous than Plan 9, or giant spiders, and will send any risk managers swinging their arms wildly shouting: "Warning, warning...."

Claimants are sometimes not whom they appear to be.

Many claims investigators often skip past the basic question: have you, Mr. Claimant, been known by any other name, alias, or ever used a different social security number? Plaintiff attorneys can often be duped by imposters by not using due diligence to investigate the identity of their own clients. Even many seasoned defense attorneys at the disability hearing never ask the question, where the claimant, under oath, can begin a story with the most fundamental form of perjury.

False identities usually do not begin with the slip and fall, but the "accident" when the claimant is first hired. False identities can arise from a variety of reasons among job applicants who want to hide their past from evading homeland security to avoiding child support or bench warrants. Some people may have previous awards for permanent partial or permanent total disability they wish to hide. The use of phony identities impairs proper discovery regarding prior medical conditions to accurately assess the value of the case. Plaintiffs who knowingly use an alias make unethical misrepresentations to the court.1 The worker's compensation fraud provisions do not specifically address identity fraud, although presenting a claim under a false name is a false claim and a false material statement subject to prosecution under 287.120. The use of false identities to pursue medical payments may further subject claimants to more onerous federal penalties for medicare fraud.2

Some claimants hired under legal names may still seek medical treatment under different names to avoid disclosure of non-occupational or pre-existing conditions, or simply to get some extra roxies for the weekend.

Some aliases may be innocent: misnomers, transposed social security numbers, or marital names changes. Some aliases are even sanctioned by the court: name abbreviations in sex crime cases,3 or new identities under witness protection plans.4

Recently, a petitioner in Illinois used a phony social security number and obtained benefits on a worker's compensation case, obfuscating the employer’s ability to fully investigate the claim. Smalley Steel Ring Co. v Illinois Workers Compensation Commission, No. 2-07-1050WC (December 12, 2008)5

The issue of identity fraud has surfaced, as well, in some Missouri compensation cases.
In Barber v Gilster Mary Lee, DOLIR, 6-21-01, claimant alleged permanent and total disability benefits but sought medical treatment under a false identity in order to avoid a bench warrant for outstanding parking tickets. This misrepresentaion was not his only credibility problem with a history of four "or five" prior felony convictions.

In Randolph v Western Union, 3-30-98, DOLIR 3-30-98, claimant provided a fake name to a hand surgeon because he wanted an "unbiased" opinion. The court denied his claim and refused to admit the report.
The use of phony names may not be a common fraud in workers compensation cases where it is much easier to exaggerate about subjective symptoms rather than to assume a new avatar. Medical providers should use Red Flag procedures before an IME to verify identity. Perhaps hips don’t lie, but some clients lie about the most fundamental thing: who they are. Better hiring practices and more thorough investigations can stop much of this problem. Ignoring the problem will not stop it. Medical identity fraud is not simply the stuff of late night paranoia of people who watch the night skies for saucers. Cases like Smalley Steel are cautionary tales much like the moral of the Invasion of the Body Snatchers: if people don’t seem right, things can quickly go very wrong indeed.

1. See Blankenship, Client Using an alias? It’s your duty to tell the court, FLORIDA BAR NEWS 2-15-08 (discussing rule 4-3.3(a)). The Florida bar is still debating this rule.

2. For example,18 USC 1028, imposes 15 year jail penalties and $250,000 fines, see also the Identity Theft Penalty Enhancement Act,;

3. i.e. P.M. v. Metromedia Steakhouses Co., Inc., 931 S.W.2d 846 (Mo.App. 1996).

4. The Witness Security Program may provide entirely new identities. See also Lang v Auto Body, DOLIR 3-5-02 (crime victim stating he used fake name for protection)


Wednesday, January 7, 2009

Court Excuses Claimant for Not Filing Timely Claim in Bankruptcy Proceedings

The Western District slams the Guarantee Fund on public policy grounds for denying a hearing loss claim on a notice defense.

Claimant established hearing loss of 15.77% BAW after working for an employer for 34 years, but the Commission reversed his award as he neglected to file a timely claim against the bankruptcy court after his employer became insolvent in 2001. The court of appeals reversed and found section 287.865.5 did not bar his claim and re-instated the original disability award, in Jones v GST Steel, No. 69299 (Mo. App. WD 1-6-2009).

Claimant was terminated in 2001 when his company went into bankruptcy. He obtained a diagnosis of work-related hearing loss a few days before the bankruptcy filing. The Guarantee Fund defended his claim that it owed nothing as claimant did not preserve a claim with the bankruptcy court during the 6 years the employer’s bankruptcy remained pending.

The court considered the requirements of 287.865.5 that the employee must make timely claim for such payments. The legislature purpose to allow an insolvent employer to pay liability before making claims against the Guarantee Fund could have been achieved, the court explains, if the Guarantee Fund had provided notice itself to the bankruptcy estate after it received claimant's comp claim in 2003. The court liberally construes benefits under 287.800 and found the construction advanced by the Guarantee Fund placed unsophisticated claimants in a trap.
The notice provided to claimant that he needed to file a claim in bankruptcy was “inadequate” and did not provide the claimant adequate clarification how to proceed. It imposed a deadline that he file a claim in July 2001, months before he was legally entitled to file a comp claim for his hearing loss in November 2001 (287.197.7 at the time required 6 month separation rule). The court found the Guarantee Fund never provided him a clearer notice of his rights, and noted it was their statutory responsibility to do so under 287.872. The court cited legislative changes in 2005 requiring notice requirements only of “open” claims and not “potential” claims.

The court discusses similarities to the Wire Rope case, in which claimants in both cases lacked adequate information and clarification how to proceed. In the earlier case, the court criticized the Guarantee Fund for taking a defense that “spits” in the face of public policy and causes unjustified anxiety of workers.

In a similar case, Soligo v GSTY Steel Co., DOLIR 3-24-10, the court awarded against the Guarantee Fund benefits of 35% PPD based on Dr. Koprivica's rating for an unoperated rotator cuff tear, and rejected the Fund's jurisdictional defense that claimant failed to provide notice to the bankruptcy court, when claimant asserted he had never received any letter requiring him to provide such notice. The commission reversed an award of attorney's fees of $3381 assessed by ALJ Siedlik, noting the unsuccessful defense was not so egregious to warrant costs.