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)