An MD, a lawyer, an insurance specialist, and an EH&S expert walked into an NCHR-SD luncheon and … provided a great panel discussion on the why, what, and how of workers compensation fraud. Outlined below are my top takeaways from their expert advice on how to mitigate or avoid WC fraud.
First, the panel emphasized how important it is to understand the potential reasons why people commit WC fraud. Financial gain is the obvious one but just as common a reason is an employee using a claim to solve other challenges such as he/she:
- has used up all his vacation time and needs time off,
- is disgruntled and this is her way to get ‘justice’ or ‘payback’
- feels disempowered and/or over stressed
- is about to get disciplinary action or suspects he is going to be laid off
- was put on modified duty, prefers this work and wants to stay there, or,
- has been encouraged/mislead by an unethical lawyer to take advantage of California’s pro-employee system. ”Yes Virginia, there are unethical lawyers …”
Prevention methods, beyond good EH&S measures, include good employee morale and managers who care and address employee challenges before they show up as an injury with a lawyer attached. Jeff Egenberger, VP of Hub International Insurance Services, emphasized several times that companies with positive, engaged cultures have fewer claims that are questionable or get out of hand. Some other tips the panelists provided on prevention included:
- reward employees for good safety records; make it a matter of team pride and enforcement
- ensure employees understand the link between profit, bonuses, raises and the cost of WC fraud
- have an open door to share information or a means to provide anonymous tips (for example: an employee with a serious leg injury is still biking on the weekends or actually had the injury due to a biking accident (and not the work incident) – report the facts/testimonies to your carrier who is managing the claim)
Most often the ‘injury’ is not fabricated but rather embellished and evolves into an ‘opportunity’ for the employee. This is where you can put several measures in place now to increase your chances of shutting this down.
- Install cameras ‘for safety’ – tough to argue with a video of what actually happened
- Have an investigation packet ready for supervisors on the process and procedures. Thorough workplace incident reports are especially key once lawyers get involved. In addition to pictures, descriptions, and statements, Chris Olmstead, Attorney at Ogletree Deakins, emphasized to get witness reports (including who was and was not a witness) and a statement from the injured person, ideally in their own hand writing. Chris shared how the ‘stories’ will often evolve and witnesses appear as the injured employee is coached to expand the ‘opportunity’.
- Educate and regularly communicate your policy to report incidents immediately. A claim based on an injury 2 months ago is much harder to investigate and begs the question, “Why did you not report earlier when you know our policy?”
- Have detailed job descriptions including the physical requirements and possibly even require a ‘fit for duty’ that a doctor must complete prior to starting a new position.
A big takeaway for me was how important it is that HR has a good relationship with their broker, carrier and the investigating clinic (and doctor). Both Jeff and John Foit, Corporate EH&S for Eastridge Workforce Solutions, encouraged us to meet with and foster a good relationship with these service providers and to ensure they have processes in place to be proactive and to help detect and reduce fraudulent claims. Jeff shared that more aggressive carriers can definitely save you money vs. those that just settle. He warned, however, that not every suspected fraud case is worth the investigation time and cost.
Randall Browning, MD, at WorkPartners Occupational Health Specialists, spoke extensively on how your doctor is a key person to detecting injury embellishment or outright fraud. He encouraged us to also ask our clinic what procedures they follow to detect fraud. In addition to some entertaining stories, Dr. Browning shared how a doctor can use the background information you provide (such as how the injury happened, recent disciplinary actions, impending layoffs, delayed/suspicious reporting and even a detailed job description) to help him/her uncover the ‘real’ cause or extent of injury. The doctor is a key person who can dig into personal history and very personal issues without fear of violating HR laws. He revealed that doctors also have many tricks they can use in an examination to uncover false or exaggerated claims. He also outlined how your doctor should provide detailed documentation on the results of the examination. This should include both what was, and was not injured, to avoid the ‘expansion’ of an injury over time. Basically, your doctor is a key resource for fraud prevention and reducing costs.
But what if your employee insists on only seeing ‘their’ doctor? First of all the panel agreed this is often a reason to suspect fraud. To reduce your exposure in this situation, ensure that your policy is that any treating doctor must use your reporting forms and especially so if a work accommodation is required. If your own clinic is not providing detailed reporting, or is suspiciously inconsistent on a case, don’t be shy to request more detail or even to change the doctor and get a second opinion.
Finally, an important warning from the panel, especially from Chris, is to be very careful not to treat an employee any different even if you suspect fraud (for example, reduce their hours) and to leave the sleuthing and undercover work to your carrier. Your carrier can hire a private investigator who has the license to do surveillance or investigative work. Both circumstances, if you get caught being intentional about it, could put you and your company at greater legal risk and cost you more than the suspected fraud.
Thank you to NCHR-SD for organizing this event and the four panelists who volunteered their time and expertise to help us all prevent and reduce workers compensation fraud.
Our four expert panelist for this session were:
- Randall Browning, MD, at WorkPartners Occupational Health Specialists
- Jeff Egenberger, VP of Hub International Insurance Services
- John Foit, Corporate EH&S for Eastridge Workforce Solutions
- Chris Olmstead, Attorney at Ogletree Deakins