Workers Compensation Fraud

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1 Workers Compensation Fraud Martin Gonzalez Chief Investigator CA Department of Insurance Fraud Division 5999 E. Slauson Ave. Commerce, CA (323) State of California Department of Insurance Fraud Division MISSION OF CDI The mission of the California Department of Insurance (CDI), Fraud Division, is to protect the public from economic loss and distress by actively investigating and arresting those who commit insurance fraud and to reduce the overall incidence of insurance fraud through anti-fraud outreach to the public, private and governmental sectors. 2 CDI Fraud Investigators Sworn Peace Officers Leading experts in the field of insurance fraud Trained Criminal Investigators Provide training and assistance to: Consumers The insurance industry Law enforcement agencies Other State Agencies Carry firearms Make arrests Investigate and present prosecutable fraud cases to: DA s, CA Attorney General, and U.S. Attorney 3

2 State of California Department of Insurance Fraud Division Office Locations Orange Inland Empire Morgan Hills Silicon Valley Sacramento Los Angeles-AIFTF AIFTF Commerce San Diego Fresno Valencia Division Headquarters is located in Sacramento (916) Fraud Division REPORTING FRAUD Referral s Come From: Insurance Companies Special Investigation Units Third Party Administrators WCAB Law Enforcement Federal/State/Local Agencies Citizens 5 Workers Compensation Reporting CIC (b)(1) & (d) When an insurer knows or reasonably believes it knows the identity of a person who has committed fraud they must report it to CDI & DA within a reasonable time not to exceed 30 days... 6

3 Insurer Defined The California Insurance Code Defines an Insurer as: Any insurer admitted to transact workers compensation insurance in this state State Compensation Insurance Fund Any employer that has secured a certificate of consent to self-insure pursuant to subdivision (b) or (c) of section 3700 of the Labor Code A third party administrator that has secured a certificate pursuant to section of the Labor Code 7 Immunity for Insurer and Governmental Agency CIC Section In the absence of fraud or malice, no insurer or no governmental agency representatives shall be subject to any civil liability for libel, slander, or any other relevant cause of action by virtue of releasing or receiving any information pursuant to 1873 or Immunity for Insurer and Governmental Agency - Work. Comp. CIC Section No insurer who furnishes information and no governmental agency who furnishes or receives information shall be subject to any civil liability in a cause or action of any kind where the insurer or agency acted in good faith, without malice and reasonably believes that the action taken was warranted by the then known facts obtained by reasonable effort. 9

4 SUSPECTED FRAUDULENT CLAIM (SFC) - FD1 REFERRAL FORM Carrier SIU TO CDI TO Conviction Full completion of FD-1 1 is needed to ensure proper investigation resulting in possible conviction. 10 FD1 Case number assigned Reviewed by Administrative supervisor Forwarded to Operations supervisor Case assigned to investigator Fraud Division 11 FRAUD VS. ABUSE CONCEPTS FRAUD: Fraud occurs when someone knowingly lies to obtain/deny compensation. ABUSE: Workers compensation abuse is any practice that uses the workers compensation system in a way that is contrary to either the intended purpose of the system or the law. 12

5 CRIMINAL LAW STATUTES RELATED TO INSURANCE FRAUD 13 Ins. Code Sec (c) Any person who violates subdivision (a) and who has a prior felony conviction of that subdivision, of former Section 556, of former Section , or of Section 548 or 550 of the Penal Code, shall receive a two-year enhancement for each prior conviction in addition to the sentence provided in subdivision (b). 14 Ins. Code Sec Any person convicted of workers' compensation fraud pursuant to Section or Section 550 of the Penal Code shall be ineligible to receive or retain any compensation, as defined in Section 3207 of the Labor Code, where that compensation was owed or received as a result of a violation of Section or Section 550 of the Penal Code for which the recipient of the compensation was convicted. 15

6 Other Charges Considered 118 PC, Perjury 487 PC, Grand Theft 182 PC, Conspiracy 16 TYPES OF APPLICANT FRAUD SCHEMES 17 APPLICANT FRAUD C.I.C. The main issue related to applicant fraud is whether the applicant made a material misrepresentation and how the material misrepresentation affected the claim process. 550 P.C. The main issue is whether the applicant concealed or knowingly failed to disclose a fact and how it affected the claim and/or benefits. 18

7 550 (a) and (b) PC False or Fraudulent Claims Key elements: Knowingly present false written or oral statements for the payment of a claim. Conceal or knowingly omit facts that may affect claim benefits. 19 Areas for Potential Fraudulent Claims Workers Compensation Fraud Claimant Fraud Attorneys/Medical Providers 8 Use of Cappers Provider Fraud 4 Medical Mills 4 Interpreters 4 Vocation Rehabilitation Employer Fraud 4 Premium Fraud 4 Uninsured Employer Insider Fraud/Insurance Company Fraud 4 Embezzlement of Claim File 4 Agent/Broker Fraud 4 Claim handling Fraud 20 WHO S WHO IN THE SYSTEM Employer Supervisor Owner/Employer H/R Union Employee Claimant/Applicant Legal Providers Healthcare Providers Doctors Chiropractors Nurses Physical Therapist Mental Health Care Miscellaneous Interpreters Vocational Rehabilitation WCAB/DIR 21

8 MATERIAL MISREPRESENTATIONS Common forums where the applicant makes material misrepresentations: Medical exams Chiropractors, Physical Therapists, nurses, MD s, Etc. Depositions WCAB hearings Interviews with insurance company personnel Vocational rehabilitation interviews (Vouchers: Possible new area for Fraud Not yet tested) 22 TYPES OF APPLICANT FRAUD SCHEMES 23 SCHEMES COMMON TO APPLICANT FRAUD Denying prior injuries to the same body part Denying working while collecting disability benefits Denying the ability to do various activities or functions that the applicant actually can do 24

9 SCHEMES COMMON TO APPLICANT FRAUD Being injured away from work and reporting it as a workers compensation claim Claiming an injury occurred at work in an manner that is normally covered by workers compensation, but it actually happened in a manner that would not be covered. For Ex. Horseplay 25 DEPOSITIONS Signed vs. Unsigned Questioning the applicant Deposition summaries 26 VIDEOS Applicant Identification Who conducted the videotaping How do they know their filming the right individual What activities are depicted in the tape Timeliness of the video 27

10 Insurance Fraud Can Be a Felony CIC (a)(1) 5 years in state prison and/or $150,000 fine or double the amount of the fraud, which ever is greater and/or Restitution 2 year enhancement for prior conviction of same crime 28 Senate Bill 899 Allows an employee to be entitled to no more than 24 occupational therapy visits per industrial injury. Prohibit aggregate disability payments for a single injury occurring on or after the effective date of this bill, causing temporary disability, from extending for more than 104 compensable weeks within a period of 2 years from the date of commencement of temporary disability payment, except if an employee suffers from certain injuries or conditions. Eliminates the requirement to consider the ability of the injured employee to compete in the open labor market and, instead, would require that consideration be given to an employee s diminished future earning capacity, which would be a numeric formula based on criteria established by this bill. 29 EMPLOYER FRAUD 30

11 EMPLOYER FRAUD Ways employer(s) makes material misrepresentations: Lies about the way the injury happened so it is not covered by workers compensation Denies the employee is really an employee Falsification of employment records and time keeping information Falsification of workers compensation documents Threatens employee with termination or other action if a claim is filed Threatens or intimidates co-worker(s) that may have knowledge of injury 31 EMPLOYER FRAUD Employer(s) may make material misrepresentations in support of a claim: Lies about the way the injury happened so it is covered by workers compensation Claims the injured person as an employee when they really are notn Falsification of employment records and time keeping information Falsification of workers compensation documents 32 EMPLOYER FRAUD - FELONY Ins. Code Sec (a) (1) & (b) (1) apply to ER s: Making knowingly false, fraudulent material statement(s), written or oral or material misrepresentation(s) in opposition to any claim for the purpose of denying any compensation as defined in 3207 LCL Ins. Code Sec (a) (3) & (a) (4) apply to ER s: (3) Knowingly assist, abet, conspire with, or solicit any person n in an unlawful act under this section. (4) Make or cause to be made any knowingly false or fraudulent statements with regard to entitlement to benefits with the intent t to discourage an injured worker from claiming benefits or pursuing a claim. 33

12 MEDICAL MILLS/PROVIDER FRAUD 34 PROVIDER FRAUD RED FLAGS Immediate representation following the accident. Minor injury produces major medical costs and excessive time off from work. Medical reports, even though for different patients are identical or read the same (Boiler-Plated). Bills reflect unusual dates of treatment (i.e., holidays and Sundays). 35 PROVIDER FRAUD RED FLAGS Treatment does not match diagnosis. Doctor has handled questionable claims in the past. Both Both the W/C and private health insurance companies are billed without the medical office notifying either insurance provider. Referrals by doctor to another facility in which the doctor has a financial interest. 36

13 PROVIDER FRAUD RED FLAGS A check of the amount billed through the doctor s Tax ID number is for an amount that reflects an improbability that the doctor examined all the patients in one day. Medical treatment/therapy not provided but was billed (billing for services not provided). 37 USE OF CAPPERS (a) C.I.C. It is unlawful to knowingly employ runners, cappers, steerers,, or other persons to procure clients or patients to perform or obtain services or benefits pursuant to Division 4 (commencing with Section 3200) of the Labor Code or to procure clients or patients to perform or obtain services or benefits under a contract of insurance or that will be the basis for a claim against an insured individual or his or her insurer. 38 PREMIUM FRAUD 39

14 COMMON SCHEMES OF PREMIUM FRAUD Under-reporting reporting of payroll to the insurance carrier Employee job misclassification Experience modification evasion Cash pay Any combination of the above Conspiring with an insurance agent to commit any of 40 these schemes INSURANCE COMPANY FRAUD 41 INSURANCE CARRIER FRAUD Insurance company personnel deny claim even though evidence shows claim is legitimate Insurance company makes material misrepresentations that deny benefits or discourages the filing of a claim Not paying benefits by altering and falsifying documents 42

15 YOU the consumer Each of us is a victim because widespread insurance fraud ultimately translates into higher premiums for each of us and results in elevated costs of goods and services. INCREASED COSTS OF INSURANCE, OTHER GOODS AND SERVICES DUE TO FRAUD WHY ARE MY INSURANCE PREMIUMS GOING UP??? 43 Goal The CDI, Fraud Division will review all SFCs received, and together with local District Attorneys, insurers and employers, attempt to identify current patterns and trends of insurance fraud. Utilizing that information and all available manpower, our goal is to investigate and prosecute persons suspected of insurance fraud crimes. Report it! 44

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