REDUCING FRAUDULENT CLAIMS BY HANDLING, EVALUATING AND INVESTIGATING EMERGING MEDICAL DISORDERS
Written by Joseph T. Brasher

I. INTRODUCTION

The purpose of this paper is to provide a general overview regarding evaluating and investigating workers’ compensation claims. Emerging medical disorders such as fibromyalgia, carpel tunnel syndrome and myofascial pain syndrome will also be discussed. By implementing the procedures detailed in this presentation, an employer may disseminate legitimate claims from fraudulent claims. Different levels of injury will call for different levels of investigation. A substantial, severe, catastrophic injury should be investigated very carefully. The following investigative tools should provide a general idea as to the proper method for deciding what claims require closer scrutiny and how to conduct an investigation.

II. WHAT ARE THE NEWEST COMP CLAIMS, INCLUDING INTERNET ADDICTION, STATIC INJURY AND FIBROMYALGIA

A. INTERNET ADDICTION

Once viewed as a complex, technical defense department oriented means of communication, the Internet has found wide spread proliferation into all aspects of our lives in the last few years. This proliferation includes the use of the Internet at work. While the Internet can be an invaluable research or marketing tool, it has been suggested that possible addiction to the Internet could result if an individual is required to use the Internet in the discharge of his employment duties.

As a preliminary matter, in Georgia, a psychological injury, unaccompanied by a physical injury, is not compensable under the Georgia Workers’ Compensation Act. Fowler v. Hamby, 192 Ga.App. 422, 385 S.E.2d 106 (1989) and George v. Southwire, 266 Ga. 739, 470 S.E.2d 865 (1996) any claim of Internet addiction that is unaccompanied by a physical injury is not compensable under the Georgia Workers’ Compensation Act. However, it is possible that an individual who claims an Internet addiction injury could assert that carpel tunnel, or some similar injury, resulted from the addiction. Although this is a novel theory of recovery (there is no Georgia law on this particular injury) it may be possible that this claim could arise in the future. In order to manage any risk associated with this type of injury, the following guidelines may be appropriate. Of course, if the gravamen of an individual’s job duties requires Internet, research, etc., it will be difficult to implement the following guidelines. However, for an employee whose job is not focused around Internet use, the following guidelines may head off any claim and may lead to a more productive office:

1. Provide a written company policy that use of the Internet during business hours for personal reasons will not be tolerated. This ill form the basis for an assertion that any Internet related claim of injury did not arise out of the course and scope of employment;

2. Limit access on your network so that employees that have no reason to use the Internet at work will not have the access through the employer’s computer system;

3. Randomly check the “history” console for the search engine that may be provided to an employee so that a supervisor or other member of management can access information regarding the amount of time spent on the Internet, as well as the sites visited;

4. Require new employees that might have access to the Internet through employment to sign a notice when they are hired that they understand that they are not to be using the Internet for personal reasons while at work.

Implementation of the foregoing guidelines should aide in preventing any claim under the Workers’ Compensation Act based on Internet addiction.

B. STATIC INJURY, FIBROMYALGIA AND MYOFASCIAL PAIN SYNDROME

A static injury occurs when physiological changes to the body are caused by an individual remaining in one place for a long period of time. There are no cases in Georgia where static injury has been asserted as the basis for a workers’ compensation claim. This is not to say that this type of injury could be asserted by an employee. As referenced above, Georgia law does not provide for recovery of an injury that is purely psychological in nature. Any claimed static injury which is unaccompanied by physical injury would, likewise, not be compensable under the Act.

Fibromyalgia, however, is an increasingly common diagnosis. Often, an injured employee will assert a claim to the neck or back which subsequently leads to a claim of fibromyalgia or myofascial pain syndrome.

There has always been disagreement and controversy among investigators of fibromyalgia as to how to make a diagnosis. It was generally suggested that any diagnosis of fibromyalgia should include: 1) a complaint of wide spread or total body pain, musculoskeletal in nature, and 2) some number of tender points upon palpitations of certain sites. There was sharp disagreement among the medical community regarding the number of tender points required or the sites on the body which should be palpitated. In addition, all of the leading authors on fibromyalgia required additional complaints or characteristics necessary to warrant the diagnosis of FMS (fibromyalgia syndrome).

Currently, there are a number of other symptoms reported by those patients who are labeled with fibromyalgia. Indeed, many fibromyalgia proponents consider some of these symptoms to be essential for the diagnosis of the disease. These symptoms include: 1) sleep disturbance, 2) morning stiffness, 3) paresthesia (sensory loss or numbness), 4) irritable bowel syndrome (abdominal pain, diarrhea, constipation), 5) headaches, and 6) fatigue.

Put simply, fibromyalgia is a syndrome which can result in wide spread musculoskeletal pain and discomfort throughout the body. There is, however, some question about the cause of fibromyalgia. This will be discussed below.

Despite the emergences of diagnostic criteria discussed above, researches admit that often, asymptomatic patients (those patients that are not having any musculoskeletal disorder) may relate the same type of symptoms and not be suffering from fibromyalgia.

Myofascial pain syndrome (MPS) is similar to fibromyalgia but is said to be characterized by specific trigger points. Upon digital palpitation, pain is referred and is not present in the palliated area. This differs from tender points (said to be present in fibromyalgia) in which pain is produced at the location of the tender point.

The sites palliated are not pre-selected. The examiner searches for “taught bands” and muscles twitching. However, myofascial pain syndrome trigger points are subject to the same diagnostic flaws as fibromyalgia. As is in the case of fibromyalgia tender points, the myofascial pain syndrome trigger points, taught bands and twitch responses are also found in normal asymptomatic controls.

For both fibromyalgia and myofascial pain syndrome, there is no wide spread medical standard for medical diagnosis. The location of trigger points and tender points is also not clear. While the fibromyalgia criteria studies focused on eighteen (18) tender points, some authors and researchers suggest the present of eight (8) to sixty-five (65) unlimited trigger or tender points. This is not surprising. These points have never been seen by anyone, thus the syndromes are not true diseases.

Regarding causation, it is often suggested that a claimant’s fibromyalgia or myofascial pain syndrome is related to a motor vehicle accident or some other trauma. In view of the fact that the etiology (cause) and pathogenesis (what goes inside the body) of fibromyalgia and myofascial pain syndrome is unknown to science, such statements are no more than a speculation, based on no scientific evidence.

This is not to say that a injured worker may not suffer from wide spread musculoskeletal discomfort or pain that may actually result from fibromyalgia or myofascial pain syndrome. However, it is always a good idea to try and obtain a second opinion whenever this diagnosis becomes the primary cause of disability in a workers’ compensation claim. Because back and neck pain are prevalent in the general population, and because low back problems virtually affect everyone at some time during their life, it is difficult to distinguish between what be a debilitating case of fibromyalgia or myofascial pain syndrome versus wide spread aches and pains that are part of the everyday life as shown in many medical surveys of populations. Verbruggelm, et al., Exploring the Iceberg, Commons Symptoms and How People Care for Them, Medical Care, 1987, 25:539. Generally, aches and pains will not constitute a disease. However, fibromyalgia may be representative of psycho-social distress and is, often, treated with anti-depressant drugs. However, empirical data regarding treatment in this manner is not available. Often, a patient might have underlying psycho-social problems which cannot be attributed, from a pure causation standpoint, to fibromyalgia or myofascial pain syndrome.

If, after reading the foregoing, you are a bit confused about these two emerging medical disorders, you are not alone. Many of the doctors with which I have consulted or deposed regarding diagnosis of fibromyalgia or myofascial pain syndrome are unable to articulate precisely what this disorder may entail, their causes or what can prevent or cure it. When one of these emerging medical disorders becomes relevant in the litigation or investigation of a workers’ compensation claim. It is best to provide a company or panel physical that is conservative and well educated. Often, the biggest proponents of these emerging pain syndromes are chiropractors, neuro-psychologists and other specialities which are on the fringe of the medical community. It is important to head-off any problem with these emerging pain syndromes by sending the Claimant to a physician that will conservatively evaluate and analyze the claimed injury and attempt to treat it with conservative modalities before running to the catch-all, panacea diagnosis of fibromyalgia or myofascial pain syndrome. Once this issue has been injected into a claim, although there is a derth of medical information to support a diagnosis of this nature, there is also a conspicuous absence of medical information to refute the diagnosis. The State Board of Workers’ Compensation in Georgia has been willing to accept diagnosis of fibromyalgia or myofascial pain syndrome as compensable, so long as it is related to an injury or trauma sustained at work. The best advice and last word is to select your company physicians carefully, ask them their opinion regarding these emerging pain syndromes before they are added to your company’s panel.

III. WHEN EVOLVING GEORGIA LAWS ON STRESS, REPETITIVE MOTION DISEASES, “OVERUSE” AND MENTAL DISABILITIES OVERLAP THE FEDERAL LAW

Often, issues that arise in a workers’ compensation claim under state law may have some overlap with federal law. Specifically, the Americans with Disabilities Act (ADA) and the Family Medical Leave Act (FMLA) may impact the way a workers’ compensation claim is handled. Carpel tunnel syndrome and other repetitive motion diseases arising as a result of an employee’s discharge of his employment duties usually presents a situation where an employee, though injured, is capable of performing some type of work. A modified duty position usually requires a decrease in repetitive use of the affected body part. Often, if an employee is a “qualified individual” (discussed below) under the American With Disabilities Act, a claim for workers’ compensation benefits under state law may be pursued while a claim under the ADA asserted. In this area, federal law does not preempt state law regarding an employee’s entitlement to workers’ compensation benefits. A complete analysis of this topic is beyond the scope of this paper. However, the following information should provide a basic understanding of these issues.

A. THE AMERICANS WITH DISABILITIES ACT

The Americans with Disabilities Act prohibits discrimination against: a) a qualified individual; b) with a disability; c) who can perform essential job functions; d) with or without reasonable accommodations. If a claimant develops carpal tunnel syndrome or another repetitive use injury and the claimant is unable to perform his job such that the existing employee needs a modification to return from the injury, then the employer may have a responsibility to provide a reasonable accommodation.

This type of accommodation often requires a job to be restructured or a work schedule to be modified in order to accommodate the injured worker. A reassignment to another function is acceptable under the ADA but under a job restructuring or a job reassignment, acquisition or modification of equipment to assist the claimant may be necessary. Often, in carpel tunnel cases, this would require the employer to provide a rest for the claimant’s arms or wrists, as well as other equipment such as a brace, etc., to accommodate repetitive movement disability. It is possible, within the framework of the ADA, to provide a worker leave without pay with the assurance that when a job becomes available which would constitute a reasonable accommodation, this job would be made available to the claimant.

If a reasonable accommodation is requested by a claimant with a repetitive motion injury, there is no requirement under the ADA to modify “essential job functions” or to create a new job. Similarly, although job reassignment may be necessary if a reasonable accommodation is requested, there is no requirement that an employer move a non-disabled employee from an existing job to make a alternative job available to the injured worker. Similarly, there is no requirement under the ADA that an employee be promoted to a higher pay scale or be promoted from labor to management. Carpal tunnel syndrome and similar injuries are particularly suited to return a claimant to work with certain job modifications. It is particularly important that an employer be mindful of the ADA requirements that could be triggered by a request for reasonable accommodations.

While it is common to collect all medical records attendant to a workers’ compensation injury, it is important that records be kept confidential and separate regarding workers’ compensation claims medical records and ADA medical records. Additionally, any type of approval by a treating physician regarding an available modified duty position must be approved separately in both the workers’ compensation and ADA facets of litigation.

B. FAMILY MEDICAL LEAVE ACT

In 1993, the Family Medical Leave Act (FMLA) was enacted requiring employers meeting the criteria regarding number of employees (50 employees within a 75 mile radius) to provide twelve (12) weeks of unpaid leave within twelve (12) months for eligible employees. Eligible employees are those employees who work one (1) year and 1,250 hours before leave is requested. If an eligible employee goes on leave under the mandate of the FMLA, when he returns to work he must be returned to his previous job or an equivalent position. During the period of leave, wages or salary do not have to be continued; however, any non-salary benefits (life, health, general insurance, etc.) must continue.

Many of the rights to leave under the FMLA will not apply to workers’ compensation claims. Leave for birth or adoption of a child or serious health condition of a spouse, child or parent most likely will not involve an injury which could be adjudicated under the Workers’ Compensation Act. However, an employee’s own serious health condition can give rise to a right of leave under the FMLA.

A serious health condition could conceivably entail carpal tunnel or a repetitive motion injury. The FMLA defines a serious health condition as one which requires care by health care professionals and results in incapacity or disability lasting more than three (3) consecutive days and any subsequent treatment relating to that condition.

If an employee qualifies for FMLA leave, it is necessary for an employer to comply with certain certification notification requirements of the Act. The leave must be designated by the employer as being provided pursuant to the FMLA. The employee must provide thirty (30) days notice, if possible (emergencies or unanticipated injuries are excluded from this requirement); the employer may obtain competing medical opinions and certifications to determine whether an injury constitutes a serious health condition.

While not all workers’ compensation injuries or repetitive motion injuries will qualify as ADA “disabilities” or “serious health conditions” it is important for an employer to identify issues that may overlap regarding adjudication of a state workers’ ompensation claim and an ADA or FMLA claim. If a carpal tunnel syndrome injury substantially limits a claimant’s ability to perform his job, there will, most likely, be some ADA overlap.

IV. HOW TO RECOGNIZE OBJECTIVE INDICATORS OF FALSE CLAIMS AND WHEN SHOULD YOU CHALLENGE CAUSATION OF A CLAIM? LEARN THE BEST WAYS TO DETERMINE IF AN INJURY REALLY OCCURRED AT WORK.

1. IMPLEMENTING ON-SITE INVESTIGATION TECHNIQUES THAT WILL SEND THE INCIDENT OF FRAUDULENT CLAIMS PLUMMETING

A. GET THE CLAIMANT’S STORY

The claimant is the most important witness regarding alleged work accidents. Often, a claimant will report a relatively insignificant injury but the symptoms of the injury will gradually increase as the claim progresses. It is common for a claimant to report a relatively minor injury, retain an attorney, go to that attorney’s physician, and begin to complain of injuries to parts of the body which were not originally identified in the claimant’s report of the accident.

It is particularly important to get as much detail as possible from the claimant and to document the claimant’s account as accurately as possible. By limiting the description of the accident to the two (2) lines provided on the form WC-1 (First Report of Injury), an employer is leaving the door open for a future exaggeration of the nature of the accident and the extent of the injury sustained. It is important to sit down (if possible) at arm’s length with the claimant and go through the claimant’s account of how the accident occurred. Whether meeting face-to-face or taking a recorded statement over the phone, it is important to discuss each of the following factors with the claimant as soon as is practical after the employer receives notice of the injury:

1. What was the date of the accident which is the subject of the claim?;

2. What day of the week did it occur?;

3. What time of day did it occur?;

4. Had the claimant consumed any drugs or alcohol within 24 hours prior to the accident?;

5. What shift was the claimant working at the time of the accident?;

6. Who was the claimant’s supervisor at the time – who was the overall manager at the time?;

7. Was the claimant issued any safety appliances such as gloves, goggles, aprons, other protective wear, respirator, etc.?;

8. Was the claimant using the safety devices at the time of the accident?;

9. Exactly what was the claimant doing at the time of the accident?;

10. Obtain a word for word description (preferably recorded which will be discussed subsequently) of the claimant’s story of how the accident occurred?;

11. Was the claimant working with anyone at the time of the accident?;

12. Were there any witnesses to the accident? Where were these witnesses at the time of the accident?;

13. What did the witnesses see or what did they report to the claimant that they saw?;

14. What, if any, conversations did the claimant have with these witnesses concerning the accident?;

15. Who did the claimant first report the injury to? When did the claimant first report the injury to a supervisor, what was the supervisor’s name and what was the supervisor’s title?;

16. How did the supervisor respond?;

17. Did the claimant continue working for the employer following the accident - did he work the remainder of his shift?;

18. If the claimant continued to work with the employer following the accident, did he make any complaints to any of his co-orkers or supervisors?;

19. Was the claimant able to perform his job after the accident?;

20. When did the claimant first lose a full day of work due to the accident?;

21. Was the claimant offered medical assistance by a member of the employer’s management?;

22. Did the claimant receive any disability slips from any of his doctors?; If so, did he take them to the employer?;

23. Did the claimant discuss any job restrictions or work releases with the employer or the doctors?;

24. Did the claimant ever return to work for the employer or any other employer?

It is also important to identify the specific parts of the body that were injured in the accident. Often, a claimant will initially complain of leg pain, which later becomes back pain radiating into the leg, which later becomes shoulder pain shooting into the back and radiating into the leg with associated abdominal pain.

An employer should also obtain a detailed, separate written statement from the claimant. Georgia law provides that the First Report of Injury (Form WC-1) is inadmissible for any purpose. Conceivably, this means that the WC-1 would also be inadmissible even to impeach the claimant regarding his account of how the accident occurred. It is crucial that an employer investigating an accident not limit itself to the account of the accident that would be contained on the First Report of Injury. A separate detailed written statement is essential.

Once a statement has been taken from the claimant, it is important to confirm back to the claimant exactly what was reported regarding the origins of the alleged injury. If possible, it is an excellent idea to memorialize these discussions and ask the claimant to sign the statement and date it, specifically noting the date and time that the statement was taken. Subsequently, if the claimant tries to change his story, even though the WC-1 would be ineffective as an impeachment tool, the separate recorded statement would be admissible for this purpose.

B. GET THE WITNESSES’ STORY AS SOON NOTICE OF AN ACCIDENT IS RECEIVED

If the claimant has already retained an attorney that will not allow the claimant to give a statement, or if the claimant is physically incapacitated and unable to give a statement, then the employer should proceed to immediately identify witnesses to the accident and obtain written, detailed statements from those witnesses. Even if you are able to obtain a statement from the claimant, witness’ statements should still be immediately obtained.

It is important to ask the witnesses in a unbiased even manner exactly what occurred. The same details which are enumerated in the preceding section regarding specific questions to ask the claimant should also be asked of every witness who can be identified. If there is some question as to whether a co-worker may have witnessed the accident, it is always better to go to the witness and ask him or her exactly what was seen, as well as the content of any conversations that witness may have had with the claimant subsequent and prior to the accident. It is particularly important to obtain detailed information about the witness. An injured worker has one (1) year from the date of accident to file a claim for compensation with the State Board of Workers’ Compensation. Often, a co-worker that provided a favorable statement contradicting the claimant’s account of how the accident occurred may no longer be employed with the same employer if the claim is filed several months after the accident.

At the time of the initial investigation, it is important to identify the witnesses by name, social security number, date of birth, and address. It is also helpful to obtain information from the witnesses regarding a parent or relative that would be able to find them in the event they were no longer employed by the employer at the time litigation of the underlying claim occurs.

As with the claimant’s statement, the witnesses’ statement should, whenever possible, be taken at arm’s length. The information given by the witness should be confirmed with the witness and then reduced to writing, signed and dated. Although it is an unscrupulous practice, I have personal experience where a witness has changed his story based on a promise of a portion of the recovered settlement or judgment proceeds being paid to that witness in order to solicit false testimony. If the witness’ statement is taken after the accident and is signed and dated by that witness, such that the witness could be impeached with his other statement at a later date if the witness’ story changes, this is an effective method of ensuring that the stories remain the same throughout the pendency of the litigation.

It is also important because testimony will change due to lapse of time. Certainly, a memory or account of a occurrence will not be as vivid one (1) year after the fact as it would be one (1) day after the fact. A written statement is an excellent tool to refresh a witness’ recollection of the events during subsequent litigation.

C. INVESTIGATION OVERLAP WITH THE EMPLOYER’S SUBROGATION RIGHT

In 1992, the Georgia Legislature re-enacted a subrogation statute providing that an employer/insurer that pays benefits to an injured worker who was injured due to the negligence of a third party, can recover benefits paid to the claimant by the third party via judgment or settlement. Georgia subrogation recovery is premised upon the full compensation doctrine; however, an analysis of this issue is beyond the scope of this paper. Suffice it to say, that although recovery against a responsible third party rarely recoups 100% of the benefits paid to the injured worker, it does usually result in some recovery against the total amount of benefits paid by the employer/insurer to the claimant.

By conducting a detailed investigation at the time of the accident, the employer improves its ability to recover its derivative subrogation claim when the plaintiff initiates an action against the responsible third party. While I certainly would not volunteer any written or recorded statements taken from the claimant or witnesses after the accident to a plaintiff’s attorney seeking to initiate a suit against a responsible third party, these statements become important if the target defendant asserts a defense or attempts to defeat the claim on a factual basis which is inconsistent with the claimant or witness statements that were taken after the accident.

If the claimant is injured by a defective product or piece of equipment, it is essential that the defective product or equipment is preserved in the same condition it was in at the time of the accident. Often, a manufacturing defendant, when notified of an accident, will try to send a service technician to repair the machine, or will offer to pick the machine up and replace it with a “new” piece of identical equipment. There are many reasons why a manufacturing defendant would try to recover a defective product. Many of these factors revolve around producing a safer product or correcting any defect that may exist in other similar products. Although these may be honorable reasons for attempting to obtain possession of the defective product, a bi-product of the recovery of the product by the manufacturing defendant will be to prevent any type of testing or analysis that may demonstrate a defective condition which would support the claimant’s/plaintiff’s claim and resulting derivative recovery by the subrogated employer/insurer. Remember, whenever practical, always attempt to retain and preserve a product or piece of equipment which is involved in a work accident.

D. ALWAYS DRUG TEST

Official Code of Georgia Annotated §34-9-17 provides that “no compensation shall be allowed for an injury or death due to intoxication by alcohol or being under the influence of marijuana or a controlled substance.” In the case of alcohol, if the employee has 0.08 grams or greater of alcohol in his system, as shown by chemical analysis of blood, breath or urine taken within three (3) hours after the time of accident, there is a presumption that the consumption of alcohol and its effect caused the accident. Likewise, if any amount of marijuana or controlled substance is found in the employee’s system by virtue of analysis of the claimant’s blood, breath or urine within eight (8) hours of the time of accident, there is a rebuttal presumption that the ingestion of the controlled and its effect substance caused the accident. If a claimant refuses to take a test, then there is a presumption that the consumption of alcohol or the ingestion of a controlled substance caused the accident. There has been some fluctuation in Georgia law regarding the impact a positive test for drugs or alcohol has on an employee’s claim for compensation. Without going into detail, Georgia law has changed regarding allocation of the burden of proof to demonstrate causation between the consumption of drugs or alcohol and the occurrence of the accident.

Currently, the law provides that if a claimant tests positive for drugs or alcohol or refuses to undergo a test for these substances within the time frames set forth in the statute, it is presumed that the accident occurred as a result of the use of drugs or alcohol and the burden is then shifted to the claimant to set forth affirmative proof which would show that the presence of drugs or alcohol within the claimant’s body did not cause the accident.

As soon as an accident occurs, the employer should arrange for administration of a blood or urine sample to test for the presence of alcohol or drugs. Pay particular attention to the time frames set forth in the statute. The tests for alcohol must be conducted within three (3) hours of the time of the alleged accident. The test for marijuana or other controlled substances must be administered within eight (8) hours of the time of the accident.

It is a good idea to accompany the claimant to the doctor’s office to ensure that the test is administered within these time frames. This also prevents a claimant from asserting (as has happened in cases in which I have been involved) that he was in so much pain following the accident that he stopped at the liquor store and drank a pint of bourbon before going onto the doctor’s office. By accompanying the employee to the doctor’s facility, this type of intervening intoxication defense can be prevented. If possible, there are mobile medical facilities that will come to the job site and administer a test for drugs or alcohol at a reasonable fee. The costs of these tests generally range from $125.00 to $250.00. If a test is positive and a claim is successfully defended on the basis of the employee’s intoxication, the cost for this mobile test is clearly an excellent allocation of limited resources.

V. ONCE YOU KNOW ITS FRAUD, WHAT CAN YOU DO? DISCOVERING THE PROS AND CONS OF TRYING TO GET THE AUTHORITIES TO PROSECUTE A FRAUD CLAIM

Although the Board was granted the authority to assess civil penalties pursuant O.C.G.A.§34-9-18, et. seq., as a practical matter, these civil penalties are rarely assessed. However, as employers and insurers continue to battle increasing premiums and the increasing occurrence and expense associated fraud and possible abuses and manipulation of the workers’ compensation system, there is certainly a potential for an increase in assessment of penalties for fraud in the future. Although this analysis will deal with penalties being assessed against a claimant whose is fraudulently asserting a workers’ compensation claim, be advised that the same penalties can be assessed against an employer or insurer if any false information is provided to the Board, or if an employer or insurer systematically attempt to prevent a claimant from obtaining medical care or indemnity benefits.

Of course, anyone who makes a knowingly false statement or presents false evidence under oath to the State Board or to any Administrative Law Judge comments the offense of purgery. This transgression will be treated as a felony.

As a practical matter, if you, as an employer, are in an situation where you have an employee who has been collecting indemnity benefits while working for another employer and lying about it, if you can get that employee to admit under oath that he is not working, then this information should be forwarded to the fraud unit of the State Board of Workers’ Compensation. It has been my experience with the Fraud Unit that they are extremely vigilant in following-up on the abuses of the workers’ compensation system that involve a claimant asserting total disability and collecting indemnity benefits while actively employed for another employer. It has also been my experience that when the second employer becomes aware of the Fraud Unit investigation, they will terminate the employee. This type of abuse will pursued by the Fraud Unit.

However, from practical experience, often the Board will make a restitution order commanding that the employee reimburse the employer for any fraudulent benefits that may have been collected. This restitution order may be entered of record with the Superior Court pursuant to O.C.G.A. §34-9-106. However, often a claimant engaged in this type of fraud will be judgment proof. That is, the Superior Court or State Board of Workers’ Compensation will not order the claimant to cut a check to the employer reimbursing him for the damages that were incurred as a result of the employee’s fraud. Rather, the restitution award will simply be entered as any other fi.fa. (judgment) on the general execution docket in Superior Court. Thereafter, it will be incumbent upon the employer/insurer to follow-up and collect the funds. While this type of judgment may not be dischargeable in bankruptcy based upon the fraud exception contained in Section 523 of the United States Bankruptcy Code, as a practical matter, it is difficult to get blood from a turnip, and an insolvent claimant who has committed fraud may prove to be the type of debtor from whom it is extremely difficult to obtain payment.

All employers and insurers should be very careful regarding the claims that they chose to refer to the Fraud Unit. If a claim is referred to the Fraud Unit and, in fact, the claimant has not engaged in any fraudulent activity, this could lead to a separate independent action for liable or slander. Before suspected fraud is reported to the State Board, it is always a good idea to make doubly sure that actual fraud is being committed by the claimant. I would refer the reader to the check list above to use as a framework by which fraudulent claims may be discovered.

Any fraudulent activity should be reported to the Fraud Unit, Mr. D. Stan Bexley, whose phone number is 404-657-1391. If counsel is representing an employer and insurer in a workers’ compensation claim, I would strongly advice the employer and insurer to consult with counsel before referring a matter to the Fraud Unit.

The relevant statutes are set out below:

O.C.G.A. §34-9-18 Civil penalties; cost of collection.

O.C.G.A. §34-9-19 Penalty for false or misleading statements when obtaining or denying benefits.

O.C.G.A. §34-9-20 Giving of false evidence to board member.

O.C.G.A. §34-9-21 Penalty for receiving unentitled to benefits.

O.C.G.A. §34-9-22 Penalty for receipt of unapproved fees or for solicitation of employment for lawyer or physician.

O.C.G.A. §34-9-23 Liberal construction of chapter; purposes.

O.C.G.A. §34-9-24 Fraud and compliance unit; creation and duties; limitation on liability; authority; whistle blower protection.

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