?There are many signs of potential workers’ compensation fraud, including when an injured Ohioan is working another job and still collecting benefits. Still, fraud can take a long time to prove.
How common workers’ compensation fraud is remains uncertain, but it is costly. In Ohio alone, an estimated $80 million to $320 million in fraudulent medical and compensation payments are made each year, according to the Ohio Bureau of Workers’ Compensation.
Managers should “keep their ears to the ground,” said Steve Loewengart, an attorney with Fisher Phillips in Columbus, Ohio. “Fellow employees will generally drop a hint about fraud. They don’t like it any more than the employer.”
But be sure to pinpoint the motivation of the person who comes forward and suggests a co-worker is collecting benefits fraudulently. It’s possible that person has a beef with the injured worker that could lead them to lie, cautioned Beth Weeden, an attorney with Perez Morris in Columbus, Ohio.
“An employer should not consider terminating someone for fraud until there is an actual finding of fraud by the [Ohio] Industrial Commission,” she said.
Definition of Workers’ Compensation Fraud
Different states have different criteria for workers’ compensation fraud. In Ohio, an injured employee who does one of the following is considered to have committed fraud:
- Receives workers’ compensation benefits the employee is not entitled to get.
- Makes false or misleading statements with the purpose of securing goods and services under the workers’ compensation act.
- Alters, falsifies, destroys, conceals or removes documents necessary to establish the validity of a claim, or needed to establish the nature of goods and services for which reimbursement is requested.
- Enters into an agreement for conspiracy to defraud the state Bureau of Workers’ Compensation or a self-insuring employer by making false claims for disability benefits.
Common Signs
Some red flags for spotting fraud, according to Weeden, include when an employee:
- Is off work and never answers their phone or claims to have limited availability to attend medical appointments necessary for treatment. They could be working at another job—or avoiding difficult questions about the extent of their injury.
- Is at the end of progressive discipline, realizes they are about to be fired and claims an injury that is unwitnessed.
- Is performing seasonal work and their season is about to end, and they claim an injury that is unwitnessed or does not make sense based on their job duties.
- Claims to be hurt at work, but co-workers come forward and indicate the person told them they were hurt elsewhere.
- Exhibits drug-seeking behavior and there is a question about whether they are diverting their prescription drugs to others, or if they are seeking prescriptions from several medical providers at the same time.
- Is viewed on surveillance video being able to engage in activities that are inconsistent with the way in which they present at their medical appointments, and it appears they are grossly exaggerating their injuries.
- Is working while they are receiving workers’ compensation benefits in their claim.
When Someone Is Working and Receiving Benefits
In Ohio, if someone is receiving temporary total disability benefits and they are off work as a result of an injury, they are prohibited from working another job, Weeden said.
In the Buckeye State, employees typically sign a workers’ compensation agency form that clearly states they are not permitted to work while receiving temporary total compensation and that all questions answered on the form have been answered truthfully and completely.
There is a warning right above the worker’s signature that any person knowingly making a false statement to obtain compensation, or who accepts compensation they aren’t entitled to, is subject to felony criminal prosecution and may be punished by fine, imprisonment or both, Weeden noted.
Fraud is proved during a hearing before the state Industrial Commission by showing the individual had knowledge and intent to defraud.
“There are situations where an injured worker might be working two jobs at the same time and they get hurt at one of the jobs and they are paid by that employer for their time off work, and they do not realize that they cannot work at their second job at the same time,” Weeden said.
Or it might be the first time someone is injured at work and they don’t have the intent to defraud when they collect compensation from one employer and continue working for a second.
“This is especially true if the second job is a much lighter job and falls within the restrictions that prevent the injured worker from continuing to work at the job where they were injured,” Weeden said. This is why the aforementioned form matters. If signed, there likely will be a finding of fraud, she explained.
Some self-insured employers don’t require this form, Weeden noted. “If the injured worker has been receiving benefits and has not signed the form, they may be able to avoid a finding of fraud,” she said.
Temporary total disability compensation can never be paid to an Ohioan who is working in any capacity. So if an employee is performing light-duty work for a second employer and there isn’t fraud, the entire period of temporary total disability compensation would be vacated.
“The correct form of compensation that the injured worker would be entitled to during the period of their disability from only one of their two jobs is wage loss,” Weeden said. In Ohio, “wage loss is calculated by looking at the earnings the person has from the second job that they were still able to perform, and if the earnings are less than the average weekly wage in the claim, they are entitled to two-thirds of the difference.”
A claim can be fraudulent from the start, or it can start out as a legitimate claim and later become fraudulent, Weeden explained. “Keeping an eye on these examples of red flags will allow an employer to make an informed decision about pursuing fraud,” she said.
