Effectiveness of Workers’ Compensation Reform Law

In August 2012, the California Senate passed Senate Bill 863. The governor signed it into law in September 2012. The law made important changes to the California workers’ compensation system in a variety of different areas. These changes included such issues as the amount of weekly benefits for permanent disability, changes to supplemental job displacement, and creation of a “return to work” fund. The bill also introduces the idea of independent medical review to resolve medical treatment disputes, improved medical provider networks, and changed regulations regarding liens.

In the summer of 2015, the Department of Industrial Relations and its Division of Workers’ Compensation released a report concerning the progress and effectiveness of the new reforms. The report showed that the cost of workers’ compensation had dropped. The Department of Insurance adopted advisory premium rates in May 2015 which were five percent lower than previously. The report also showed that workers who had received work-related injuries were also receiving increased benefits. The report recited that before the legislation was reformed, the weekly benefits for permanent disabilities was between $130 and $270. After the legislation, the range was increased to be between $160 and $290. The report also determined that as of June 2015, the DIR had issued 370 checks under the return-to-work supplement program, totaling almost two million dollars.

The report went on to discuss other areas of the legislation. The Independent Medical review program was created to allow physicians to individually review the necessity of disputed medical treatments provided to the injured employee, in an attempt to reduce fraud. The report found that the IMR was functioning well and was issuing its decisions within the statutory timeframe. The study also determined that the law was helping with the commitment to evidence-based medicine, through the use of and adjustments to the Medical Treatment Utilization Schedule, which creates a set of parameters for appropriate medical care.

 

California continues its commitment to adjusting the workers’ compensation system by passing new legislation. In addition to the changes in 2013, many new laws also came into effect at the beginning of 2017. Call me today at (714) 516-8188 for an appointment to discuss your business and the changing workers’ compensation system.

Hotel Cleaning Firm Charged with Workers’ Compensation Fraud

There have been many recent attempts and moves by California lawmakers to crack down on workers’ compensation fraud. Harsher penalties, new investigatory bodies, and restrictions on who may participate in the workers’ compensation medical system are all examples of recent and important steps that legislators have taken to reduce fraud and its attendant burden on the California legal system and tax payers. Fraud can come in many forms, including failure to report all of the employees to insurance carriers. In 2015, a case occurred which really highlights the fact that addressing fraud is an essential goal for California lawmakers.

In this case, a married couple, the Kwons, owned a business called Good Neighbor Services. The business had offices in San Francisco, Santa Barbara, Los Angeles, Orange County, San Diego, as well as in Nevada and Georgia. The company was engaged in providing cleaning services to big-name hotels, such as the Ritz, Omni, Marriott, and Sheraton. However, the Kwons were not following the requirements of California workers’ compensation law. They were accused of concealing the existence of at least 800 employees. The purpose of this law was not only to avoid paying payroll taxes, but also to avoid carrying workers’ compensation insurance for all these people. They were further accused of threatening to fire any employee who was injured on the job. The grand jury ultimately indicted both of them, and they faced up to thirty one years in prison if convicted of all of the charges.

At the end of December 2015, the husband of the team pleaded guilty to seven felonies. These included insurance premium fraud, tax fraud, as well as involvement in a scheme that was constructed to avoid paying premiums and employment taxes. He stipulated to serving an eight year prison sentence, and also to paying restitution in excess of five million dollars.

In December 2016, Ms. Kwon also pleaded guilty. She pleaded guilty to two counts of premium fraud and two counts of employment tax fraud. Her prison sentence was four years and eight months. She also had to pay restitution in excess of five million dollars. This restitution went to both insurance carriers and the Employment Development Department.

 

Workers’ compensation fraud is a serious crime and carries justifiably heavy penalties. If you are an employer and have questions about your obligations under California law, call me today at (714) 516-8188. We can discuss your business and your future.

Potential Employer Penalties for Fraud

California law requires that all employers (with a few exceptions) maintain workers’ compensation insurance.  The purpose is to make sure that any employee who sustains a work-related injury will be fairly compensated.  In recent years, the California legislature has recognized that fraud in the workers’ compensation system is an enormous problem, and is costing tax-payers and voters dearly.  Penalties for fraud for both employees and employers can be severe.  It is important to understand what penalties an employer could face if he or she is found to have committed fraud in the workers’ compensation system.

First, it is important to understand that fraud is a criminal act.  Fraud in this context is a person that receives, accepts, offers, or delivers benefits he or she is not entitled to may be guilty of fraud.  These benefits may be in several forms, including commissions, refunds, preferential treatment, discounts, or other profit.  The penalty could be a fine of up to $10,000 and incarceration for up to a year.  These fines and jail sentences may all stack up, resulting in fines that can easily run into the six figures.  Moreover, some employers convicted of certain types of fraud, such as insurance premium fraud, could find their information publically published on the California Department of Insurance website.

Fraud can include several different acts for an employer.  These could include making false representations to the workers’ compensation insurance company, done with the intention of obtaining cheaper insurance coverage.  It could also include presenting false information with the intention of denying benefits to an employee with a work-related injury.  A third way it could occur would be to knowingly aid someone in engaging in fraud.  An example of that could be sending referrals to a medical provider the employer knows will be engaging in some sort of medical provider fraud.  Other common examples of employer fraud would be misreporting payroll or underreporting the number of employees.

Anyone who believes that fraud is occurring must report this suspicion to the DWC.  The reporting individual is not liable for defamation or slander suits, as long as the report is made with a good faith belief that fraud is actually occurring, and acts without malice.  The purpose of this is to make sure that fraud does not go unreported simply because the reporter is concerned about potential civil liability in the form of a lawsuit.

Workers’ compensation fraud can result in serious and sometimes ruinous consequences.  If you have questions about fraud and workers’ compensation, contact us today at (714) 252-7078 to discuss your business and how to protect it.

Cracking Down on Workers’ Compensation Fraud

Fraud in the workers’ compensation is increasingly becoming a major concern for both employers and law makers alike.  Recent measures have been taken to crack down on fraud in the workers’ compensation market, especially from the perspective of fraudulent services provided by the medical providers.  California has a $24 billion dollar workers’ compensation system, and this proves too great a temptation to unethical doctors and those looking to profit off of other people’s injuries.

One particularly notorious case involved Michael Drobot, a former hospital executive.  He was the subject of a half a billion dollar kickback structure that involved doctors, health care executives, and a lawyer.  The scheme involved receiving kickbacks for sending patients to surgery and to receive unnecessary tests and medication.  Drobot eventually pled guilty to criminal charges involving bribery, including bribing a state lawmaker to keep open a loophole that would allow medical providers to continue charging insurance companies very high rates for particular spinal hardware.  These and other examples of fraud reaching all the way up to the California state government has prompted action in the state legislature.

One measure is aimed at helping to clear court dockets from the overwhelming amount of liens filed against workers’ compensation claims.  Between 2011 and 2015, over $600 million dollars in liens were filed against such claims.  SB 1160 adds requirements to the filing and pursuing of these liens to make sure the liens are legitimate, and also that if the person filing the lien is charged with certain crimes, the collection of the lien is stayed until the criminal proceeding is over.  Beginning January 1, 2017, those filing liens were required to also file an accompanying affidavit swearing that he or she was eligible to file the lien.

Another measure is AB 1244.  This would require that any medical provider involved in the workers’ compensation field is suspended from participation if he or she is convicted of fraud.  The hope is that this law will exclude those medical providers and doctors who have participated in fraudulent schemes in the past from continuing to perpetrate the crimes on injured workers.

Fraud in the workers’ compensation system is a serious problem, and legislators are taking steps to crack down on fraudulent activities.  If you have questions about workers’ compensation fraud or how the new laws may impact your business, contact me today at (714) 252-7078 for an appointment.

Typical Ways Fraud Occurs in Workers’ Compensation Claims

Workers’ compensation is a good and necessary system to provide an important safety net to workers who have sustained a work-related injury. Unfortunately, it can also provide a potential target for dishonest people trying to “work the system.”  There are some typical ways that scammers will try to perpetrate fraud, and you and your business need to be alert.

The most common type of scam will be a fake claim of injury. This will work in a number of ways. One way is for a worker to allege that previously sustained injury is actually a work-related injury.  This may also come in the form of a worker sustaining an injury off the job but then claiming the injury happened on the job. Examining old medical records during the case can give clues to whether a worker has previously received treatment for his or her injuries, and the importance of this step cannot be understated. Dishonest workers may also straight out fake an injury. Some injuries are easier to fake than others, such as back and neck muscle injuries. Because these injuries are more difficult to disprove than, say, a broken bone, it is easier for a dishonest person to fake an injury. For this reason, expert testimony may become a key element of your case to defend your business from false claims. Malingering is another type of common fraud. This means when a worker who may have received a valid work-related injury, pretends to be disabled despite actually being healed and able to return to work.

Unfortunately, other participants in the workers’ compensation system may also be part of the fraud. Dishonest doctors or clinics will sometimes try to pad their bill. This typically comes in two forms: inflated injuries or non-existent injuries. A dishonest medical provider may exaggerate the seriousness of an injury and bill for extra, unnecessary procedures in order to receive additional payments from insurance companies.

Dishonest business owners will also sometimes commit fraud by illegally reducing the amount of insurance premiums they owe. They will do this by falsely classifying jobs as safer than they are or lying about the number of employees they have. This affects all insurance premiums, even for honest business owners, as the cost of fraud is passed on to other insurance clients in the form of higher premiums.

If you believe that fraud may be involved in your workers’ compensation case, call me today at (714) 516-8188. We can talk about your case and examine the risks and possibility for fraud.

Fraud and the Fraud Assessment Commission

Fraud in workers’ compensation cases can come in many forms. It can come from workers faking injuries, malingering, falsely reporting the source or severity of an injury, or a variety of other systems. In addition, employers or even medical providers may be involved in perpetrating fraud. In recognition of how damaging fraud can be to both employers and employees, as well as the state at large, California created the Workers’ Compensation Fraud Program in 1991. The legislation also created the Fraud Assessment Commission.

The Fraud Assessment Commission was created to help apportion funding. Its purpose is to allocate funds to fraud prosecutors across the state of California. Members of the FAC are appointed by the governor of California. The members serve for four years, or until the governor decides to appoint a replacement. Currently the FAC is made up of seven members. Four represent self-insurers, insured employers, and workers’ compensation insurers. Two represent organized labor. The final member is the President of the State Compensation Insurance Fund, who is granted permanent membership. The FAC meets 3-4 times a year in Sacramento. The FAC is also responsible for creating methods of funding so that prosecution of fraud can continue. Insurers are required to report potential fraud to the proper authorities, and insurance fraud is a felony in California.

The funding for the Workers’ Compensation Fraud Program that is ultimately apportioned by the FAC comes from California employers. During 2014-15, the fraud division found and reported almost 6,000 cases of suspected fraud, and 240 arrests were made with 197 cases referred to prosecutors. The potential loss came to the total of $277,032,462.

District Attorneys also have a Workers’ Compensation Program. In 2014-15, they were responsible for 740 arrests, and prosecuted over 1,400 cases, resulting in over 700 convictions. Over $32,000,000 was ordered in restitution. The total amount of chargeable fraud was almost $650,000,000. Unfortunately this represents only a small amount of the fraud that actually occurs. As should be clear from this brief explanation and these statistics, investigation into fraud is essential to helping to protect the working people of California from further financial damage.

I have extensive experience dealing with cases involving fraud. If you believe your business is being faced with a workers’ compensation claim that may be fraudulent, contact me today at (714) 516-8188 to talk about your options.

Data Analytics and Workers’ Compensation

Worker’s compensation and its attendant insurance system is complicated, with many factors going into insurance premiums as well as underwriting. Data analytics is a system that is used by some workers’ compensation insurance companies to further their goals of speeding the conclusion of claims, reducing fraud, and accurately projecting risk from certain industries or businesses. “Data analytics” is simply the process of compiling and examining certain sets of data in order to draw conclusions out of that information and data.

An insurance underwriter’s job is to help reduce the risk to their employers. Because medical costs are on the rise, the underwriters must now develop more effective methods to improve their risk selections. If an underwriter’s only source of information is from the insurance agent and from the business purchasing insurance, risk reduction will be a difficult task. Data analytics can help the underwriter more accurately gauge the risk from a particular business by pulling together such data as how long the business has been around, credit scores, financial stability, OSHA violations, and safety reports.

Data analytics will also provide the opportunity for “predictive modeling,” which is a process that allows an underwriter to test the probability of a particular outcome. An underwriter can look at a business’s past and identify particular trends and patterns. Looking at a business’s pattern of violations and fines can help with this. For example, if a business is fined for a violation, the business may decide that it is cheaper to just pay the fine repeatedly instead of actually fixing the problem. Looking at this pattern of infractions can help predict a future of work-related injuries.

Medical provider fraud is also a target of data analytics, as well as recent legislation. Some computer programs have been developed to help identify and stop fraud. One area where fraud is often seen in these cases is for a provider to bill for additional services that were never provided to an injured worker. Through data analytics, it is possible to project how long a course of treatment should reasonably be taking, such as procedure time or types of procedures, and then identify where a provider may be fraudulently overbilling.

Data analytics and projecting costs and risks can impact your business’s workers’ compensation insurance. Call me today at (714) 516-8188 and let me help your business and its workers’ compensation claims process.

Opioids and Workers’ Compensation

Opioids are a class of medication that is commonly prescribed to treat pain. It is no secret that the rise of opioid addiction and abuse is a severe problem in the United States. In 2016, it was reported that drug overdose was the leading cause of accidental death in the United States, with opioid abuse being the leading type of drug, and prescription opioids almost double that of heroin. With such a national crisis, the balance in opioid use and workers’ compensation claims is a delicate one.

Musculoskelatal injuries are quite common in work-related injuries, with a typical treatment course being plenty of rest coupled with a type of pain killer. Sometimes these injuries heal completely, but all too often, a worker may be left with a chronic pain condition. A chronic condition is one that lasts more than three months, or lasts after the tissue has finished healing. Long-term opioid use can result in addiction, and in May 2016, it became mandatory for drug manufacturers to include a warning with opioid prescriptions that these drugs carry a high risk of dependency. The CDC has also cautioned doctors against over-prescribing this type of drug.

Between 2012 and 2014, the rate of prescription of opioids in workers’ compensation decreased across 25 states, including California. This is mainly due to a set of new regulations and programs that were adopted with an aim to reduce opioid abuse. The new regulations resulted in a “noticeable decrease” in these states, with some states experiencing a drop between 20 and 31%. Another study indicated that the cost of opioid prescriptions to workers’ compensation claims during this time was decreasing at a rate of $450 per year.

To continue this trend, it may be best for employers to develop a culture of early intervention for certain types of repetitive or stress induced injuries. This would allow workers to report these injuries at a stage at which they can be addressed with rest or physical therapy instead of the prescribing of opioids.

New drugs are also being developed in response to the opioid abuse epidemic. Although still in the development stages, there are many targeted and specialized drugs that may help further reduce the prescription rate of opioids. The impact of the high cost of specialized or compounded drugs on the workers’ compensation system is yet to be seen.

If you have questions about your business and workers’ compensation, contact me today at (714) 516-8188. I am highly experienced in guiding my clients through this complicated area of law.

Social Media and Workers’ Compensation Claims

Social media connects many people all across the world. Across the globe, there are nearly 2 billion monthly active Facebook users, with 300 million photos being uploaded each day. With such an enormous base, Facebook and other social media platforms such as Twitter, Instagram, or Flickr, can be incredibly useful tools when discussing workers’ compensation fraud.

Using social media for surveillance in workers’ compensation claims is a common and valuable strategy for detecting fraud. If you have a employee claiming a work-related injury that you believe may be fraudulent, it is certainly worth the time to take a look at their social media accounts.

If your employee is claiming a debilitating injury, you should be on the look out for activities that are inconsistent with their claimed injury. Look for vigorous exercise, intense yard work, or contact sports. In one case in 2014, an employee who was claiming to have a work-related injury posted bowling scores to his social media accounts. Further investigation revealed video surveillance of the employee bowling. This evidence was in direct contradiction of his testimony that he was not able to bowl since his injury. Ultimately the investigation revealed a number of other misrepresentations he had made to his doctors and his activity level. He was eventually charged with insurance fraud, and had to pay back his workers’ compensation benefits.

Regular “check ins” at the gym can be good evidence. Be cautious, however, as some injuries will require physical therapy, so indications that your employee is exercising does not automatically mean the claim is fraudulent. If you believe you have found evidence of fraud, you should turn over this evidence to your lawyer. He or she will know how to handle the fraud. Do not immediately confront your employee yourself, just allow your attorney to handle the situation.

Social media posts can be used as evidence at trial, so they should be saved if they may show evidence of fraud. Taking screen shots and saving these is a fast and easy way to preserve the evidence. Do not assume that the posts will be there at a later time, as the employee could delete the post at any time. It is better to create and maintain your own copy.

If you believe you may be a victim of fraud, contact me today at (714) 516-8188. We can review your case and your evidence and discuss your best next steps.

Basic Elements of a 132(a) Claim

California Labor Code Section 132(a) states that an employer may not discriminate against an employee who has filed a claim for workers’ compensation. Logically, these claims are typically filed in conjunction with workers’ compensation claims. There are very specific elements that an employee must prove in order to be successful in making a claim that they were unlawfully discriminated against in contravention of section 132(a).

First, an employee must prove that adverse action was taken against him or her. This typically takes the form of termination of employment, but it can take other forms. For example, a demotion, changing the employee’s hours to an undesirable shift, or moving the employee’s location to a vastly different and inconvenient location could all be examples of adverse action.

Second, an employee must also prove that the adverse action was taken because of the workers’ compensation claim or their threat to file such a claim. In other words, merely being terminated from employment is insufficient; an employee must provide evidence that they were terminated due to their claim. From a business’s stand point, this is why it is vital to document under-performance or other disciplinary action taken against an employee following a work-related injury. If it becomes necessary to terminate or demote such an employee, having a documented history of poor performance becomes important to a defense to a claim under 132(a).

Third, an employee must demonstrate that he or she had a right to keep the benefit or status that he or she lost when the employer took the adverse action, and also that the employer had a legal duty to continue providing that benefit. In Department of Rehabilitation/State of California vs WCAB (2003), 30 Cal. 4th 1281; 68 CCC 831;444, the California Supreme Court set out that this was the employee’s burden of proof in a claim under 132(a). The Supreme Court went on to point out that the California legislature obviously wanted to prohibit treating a worker injured on the job differently, solely due to the fact that they were injured while at work.

The Court noted: “To warrant an award the employee must establish at least a prima facie case of lost wages and benefits caused by the discriminatory acts of the employer. The employee must establish discrimination by a preponderance of the evidence at which point the burden shifts to the employer to establish an affirmative defense.” Id. Internal citations omitted.

If your business is faced with a discrimination suit under Section 132(a), contact me today at (714) 516-8188. We will discuss the elements of the claim with you and your avenues for defense.

Ratings and Reviews

CBLS