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Tips on Pursuing a Workers' Compensation Fraud Defense:

Do You Have Reason to Believe a Claimant is Defrauding the Workers' Compensation System in Order to Secure or Maintain Benefits?

In New York, the statute governing workers' compensation fraud committed by claimants is found at N.Y. W.C.L. § 114-a(1). Added to the law in 1996, the statute provides that a claimant will be disqualified from receiving future compensation if such person provides a false statement or misrepresentation of truth as to a material fact for the purposes of obtaining wage replacement benefits.

Do You Have Reason to Believe a Claimant is Defrauding the Workers' Compensation System in Order to Secure or Maintain Benefits?

In New York, the statute governing workers' compensation fraud committed by claimants is found at N.Y. W.C.L. § 114-a(1). Added to the law in 1996, the statute provides that a claimant will be disqualified from receiving future compensation if such person provides a false statement or misrepresentation of truth as to a material fact for the purposes of obtaining wage replacement benefits.

Examples of fraud include lying, exaggerating symptoms, failing to report work or income, omitting a prior or preexisting condition or disability, misrepresenting or failing to disclose a relevant fact, falsifying documentation, among other considerations.

In order to prove a claimant is engaging or has engaged in fraud, you will need evidence. Mere suspicion that fraud is afoot or has occurred is certainly not enough. Good, solid evidence may require investigation, clear video surveillance with date/time stamps, detailed written reports, and documentary proof of the perpetrated fraud.

For example, if a claimant has engaged in a fraudulent job search, an investigation will require contact with the prospective employers (preferably business owners or personnel administrators), names and titles of persons the investigator spoke with, dates on which the investigation took place, results of the contacts, and much more, all in a detailed written investigator's report.

Additionally, a claimant may be committing fraud if he engages in ample symptom magnification for the purposes of fooling a medical provider as to an opinion on degree of disability/impairment. Here, video evidence will need to objectively demonstrate the claimant's behaviors and activities when he otherwise is unaware he is being watched. Captured surveillance, along with written documentary reports, will need to be compared to the contemporaneous medical record, particularly regarding subjective complaints, self-reported pain levels, abilities to engage in ADLs, range of motion findings, diagnoses, and/or work restrictions.

Furthermore, if a claimant is continuing to receive wage replacement benefits and the carrier suspects he has returned to work in some capacity while failing to inform, video evidence can demonstrate whether or not such is true. An investigation into social media accounts, news stories, internet searches, or other relevant background checks may play a pivotal role with regard to such proof.

Lastly, all surveillance video must be presented to the Board in either a WMV or AVI format and must be placed on a DVD-R disc for proper submission.

If you have questions about pursuing a fraud defense or need assistance with gathering the correct evidence, please contact one of our attorneys.

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