If an employer has, say, a hundred or more workers who are semi-skilled, sooner or later there will be a comp claim in which suspicion grows that the worker has healed but is working off the books. This is a common problem in large metropolitan areas where activity is more easily concealed.
The Greatest Victory Is To Convince Your Enemy Not To Fight
There is a right way and a wrong way to proceed, which is the point of this piece. As a Chinese phiolosopher said, “The greatest victory is to convince your enemy not to fight a battle.” In other words, let them slink away and close the claim for non-appearance.
How is that done? An employer usually is the first to hear about concealed work. A co-worker, still in contact with the claimant, hears him bragging about concealed work. Who would do such a stupid thing? Fraud is no fun if you can’t brag about it, according to most exaggerators.
The co-worker reports it to a foreman, who passes it on to the boss. The owner calls the carrier who assigns it to an investigator. Here is where bad errors start to occur. The investigators consider it their job to get videos to prove the work is occurring. Sometimes, if the work is indoors, that is not possible. You correspondent has seen investigations dropped because a video could not be shot, even though the subject was seen arriving at work every morning and staying until the late afternoon.
Subpoena The Employment Records For the Concealed Employer
The correct method is to serve a subpoena for records on the concealed employer, with a copy to the claimant’s lawyer. The lawyer will know exactly what that means. The documents requested will be copies of ALL the numerous papers that have to be filed with various government agencies.
The off-the books company will immediately call in the worker and read him the riot act. The worker, in turn, will call his lawyer and tell him that people are saying he is working for an employer that he barely knows. The lawyer will immediately know that the client is working off the books. He will tell his client that if he is not working there is no problem. It will be straightened out at the next hearing.
The claimant, inevitably, will not show up for the next hearing and the claim will be closed, surprisingly at the insistence of the claimant’s lawyer, who knows where this is going.
Is this done frequently? No, not even close. Most claims units and investigators do not have the kind of contacts with fraudulent claimants to learn how to deal with them in slightly unconventional ways. Your correspondent handled workers comp claims for six years before he switched to handling self-insured employers.
Most Claimant’s Vanish Once Exposed
Every employee comp lawyer has a certain percentage of claims, every year, involving persons who simply vanish. Usually, they have learned that they have been exposed and simply take off, not even bothering to explain to their lawyer. Far more bad claims can be won if, instead of looking for a dramatic confrontation at a board, the employer and carrier heed the advice of Sun-Tsu (that Chinese warrior philosopher) and realize that a closing for non-appearance is a 100% victory. Faster, cheaper and more effective.
Author: Attorney Theodore Ronca is a practicing lawyer from Aquebogue, NY. He is a frequent writer and speaker, and has represented employers in the areas of workers’ compensation, Social Security disability, employee disability plans and subrogation for over 30 years. Attorney Ronca can be reached at 631-722-2100. [email protected]
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