Should employers be involved in investigating dubious compensation claims? Yes, of course – if they do it correctly. Two examples show, rather dramatically, a right way and a wrong way. Each, in its own way, serves as an example from which an employer may learn. Both examples are completely true events which occurred in the New York City area a few years ago.
Right Way To Investigate A Claim
First, the right way. A small employer had a worker out of work from a work comp claim. A co-worker reported to the employer that the worker on disability was working off the books as a self-employer owner of a truck vending coffee and snacks.
The employer, at its own expense, engaged an investigator to trail the employee. Rather quickly, impressive motion pictures captured the employee selling from the truck. Even more dramatic was the footage showing the employee performing repairs on the truck, crawling under it with a large wrench and playfully twirling the wrench after he crawled back out.
The footage showed not merely an exaggerated claim but considerable IRS fraud as well. The employer forwarded the material to the carrier, and had it shown at a workers’ compensation board hearing. The worker made an excuse that he could not attend the hearing as he had to go to his cousin’s wedding. The claim, of course, was closed without further awards.
Wrong Way To Investigate A Claim
Now, the wrong way. A moderately large self-insured employer had an in-house workers’ compensation claims unit. The unit was told that a worker out on a work comp claim, was, in fact, working. The unit quickly engaged an investigator to follow the worker and photograph him reporting to work. The investigator reported back that he had succeeded. Would the employer approve further detailed investigation? It did. Films were sent showing conclusively that the employee was reporting daily for work.
The problem? He was reporting to his regular job with his employer. He was, in fact, working one floor below the workers’ compensation unit! And the investigator was a former claims examiner who had handled workers’ compensation claims, at a TPA, for that very employer.
Ask Questions, Look At Pictures & Reports
In both cases the employer had received factually correct information. In the second case, the employer had never asked the correct question – who is the employer paying this employee? Nor did the employer ask to see the first photos, showing the worker driving into its own parking lot!
The first employer, a rank amateur at claims and investigations, had used a little common sense and got everything right. The second used a team approach with trained professionals and provided its outside counsel with a “you can’t make this up” story for future seminars.
But the second employer was fortunate in that the investigation effort never got beyond the unit and served as a live training event. The unit never made a similar mistake again.
Please, be involved. Just ask one or two more questions.
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@example.com
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