Workers’ Compensation Fraud Is Not a Victimless Crime

Author, Jim Malone, Workers’ Compensation Claims Advocate, Rancho Mesa Insurance Services, Inc.

Fraud can happen in every industry, including workers’ compensation. According to standard definitions, “in law, fraud is intentional deception to secure unfair or unlawful gain, or to deprive a victim of a legal right. Fraud can violate civil law, a criminal law, or it may cause no loss of money, property or legal right but still be an element of another civil or criminal wrong. The purpose of fraud may be monetary gain or other benefits, for example by obtaining a passport, travel document, or driver's license, or mortgage fraud, where the perpetrator may attempt to qualify for a mortgage by way of false statements.”

Within workers’ compensation claims, fraud is a term that can be overused by employers who may not agree with a claim, or a condition that has been considered work-related/work-aggravated. Many times, instead of fraud, there is simply a difference of opinion as to whether a specific work incident caused an injury. For these disputes, it usually comes down to a medical opinion addressing whether something is work-related or work-aggravated.   

Examples of Workers’ Compensation Fraud

A claim can become fraudulent when the employee lies about how the injury occurred or about their ability to work. The treating physician may be asked to provide their opinion as to whether the injured worker mislead them about how their injury occurred, and the significance of their complaints or physical capabilities. The doctor is provided records or sub rosa videotape contradicting information previously provided by the injured worker. Fraud can also occur when the injured worker lies under oath during a deposition, thus becoming a felony. 

Workers’ compensation fraud is not limited to employees, but others within the system can also knowingly participate in the fraud. Physicians can be fraudulent in their billing for services not rendered, for accepting kick-backs, or realizing financial benefit for referrals to and from other physicians, vendors or other entities. Employers can commit insurance fraud by understating their number of employees, under-reporting payroll or misclassifying employees into cheaper job/class codes in order to secure cheaper insurance policy rates and premiums. Vendors can commit fraud by billing insurance carriers for products or services never provided. Attorneys can use illegal capping schemes to retain injured workers for clients. 

Combating Workers’ Compensation Fraud

Each insurance company is now required to have a Special Investigative Unit (SIU) that provides ongoing monitoring and investigation of questionable activities related to claims. Fraud continues to cost tax-payers millions of dollars (some estimates are up to $80,000,000) per year. The money and resources the employers and insurance carriers are spending to combat fraud are also increasing each year. 

In the event of a fraud conviction, fines or assessments, prison sentences, or restitution can be ordered. Workers’ compensation fraud is not a victimless crime; from the losses caused by fraudulent activities, to the money used to combat and prosecute fraud. The money lost to workers’ compensation fraud can never be replaced, but we are all responsible to do our part in remaining vigilant and reporting suspected fraud to the appropriate person or agency. 

Steps to Understanding and Managing Subrogation

Author, Daniel Frazee, Executive Vice President, Rancho Mesa Insurance Services, Inc.
Author, Jim Malone, Workers’ Compensation Claims Advocate, Rancho Mesa Insurance Services, Inc.

Definition

Subrogation is defined as the substitution of one person or group by another in respect of a debt or insurance claim, accompanied by a transfer of any associated rights and duties. It occurs in property/casualty insurance when a company pays one of its insured’s for damages, then makes its own claim against others who may have caused the loss or contributed to it. Subrogation crosses into many areas of the insurance world including workers compensation, general liability, property, and auto. As an employer, developing an effective Incident Investigation Plan is a key first step to managing the potential impacts of subrogation on your organization. 

Employer Level Investigation

Identifying the potential for subrogation should occur immediately after an injury or accident occurs with an employer-level investigation. This includes visiting and securing the scene of the accident. If there are hazards or dangerous conditions still present, address them by taping off the area or removing the hazardous element. All potential witnesses need to be identified with securing their name, employer, telephone number, address, copy of their driver’s license, etc. These witnesses should be provided a witness statement for their completion. 

It is also imperative that the employer preserve the evidence by taking possession of the tool or equipment that caused the injury. If a ladder broke causing a fall and injuries, take possession of the ladder and keep it secure until needed later. If a tool malfunction is the cause of injury, take possession of that tool until it is needed for the next step of the investigation. Removing the injury-causing item prevents the chance of additional injuries or accidents. 

Additionally, take photographs or measurements of the entire area, building as much visual evidence as possible. Be aware too that changes can and will occur to the scene of the accident within minutes or hours of the incident. Entire crews are known to be removed from the area to avoid being identified as potential witnesses of an at-fault third party incident. 

Referring a Claim and Protecting the 2 year Statute

As you continue with your internal investigation, ensure that the claim’s assigned adjuster sends your third party information to the insurance company’s subrogation department. Most claim professionals do not have experience nor handle the details of subrogation cases. As a subrogation adjuster and attorney build their respective files, they will benefit significantly from the information obtained in a thorough post-injury investigation. They can then focus on obtaining additional discovery that can solidify their subrogation efforts. Reach out promptly to your subrogation adjuster and attorney as they will value your contribution to the investigation. We also recommend requesting regular updates, which would include participating in regular interval claim reviews. 

Be aware that the California Statute of Limitations for personal injury cases is 2 years from the date of the injury and/or accident. “Protecting” this statute means ensuring your insurance company formally files a civil lawsuit against the identified third party in a timely fashion.

Pursuing Subrogation

While injured employees are barred from suing their employer for their workers compensation injury due to the Exclusive Remedy Rule, that same employee may still bring a personal injury claim against a third party who shares responsibility for the injury. The employer also has the right to bring a civil claim against a third party to be reimbursed for the workers compensation benefits it is providing. If the employee pursues the third party, the workers compensation carrier can join as a party to this litigation. In this scenario, the workers compensation carrier simply provides a summary of their costs, or their workers compensation lien. The carrier then has first lien rights once a judgment is reached against the at-fault party. 

As subrogation cases move toward settlement, there are many factors impacting the net recovery for the injured worker and insurance company (employer). Many incidents have shared negligence alleged by the employer and even by the employee. The civil arena does not have the same thresholds or tolerances for extent of injury, need for medical care, resulting temporary disability, permanent disability and / or future medical care as does the workers compensation system. Many times the workers compensation liens are considered liberal and excessive by the civil arena. Therefore, it is difficult for the workers compensation carriers to be fully reimbursed for the total costs of their claims.      

Waiver of Subrogation

In the Construction space, many trade contractors are asked via contract to provide waivers of subrogation in conjunction with other insurance requirements. Waivers do not prevent a subcontractor’s injured worker from filing suit against the general contractor. The waiver bars the subcontractor's workers compensation carrier from pursuing subrogation in the event the employee does not pursue relief from the aggrieved party. If the employee files suit, the subcontractor’s work comp carrier can then join the action. If the employee does not file suit, then the subcontractor’s carrier cannot pursue subrogation on its own against the General. Consider this example: A general contractor responsible for erecting scaffolding on a jobsite subcontracts drywall work to a subcontractor who will use the scaffolding in the scope of their work. An employee of the drywall contractor falls from the scaffolding and it is later determined that the General did not secure the base of scaffolding properly. Typically, the employer’s workers compensation carrier could look to subrogate the costs of the work comp injury claim incurred by the injured worker from the general contractor. However, the drywaller provided a waiver of subrogation to the general as a condition of securing the contract. Therefore, their right to subrogate against a general contractor has been waived. Subrogation between subcontractors; however, remains a viable avenue of subrogation if the involved parties are subcontractors.    

Closing

Becoming comfortable with the many facets of subrogation is crucial as your team builds an overall plan to manage risk. This process includes incorporating third party questions into your Incident Investigation Plan, overseeing the claim and recovery process, creating reasonable expectations as settlement draws near and paying closer attention to waiver requirements. While these are only initial steps, they represent a solid base to building a greater awareness and deeper understanding of subrogation. 

To learn more, email Daniel Frazee at dfrazee@ranchomesa.com or Jim Malone at jmalone@ranchomesa.com.

Fraudulent Claims Could Be on the Rise

Author, Casey Craig, Account Executive, Rancho Mesa Insurance Services, Inc.

California is in the middle of a construction boom. There is more work than qualified employees and contractors need people on their job sites. While fraudulent workers’ compensation claims are relatively low right now, California contractors are asking what will happen when there is not enough work to keep everyone busy?

Fraudulent workers’ compensation claims peak when steady work dries up and opportunities diminish. When an employee doesn’t know if they will be employed next week, they can panic and consider making a fraudulent workers’ compensation claim to ensure a compensation check. Regardless of the size of your company, consider how you may be able to create growth opportunities for your employees. Even if an employee is with your company for a short time, it is important to show them there are opportunities for promotions and pay raises. Keeping your employees happy and goal oriented is extremely effective in reducing fraudulent workers’ compensation claims.

According to Chris Dill, Special Investigations Unit Manager for ICW Group Insurance Companies, millennial’s are two to three times more likely to commit workers’ compensation fraud compared to older employees. That is not to say you shouldn’t hire a millennial, just make sure they know there is a path to move up in the company, have job descriptions, and promotions available with new titles. This is essential to keeping their interest and dedication to your company. Make sure to have meetings where every employee can speak freely in an open forum, so their voices are heard. If an employee feels valued and a member of a cohesive team, they are less likely to create false claims, which can lead to a more profitable company.

When bidding for a job, it is next to impossible to account for injuries that may happen and how those injuries will cut into your net profit. If your only goal is revenue, profit is hard to attain and growth is only sustainable if your profit remains consistent. Keeping workers’ compensation claims to a minimum is a contributing factor to achieve consistent profit.

There are many ways to decrease the likelihood of fraudulent workers’ compensation claims. Rancho Mesa Insurance Services offers strategies to help clients stay ahead of this problem, including our upcoming workshop “Fighting Fraud in CA Workers’ Compensation System” on September 19, 2019. Please contact us at (619) 438-6889 or ccraig@ranchomesa.com for more information on how to prevent fraudulent claims, or with any questions you have regarding your policy.

Higher Workers' Compensation Premiums Linked to New Employee Injuries

Author, Drew Garcia, Vice President, Landscape Group, Rancho Mesa Insurance Services, Inc.

Based on Rancho Mesa Insurance Services’ clients’ information, we have been able to identify that the majority of work-related injuries occur within the first year of employment. During the first year, the majority of these claims occur in the first six months. Having a system for on-boarding and training new hires is a critical component to dealing with the heightened risk of injury during this time period.                                                                                                                       

New Hires Effect Risk Exposure

During the workers’ compensation underwriting process, companies are commonly asked if their payroll will continue to grow, stabilize, or decline. Underwriters can assume that with growing payrolls, the company will be hiring new employees. New employees will likely increase the probability of work-related injuries. Underwriters must take this information into consideration when justifying a premium that will cover the company’s complete risk exposure.

Mitigating the Increase in Premium  

It is extremely beneficial for the owner and insurance broker to relay the measures that their company has committed to train, manage, and track new hires. If you are looking for a way to improve your safety efforts, consider focusing on proper new employee onboarding and training to minimize the potential impact claims can have on your company.

Please reach out to Rancho Mesa’s Client Services Coordinator Alyssa Burley at (619) 438-6869 to learn more about the Risk Management Center and how you can improve your safety training.

The Ticking Time Bomb for Plumbing and Mechanical Contractors: Lower Expected Loss Rates Can Mean Higher Experience Modifications

Author, Kevin Howard, CRIS, Account Executive, Rancho Mesa Insurance Services, Inc.

The Workers Compensation Insurance Rating Bureau (WCIRB) released the 2019 Expected Loss Rates (ELRs) in the 4th quarter of 2018. ELRs are the average rate at which losses for a classification are estimated to occur during an experience rating period. They are generally expressed as a ratio per $100 of payroll and can often have a dramatic impact on experience modifications. To support this point, the ELRs in the plumbing class code 5187 dropped 17% on January 1, 2019. This decrease is not getting significant attention, but could potentially create negative implications for California plumbing contractors and their respective experience modifications in 2019, 2020, and beyond. All plumbing and mechanical contractors should be made aware so they can prepare and make changes to protect themselves from the impact. Similar to a leak behind a wall, this could go undetected until the experience mods are released and then it is too late and too much damage has been done.

LINKING ELRs WITH YOUR PRIMARY THRESHOLD

The lowered expected loss rates also impact primary thresholds. Your primary threshold is the maximum primary loss value for each individual worker’s compensation claim. If primary thresholds move lower, one small lost time claim can cause a significant spike in an experience modification. An elevated experience modification can impact not only pricing, but opportunities to bid certain types of work within the commercial sector.

WHAT CAN YOU DO TO GET OUT IN FRONT OF THIS?

If these terms are completely new to you and your organization, lean on your insurance broker to provide the education needed to get up to speed. That can start with building a detailed service plan that focuses on controlling your experience modification. Some examples of critical elements that should be discussed would include:

• Addressing open reserves on claims that are impacting the future experience modification.

• How the timing of the unit stat filing will affect the future experience mod and cost.

• Ensuring that your safety program addresses the root cause of claim frequency and severity.

• Trainings that are aligned with OSHA compliance.

• Experience MOD forecasting up to 7 months prior to your firm’s effective date.

AVOIDING THE TICKING TIME BOMB

The ticking time bomb can be avoided by taking certain steps and actions that are strategically put in place with your insurance broker. If this article has created concern and/or these terms are brand new to you, pick up the phone and schedule an experience modification control meeting with an advisor from Rancho Mesa at (619) 937-0164. Their Best Practices approach to managing risk starts with a client-centric process that is focused on education and execution.

Developing an Effective Injury and Illness Prevention Program (IIPP)

Author, Daniel Frazee, Executive Vice President, Rancho Mesa Insurance Services, Inc.

If you have operated a business in the state of California for any period of time, you have very likely heard about or run across the acronym IIPP. Wherever you stand with your knowledge within the world of safety, injury, and illness, it is important for every organization to understand the mandatory parts of an IIPP. What is often overlooked is how developing an effective safety program can create positive change and truly impact your bottom line.

What is an IIPP?

An Injury and Illness Prevention Program (IIPP) is a required written workplace safety document that must be maintained by California employers (Title 8 of the CA code of regulations, section 3203). These regulations require eight (8) specific elements that are summarized below. In many cases, this process requires direct questions about how the company currently views and manages safety. Answering these questions will begin to highlight the positive aspects of what already is currently in place and shed light on areas that need improvement.

Responsibility

Clarifying the name, title and contact information for the person(s) with overall responsibility for the IIPP is a critical first step to this process. Making the IIPP available and accessible at all business locations becomes the first task of the “responsible person.”

Compliance

What is the content of the company’s safety meetings? Who runs those meetings? How do you discipline employees if they do not follow safety guidelines? How might the company recognize or reward their employees for safe practices or behavior?

Communication

Safety meetings are held on what type of schedule within your organization? How can employees anonymously notify management of safety and health concerns without fear of reprisal? Is there a safety committee in place that provides communication to all employees? If not, who would be considered as important members of that committee?

Hazard Assessment

Who within the company is responsible for periodic inspections to identify and evaluate workplace hazards? Provide detail on this schedule along with accompanying documentation that these visits occurred. Continuously communicating with employees for feedback and constantly reviewing hazards on a jobsite or within the workplace are crucial. Lastly, does the company use a standard or tailored JHA (Job Hazard Analysis) checklist to accomplish this? Re-visiting these checklists regularly as exposures change is critical to reducing claim frequency.

Accident/Exposure Investigation

Post-accident, who is the name of the person within the organization responsible for conducting those investigations? What type of form or checklist are you using to establish “root causes” of the accident or injury? And, back to the compliance section, what type of discipline could be handed down in the event of employee error that causes an accident or injury?

Hazard Correction

After the company has identified the hazard and determined exactly how and why an incident occurred, the IIPP must provide detail on how the company will correct the problem from happening again. One solid first step can include a review of Personal Protective Equipment (PPE) use. That is, did the equipment being used cause the accident or injury and, if yes, why? Answering the\is question may show that the piece of equipment was not appropriate for the task, or the item was defective or too old, which caused failure.

Training and Instruction

Ongoing and job specific training and instruction are really the lifeblood of any truly effective IIPP. Presenting the information in a clear, concise format that is easily understood is often the most difficult task in this process. Yet, it remains perhaps the most important as it is vital that employees are continually educated and RETAIN their instruction. Peeling back this process with managers, foreman, superintendents, etc. and learning specifically how the training is being disseminated, allows for a true baseline to be established.

Recordkeeping

Document, document, document! While establishing a written version of the IIPP might be the first step, and revising/editing on an annual basis is recommended, having the proper documentation that accompanies each section is just as important. This provides the responsible person(s) an important tool to continually compare the company’s actions, trainings, assessments and prevention techniques with the available documentation.

Can An Effective IIPP Impact my Bottom Line?

Building an effective IIPP means that the document represents a part of the company’s culture. For it to be meaningful and have a real impact on reducing workplace injuries and illnesses, it must reflect what your company is actually doing on a day to day basis. As the company’s ownership ties this into the overall business, building the IIPP from the ground up into a living, breathing document has measurable impact on controllable costs like workers’ compensation. Reducing frequency of injury can help lower the experience modification, improve the loss ratio, and establish a solid risk profile in the insurance marketplace. Having the supporting documentation along with specific examples of forms, checklists and assessments can arm an insurance broker with the tools they need in the marketplace. More specifically, this information provides a broker important leverage points when negotiating the most competitive terms possible for the employer with the insurance carrier’s underwriter. Those points can lead directly to premium savings, which leads to healthier margins and stronger profitability. Build the IIPP because it is a CA state requirement and it is the right thing to do. But, believe that building a first class safety program will absolutely lower your long-term insurance costs.

For a sample IIPP, visit the Risk Management Center or contact Alyssa Burley at (619) 438-6869.