Monthly Archives: January 2013

Are Medical Doctors Willing Puppets for Cross-examination?

Posted on January 31, 2013 by Roger Moore

It used to be that the most to fear from an examination scheduled by an insurance company would be an unfair or incomplete assessment of the work injury. Now it seems insurance companies are using doctors to essentially cross-examine injured workers and delve deeply into irrelevant issues in an attempt to embarrass, harass and probe where they do not belong.

-Do you have painful, frequent, or difficulty urinating?

-Do you have painful breasts, periods or intercourse?

-Have you suffered physical, sexual or emotional abuse?

-Do you have erectile difficulty?

-Do you get along with supervisors and other employees?

-Do physical or mental problems run in your family?

-Is anyone in your family disabled?

-Did you smoke, drink or use illegal drugs in the past?

These are some of the more disturbing questions asked by a doctor of a patient in a pre-exam questionnaire sent directly from the doctor’s office to the injured worker. You might surmise that this was a case of some sort of reproductive injury associated with mental duress of some type by looking at the questions. In fact, this worker only alleged carpal tunnel syndrome! Most assuredly, embarrassing facts about this worker would just happen to show up in the defense doctor’s final report for the Court’s review at trial.

Any time anyone other than your lawyer sends you something to complete, you should be very careful about filling it out. It’s probably unethical for doctors to send these reports to injured workers who are represented, but we’re seeing more and more of these go out. They are becoming more and more intrusive; in fact, this questionnaire was 11 pages long. It’s my practice not to have clients complete any of these pre-exam questionnaires from doctors.

Take Someone to the Doctor with You

Posted on January 28, 2013 by Jon Rehm

Having a work injury is incredibly stressful. Sometimes when a worker is under stress, they won’t understand what a treating doctor is telling them, which leads to frustration and anger on the part of the worker directed toward the doctor. In turn, the worker’s attitude will lead many doctors to not cooperate in a worker’s case. This is especially true if the insurance company has a nurse case manager working on the claim.

One solution for an injured worker is to bring a trusted friend or family member to the doctor with them to medical appointments. I see at least two advantages to bringing in someone else:

1) another person would be able to help you describe symptoms and how the injury happened and

2) the other person can help you understand what the doctor is telling you.

But not every friend or family member is the right choice to go to an appointment with you. You should choose someone who is level headed so that they do not get into an argument with the doctor. You should remember that the doctor is taking down a record of your visit and that that written record will likely be looked at by the judge deciding your workers’ compensation case, should your case go to trial. If you or a friend or family member gets into an argument with a doctor, it will likely hurt your case.

Injured workers who are non-English speakers can present more challenges to effective medical treatment. Not only is there a language barrier but there is often a cultural barrier as well. The language barrier is often used to the advantage of the employer and insurer, because they will often provide interpreters to the doctor. Non-English speakers should try to bring along a fluent interpreter in their language. A bad interpreter can almost be as bad as no interpreter. However, the same rules about temperament and judgment apply for those who go to doctors with non-English speakers. Sometimes doctors get frustrated with language and cultural barriers of non-English speaking injured workers. Employers and insurers know this and use this to their advantage.

What Medical Expenses Are Covered In A Workers’ Compensation Case?

Posted on January 24, 2013 by Roger Moore

In Nebraska and Iowa, as is the general rule, an employer is liable for all reasonable medical services incurred as a result of a work injury. This is interpreted fairly broadly to include plastic or reconstructive surgery, prosthetic devices, and medicines, among other treatments. As long as the treatment is designed to relieve pain or promote and hasten the employee’s restoration to health and employment, the employer is liable. When a treatment meets these conditions, an injured worker should not be responsible for any portion of the medical bill.

The main difference is in Nebraska, as long as the worker elects a prior treating doctor to treat their injury (for example, the worker’s family doctor), that doctor can dictate the medical care and refer them to others for treatment. If no election is made, then like in Iowa, the employer can choose the doctor to treat a work injury as long as the employer accepts compensability for that injury. However, in Iowa, if the worker can establish that the medical care furnished is unreasonable, then the worker can choose another medical provider. In both states, if a claim for a work injury is denied, the worker can choose their own doctors to treat with.

If no Petition is filed in Nebraska, an employer continues to be responsible for medical care as long as there is less than a two-year gap in the payment of a medical bill by the employer or insurance company or the payment of temporary or permanent benefits to the injured worker. Also, if the Court enters an order finding the injured worker entitled to future medical care, there is technically no time limit for seeking medical care.

In Iowa, medical benefits cannot be used to extend the deadline to file a claim for benefits. There is no time limitation in seeking medical care relating to an injury either before or after an Award for benefits.

However, in practical terms, large gaps in treatment will likely be met with skepticism from the employer – and possibly the Court – concerning the relationship between the work injury and the medical care. We recommend you seek consistent medical care where there is a need for it to avoid such issues.

$97 Million In Fraud: 2012’s Top 10 Workers’ Compensation Fraud Cases

Posted on January 21, 2013 by Rod Rehm

CFO Jeff Atwater and Broward Sheriff Al Lamberti announced multiple arrests in Operation Dirty Money.

Today’s post comes from guest author Leonard Jernigan from The Jernigan Law Firm in North Carolina. It is unfortunate that this article is necessary, but I appreciate the important work Mr. Jernigan does to compile these fraud cases. It seems like the headlines frequently feature employee fraud, but employer fraud occurs, too, and sometimes on a much grander scale. As Mr. Jernigan points out, it’s the workers and taxpayers who are on the hook with employer fraud when an employee gets hurt and doesn’t have the coverage that they expected.

Over the past few years, many states have aggressively gone after workers’ compensation fraud (whether it’s the employee or the employer) and the amount of employer fraud being discovered continues to be staggering, notwithstanding these efforts. Legitimate business owners that pay for workers’ compensation, as required by law, are at a competitive disadvantage with those who cheat the system, and when people suffer a workplace disability and have no insurance local businesses that provide goods and services feel the pain along with health care providers who cannot get properly paid for their services. The cost of medical care and disability ends up being shifted to the taxpayer through Social Security, Medicare and Medicaid, and in states where compliance is not vigorously enforced a culture of cheating continues. The top ten cases for 2012 are listed below.

2012 TOP TEN WORKERS’ COMPENSATION FRAUD CASES Total Fraud: $97,466,500.00

1. ‘Operation Dirty Money,’ Stings Workers’ Comp Fraud Check Cashing Scheme

Florida: July 27, 2012

Multiple arrests were announced in Florida’s joint task force’s ‘Operation Dirty Money,’ which led to the arrest of alleged ringleader Hugo Rodriguez, owner of the Oto Group, Inc., and seven other individuals. Mr. Rodriguez was the facilitator of 10 known shell companies that funneled in excess of $70 million in undeclared and undetected payroll through different money service businesses. By using shell companies, Rodriguez was able to run a large construction operation and avoid paying the cost of workers’ compensation coverage, leaving employees at risk and scamming legitimate businesses.

2. Firms Face Charges for Skipping Workers’ Comp Payments

Ohio: May 13, 2012 Thousands of Ohio companies violated state law by not paying their most recent workers’ compensation premium, which can drive up insurance costs for businesses that follow the rules, a Dayton Daily News analysis found. The bureau identified about 41,247 private employers in the state that failed to report their payroll data and submit premium payments by the deadline. As of May, more than 12,200 accounts remain outstanding, and those companies owe an estimated $5.6 million in premiums.

3. Case Proves Employee Leasing too Good to be True

Texas: July 10, 2012

$4,466,500.00 was awarded in a Texas court against a staffing agency and its workers’ compensation insurance company. Jackson Brothers Hot Oil Service hired Business Staffing, Inc., (BSI) in 1999 and required BSI to have workers’ compensation insurance for its leased employees. BSI had 150 client companies with 2,000 employees. BSI bought a policy from Transglobal Indemnity for a total premium of $4,100.00 to cover all its employees. After failing to pay the medical bills of a 27-year-old oil field worker who was in an explosion and had 18 surgeries, the employee and Jackson Brothers sued BSI and Transglobal for fraud. Neither Transglobal (who had its corporate headquarters in the Turks and Caicos Islands) nor BSI had a license to conduct insurance business in Texas.

4. Business Owner Faces Insurance-fraud Charges

California: May 2, 2012

George Osumi was indicted on numerous felony counts.

Construction business owner George Osumi of Irvine, California was indicted on numerous felony counts of misrepresenting facts to the State Compensation Insurance Fund, among other charges. From December 2001 to March of 2006, Mr. Osumi committed workers’ compensation premium fraud by reporting his payroll to SCIF at just over $1 million, under-reporting over $3.5 million in payroll. This fraud resulted in a loss of over $814,000.00 in premium owed to the insurance fund.

5. Watertown Roofing Company and its Owners Plead Guilty and are Sentenced for Labor Violations

Massachusetts: January 11, 2012

Newton Contracting Company misclassified half of its workforce as subcontractors.

The Massachusetts Insurance Fraud Bureau discovered that the company, Newton Contracting Company, Inc., owned by Shaun Bryan and Antoinette Capurso-Bryan, misclassified half of its workforce as subcontractors, as well as failing to disclose to auditors more than $3.4 million of their company’s misclassified subcontractor payroll during its annual workers’ compensation audits.

6. 7-Year Sentence in $3.1 Million Fraud Case

California: November 30, 2012

Steven Morales, 65, of Wildomar, CA was convicted and sentenced to seven years in prison for his part in a $3.1 million workers’ compensation scheme. His son Brian was also convicted and sentenced to 4 years in prison. Morales and his son had set up a sophisticated system of shell companies to hide payroll and avoid paying workers’ compensation premiums.

7. Construction Company President Accused of Payroll Fraud

Florida: March 29, 2012

Randall Seltzer, president of Navarre Industries, Inc., was charged with multiple felony counts, including workers’ compensation fraud. An investigation by Florida’s Department of Financial Services’ Division of Insurance Fraud revealed that Seltzer systematically and intentionally under-reported his corporation’s true payroll to his insurance carrier. The department’s Division of Workers’ Compensation issued the company two stop-work orders within a five-year period. Seltzer allegedly established a shell corporation in 2011 to intentionally violate the stop-work orders and continue operating his construction business illegally. If convicted, Seltzer could face up to 30 years in prison and pay over $2.8 million in restitution.

8. CFO Jeff Atwater Announces Arrest of Owner of Fake Company for Creating Fraudulent Insurance Certificates and Avoiding Millions in Premiums

Florida: April 13, 2012

Yucet Batista allegedly used a shell company to commit large-scale fraud.

Yucet Batista was arrested for allegedly creating more than 250 fraudulent certificates of insurance to help uninsured contractors avoid $2.1 million in workers compensation premiums. Batista created the company and obtained the workers’ compensation insurance policy for the purpose of “renting” it, or making it available to dozens of uninsured subcontractors for a fee.

9. Audits Uncover Almost $1.2 million in Workers’ Compensation Violations at Boston Marriott Project

Massachusetts: September 4, 2012

In 12 audits conducted by the Joint Enforcement Task Force on the Underground Economy and Employee Misclassification and the Executive Office of Labor and Workforce Development, it was discovered that there were $584,249.00 in misclassified 1099 wages and $584,287 in unreported W-2 earnings, for a total of $1,171,536.00 in unreported wages by subcontractors on the Marriot renovation project. Six companies misclassified workers as contractors rather than employees, and seven companies failed to report wages. Among the worst of the offenders were one company that misclassified 28 workers and failed to report over $410,000.00 in wages; another failed to report $462,081 in W-2 wages.

10. Inn Owners Facing Workers’ Compensation and Insurance Fraud Charges

California: June 13, 2012

Owners of the historic Brookdale Inn and Spa are facing trial on charges of falsifying wage information to obtain lower insurance premiums.

The owners of historic Brookdale Inn and Spa, Sanjiv and Neelam Kakkar, are facing trial on charges that they falsified wage information to obtain lower insurance premiums. According to records, the couple paid approximately $800,000 less in insurance premiums than they should have over a period of several years.

Are Big Business and Big Insurance Making Nebraska Doctors Scapegoats?

Posted on January 17, 2013 by Rod Rehm

New legislation has been proposed to reduce the quality of medical care for workers under the guise of reducing costs

Evidence-based medicine and utilization review (EBM/UR) of medical care for workers’ compensation are currently being pushed by big business and big insurance interests.

We are facing such legislation in Nebraska this year.

One reason supporters of this way to control medical care for workers give seems to be that medical care currently provided is “inefficient.”

This is a euphemism for medical costs are too high. I view this as critical of physicians and other health-care providers who are taking care of injured workers. The Florida Medical Association (FMA) has recently responded to this type of criticism of the medical profession. In their case, the Office of Insurance Regulation (OIR) and National Council on Compensation Insurance (NCCI) say workers’ comp rates are being raised because drugs are dispensed directly by doctors. But an OIR report, according to the article linked below, “shows virtually no difference in the cost of such drugs whether dispensed by doctors or pharmacies,” so the FMA disagrees with blaming their doctors for rate increases.

This quote is from the story linked to above: “The truth is that the NCCI and carriers have used physician dispensing as a scapegoat for hundreds of millions of dollars in rate increases when other medical costs have been the real cost drivers in workers’ compensation,” the group charged. “The numbers are fabricated in an attempt to eliminate doctor dispensing.”

Reversing A Century Of Progress – Are We Back In Upton Sinclair’s Jungle?

Posted on January 14, 2013 by Rod Rehm

Health Care Is Just The Beginning

Many workers no longer have paid sick days.

At a time when a flu epidemic is exploding out of control, killing thousands of people, forty-two million Americans have no sick leave. Many of these people are lower paid, often work part time, and continue to work when ill because they can’t stay home to recover without losing their income. I am shocked and dismayed that many hard-working folk are forced to work when sick because staying home is not economically possible. Making matters even worse, these highly vulnerable workers often have no employer-provided health insurance so even serious illnesses go untreated, putting us all at a higher risk for infection from a contagious worker, like a server in a restaurant, for whom taking an unpaid day off is impossible.

…the trend toward low pay, long hours and few benefits is getting stronger.

I fear that if the current trends continue, the lives of the millions of Americans who struggle at low-paying jobs will remain miserable, desperate and be lacking in real hope. It appears that the trend toward low pay, long hours and few benefits is getting stronger. At the turn of the 20^th century when Upton Sinclair wrote “The Jungle,” describing immigrants struggling in Chicago, the jobs were more physical, dangerous and just plain disgusting. However, millions of “New Jungle” workers still struggle and suffer today.

Class Warfare

After over 100 years of progress, the American middle and lower classes are under constant attack. The efforts to limit rights of workers are ongoing and supported by big business. Every day I read of measures being introduced in state legislatures to limit access to and decrease the benefits of workers’ compensation. The right to collective bargaining is being attacked as well. Local elections are overrun by anonymous innocent-sounding Super PACs funded by 21^st Century versions of robber-barons who are using their wealth and power to squeeze out a few more dollars in profits to add to the tens of billions of dollars already sitting in their bank accounts. These are not job creators, they are their own personal wealth creators. Income equality is at an all-time low in the United States, and the trends are getting worse.

How can this be happening in 21^st century America? How can we call ourselves civilized? Can we really allow such maltreatment of workers and disregard public health in what we call an “advanced,” “modern,” and frequently, an “exceptional” county?

A Path Forward

We are not without hope, though. Crusaders like Senator Elizabeth Warren are working hard to reverse the trends and preserve the American Dream for future generations. But our protectors are few. We cannot assume that someone else is looking out for us. We must engage with government at the local, state and federal levels so that the voices of regular working folk are not drowned out by a cabal of rogue billionaires trying to keep score by increasing their own personal fortunes at the expense of working people. I fear that if we sit by passively, our children will all be working in the New Jungle, America will have lost its middle class, and with it, the American Dream will be a distant memory. The time to act is now.

Firm takes pride in progressive worker-oriented law, Senator who fights to preserve it

Posted on January 10, 2013 by Rod Rehm

Sen. Steve Lathrop

Sandy Hook Elementary School, Newtown, Conn., is Exhibit 1 for why all states need to compensate first responders for post-traumatic stress disorder (PTSD).

A few years ago, the Nebraska legislature passed legislation allowing first responders to receive workers’ compensation benefits for mental disorders arising from their work even if they received no physical injury. The bill arose out of the horrible shooting at the Westroads Shopping Mall in Omaha. Recently the insurance industry has been asking to repeal the bill and the original sponsor, Sen. Steve Lathrop of Omaha, has resisted successfully.

Now we learn that the first responders who worked in the horror scene at Sandy Hook Elementary School in Newtown, Conn., can’t receive workers’ compensation benefits for mental issues that might arise. http://www.newstimes.com/local/article/Officials-hope-to-change-workers-compensation-law-4180221.php I assume the Connecticut legislature will respond, protect first responders in the future and hope there is no repetition of the horrific shootings.

Rehm, Bennett & Moore is proud that Nebraska law protects such workers. We are proud to have state senators like Steve Lathrop. Does the insurance industry care about anything other than dollars?

Report: Poor Health Costs Cost U.S. $576 Billion Yearly

Posted on January 10, 2013 by Rod Rehm

The U.S. loses more GDP to poor health than Sweden’s total GDP

Today’s post comes from guest author Nathan Reckman from Paul McAndrew Law Firm in Iowa. It looks like the flu season has come early and with a vengeance this year. This appears to be the case both nationwide and in our part of the Great Plains. A really impressive graphic in the “recently reported” link that Mr. Reckman highlights below shows that 39% of U.S. GDP is affected due to lost productivity! In this flu season, the article shows how important it is for all employers to provide sick days and also invest in the health of their employees. Because healthy workers are more productive, and the post below shows that the return on investment is worth it!

The Integrated Benefits Institute (IBI), a nonprofit health and productivity research organization for businesses, recently reported that poor health costs the U.S. economy $576 billion per year. Of this amount:

$227 billion is lost due to sick days or reduced productivity due to illness,
$232 billion is spent by employers on medical and pharmacy treatments, and
$117 billion is spent on workers’ compensation and short- or long-term disability wage replacement.

To give you a sense of the scale of this loss, it is larger than the entire gross domestic product (GDP) of all but the top 20 countries. Our $576 billion loss dues to poor health costs would fall directly behind the GDP of Saudi Arabia (2011 GDP: $577.6 billion) and in front of the Swedes (2011 GDP: $538.2 billion). For comparison, the U.S.’s $15,090 billion GDP was the largest in the world, followed by China at $7,298 billion.

…for every $1 employers invest in improving their employees’ health and wellness they save $3…

Sean Nicholson, Ph.D., quoted in the IBI report, has stated that for every $1 employers invest in improving their employees’ health and wellness they save $3 (quite a good return on their investment!). As wisely pointed out by IBI’s President, Thomas Parry, Ph.D., this report puts employers on notice that their investment in workers’ health and wellness will benefit both the workers and their employers.

This report, in addition to pointing out the dual benefits posed by increased employer investment in their employees’ health and wellness, points out one of the important choices facing our country’s healthcare system.

Source for 2011 GDP information: CIA World Factbook

Workers' Compensation Watch