The idea of harshly punishing white collar criminals is one of the few ideas that is popular across most of the political spectrum.
So in spite of the headline “Restoring the Death Penalty and other Reasonable Solutions to Workers’ Compensation Fraud”, I found myself agreeing with Robert Wilson’s post about increasing the criminal penalties for some forms of workers’ compensation fraud.
I had a good first reaction to Wilson’s post because he focused on the mild punishment for offenders who conspired with others to commit millions in fraudulent billing in California. (In Florida, medical billing fraud can get you elected Governor and United States senator, but I digress)
I give Wilson credit for focusing his recent discussion of workers’ compensation fraud on medical providers rather than on claimants. But then, I had some second thoughts.
First many doctors are reluctant to get involved in workers’ compensation cases. Adding harsh criminal penalties for doctors involved in workers’ compensation would discourage doctors from helping injured workers.
More importantly, who would be most vulnerable in a criminal crackdown on workers’ compensation fraud? It would be injured workers. Claiming workers’ compensation benefits is stigmatized for many reasons and almost assumed to per se fraudulent by many. Enhanced criminal penalties for workers’ compensation fraud would have to be done through legislation. Who has more political clout, doctors or injured workers’ making $12 per hour?
Wilson’s post made mention of a “woke” prosecutor in southern California who was willing to prosecute white-collar crime. “Woke” law enforcement is not common. Enhanced enforcement of workers’ compensation fraud by claimants would disproportionately impact working class wage earners. My guess is that would disproportionately impact lower income people of color who are more likely to work in labor jobs with high injury rates.
So should insurance companies just be allowed to get ripped off by crooked providers? As I thought more about Wilson’s post, I wondered why insurance companies couldn’t just sue crooked providers under Civil RICO. Civil RICO allows for treble damages for civil conspiracies as well as other damages. It can be a powerful civil tool againt fraud.
I beleive here are a few reasons why insurance companies would want to go the criminal route rather than the Civil RICO route in combating provider fraud. First of all, appellate courts have made it difficult to bring a Civil RICO case. When I say difficult, I mean cases routinely get tossed on the pleadings before discovery. The enervation of Civil RICO is connected to the enervation of anti-trust law that has allowed for Gilded Age levels of corporate consolidation.
Also, the insurance and claims industry likes to conspire, er I mean, collaborate with friendly medical providers themselves. Injured workers sucessfully brought Civil RICO claims in Michigan and Colorado alleging employers and claims managers have conspired with medical providers to undercut the value of their workers’ compensation claims.
In short, I believe the solution to workers’ compensation provider fraud is a robust civil justice system. Looking to the criminal justice system to root out workers’ compensation fraud will likely just lead to injured workers’ being targeted for criminal penalties.