Tuesday, November 24, 2015

The Bumped Knee Massacree

If it doesn't work, is it fraud? 

If the result of some accident turns out to not be an injury, is it fraud to visit the doctor to find that out? 

There was a story last spring in the Daily Republic regarding a man standing trial for workers' compensation fraud. Fraud is a common subject in the news. Many states are taking a harder position on workers' compensation fraud. Some are doing an amazing job of publicizing their efforts. This story is worth reading, and the comments that have been added since it ran may also be interesting. 

I am confident I see more fraud news stories from Ohio than any other state. I recently sat with a regulator from Ohio at the Southern Association of Workers' Compensation Administrators (SAWCA) Regulator Roundtable (TM) in Orlando at the #WCEC2015. I mentioned my perception of Ohio and he acknowledged that his agency does a good job of publicizing those convicted of taking benefits to which they were not entitled. This is an intended part of their deterrent effort. 

It is important to remember that there are a vast number of people who have workplace accidents. That the Internet reveals tens of cases of fraud allegation or conviction, compared to that vast number of work injuries, suggests that despite the seemingly significant volume of news stories, only a very small percentage of those injured are ever accused or convicted of fraud. But it is a problem for those with legitimate injuries. The fraudsters may cast doubt on the system, reinforce bias and suspicion, and potentially take benefits from deserving people. 

The Daily Republic piece was interesting because the accused there never received anything. It reminded me of the longest song of all time (I will get emails correcting me on that point), Alice's Restaurant by Arlo Guthrie. This was a Vietnam-era song essentially protesting the induction of young men who chose military service over jail. A complex subject, the song meanders for about 30 minutes to tell the folksy tale of a Thanksgiving dinner "that couldn't be beat." 

The Alice's Restaurant "Massacree" (phon.) involves the dumping of the resulting Thanksgiving garbage, after the meal "that couldn't be beat." Driving about town in a "red VW microbus," with a half-ton of garbage, Guthrie is helping his hostess by taking her garbage to the dump. They find the dump closed for Thanksgiving, and leave in frustration, "off into the sunset looking for another place to put the garbage." 

As they drive back from the dump, they see "another pile of garbage" at the bottom of a small ravine. They decided that "one big pile was better than two little piles" of garbage. Applying considerable logic, they conclude that "rather than bring that one up, we decided to throw ours down." The savvy reader has already noted that big pile or small, Arlo and company have just littered. Needless to say they are discovered and prosecuted. 

Towards the end of the song, our protagonist Guthrie sits on a bench in the police station and is approached by a man who "was mean and ugly and nasty and horrible and all kinds of things," who asked him "kid, what'd you get?" Describing his recent experience with the justice system, Arlo tells him "I didn't get nothin'. I had to pay fifty dollars and pick up the garbage." It is farcical and funny. If you have never heard it, and you have 30 minutes to kill (not kidding), give it a listen this Thanksgiving as you ponder the feast clean-up. 

Much like Arlo, the protagonist in this workers' compensation story likewise "didn't get nothing" except a preliminary medical exam, and prosecuted for fraud. 

The story reports that Deonte Walker "bumped his knee at work." He thereafter "limped into a NorthBay Healthcare medical clinic using borrowed crutches." Mr. Walker never saw a doctor, but was examined by "a physician's assistant who thought he was faking it." The clinic visit was "billed at $102 along with X-ray costs." 

Thereafter, he neither returned to the clinic nor to work. He received no "payments from anybody for the injury claim." His employer, though, referred the matter to their insurance company and surveillance was undertaken. Video demonstrated Mr. Walker "running up a flight of stairs a week after his injury," and the insurance company reported the matter to the District Attorney. 

The story says that by the time the District Attorney had been contacted, "Walker, who has no criminal history, had called his employer saying he wanted to drop the injury claim altogether." According to the story, after "medical, in-house reviews, billing and investigative costs," the initial $102 spent on the claim substantively had "added up to more than $5,000.00." 

Fraud charges were pursued "on the basis that Walker had lied to his employer and to the physician's assistant about his injury." Because funds were expended on "assorted medical, bureaucratic and investigation costs," Walker was also charged with theft. 

This story made me think of Alice and Arlo, see above. But beyond that it made me think of some broader questions. First, how does $102.00 in actual benefits balloon into $5,000.00? How prevalent is it for an employer to pursue surveillance regarding an employee who makes one trip to a medical clinic, and never sees a doctor? And finally, is it fraud to go to a clinic to be examined and to see if you are injured? 

Arlo makes some fun in his song. He says that the investigation of his littering offense was "the biggest crime of the last fifty years" and that the local officials "turned out in force." They were "usin' up all kinds of cop equipment" and "takin' plaster tire tracks, footprints, dog-smellin' prints" and they "took twenty-seven 8 x 10 colored glossy photographs." 

For the millenials, we used to take pictures with a camera, not a cellphone, and the results were often printed on special paper so "pictures" were viewed on paper, not on our computers or phones. clarity could be hoped for in printing the photos in a large format, and 8 x 10 was a popular, larger size. 

But back to the story. In other words, the police investigated Arlo's littering infraction like it was a federal murder scene. Arlo noted that "everybody wanted to get in the newspaper story about it." 

The Deonte Walker story made a small splash in workers' compensation news circles. It was featured on LexisNexis, the Daily Republic, and Thereporter.com last spring. I suspected this "bumped knee massacree" would return to the news so that everyone would by now know whether Deonte "had to pay fifty dollars and pick up the garbage." But the matter has not resurfaced to date. Perhaps like "how many licks it takes to get to the center of a tootsie-pop," (another boomer pop-culture reference you can Google) the "world may never know" how the prosecution concluded. 

Make no mistake, I am not advocating fraud. But this "Bumped Knee Massacree" made me wonder. Is it fraud to visit a clinic for an examination? The Massacree also made me think about Arlo, Thanksgiving, and all that entails. The case makes for interesting reading, and perhaps some conversation. 

Here's wishing you and yours a great November and a safe and happy Thanksgiving. For my part this week, I reflect today on this industry and the people I have met in it. I had the chance to see a fair number of them this year at confernces and events. I have learned a great deal from so many, whose patient professionalism contribute so much to workers' compensation. 

I am thankful for each of you and for the opportunities I have had to expand my knowledge of the law. Your suggestions and challenges make this job interesting and worth doing. In reflecting this week, I have much for which to be thankful. I hope you do too.