Planning for Fraud
By: Andres Gomez
The question of whether to file fraud under La. R.S. 23:1208 is generally very fact specific and individualized to each case. It would be impossible to go over all of the different issues that would apply to fraud in an email blast. However, there are certain items that will generally assist in preparing file for a fraud claim. The best time to start preparing to file fraud is not when you uncover information, but rather from the outset of the case.
- LWC-WC-1020 – While this is often used as part of an SEB claim, a good practice is to make sure that this is requested even from those that are on TTD status. While there may be some push back when the claimant is on TTD, “They aren’t released to work so why do we need to provide this form?” This provides an extra layer for fraud allegations. It allows us to show intent and circumvent a claim of ignorance.
- LWC-WC-1025EE – This form should be included in the initial documents for the claimant to fill out. Typically, the initial packet includes the LWC-WC-1121, HIPAA form, etc. Including it in the initial packet will inform the claimant of the consequences of working while collecting benefits without setting off any alarm bells.
- Choice of Physician Form – More and more attorneys seem to be attacking the choice of physician when there is no signed form because they want the claimant to see their doctor. This allows the attorney more control over the claim and allows them to dictate treatment a lot more. It is always important to have the claimant sign this form for every physician selected in case they contend they did not pick them or attempt to lie to get a different doctor.
- Independent investigations – When the fraud is based on activity level seen on the claimant’s social media during your investigation, reach out to your preferred investigative company and provide them with what you found and ask them to find the same thing. Social media evidence needs to be properly authenticated before it can be introduced. The proper authentication of social media could be an hour-long presentation in and of itself but, in terms of preparing the file for fraud, having the posts come from an investigator allows the posts to be preserved for use in case the posts get deleted.
- Statements – If you are able to record every interaction with the claimant, do so and preserve those recordings. We often see instances where the claimant will say something to the adjuster that runs completely contrary to what the physician told them or what they reported to the physician. In many of those instances, the phone call is not recorded, making the use of what was said at that time far less effective in a fraud claim. If you have the recording capability, it is better to record them and not need them than need them and not record them.
While each case is different and there is no definitive and exhaustive guide to fraud, in the majority of cases, having a file papered early will make it easier to make a decision on whether fraud needs to be filed and, perhaps more importantly, will allow the fraud filing to occur with little to no suspicion from the claimant of their attorney.
It is important to remember that, while the statute limits the ability to file a Disputed Claim for Compensation under 1208 to instances where benefits of some kind have been paid, the filing of the 1008, even without that, is rarely challenged by the claimant attorneys on that procedural issue.
