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Workers Compensation FraudPhysicians Perspective

August 14, 2014

Don Herip, MD, MPH, FACOEMCorporate Health Services

Palomar Health

2http://www.countynewscenter.com/news/billboards-warn-against-workers%E2%80%99-comp-fraud

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Fraud- Definition

• A false representation of a matter of fact—whether by words or by conduct, by false or misleading allegations, or by concealment of what should have been disclosed—that deceives and is intended to deceive another so that the individual will act upon it to her or his legal injury.

http://legal-dictionary.thefreedictionary.com/fraud

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WC Fraud- Types

• Employee• Physician• Employer• Attorney

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Affordable Care Act

• In an effort to offer health insurance to more employees employers may try to offset the increased costs of employer sponsored health plans with higher copayments and deductibles.

• Work injuries have 100% of medical costs covered without copays or deductibles.

• Case creep– Financial incentive for employees to seek care for non-work related

injuries under the workers compensation system instead of their group health plan.

– Both employers and physicians need to be aware of this financial incentive and thoroughly investigate the cause of work related injuries.

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Employee Fraud

• Claiming a non work related injury• Malingering or exaggeration of symptoms• Working while allegedly disabled• Self inflicted injury

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Background Screening

• Criminal background check– Theft– Embezzlement– Workplace violence

• Drug and alcohol tests• Verify references• Credit record

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Post Offer Physical Exam

• Review past injuries and illness• Match job demands to physical capacity• Physician review of the job description

– Physical requirements of the position– Mental requirements of the position

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Employee Orientation

• Describe the corporation’s philosophy regarding health and safety

• Describe protocol for work injuries and illness– Immediate reporting of injuries– Supervisor review of the incident– Witnesses interviewed

• Describe return to work program

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Employee Red Flags (1)

• Injury reporting not timely• No witness to the incident• Vague or contradictory description of cause• Subjective complaints not validated• Shopping for multiple physicians• Non compliant with treatment• History of multiple WC claims

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Employee Red Flags (2)

• Employment status in jeopardy– Poor performance - recently counseled– Seasonal worker near conclusion of job– Upcoming lay off or strike planned

• Domestic issues– Childcare requirements– Remodeling a home– Vacation request denied

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Medical History (1)

• Most information is from the patient– Patient’s history of accident– Subjective complaints

• Patient may withhold information– Level of pre injury function– Alternate etiologies for symptoms

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Medical History (2)

• Previous injuries to claimed body part• Previous medical care to injured body part• Obtain medical records

– Patient refusal to authorize release of records

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Occupational History (1)

• Employee accident report– Date completed vs. Date of Injury – Describe mechanism of injury- specific details

• Have patient describe a typical day at work• Part time work elsewhere

– Employees reluctant to divulge other work

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Occupational History (2)

• Work history– Time in current position– Previous work duties– Similar physical requirements

• Work environment– Recent discipline– Performance review– Termination notice

• Job satisfaction

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Physician – EmployerCommunication

• Discuss relevant information with the clinician

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Mechanism of Injury

• Specific description of mechanism of injury• Review accident report for accuracy• Location and time of incident – workplace?• Witnesses present during the incident?• Was the supervisor notified?

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Accident Investigation

• Investigate every accident• Work with supervisor to:

• Identify the cause of the problem• Correct the cause of the problem• Determine the severity of the injury or illness:

• The extent of medical treatment• The number of missed workdays• The number of restricted workdays

• Interview witnesses

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Physical Exam (1)

• Exam– Appearance– Gait and movement– Removing clothing and shoes– Transfer to exam table

• Attention to injured body part• Distraction exam if necessary

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Physical Exam (2)

• Inspection of injured body part: – Scars– Swelling– Deformity– Asymmetry

• Range of motion• Strength (consistency)• Neurological deficits

http://www.amazon.com/Jamar-12-0600-Hydraulic-Hand-Dynamometer/dp/B00081G60Y

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Physical Exam (3)

• Note unrelated physical exam findings• Examples of patient with inconsistencies

– Back pain– Shoulder pain– Ankle pain

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Patient Questioning

• Rapid and distracted patient questioning may reveal contradictory or inconsistent responses

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Physical Exam- Red Flags

• Discrepancy btw claimed distress and objective findings

• Lack of cooperation with physical exam• Poor compliance with prescribed treatment• Preoccupation with claimed injury• Patient response vague or evasive• Interfering spouse or friend• Exam not consistent with anatomic patterns

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Clinical Care (1)

• Do not accuse the patient of “faking” an injury• Direct confrontation not recommended

– Patients are emotionally fragile

• Indirect approach– Allow patient to save face– Explain objective findings

“I am not finding the usual signs associated with your injury”

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Clinical Care (2)

• Careful diagnostic testing• Repeat clinic visits to document findings• Continuity of care- same clinician• Explain anticipated healing process to patient

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Physician Philosophy

• It is far worse to overlook a disorder• When in doubt presume dysfunction• Taught to sympathize with their patients• Taught to believe their patients• No motivation or expertise to obtain other

sources of information• Desire to support the patient• Obligation to patient

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Physician’s Practice

• See many patients with chronic conditions• It is difficult to detect malingering• They do not have time to investigate• It is easier to just treat the patient

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Clinician

• Document clinical findings carefully• When in doubt do not assume the patient is

malingering.

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Modified Duty

• Cornerstone of rehabilitation• Facilitates early return to work• Improves quality of life• Work restrictions

– What they can do– What they cannot do

J Workers Comp. 2000;10:60-75.

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Return To Work- Employee Obstacles

• Extreme symptom reporting• Fear of movement• Fear of re injury• Passive coping strategies• Negative expectation of recovery• Uncertainty of the future• Low job satisfaction• Low social support at work

Kendall, Burton, Main, and Watson: TSO Books, 2009.

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Return To Work- Employer Obstacles

• Lack of job accommodations or modified work• Lack of employer communication

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Employer Actions (1)

• Hiring protocols– Background checks– Work history of many short term jobs– Pre placement exams

• Drug testing• Orientation programs

– Explain Work Comp injury policy– Employee are expected to follow safety rules– Prompt reporting of work injuries– Describe aggressive investigation of work injuries– Explain that Work Comp fraud is a felony

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Employer Actions (2)

• Install video equipment• Maintain a safe workplace

– Harder to justify “fake” injuries– Recognize safe behaviors– Include safety as a meeting agenda item

• Have a return to work program– Temporary alternative duties

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Employer Actions (3)

• Create a safety culture/program• Incorporate safety into supervisor and manager

performance reviews• Listen to employee complaints• Correct safety problems immediately• Show you care about good working conditions

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