By:
Attorney Jeffrey S. Monaghan
Over
the past several years there has been an increased emphasis by defense
attorneys representing workers’ compensation carriers in the defense of
workers’ compensation claims for information regarding an injured workers prior
medical history and a request for medical records of any doctor who had
previously treated the injured worker, including the injured worker’s family
doctor’s medical records. Workers’
Compensation Insurance Carriers, as part of their investigation of a work
related claim routinely conduct a search that indicates information as to
whether the injured worker has ever previously been involved in any types of
accidents or lawsuits. When information is turned up in this investigation that
proves to be different from the information initially provided by the injured
worker, insurance carriers are contending that the injured worker has violated
the anti fraud provision of the workers’ compensation statute.
The
New Jersey anti fraud provision contained in N.J.S.A. 34:15-57.4 reads as
follows.
If
a person purposely or knowingly makes when making a claim for benefits pursuant
to (the Workers’ Compensation Act) a false or misleading statement, representation
or submission concerning any fact which is material to that claim for the
purpose of obtaining the benefits, the Workers’ Compensation Division may order
the immediate termination or denial of benefits with respect to that claim and
a forfeiture of all rights of compensation or payments sought with respect to
the claim. The anti fraud provision
establishes a fourth degree crime for making a false or misleading statement,
representation or submission concerning any fact that is material to the underlying
claim for the purpose of wrongfully obtaining workers’ compensation benefits.
On
March 14, 2014, the New Jersey Appellate Division in the case of Natalie
Bellino v. Verizon Wireless rendered a decision, which among other
things specifically considered and addressed the issue of what specific
allegations must be established and proven in order for the anti fraud
provision to apply.
In
the Bellino case, the defense attorney representing the workers’ compensation
insurance carrier charged that the injured worker had given inconsistent and
inaccurate information regarding her prior medical history and prior use of
medications to the doctors who had rendered treatment to her in aftermath of
the work accident, as well as the doctors who had examined her for the purpose
of estimating her overall permanent disability from the accident. Specifically, the defense attorney charged
that the injured worker failed to acknowledge a prior workers’ compensation
injury approximately 10 years prior to the current accident, involving similar
injuries to the body parts being alleged in her current claim.
According
to the defense, the conflicting and inaccurate information amounted to a
“fraud” on the part of the injured worker and in order to receive a workers’
compensation award by intentionally making false and misleading
statements.
After
a full Trial, before a Workers’ Compensation Judge, the Trial Judge rejected
the fraud defenses raised by the insurance carrier and found the injured worker
entitled to workers’ compensation benefits. The Trial Judge indicated in his decision that he had found the overall
testimony of the injured worker credible, honest and straightforward.
The
workers’ compensation insurance carrier took an appeal to the New Jersey Appellate
Division and among the issues raised on the appeal, the defense contended the
Trial Judge should have denied and dismissed the workers’ compensation claim
due to the specific violations of the anti fraud provision of the statute.
The
Appellate Division in affirming the Trial Judge’s decision, found that the anti
fraud provision of the statute is intended to rule out fraudulent and improper
claims and is not intended to test an injured workers ability to remember every
detail of perhaps a lengthy complicated past medical history, or to accurately
determine what information may be material for the purposes of receiving
treatment or other workers’ compensation benefits. The Appellate Division held that all elements
of the anti fraud division must be proven by competent evidence in order for a
defendant’s Motion to Dismiss a claim based on violation the anti fraud
provision to prevail.
Notwithstanding
the decision of the Appellate Division in Bellino case, which sets forth
specific elements which must be clearly established and proven by a defense
carrier in asserting a claim that an injured worker has violated the anti fraud
statute, it can be expected that defense insurance carriers will continue their
practice of attempting to raise fraud charges when incomplete or inaccurate
information is provided by an injured worker concerning their past medical
history.
For
the most part, an individual’s past medical history unrelated to the specific
injuries being alleged in the pending workers’ compensation case has little or
no relevancy to their case at hand and such information need not be turned over
the to the defense in connection with their defense of the pending case. Nevertheless, to avoid repeated delays in the
prosecution of their case, and avoid fraud charges being alleged against them
by the insurance carrier, it is incumbent on an injured worker to be as
detailed and accurate as possible in explaining their complete past medical
history to the attorney who is representing them in the pending claim. The claimant’s attorney can then make an
accurate assessment as to what if any information regarding a worker’s past
medical history is relevant to the case at hand and should be shared with the
defense attorney.