Archive for February, 2015

Fraud Allegations in Workers’ Compensation Claims

By Bruce P. Miller

Friday, February 20th, 2015

With increasing frequency, insurance companies are raising the defense of fraud on the part of a Petitioner in Workers’ Compensation cases. There is an anti-fraud provision in the Workers’ Compensation law. It is a fourth-degree crime for making “a false or misleading statement, representation or submission concerning any fact that is material to that claim for the purpose of wrongfully obtaining the benefits.” The alleged fraudulent statements must have been “purposely or knowingly” made.

If the Judge of Compensation finds that such fraudulent statements or representations had been made, the Court “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.”

Instances of fraud that have been alleged by insurance companies in Workers’ Compensation cases include a Petitioner providing false or misleading information insofar as his/her health history is concerned, medical treatment history and even exaggerations of his/her symptoms, such as inability to participate in certain activities and experiencing pain.

When analyzing the facts of a Workers’ Compensation case in order to ascertain whether fraud has been committed, New Jersey’s Appellate Courts have consistently held that the Workers’ Compensation law is socially beneficial legislation and must be interpreted liberally and inclusively. Moreover, the anti-fraud provision is only intended to root out fraudulent claims. It is not meant to merely to test “an injured person’s ability to remember every detail of a lengthy medical history or to accurately determine what may be material for purposes of receiving treatment or other benefits.” Bellino v. Verizon Wireless, 435 N.J.Super 85 (App. Div. 2014).

Our Appellate Division has emphasized that the Workers’ Compensation law is intended to afford coverage to as many injured workers as possible; accordingly, “all elements of the anti-fraud provision must be proven by competent evidence for a Motion to Dismiss to prevail on those grounds.” Our courts have emphasized that it is not enough that the Respondent show that the injured worker made an inaccurate or false statement or omitted some facts. Rather, the Respondent must show that the injured worker acted purposefully or knowingly with the intent to receive benefits that he/she knew they were not entitled to and that the false statement or omission was made specifically for the purpose of falsely obtaining benefits “to which the worker was not entitled.”

Moreover, our Courts have stated that even if it is shown that an injured worker has lied or given false statements, if that false statement has no connection to the injury itself the Courts will generally overlook the fraud that may have been committed.

The Workers’ Compensation law is well known to represent “social or remedial legislation” and is to be liberally construed. Accordingly, although injured workers should avoid giving false or misleading information or omitting important facts for the purpose of falsely obtaining benefits, the Workers’ Compensation judicial system in New Jersey is clear that an injured workers’ memory does not have to be perfect, and that individual’s recital of symptoms need not be exact in every detail.

If it is apparent that the worker’s information is essentially accurate and truthful and given in good faith, the fraud statute will not provide a barrier to the award of Workers’ Compensation benefits.

Can I Receive Workers’ Compensation for Injuries Occurring off the Job Site?

By Barry Dratch

Thursday, February 5th, 2015

It is well established that an employee is entitled to workers’ compensation benefits if he or she is injured at the job site in the course of his employment.  N.J.S.A. 34:15-7 states, “To prevail in a claim for Workers’ Compensation, a petitioner must prove that his or her injury arose out of and in the course of employment.”

However, will that employee be covered if he or she is in a car accident on the way to work?  What about if the employee trips and falls in a parking lot before entering the job site?  In order to determine eligibility for workers’ compensation for injuries occurring off the job site, New Jersey Courts will examine the facts particular to each case.  Eligibility is determined by the “going and coming rule” and its exceptions.

N.J.S.A. 34:15-36 states (in pertinent part):

“Employment shall be deemed to commence when an employee arrives at employer’s place of employment to report for work and shall terminate when the employee leaves the place of employment… provided, however, that when the employee is required by the employer to be away from employer’s place of employment, the employee shall be deemed to be in the course of employment when the employee is engaged in the direct performance of duties assigned or directed by the employer; but the employment… of any employee who utilizes an employer authorized vehicle shall commence and terminate with the time spent traveling to and from a job site or the authorized operation of a vehicle on business authorized by employer.”

The “going and coming” rule is intended to preclude the award of workers’ compensation benefits to accidental injuries sustained during routine travel to and from employee’s regular place of work, based on the principal that routine travel does not  yield a special benefit to employer nor does it expose the employee to risks peculiar to the industry.

While the “going and coming” rule precludes many injuries that occur off the jobsite from eligibility, there are exceptions to this rule.  These rules were spelled out by the New Jersey Supreme Court in Zelasko v. Refrigerated Food Express, 128 N.J. 336 (1992).  The two exceptions to the “going and coming rule are the special mission except and the travel time exception.

1)      The “special mission” exception allows compensation at any time  for employees:

a)      required to be away from the conventional place of employment;

b)      if actually engaged in direct performance of “employment duties”

2)  The travel time exception  allows portal to portal coverage for employees

a)      paid for travel time to and from distant job site or

b)      using and employer-authorized vehicle for travel time to and from a distant job site.

Another instance where an injury which occurs off of the job site could be compensable are the parking lot cases.  If an injury occurs in a parking lot before an employee checks into work or after he leaves work, compensability will depend on the employers control over where employees park.  If an employee can park wherever he wants, then compensability will not begin until the employee actually enters the job site.  However, if an employer can control where an employee parks, the employee is covered from the point of arrival at that location.  For example, if the employer owns and controls a parking lot, and instructs its employees to park in the back of the lot so that customers can park closer, injuries which occur in that parking lot would be compensable.  In that scenario the employer owned the lot and instructed Petitioner where to park for the convenience of its customers, a benefit to the employer.

As discussed, it is fact specific as to whether an employee injured before entering the job site would be eligible for workers compensation benefits.  If the insurance carrier denies your claim for benefits based on the “going and coming” rule, you should consult an attorney to determine if the facts of your case meet one of the exceptions to the rule.