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An Alternative Strategy for Protection against Illegitimate Treating Practices

By Joseph Yrulegui, Esq.


There is no dispute that workers' compensation fraud is present throughout the California system. Most attorneys and claim examiners have likely come across at least one treater who has provided either unnecessary or questionable treatment, or even billed when no such treatment took place. Unfortunately, as is often the case, unless the attorney/claims examiner puts together a rock-solid, unbreakable case for the district attorney, no prosecution or even investigation will ever take place. So what can an employer/carrier do to combat the fraud?


One option would be for the employer/carrier to send out a simplified EOB, or explanation of benefits, to the injured worker directly. As is often the case, the injured worker usually has no idea what is being billed by the treater, or even what exact treatment was provided. If the injured worker was given a statement showing exactly what was performed, how much it cost, along with other specifics, such as the date, he/she would be able to identify fraudulent activity, especially that treatment which never took place.


When I present this to clients, typically the first objection raised is that of the scenario where a claims examiner is bombarded by three trillion phone calls every day from the injured worker. Granted, this is a justifiable concern. However, preliminary results have found this to not be the case. Most injured workers are not aware of what they are looking at, and honestly, it would take a certain type of engaged worker to make the telephone call and report fraudulent activity. If needed, one way to prevent such overwhelming number of calls would be to create a separate telephone number, a fraud "hotline," whereby an injured worker can leave detailed voice messages about the alleged fraud.


Utilizing this strategy can create transparency between the injured worker and the employer/carrier. It has been my experience that the most frustrating aspect of the claims process for the injured worker is that of misunderstanding, and their inability to determine the outcome. Sending the EOBs can give the worker some control over his claim and provide some dialogue between the examiner and the worker – not to mention the goodwill created on the part of an examiner if the worker is reporting fraudulent activity.


The promotion of communication can strengthen the ties between the worker and employer/examiner, which would only serve to facilitate a painless and manageable workers' compensation claim. This communication will also lead to greater awareness on the part of the worker as to the true costs of medical care, perhaps even providing greater incentive for the worker to report fraudulent activity.


Ultimately, one of the best results from sending the EOBs to injured workers will be the effect on the treating physician. If a treating physician knows that his treatment practices are not only being watched by the carrier, but also by the injured worker, he/she might be more hesitant to bill for treatment not provided. After all, the injured worker is the party best positioned to discover and report fraudulent activity on the part of the treating physician. Only an injured worker will be able to testify if certain treatment was performed on any given visit.


Despite the numerous benefits this practice can provide to the carrier/employer, there are downsides to its implementation. For instance, many injured workers will simply not understand what they are reading, which could lead to pointless phone calls and wasted time for the claims examiner. In the end, though, sending out the EOBs to the injured worker could prove to be an invaluable resource for carriers/employers to combat fraud. The practice would lead to transparency, increased dialogue, and further awareness, which all translate into greater goodwill between the parties. That goodwill will invariably lead to a smoother claims process, with less aggravation and more satisfaction.


If you interested in hearing more about this strategy, or would like a seminar on the possibilities, please feel free to contact Yrulegui & Roberts. We can assist any carrier, third-party administrator, self-insured, or joint-powers authority in the creation, education, and implementation of these ideas.


Thank you very much.


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