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Industry Insights

Rousmaniere: Ensnared by Workers' Comp

  • National
We may look back to this time as a period when one out of every 10 injured workers faced the risk of criminal prosecution and deportation for the act of submitting a legitimate workers' compensation claim.

Michael Whiteley of  WorkCompCentral reports that law enforcement agencies in at least two states recently adopted strategies to arrest undocumented workers on the grounds that using an invalid Social Security number in their claims submission defrauded the insurer. 

First report of injury forms include a field for a Social Security number. The number links the claimant to personnel and payroll data on the employer's books. Normal payroll deductions are taken for the number to hold for future Social Security and Medicare benefits, to which the claimant may never be able to enjoy. By definition, the Social Security number on an undocumented worker's claims record is invalid. 

The eight million undocumented workers comprise about 6% of the total civilian workforce. By studying estimates of undocumented worker penetration by occupations ranked by injury risk, one can reasonably project that undocumented workers sustain one out of every 10 work injuries. This high volume is invisible to almost everyone except for adjusters, case managers, lawyers and others who work directly with injured workers and have learned their work and life patterns. The rate varies greatly, from maybe 2% in West Virginia, a low foreign-born population state, to over half within the fruit- and vegetable-producing counties of southern California.

At my request, the Workers' Injury Law & Advocacy Group asked if its members were aware of intimidation, claim denials or arrests that arose from the use of other persons' Social Security numbers. Within a few hours my email inbox lit up like a Christmas tree. 

A Florida attorney with whom I had spoken earlier sent adjuster notes obtained through discovery for a June 2012 injury at a dairy. The adjuster wrote on June 27, 2012, "claimant, three children, obtained SSN from his brother when his brother returned to Mexico. Married, 9th grade educ in Mexico." In March 2013, the adjuster wrote: "SIU check found that SSN was issued in Puerto Rico sometime between 1936 and 1950." 

In March 2013, the adjuster wrote that the case had been referred to a West Palm Beach, Florida, investigator. On April 4 the notes state that the claimant was arrested for using a false number to gain employment and false filing of a workers' compensation claim. The legal basis for the arrest was not given but was most likely insurance fraud statute, 440.105 (4)(b), currently being challenged in superior courts (Florida v Brock). 

This worker's guileless comments about the passed down number shows how accustomed undocumented workers, their employers and workers' compensation claims payers are to tacitly accommodating illegal work status while processing workers' compensation benefits. In all but a few jurisdictions, undocumented workers can legally obtain benefits, a right assured by state law and state superior courts. 

What's changed, it appears, is the climate. Perhaps tacitly going along is viewed by some as a form of amnesty. Maybe workers' compensation fraud teams are hungrier for results and see identity theft as easier to document than traditional fraud such as faking disability. 

Step back to consider the implications on the industry's commitment, as phrased by the National Council on Compensation Insurance, to "help foster a healthy workers' compensation system." 

Some applicant attorneys allege that defense lawyers sometimes ensnare their undocumented clients by teasing out during depositions information they then package over to law enforcement. Sometimes, they tell me, there is a threat. "Retaliation and threats of retaliation have created a culture of fear," The National Employment Law Project asserts, citing its recent survey that illegal immigrant workers are hesitant to file workers' compensation claims or assert other rights out of fear of retaliation. 

Workers' compensation benefits and work safety join in a circular flow of cause and correction. Len Welch, Chief of Workplace Safety for California's largest workers' compensation insurer, the State Compensation Insurance Fund, says that immigration reform could be the most important work safety advance in the next five to 10 years. "When you have undocumented workers, the odds of accidents go way up. It's the tip of the iceberg of the massive underground economy in the state," he said. 

James Baldwin, debating William Buckley at Cambridge University in 1965, described the legacy of slavery as the tragedy "when one has absolute power over another person." To the undocumented worker, her or his employer holds nearly absolute power over safety. A work injury could result in jail time and deportation. Neither the workers' compensation system or worksite safety are healthy when one tenth of injured workers are in a constant state of vulnerability.  

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