State News : North Carolina

Written by: Matt Marriott

If you have worked on the defense side of workers’ compensation claims for any period of time, the above headline likely sounds like a work of fiction. While we have all heard of the elaborate measures the NCIC Fraud Investigation Unit takes to prosecute employers who fail to maintain proper insurance coverage, the idea of them prosecuting a plaintiff for fraud has seemed about as likely as witnessing a pig fly, having a unicorn walk through your backyard, or capturing a Sasquatch.

While the above skepticism might be warranted based on past experiences, the Industrial Commission Fraud Unit made its presence felt on July 31, 2017 when it arrested Randolph County plaintiff, Nicole Ewing, on charges of endorsing weekly benefit checks while failing to disclose that she was simultaneously working for another employer. http://www.ic.nc.gov/080817NCICnewsrelease.pdf

As many of you know, N.C. Gen. Stat. § 97-88.2(a) makes it a crime when “[a]ny person . . . willfully makes a false statement or representation of a material fact for the purpose of obtaining . . . any benefit or payment . . .” under the North Carolina Workers’ Compensation Act.  If a plaintiff is found guilty under 97-88.2(a), it will be a Class 1 misdemeanor if the amount of benefits received due to the fraud was less than $1,000. If the amount in question is $1,000 or more, the plaintiff will be guilty of a Class H felony.

If you have evidence that a plaintiff is committing insurance fraud, you can contact the NCIC Fraud Investigation Unit at 1-888-891-4895.  Helpful pieces of evidence that defendants can obtain to show proof of fraud are the following:

• A copy of a weekly TTD check that has been endorsed by the plaintiff while he/she was working elsewhere;
• A Form 90 executed by the plaintiff and representing that he/she was not earning wages during the date range designated on the Form 90;
• Surveillance evidence showing that the plaintiff was, in fact, working during the date range identified on the Form 90;
• Plaintiff’s wage and attendance records from the alternative employer with whom the plaintiff was working while receiving TTD benefits (Contact a workers’ compensation defense attorney to assist in having these records subpoenaed if you do not have access to them).

PRACTICE TIP

While we all hope the Fraud Division’s actions will help cut down on future workers’ compensation insurance fraud, it is important to understand, as an employer or insurance adjuster, thatyou can never threaten a plaintiff with prosecution by the fraud division!

N.C. Gen. Stat. § 97-88.2(c) states:

“[a]ny person who threatens an employee with criminal prosecution under the provisions of subsection (a) of this section for the purpose of coercing or attempting to coerce the employee into agreeing to compensation or agreeing to forego compensation under this Article shall be guilty of a Class H felony.”

If you believe insurance fraud has occurred, simply turn the information over to the NCIC Fraud Investigation Unit.  Do not confront the plaintiff and try to convince him or her not to pursue workers’ compensation benefits by threatening a fraud prosecution.

If you have questions or concerns about the information contained in this article, please contact Matt Marriott, or a member of the workers’ compensation practice group.