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211 Landmark Drive, Suite C2, Normal, IL 61761
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Back to Basics: Workers’ Compensation Fraud in Missouri
March 2024
The Missouri Division of Workers’ Compensation (DWC) is responsible for overseeing benefits available to employees who become injured or ill on the job during the course of work-related activities. The benefits include payment of medical expenses along with compensation for lost wages and temporary or permanent disabilities. As we all know, these expenses are not insignificant. And, while most claims do involve legitimate accidents and injuries, the few that are fraudulent can negatively impact employers and insurers in a multitude of ways. As such, there must be a method for combatting the illegitimate claims.
In Missouri, the body that investigates allegations of fraudulent workers’ compensation claims is The Fraud and Noncompliance Unit (FNU). The FNU was created in 1993 by the General Assembly to investigate fraud and noncompliance of the Missouri Workers’ Compensation Act, Chapter 287 RSMo. (The Act). As of the writing of this article, the FNU is comprised of eight investigators, two supervisors, one support staff and one manager. The FNU is based in Jefferson City, Missouri, with three investigators assigned to the Kansas City area, two dedicated to St. Louis, two for Columbia and one investigator apiece dedicated to Cape Girardeau and Springfield.
Back to Basics: Workers’ Compensation Fraud in Illinois
March 2024
Whether you are new to the industry or a seasoned pro, chances are a file has come across your desk that has left you wondering whether a claim qualifies as fraud. In those situations, how do you distinguish when someone is malingering or symptom magnifying versus committing real fraud?
First, consider the problem as a whole. It is estimated that nationally only 1% to 2% of all workers’ compensation cases are fraudulent (1). While that percentage is arguably small, the dollar value is high. Workers’ compensation fraud results in $34 billion in losses, divided between claimants, medical providers, and premiums (2).
Fraud is a misrepresentation or concealment with reference to some fact material to a transaction that is made with knowledge of its falsity or in reckless disregard of its truth or falsity and with the intent to deceive another and that is reasonably relied on by the other who is injured thereby (3). Proving that the fraud was committed intentionally is a very high bar and can make these cases challenging.
Illinois Appellate Court Rules Prejudgment Interest Act is Constitutional
August 2023
In Cotton v. Coccaro, 2023 IL App (1st) 22028, the Illinois Appellate Court for the First Judicial District upheld the constitutionality of the Illinois Prejudgment Interest Act, 735 ILCS 5/2-1303 (the “Act”). Prior lower court decisions, specifically Hyland in Cook County, found the Act unconstitutional. However, Hyland did not result in an appeal. Cotton is the first appellate decision to address the constitutionality of the Act. The Cotton decision will have statewide precedential effect unless a contrary ruling is issued by the Illinois Supreme Court or one of the other Illinois appellate district courts.
Text Alert – You’ve Been Served!
August 2023
Do you presume, like many, that service of summons and complaint (service of process) can only be made by a sheriff or other authorized process server? If so, you are not alone. However, as of April 24, 2023, your presumption is incorrect. Under certain circumstances, alternate avenues for service of process are available, including e-mails, text or social media messages.
Illinois Supreme Court Rule 102 governing Service of Summons and Complaint and Return in a Civil Action was recently amended to allow service by text, email, or social media messenger. But caution is warranted, as these options require a diligent inquiry as to the location of the individual defendant, as well as an affidavit affirming that such an inquiry has been conducted. Further, the court must be convinced that the party being served has access to and the ability to use the necessary technology to receive a complaint in the manner served.
Borrowed Employee: Who’s in Charge?
August 2023
Imagine a situation wherein Company A requests an employee from Company B to work at its plant and then the employee gets injured. In a “normal” situation, the exclusive remedy provisions of the Workers' Compensation Act would prevent any personal injury lawsuits by the employee against either Company. This is known as the “loaned employee” or “borrowed employee” doctrine. The Cabrera v. Wiremasters case provided some clarity on the scope of the protections afforded and any available exceptions.
In Cabrera v. Wiremasters, Inc., 2023 IL App (1st) 2207844-U, the First District Appellate Court in Illinois found that the plaintiff was a borrowed employee and thus, the borrowing employer was subject to the Workers' Compensation Act’s exclusive remedy provisions. In this case, Total Staffing Solutions (loaning employer) hired plaintiff as a press operator who did work on a press brake machine at Wiremasters (borrowing employer). Plaintiff was injured and attempted to file a personal injury lawsuit against Wiremasters. Wiremasters moved to dismiss the complaint arguing that it was plaintiff’s borrowing employer and thus, plaintiff’s civil action was barred by the Workers' Compensation Act and that plaintiff had not alleged any facts supporting a finding of any exception to the exclusive remedy provision.
New Opportunities for Amended Review of Medicare Set-Asides
June 2023
On May 15, 2023, the Centers for Medicare & Medicaid Services ("CMS") released Version 3.9 of the Workers’ Compensation Medicare Set-Aside Arrangement (WCMSA) Reference Guide. The updated Reference Guide debuts big changes that seem to further the goal of CMS to incentivize the use of their voluntary review and approval process for Medicare Set-Asides.
Most significantly, CMS removed the upper limit for submitting a request for Amended Review of a Medicare Set-Aside. Previously CMS allowed a one-time only request for Amended Review when it had issued a determination on a Medicare Set-Aside Proposal at least 12 months but no more than 72 months prior to submission of the request for Amended Review. In the revised Reference Guide, CMS has removed the 72-month cap. So, there is no longer a date at which a CMS determination becomes “too old” to submit a request for Amended Review.
| 10 South LaSalle Street, Suite 900 Chicago, IL 60603 Phone: 312-425-3131 |
| 211 Landmark Drive, Suite C2 Normal, IL 61761 Phone: 309-862-4914 |
| 1015 Locust Street, Suite 914 St. Louis, MO 63101 Phone: 314-300-0527 |
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