JAMES M. KELLY

Attorney

7817 N. Knoxville Avenue | Peoria, IL 61614

309.679.0900 P | 309.679.0919 F

jim@jameskellylawfirm.com

MTRMA’s “Leave No Stone Unturned” Approach Uncovers Fraud:

Court Awards Reimbursement, Punitive Damages, and Attorney’s Fees to Employer

 

According to an ancient Greek legend, a general who was being defeated in battle buried his treasure to keep it hidden from his adversary. When the conquering troops could not find the treasure, they consulted the Oracle of Delphi.  The Oracle advised them to look under every stone to find the treasure.  The conquering general ordered his troops to search under every stone, and the hidden treasure was found.  This “leave no stone unturned” approach reaped similar benefits for the MTRMA team recently with what appeared to be a compensable, run-of-the-mill worker’s compensation claim.  With rigorous investigation and creative claims handling, MTRMA was able to expose a fraudulent worker’s compensation claim, and then convince a court to enter an order returning the employer’s money and punishing the offender.  MTRMA scored a major victory utilizing centuries old principles of hard work and determination.

In the case of Double D Express v. Larry Levi, an Illinois court ruled for the first time that an employee filing a false worker’s compensation claim must pay the employer civil money damages to punish the employee.  The judge awarded the employer full reimbursement of all benefits paid, as well as attorney’s fees and punitive damages.  MTRMA did what previous employers have been unable to accomplish in a civil courtroom. The ruling will be of great benefit to Illinois employers going forward.  If workers try to perpetuate a fraud, they can be punished by having to pay monetary damages to the employer.

Like so many employees before him, Larry Levi probably thought he would get away with taking advantage of the system. Levi appeared to be a good employee. He had worked for Double D as a truck driver since 1996.  On February 14, 2013, Levi was checking his trailer when the trailer door allegedly stuck.  Levi reported that he pulled the door hard causing excruciating neck and arm pain.  Levi assured everyone that he never experienced this type of pain in his life.  Levi claimed he could no longer work.  With his new pain, Levi could only drive his tractor with his left hand.  Levi had to keep his right arm extended to mitigate his pain, which prevented any work.  Double D prepared a Form 45: Employer’s First Report of Injury documenting the accident, noting there were no “red flags” with the injury.  Double D forwarded the Form 45 to CCMSI to open a worker’s compensation claim.

Even though benefits appeared to be certain, CCMSI still required Levi’s recorded statement. The adjuster began by telling Levi that “it may be illegal to lie or provide false or misleading information.” Levi agreed to be truthful.  Levi described the jerking of the door, his immediate symptoms, and the “new” excruciating pain.  Levi explicitly denied prior neck or shoulder injury.  The adjuster asked directly, “Have you ever injured your right shoulder before?”  Levi confidently answered, “No.  I’ve never had any pain like this before, no.” Levi further denied ever having medical treatment for his neck or shoulder.  Levi portrayed he had no experience with the workers’ compensation system.  He told the adjuster he had no prior claims.

Levi was a good employee. He timely reported the accident, the accident was specific and understandable, and the injury made sense. With no red flags, CCMSI began paying weekly off-work benefits (TTD) and medical bills.  Levi accepted the benefits.  Levi even hired an attorney to ensure his benefits would continue, including authorization for surgery.  CCMSI hired defense counsel to protect Double D, and ensure Levi was not hiding anything.

Continuing to turn each stone, CCMSI obtained a second opinion from Dr. Soriano, a neurosurgeon, to verify the injury. Upon direct questioning, Levi told Dr. Soriano that he had never had prior neck or shoulder symptoms.  Since Levi was sent to Dr. Soriano at the employer’s request, there could be no mistake by Levi that his benefits hinged on Dr. Soriano’s questions.  Levi denied ever having prior treatment.  Levi told Dr. Soriano that he “never had a history of this problem before the accident.” Levi also denied to Dr. Soriano having prior worker’s compensation claims.  In addition to careful questioning, CCMSI asked Dr. Soriano to review medical records, diagnostic films and to conduct a thorough examination.   Dr. Soriano concluded that Levi’s C5-6 disc herniation with symptoms of atrophy, weakness and pain was related to the work injury.  Dr. Soriano agreed with Levi’s doctor that surgery was necessary because of the work accident.  Typically, the doctor hired by the employer finds in favor of the employer, so Dr. Soriano’s opinions created a major hurdle. MTRMA faced significant exposure for surgical bills, lost time and permanent disability.

To keep pressure on CCMSI to pay his benefits, Levi boldly filed legal petitions asking for his attorney’s fees to be paid and for penalties to be assessed against Double D. MTRMA paid Levi $18,240.24 in TTD and $1,856.18 for medical treatment.  Defense counsel continued to investigate, continued to “move every stone.”  Even though Levi was not complaining of back symptoms, defense counsel subpoenaed the chiropractic records for low back treatment referenced in Levi’s recorded statement.   The chiropractic records in proximity to the accident date were obtained from Dr. Ferrell and reviewed.

Remarkably, the chiropractic records “uncovered” that Levi had been to the chiropractor complaining of shoulder and neck problems just two weeks before his alleged work accident. Dr. Ferrell’s records noted that Levi had “marked deterioration of his condition.”   Only two weeks before the accident date, “Larry reports continuing to struggle with pain, discomfort, and limitations while at work and performing activities of daily living.”  Levi even had an appointment with Dr. Ferrell scheduled for February 16, two days after the accident.

Levi deliberately “buried” his longstanding pre-existing condition. Fortunately, CCMSI had Levi’s lies documented in his recorded statement, and his deceptive answers were confirmed by Dr. Soriano’s report.  Defense counsel now requested that all pre-injury records be searched from all possible sources.   Unbelievably, the records revealed that Levi had been regularly treating for the same symptoms for over a decade.  Defense counsel demanded Dr. Ferrell’s deposition.   Under rigorous cross-examination, Dr. Ferrell described treating Levi for the past 15 years for the “same” symptoms.  Even though he saw Levi two days after the accident, Dr. Ferrell’s records did not contain any reference to the work accident.  His voluminous records were devoid of an accident date or work accident history with Double D.  Levi had not intended for MTRMA to “dig up” these records.

Defense counsel sent the new records to Dr. Soriano to review. Dr. Soriano replied, “Levi lied to me.”  Defense counsel worked with Dr. Soriano to prepare a supplemental report and to take Dr. Soriano’s deposition.  Dr. Soriano testified that Dr. Ferrell’s records document that Levi had the exact same symptoms before the accident that Dr. Soriano elicited during his post-accident exam.  Dr. Soriano changed his opinion, and testified that this was not a work-related accident.

As any information provided by Levi could not be trusted, Defense counsel searched the Illinois Compensation Commission database for prior claims. The search revealed two prior claims.  Levi lied during his recorded statement, and to Dr. Soriano, when he denied prior claims.  Levi obviously did not want Double D to know that he was capable of manipulating the system because of his familiarity with the process.  Levi had tried to hide his secrets.

In order to expose Levi, CCMSI hired an investigative agency to prepare a lengthy report summarizing all of the facts to support a fraud claim. However, despite strong evidence, the Worker’s Compensation Commission Fraud Unit declined to find fraud.  Undeterred, Defense counsel asked the arbitrator to dismiss the claim because of petitioner’s deliberate misrepresentations.  The arbitrator would not dismiss the case. Defense counsel alternatively asked for a fraud ruling by the arbitrator, but the arbitrator would not even consider it, stating, “You are not raising that issue in my courtroom.” Utilizing a system so accustomed to rewarding illegitimacy, Levi forged ahead with his claim requiring a trial.

Levi planned to rely on the “aggravation theory” – the employer’s nemesis in Illinois worker’s compensation claims. At trial, Levi tried to distinguish his prior symptoms from his alleged new ones, and claimed the work accident aggravated his prior condition.  He persisted with his lies.  Defense counsel strenuously cross-examined Levi to discredit his guise. Ultimately, the arbitrator ruled in Double D’s favor, denying that Levi had a work accident.  MTRMA would not have to pay hundreds of thousands of dollars in additional medical bills for surgery, several years’ worth of TTD, and permanent disability. Unfortunately, past benefits had already been paid, and the Worker’s Compensation Commission has no jurisdiction to order that benefits be returned to the employer.  Defense counsel made a written demand for Levi to return MTRMA’s money.  Levi refused to voluntarily repay the benefits.    Levi threatened to file bankruptcy if the employer pursued reimbursement.  The Commission had declined to find worker’s compensation fraud, so Levi could avoid repayment by filing bankruptcy.

Defense counsel was determined not to let Levi get away with keeping MTRMA’s money. In order to prevent a bankruptcy filing, defense counsel would have to prove civil fraud, which cannot be discharged in bankruptcy.  There was no settled civil worker’s compensation fraud precedent in Illinois, so MTRMA had an uphill battle. Defense counsel filed a civil lawsuit on Double D’s behalf against Levi.  After lengthy briefing and months of legal motions, the judge ruled in Double D’s favor, finding civil fraud.  Levi was ordered to repay all benefits back to MTRMA.  Defense counsel did not stop there, but asked the judge for a hearing to award attorney’s fees and to punish Levi with punitive damages.  After impassioned arguments, the court awarded both.  Levi begged the employer to forgive him and to please excuse the debt, as he had spent the money.  The Double D and MTRMA team did not.  Defense counsel argued that if Levi does not have the assets, he could repay with a payment plan.  The judge agreed. After a long battle, the judge ruled Levi is responsible to repay all benefits, Double D’s attorney’s fees, and punitive damages.

In the end, what appeared to be a mundane, compensable worker’s compensation claim resulted in an unprecedented win for Illinois employers. Instead of six figures in payments for a phony claim, an employee was punished for perpetuating a fraud.  For once, the employer will be paid.  Like the Oracle of Delphi, MTRMA has been heard: leave no stone unturned, and the treasure will be found.  The hard work of the MTRMA team moving every stone scored a major victory for employers battling the difficult business environment with Illinois worker’s compensation claims.

 

James M. Kelly handled the Double D v. Larry Levi workers’ compensation claim and the civil fraud claim.  The James Kelly Law Firm is based in Peoria, Illinois and represents CCMSI, MTRMA, and employers throughout the State of Illinois.