Insurance carriers know something most injured workers do not: just accusing you of fraud can delay your case and damage it, whether or not the accusation sticks.
That is why carriers raise it so readily — often with little proof, and often right around the time it becomes clear they are going to owe you a lot of money.
Many injured workers who end up accused of fraud never meant to cheat anyone. They did something ordinary, without realizing how it would look. Here is what fraud means in a New York comp case, the three habits that get honest people in trouble, and what to do if it happens to you.
What Counts as Fraud
Under New York's workers' comp law, an injured worker commits fraud by knowingly making a false statement or representation about a material fact in order to get benefits or to influence the Board's decision about them.
Two things about that definition catch people off guard:
- Leaving something out can count. A "false statement" can mean not disclosing something relevant — a history of treatment for the same injury, or work you have done since the accident.
- The Board cares about the dishonesty itself. It is less concerned with whether you actually gained anything, or whether the carrier actually lost anything, than with whether you were not straight with it.
The insurance carrier has to prove it. In most of a comp case, the burden of proof is on you, the injured worker. Fraud is the exception. The carrier has to show that your statement was false, that you knew it was false, and that you made it to get money in your comp case.
Fraud is the lie, not the activity
This is the single most useful thing to understand. When workers are accused of fraud, the focus often seems to be on what they did — what they were filmed doing, or a mismatch between a claim form and a medical report. But the fraud is never the activity itself. It is what the activity shows about something you said.
That should put your mind at ease about surveillance. As long as you are outside your home, you may be filmed by someone working for the carrier while you have a comp case. Being followed does not mean you did anything wrong. A video only matters if it contradicts something you told a doctor or the Board.
What a Fraud Finding Can Cost You
If the Board finds you committed fraud:
- You lose the money directly tied to the false statement. If you were already paid any of it, you can be required to pay it back.
- The Board can go further. In more serious cases, it can disqualify you from collecting any more money in that case.
Two limits worth knowing:
- A fraud finding does not take away medical treatment you are otherwise entitled to.
- It applies to the case where it is made, not to your other workers' comp cases.
Fraud can also be a crime in New York. It is rare in practice for an injured worker accused of fraud in a comp case to be referred for criminal prosecution — but it is possible, which is one more reason to have an attorney who can advise you about your rights before you answer questions.
Three Ways Honest Workers Get Accused
1. Not mentioning a prior injury
Throughout your case, you will be asked whether you ever hurt the same body part — or had the same illness — before this accident:
- on your claim form
- by your own doctors and by the insurance carrier's doctor
- by the judge or the carrier's lawyer at a hearing
It is natural to assume an old injury does not matter because it was minor or long ago. That assumption is wrong, and it can cost you. Disclose every prior injury or illness that overlaps with your claim, however small or old — and tell your attorney about it as early as possible. At the doctor's office, volunteer it even if you are not asked.
2. Working without telling anyone
If you are collecting benefits and start working again, tell the insurance carrier — or your attorney, if you have one — right away.
Whenever you are awarded money at a hearing, you will be asked whether you have done any work. Assume "work" means anything:
- work for your old employer or a new one
- work paid off the books
- self-employment or freelance work, whether it makes money or not
- unpaid volunteer work
- helping family or friends with their work or business, paid or not
If you have to stop and think about whether something counts as work, disclose it. A small side business that has not made money yet still counts. The fraud is not doing the work; it is saying you did not when you are asked.
Working is not the problem. It is possible to legally collect workers' comp while working at lower pay than before, and if your earnings are low enough, your total can even be more than if you were not working at all — see our guide to reduced-earnings benefits. So hiding work never helps you. The problem is not reporting it.
3. Saying you cannot do something you sometimes can
The other major kind of fraud accusation is about how disabled you are — what you are physically, or mentally, able to do.
Most people do not talk to doctors literally. Say you tell your doctor, "I can never lift my right arm above shoulder height." What you mean is that you cannot do it comfortably, or regularly — but if you are the only one home to change a light bulb, you can, and it hurts. Then you are filmed during that one moment with your arm over your head. Now there is a contradiction, and nobody will care that you did not mean it literally.
When you talk to your doctors and when you testify, be as literal and precise as you can. This is not everyday conversation. "I can't lift it above my shoulder for more than a few minutes, and it hurts when I do" is true. "I can never lift it" may not be.
Carriers regularly hire investigators to film injured workers and to watch public social media, looking for anything that does not match what your doctors say you can do.
Life does not stop because you are hurt. You still shop, go to appointments, and take care of your family. If daily life forces you to do things your doctor has said you cannot, talk to your doctor about it — ask whether you can do those things on a limited basis — so that what you have to do stays consistent with your restrictions on paper.
If You Are Accused of Fraud
A fraud accusation has to be raised by the carrier on the record, at a hearing. What to do depends on whether you have an attorney there:
- If you have an attorney: ask to speak with them in private before you answer any questions.
- If you do not: tell the judge you want to hire a lawyer, and be firm that you will not answer further questions until you have one. Then call a workers' comp attorney as soon as the hearing ends. Do not put it off — if the judge made findings that need to be appealed, there is a deadline.
Do not rush to defend yourself. Because fraud is about what you say, a carrier can raise a fraud accusation before it has real evidence, and then ask you to testify about it. Sometimes the only false statement in the case is the one made in that testimony. An experienced attorney will ask for time to talk with you first.
You also generally will not see any surveillance video until after you testify, so you cannot know whether it shows something serious or something completely harmless. Take the accusation seriously either way.
Do not be surprised if an accusation comes out of nowhere, right when the carrier realizes what it is going to owe — sometimes when it has no medical argument left. It can happen no matter how innocent you are, and some accusations are made in plain bad faith. What matters is how it is handled.
Key Takeaways
- Fraud means knowingly making a false statement — or leaving out something material — to get benefits or influence the Board
- A finding can cost you the money tied to it, possibly all future money in that case — but not your medical treatment
- The carrier has the burden of proving fraud, and the fraud is the false statement, not the activity on a video
- The three habits that get honest workers accused: hiding a prior injury, working without reporting it, and overstating what you cannot do
- Be literal and precise with your doctors and at hearings
- Accused at a hearing? Do not answer questions until you have spoken with an attorney
Been accused of fraud, or worried something you did might look like it?
Workers’ compensation is what we do. At Schotter Millican, LLP, we represent injured workers across New York City, and we have never represented an insurance company or carrier.
Call (718) 770-3708 for a free case review. No fee unless we win.
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