At State Bar panel, workers comp fraud litigator tells attorneys to document everything

Successful workers compensation fraud cases “live and die on documentation” — particularly surveillance footage, said Thais Rodriguez, a partner at Goldberg Segalla on Thursday at a presentation on allegedly staged construction accidents at the New York State Bar Association’s annual conference in Manhattan.

Rodriguez referenced a case of hers where a construction worker alleged that he fell off scaffolding, in which surveillance footage of the site started to unravel the claim. The footage allegedly shows the worker “casing the sidewalk” and then laying down to call 911 himself.

The incident is a display of a key tenet for workers compensation defense lawyers: act swiftly to gather as much documentation as possible.

“You really want to move fast to secure any surveillance footage,” Rodriguez said. “Whether it’s onsite or even any nearby businesses. As many of you may know, cameras overwrite after 30 to 45 days… and you can lose any evidence.”

Rodriguez’s presentation was part of a daylong CLE section on torts, insurance and compensation law for trial lawyers that included a wide range of topics from New York’s no-fault auto insurance system to an analysis of how accurate Hollywood’s depiction of trial law is to real-life lawyering.

In her presentation, Rodriguez presented a few common types of workers compensation fraud schemes that large construction companies she represents are on the look out for.

In each type of claim, Rodriguez said knowing how to find documentation is critical. The workers compensation is a very form-driven system, she said. Every claim starts with an employee filing that has information about the accident —but attorneys should dig deeper and look for pre-shift logs and daily reports, she advises.

Another case Rodriguez is litigating involves a worker who claims he fell off a ladder while installing sheet rock, but daily logs from that accident indicate that the work being done was on a ground-level cleaning, with no ladder.

“And in fact the delivery logs for the sheet rock confirmed that the sheet rock was actually delivered three months after this alleged accident,” Rodriguez said.

In New York, state law mandates a quick timeline for insurance carriers to dispute a claim — another challenge that employer-side workers compensation attorneys are up against. Carriers have only 25 days from the notice of index to dispute a claim. Pre-hearing conference statements must be filed at least 10 days before the board conference.

Faced with a quick turnaround to complete an investigation, Rodriguez said that she’s more likely to initially move to deny a claim if there are lingering questions.

“My recommendation is always file the denial. If it’s in question, you can always withdraw that denial,” she said.