Today’s post comes from guest author Paul J. McAndrew, Jr., from Paul McAndrew Law Firm.
In these tough economic times, many companies aren’t paying basic requirements for their employees like Social Security, income taxes, unemployment, or workers’ comp. This has led states all over the country to start doing spot-checks on construction sites. Employers beware – protect your workers with workers’ compensation insurance – it’s the law, and states are cracking down.
With unemployment high and the recession lingering, employers seem to be increasingly taking advantage of the fact that people are willing to work without appropriate coverage. It is a real shame that these days so many people are going to work without the protections that they are due under the law.
Every year we hear about fraud in Workers’ Compensation cases and the public believes the fraud is employee driven. However, in 2009 I began tracking the Top Ten Fraud Cases and 100% of the Top Ten between 2009-2012 involved employers or shady characters posing as legitimate businesses. The amount of employer fraud is staggering. In 2013 one employee fraud case did crack the Top Ten, so the record is now 49-1 (employer fraud v. employee fraud) over the past five years.
John Diaz and his wife Mercedes Avila-Diaz owned and operated four supermarkets in the Miami-Dade area. They have been arrested and accused of workers’ compensation fraud and other fraudulent transactions totaling $35 million. One business they operated had no coverage for employees for ten years. They allegedly engaged in a scam to help subcontractors obtain false certificates of insurance that allowed the subs to work for general contractors who required the certificates.
Richard Escamilla, Jr. (47), owner of ROC Harvesting, misrepresented information to workers’ compensation insurance carriers by using new business names to obtain insurance and avoid providing a claim history. Escamilla pleaded guilty on October 29th and was sentenced to pay restitution of $4.1 million and serve six years in prison.
Jerry Stage (67), the former CEO of a non-profit workers’ compensation insurance company, and George Bauer (55), the bookkeeper, both pleaded guilty to embezzling from the Compensation Advisory Organization of Michigan (CAOM) for more than a decade. Mr. Stage embezzled $2.6 million from the company and conspired with Mr. Bauer to cover up the embezzlement.
Yolandi Kohrumel, 35, claimed for nine years that she was wheelchair bound after complications from toe surgery, but after she had collected $1.5 million in benefits it was revealed her claim was false. Her father, a South African native, was also engaged in the scam. Both pleaded guilty to insurance fraud, grand theft and perjury. Ms Kohrumel was sentenced to one year in jail, plus restitution.
Jesse Garcia Contreras (57) and Carlos Contreras (33), who operate a Thousand Palms landscaping business, are accused of committing $1.45 million in insurance fraud. They are accused of defrauding the California State Compensation Insurance Fund by misclassifying employees from January 2008 to March 2012. Mr. Jesse Contreras is the president and CEO of Sunshine Landscaping and his son is Director of Accounting. If convicted, they each face up to 19 years and 8 months in prison.
As a result of its investigation of I&T Financial Services, LLC, a company that was allegedly set up to execute a large scale check cashing scheme for the purpose of evading the cost of workers’ compensation coverage. Domenick Pucillo, the ringleader of the fraud scheme, was arrested and charged with filing a false and fraudulent document, forgery, uttering a forged instrument, and operating an unlicensed money service business. If convicted on all charges, he faces up to 45 years in prison. $1 million was seized during this investigation.
Jerame Russell (50), an executive with Aracoma Contracting, LLC, a company that provided labor to coal companies on a contract basis, entered a guilty plea to a scam that involved funneling over $2 million through a local bank to pay employees in cash, thus avoiding payroll taxes and $405,000 in workers’ compensation premiums. Aracoma also bribed an insurance auditor to cover up its true payroll.
The owners of Triple Star Roofing were found guilty of fraud on July 15 for failing to report payroll to the Ohio Bureau or Workers’ Compensation(BWC). The company failed to report to the BWC from 2004 to 2008, resulting in under-reported premiums of $283,592.
The owner of Preferred Staffing of America, Inc., a temporary staffing agency in Tampa, has been arrested for allegedly running an organized workers’ compensation fraud scheme. Preferred Staffing’s owner misled clients into believing that his company was a licensed professional employer organization (PEO) and could provide workers’ compensation insurance coverage. Employers were reportedly charged more than $130,000 for workers’ compensation insurance and other services that were never provided.
For more information, contact: Leonard T. Jernigan, Jr. Adjunct Professor of Workers’ Compensation N.C. Central School of Law The Jernigan Law Firm 2626 Glenwood Avenue, Suite 330 Raleigh, North Carolina 27608 (919) 833-0299 firstname.lastname@example.org@jernlaw
Today’s post comes from guest author Rod Rehm and Emily Wray Stander from Rehm, Bennett & Moore.
We have been listening with interest to a recent National Public Radio (NPR) series about construction workers and businesses in Texas. The series about this industry confronts many of the issues that are being debated by society these days, whether in the judicial, executive or legislative branches.
To add some context, these topics include employing immigrant workers; paying a living wage; calling an employee an independent contractor; and ensuring workplace safety, workers’ compensation, and payroll taxes are all done, practices that specifically are not happening in Texas, according to the stories. A notable quote from the first piece is “Texas is the only state in the nation without mandatory workers’ compensation, meaning hospitals and taxpayers usually end up shouldering the cost when uncovered construction workers are hurt.” And we think the information from the second piece is quite telling that the business owner “asked that NPR not use his last name because the IRS might take an interest in his business, designs and builds landscapes in the Dallas-Fort Worth area.” Because he treats his crew as “self-employed contractors,” meaning that the IRS would likely see his interpretations of tax law as illegal. From the story: “This is a key distinction. If Trent were to classify his workers as employees, he’d have to pay taxes, Social Security, unemployment and overtime. But by saying his workers are actually independent contractors – in essence, business owners – he’s off the hook.”
We think listening to these two pieces, at less than 15 minutes total, is a good opportunity to experience an applied illustration of what happens to the vulnerable when such protections as workers’ compensation are effectively dismantled for profit-taking and political reasons. Respected colleague Jon Gelman in New Jersey recently wrote a blog post that focuses on the first NPR report and “how bad it is for workers who get injured in Texas.”
In Nebraska, the anti-worker, pro-business Nebraskans for Workers’ Compensation Equity and Fairness group is backing LB 584 that would dramatically limit protections that workers have when it comes to being injured through a concept called evidence-based medicine/utilization review. In addition to our firm writing numerous blog posts about this legislation, EBM/UR is #8 in Ms. Stanton’s list of “trends throughout the country which would negatively impact existing Workers’ Compensation benefits.” And according to this article, politicians in Tennessee are looking to gain some brownie points with business and insurance by overhauling the workers’ compensation courts to the detriment of injured workers. Iowa workers and attorneys have to contend with #6 on the list, restricting doctor choice, while a bill in Nebraska’s legislature is in the works to do the same if passed.
We agree with what Ms. Stanton writes: “All workers need to be aware of these trends because the likelihood of legislation being introduced in their state against their interests is strong. Employee immunity has remained untouched, but workers’ benefits are consistently under attack as a result of the collective lobbying efforts of the insurance industry and large corporations. Unfortunately the great compromise is turning out to be one sided as workers are forced to endure multiple obstacles and hurdles to be entitled to fewer and more restricted benefits.”
So we would encourage you to join us in educating yourselves about how workers’ compensation “reform” can lead to stories like NPR’s cautionary tales about the construction industry in Texas and to explore what’s going on in your state legislature. Finally, get involved in your state’s political process to advocate for workers!
CFO Jeff Atwater and Broward Sheriff Al Lamberti announced multiple arrests in Operation Dirty Money.
Today’s post comes from guest author Leonard Jernigan from The Jernigan Law Firm.
Over the past few years, many states have aggressively gone after workers’ compensation fraud (whether it’s the employee or the employer) and the amount of employer fraud being discovered continues to be staggering, notwithstanding these efforts. Legitimate business owners that pay for workers’ compensation, as required by law, are at a competitive disadvantage with those who cheat the system, and when people suffer a workplace disability and have no insurance local businesses that provide goods and services feel the pain along with health care providers who cannot get properly paid for their services. The cost of medical care and disability ends up being shifted to the taxpayer through Social Security, Medicare and Medicaid, and in states where compliance is not vigorously enforced a culture of cheating continues. The top ten cases for 2012 are listed below.
2012 TOP TEN WORKERS’ COMPENSATION FRAUD CASES Total Fraud: $97,466,500.00
Multiple arrests were announced in Florida’s joint task force’s ‘Operation Dirty Money,’ which led to the arrest of alleged ringleader Hugo Rodriguez, owner of the Oto Group, Inc., and seven other individuals. Mr. Rodriguez was the facilitator of 10 known shell companies that funneled in excess of $70 million in undeclared and undetected payroll through different money service businesses. By using shell companies, Rodriguez was able to run a large construction operation and avoid paying the cost of workers’ compensation coverage, leaving employees at risk and scamming legitimate businesses.
Ohio: May 13, 2012 Thousands of Ohio companies violated state law by not paying their most recent workers’ compensation premium, which can drive up insurance costs for businesses that follow the rules, a Dayton Daily News analysis found. The bureau identified about 41,247 private employers in the state that failed to report their payroll data and submit premium payments by the deadline. As of May, more than 12,200 accounts remain outstanding, and those companies owe an estimated $5.6 million in premiums.
$4,466,500.00 was awarded in a Texas court against a staffing agency and its workers’ compensation insurance company. Jackson Brothers Hot Oil Service hired Business Staffing, Inc., (BSI) in 1999 and required BSI to have workers’ compensation insurance for its leased employees. BSI had 150 client companies with 2,000 employees. BSI bought a policy from Transglobal Indemnity for a total premium of $4,100.00 to cover all its employees. After failing to pay the medical bills of a 27-year-old oil field worker who was in an explosion and had 18 surgeries, the employee and Jackson Brothers sued BSI and Transglobal for fraud. Neither Transglobal (who had its corporate headquarters in the Turks and Caicos Islands) nor BSI had a license to conduct insurance business in Texas.
George Osumi was indicted on numerous felony counts.
Construction business owner George Osumi of Irvine, California was indicted on numerous felony counts of misrepresenting facts to the State Compensation Insurance Fund, among other charges. From December 2001 to March of 2006, Mr. Osumi committed workers’ compensation premium fraud by reporting his payroll to SCIF at just over $1 million, under-reporting over $3.5 million in payroll. This fraud resulted in a loss of over $814,000.00 in premium owed to the insurance fund.
Newton Contracting Company misclassified half of its workforce as subcontractors.
The Massachusetts Insurance Fraud Bureau discovered that the company, Newton Contracting Company, Inc., owned by Shaun Bryan and Antoinette Capurso-Bryan, misclassified half of its workforce as subcontractors, as well as failing to disclose to auditors more than $3.4 million of their company’s misclassified subcontractor payroll during its annual workers’ compensation audits.
Steven Morales, 65, of Wildomar, CA was convicted and sentenced to seven years in prison for his part in a $3.1 million workers’ compensation scheme. His son Brian was also convicted and sentenced to 4 years in prison. Morales and his son had set up a sophisticated system of shell companies to hide payroll and avoid paying workers’ compensation premiums.
Randall Seltzer, president of Navarre Industries, Inc., was charged with multiple felony counts, including workers’ compensation fraud. An investigation by Florida’s Department of Financial Services’ Division of Insurance Fraud revealed that Seltzer systematically and intentionally under-reported his corporation’s true payroll to his insurance carrier. The department’s Division of Workers’ Compensation issued the company two stop-work orders within a five-year period. Seltzer allegedly established a shell corporation in 2011 to intentionally violate the stop-work orders and continue operating his construction business illegally. If convicted, Seltzer could face up to 30 years in prison and pay over $2.8 million in restitution.
Yucet Batista allegedly used a shell company to commit large-scale fraud.
Yucet Batista was arrested for allegedly creating more than 250 fraudulent certificates of insurance to help uninsured contractors avoid $2.1 million in workers compensation premiums. Batista created the company and obtained the workers’ compensation insurance policy for the purpose of “renting” it, or making it available to dozens of uninsured subcontractors for a fee.
In 12 audits conducted by the Joint Enforcement Task Force on the Underground Economy and Employee Misclassification and the Executive Office of Labor and Workforce Development, it was discovered that there were $584,249.00 in misclassified 1099 wages and $584,287 in unreported W-2 earnings, for a total of $1,171,536.00 in unreported wages by subcontractors on the Marriot renovation project. Six companies misclassified workers as contractors rather than employees, and seven companies failed to report wages. Among the worst of the offenders were one company that misclassified 28 workers and failed to report over $410,000.00 in wages; another failed to report $462,081 in W-2 wages.
Owners of the historic Brookdale Inn and Spa are facing trial on charges of falsifying wage information to obtain lower insurance premiums.
The owners of historic Brookdale Inn and Spa, Sanjiv and Neelam Kakkar, are facing trial on charges that they falsified wage information to obtain lower insurance premiums. According to records, the couple paid approximately $800,000 less in insurance premiums than they should have over a period of several years.
Today’s post comes from guest author Leonard Jernigan from The Jernigan Law Firm.
NOTE: The timeline for filing an injury claim with the Washington Department of Labor and Industries is shorter – only 1 year – than what Mr. Jernigan describes in his article.
There is a scam out there and truck drivers are the victims, especially if they are seriously injured in a trucking accident. It works like this: an out of work driver hears about a job and fills out an application with a national trucking company. He then gets a call saying he has been accepted as a driver, contingent on a physical exam and a drug test. The driver is then asked to show up at work on an appointed date for his first delivery job. When he shows up he is asked to “sign papers” which allow him to lease/own the truck as he drives it across the country, and he signs a contract that declares that he is an independent contractor (although in reality the trucking company controls the deliveries and is the only source of revenue for the driver). Further, he is required to purchase accident insurance through a broker designated by the trucking company and the premiums are taken out of his paycheck. Because the driver is anxious to work again and is not particularly experienced in reviewing legal documents the driver signs the papers, gets in the truck and begins working again as an interstate truck driver.
The costs of this workplace injury are now shifted from the employer/insurer to the taxpayer.
Like most of us, these drivers never expect to be in a serious accident. If they unfortunately do have an accident while driving the truck, they look to the accident policy they purchased. If they are disabled, it pays the same benefits as workers’ compensation and provides medical coverage. Many drivers think they are actually on workers’ compensation. The catch is that all benefits stop after 104 weeks (2 years). If after that time if the driver is still disabled and still needs medical care, it is a shock to find out none is available under this contract.
Is there no hope for the truck driver under these circumstances?
Why 104 weeks? Most states have workers’ compensation systems that require the claim be filed within 2 years. Since the 2-year period has run, the driver is out of luck and cannot file for workers’ compensation under state law. What happens if the driver needs additional surgery and continues to remain disabled? Most likely federal assistance programs like Medicaid or Medicare enter the picture and the costs of this workplace injury are now shifted from the employer/insurer to the taxpayer.
If involved in a serious accident, be aware of the 104-week provision and file a workers’ compensation claim before that time period expires.
Is there no hope for the truck driver under these circumstances? Although it might be a tough fight, most workers’ compensation statutes specifically state that an employer cannot contract away its obligations under the Workers’ Compensation Act. Thus, the truck driver’s legal argument is that the contract designating the driver as an independent contractor was void as a matter of law. If the employee has been the subject of fraud, equity may allow the driver to go ahead and file a claim and pursue the action even through the 2-yr period has run. Under these circumstances, certainly in North Carolina, the driver would have an opportunity to pursue this claim.
The lesson to be learned by truck drivers is not to assume that the contract you have innocently signed is valid. If involved in a serious accident, be aware of the 104-week provision and file a workers’ compensation claim before that time period expires. Finally, if you are asked to sign one of these contracts and you have options of other employment, you may want to decline this job offer and work for a company that is more ethical. Your livelihood and the welfare of your family may depend on this important decision.
When workers are misclassified, insurance companies do not consider them employees. The injured workers are then denied workers’ compensation benefits. Additionally, the insurance companies are not paid insurance premiums and are not adequately reserved for the risk of injury by those workers.
The following video excerpt is of an interview I did a while back with Sam Gold, director of the National Association of Injured Workers (NOIW) and producer of Injured On The Job. We discuss this continuing problem and the need for it be addressed by regulatory agencies so that workers’ and their families are protected from fraudulent employers.