In Washington, willful or not, misrepresentation puts you on the spot
Everyone can agree, when you take something that you are not entitled to, there are consequences that follow. In Washington worker’s compensation claims it is no different. The Washington Administrative Code speaks to when an injured worker willfully, intentionally, and/or deliberately takes or accepts benefits that they are not entitled to. There could be a plethora of different reasons an injured worker may not have a rightful claim to benefits such as, but not limited to: they have reached maximum medial improvement; or they have the ability to return to work in some capacity; etc. Regardless of the reason, if an injured worker accepts benefits that they were not entitled to, under the Washington Administrative Code, this is called willful misrepresentation.
More specifically, under WAC 296-14-4121 willful misrepresentation is defined as “a person who obtains payments or other benefits in an amount greater than that to which he or she would have otherwise been entitled.” Additionally, an injured worker can willfully misrepresent by making a willfully false statement of the willful misrepresentation, omission, or concealment of any material fact. Under WAC 296-14-4121:
- Willful means a conscious or deliberate false statement, misrepresentation, omission or concealment of a material fact with the specific intent of obtaining, continuing, or increasing workers; compensation benefits. Failure to disclose a work-type activity must be willful in order for a misrepresentation to have occurred.
Which means that if an worker has represented that they are totally and permanently disabled, or in most cases unable to work in any capacity, but later on the injured worker is seen engaged in activities that far exceed their self-purported limitations, the employer could have a claim for willful misrepresentation against the injured worker. However, when exploring your options as to whether a willful misrepresentation order applies to your claim, ensure that the injured worker has evidenced a specific intent to continue obtaining compensation benefits. As, if the injured worker inadvertently made a mistake and there was no specific intent, then the willful misrepresentation order would not be applicable.
A good way to determine whether an injured worker possess or evidences the specific intent required to obtain a willful misrepresentation order is through surveillance, utilizing skilled investigators in gathering video evidence which can prove or disprove as to whether claimant has made willfully false statements regarding their physical capabilities as it pertains to their Industrial Injury.
This was illustrated in a case that was published on the Department of Labor and Industries website on September 18, 2024. In this case, there was an injured worker who claimed they were too injured to work in any capacity. However, it was found out that the injured worker was engaged in selling metal products for more than four years while collecting time-loss compensation benefits from his industrial injury. https://content.govdelivery.com/accounts/WADLI/bulletins/3b67732. One of the main reasons the evidence of the worker’s engagement in work activities was through deliberate surveillance. Ultimately through this investigation the worker had collected more than $340,000 in wage replacement payments and $25,000 worth of vocational services. Additionally, the worker is now facing criminal charges for this intentional omission or concealment of the fact that he could in fact work in some capacity. The Washington State Attorney General’s Office is now prosecuting the case based on the revealed investigation.
If the Department of Labor & Industries determines that a willful misrepresentation occurred, the injured worker may be charged with any or all of the following: (1) charged with a 50% penalty; (2) ordered to repay all the over-payments the worker has received; and/or (3) face criminal fraud charges. If the Department orders the injured-worker to repay what the worker has received, the Department of Labor & Industries can calculate overpayments to include: wage replacement benefits, permanent partial disability benefits, vocational benefits, medical benefits, and other medial aid fund benefits. However, the employer must demand the repayment within three years of the discovery of the willful misrepresentation or it is considered waived.
Lastly, employers can be at risk under this administrative code as well. As if a business falsely report’s their workers’ hours or payroll, the business may be held responsible for paying up to 10 times the amount of premiums they should have originally paid. As the saying goes if you take something that is you are not entitled to, there are consequences that follow.
If you have any questions about obtaining a willful misrepresentation order, or whether a claim you have qualifies under WAC 296-14-4121 or RCW 51.32.240, you can contact me at smills@sbhlegal.com.
Posted by Sarah Mills.
