All the Buzz

DALENE BARTHOLOMEW

Georgia Getty was a 58-year-old wife and mother who enjoyed music and spending time with her family, and she was especially close with her youngest daughter. Some of her family members were in a band, and Georgia liked to attend their concerts and listen to them play. Georgia was known for her exceptionally long hair and her long, perfectly manicured and brightly colored fingernails. She had worked for Buzz Agency in the neighboring city for more than 15 years, providing data entry and basic accounting support.

Buzz Agency was the parent company of Buzz Magazine, a weekly publication that started more than 100 years ago. It had a great reputation for providing local and world news coverage as well as fun, smart and interesting stories. The company was also known as an excellent employer and provided staff with generous wages and benefits, including disability insurance coverage. Unfortunately, the challenges of the economy had taken their toll, as had competition with online news sources. The magazine suffered a decline in advertising and readership. Although the agency was able to remain current and competitive by creating an online forum and other innovative ideas, management had to reduce overhead, which included making some very tough decisions for the best interests of the company overall. As a result, it was common knowledge that the Buzz Agency was going to face a reduction in workforce, which set many staff members, including Georgia, on the defensive.

Partnerships in Action

One afternoon I received a call from Jamie Hill, a claims adjuster working at Fyne Claim Services, a company that provided professional claims administration for self-insured corporations and government entities. My employer, Probe Information Services, had a partnership with Fyne Claims Services to investigate their suspicious and fraudulent claims, and as the vice president of the special investigations unit (SIU), I had worked with Jamie many times during the last five years. Our efforts together had resulted in 17 prosecutions for insurance fraud plus dozens of claims where early intervention prevented fraud from occurring by stopping the payment of unwarranted benefits.

Jamie was a senior examiner at Fyne in the workers' compensation (WC) unit, and her primary client was a large self-insured employer, Buzz Agency. Jamie coordinated a meeting for us with Paula Lane, the risk manager of Buzz Agency, to discuss a claim she felt was suspicious. During my conversation with Jamie, I could detect the concern and sense of urgency in her voice; therefore, I cleared my calendar, and we scheduled to meet the following day. A workers' compensation defense attorney from Fyne, Lavern Lynn, also attended the meeting.

During this initial meeting, Jamie and Paula explained that Georgia Getty, a longtime employee at Buzz, had filed a WC claim based on a carpal-tunnel injury to her hands and arms. The claim had been accepted and benefits had been administered immediately. Buzz's management was eager to provide medical treatment and help Georgia return to work.

Buzz Agency provided a robust return-to-work program for employees who were injured or faced other physical challenges, so management was prepared to provide Georgia with a modified position to accommodate her condition. Georgia received medical treatment inclusive of physical therapy, medication and a minor surgical procedure for a carpal-tunnel release on one wrist. Despite the medical treatment that her doctors noted as “successful,” Georgia said she had not regained use of her hands and was unable to return to work. As a result, she continued to receive temporary disability payments while not working. In fact, she had told her doctor that her hands had become completely useless and were folded over in a shape like claws. Jamie, Paula and Lavern were all concerned that this condition, which they believed initially was a compensable injury, had veered toward a potential fraudulent situation.

Confirmed Suspicions

My 15 years of experience investigating suspicious insurance claims had provided me with the knowledge and expertise to fairly and objectively evaluate claim evidence and provide specific recommendations. I had been specializing in WC claims for eight years, including claimant, provider and premium fraud cases. The scenario presented in Georgia's claim was unfortunately very familiar to me, as I had seen an increase in abuse and theft of WC benefits with the downturn in the economy.

I reviewed the evidence in Georgia's case, including her medical records with complaints about not being able to use her hands. She told her doctor that her fingers and thumb permanently touched “like a claw” and she couldn't open her hands. However, based on her medical treatment, she should have been mostly, if not completely, recovered from her injury. Medical records indicated that she could return to work in at least a modified capacity. Her doctors observed no medical reason why Georgia had not improved, and they were confused by her worsening complaints. During this time Georgia remained off work, and she was continuing to be deemed temporarily disabled as a result of her subjective complaints. Jaime was understandably suspicious and had already been authorized to order surveillance, which had been conducted and filmed for one day.

My review of the evidence included watching the surveillance video, and I saw Georgia using her hands normally for a few hours. The video was inconsistent with her complaints, but one day of surveillance video is typically not enough to make a determination pertaining to fraud. My recommendation was that Jamie continue surveillance to determine if Georgia was able to use her hands without restrictions consistently, or if she was perhaps videotaped on a “good day” or on a day when she had taken additional pain medicine or had other treatment that allowed greater mobility. Jamie agreed with my recommendation and received authorization to continue the surveillance.

The surveillance effort resulted in hours of footage showing Georgia using her hands without any signs of restriction or limitation, over multiple days and doing various tasks. We saw her driving, texting on her mobile phone and holding her phone in her hand while she conversed for long periods of time. The footage also depicted Georgia opening and closing doors, running her fingers through her long hair and eating with utensils. She attended a concert performed by family members and danced and clapped along to the music. Georgia set up a tripod and a camera and recorded the concert.

Lying Under Oath

After the surveillance was completed, I met with the team again. We strategized the case and specifically discussed Georgia's upcoming deposition, which Lavern had arranged. I stressed the importance of asking specific and detailed questions and ensuring that Georgia provided direct responses. On the day of the deposition, Georgia entered the room with both of her hands folded over in the shape of claws, with her thumb touching her four fingers; she kept them in that position throughout deposition, which lasted several hours.

She was sworn in and testified under oath about her injury, including that her hands were always in a clawlike position, that she was unable to open them normally and that she had no use of them. When Lavern asked how much weight she could pick up, Georgia said that she could not pick up anything, not even a coffee cup. When Lavern asked if she could hold anything in her hands, she testified that she could not even hold a pencil.

Georgia said that the limitations on her hands were the sole result of her carpal-tunnel injury sustained at Buzz. She said pain medication did not help her symptoms and she never had good days because her hands were always useless. She testified that she was not able to return to work, even in a modified capacity, because she could do absolutely nothing with her hands. Georgia also explained that her youngest daughter had to help her with household chores and daily grooming activities, including bathing and brushing her hair.

Her deposition testimony was in stark contrast to the surveillance video and the medical reports. After a full analysis of all of the evidence, I concluded that Georgia had made numerous misrepresentations during her deposition and to her medical providers with regard to her physical limitations and restrictions. I further concluded that this case currently had three of the four elements of fraud.

Understanding the Elements

The four elements of fraud are: (1) misrepresentation, (2) intent, (3) knowledge and (4) materiality. The case had several egregious misrepresentations that Georgia made with full knowledge that benefits were being determined based on her statements. Further, there was a clear intent to commit fraud based on the misrepresentations she made both under oath in her deposition and to her doctors. Georgia had knowledge that she was making misrepresentations and that to do so would prolong her disability benefits. However, the case was lacking the forth element — materiality. Consequently, I determined that the next step was to present the evidence to the medical providers to determine if Georgia's misrepresentations were material to the claim and if she received benefits that she was not entitled to as a result of her lies.

I gave Georgia's medical providers the surveillance evidence and deposition transcript, and they reported that she had indeed made misrepresentations about her physical restrictions and limitations. She had been deemed disabled as a result of her subjective complaints; based on the evidence, they thought that she could have returned to work following her initial treatment. The doctors concluded that Georgia was not entitled to the disability payments she had received as a result of her material misrepresentations, thereby confirming the theft of benefits.

Georgia had filed not only for WC, but also for long-term disability benefits, and she was receiving payments from both of those claims. It appeared that Georgia was attempting to obtain a medical finding of 100 percent disabled to receive both WC benefits and permanent long-term disability benefits. The amount of theft I had computed in the WC claim was only a part of the overall benefits that she stole.

Preparing for Legal Action

As a Certified Fraud Examiner with years of focused dedication to fighting insurance fraud, I am experienced at investigating suspicious cases and determining if a case has sufficient evidence to package and present to law enforcement. My professional analysis of the evidence determined that there was enough to prove that Georgia's material misrepresentations resulted in her theft of WC and disability benefits. I packaged the case per the guidelines of the District Attorney's Insurance Fraud Division. The package included: (1) a summary of the fact pattern, (2) a timeline of events, (3) recommended criminal charges with documented corresponding evidence, (4) exhibit list and all evidence, (5) current status of the case, (6) date of discovery of the fraud and (7) a full witness list. Providing the date of the discovery of the suspected fraud was essential so the deputy district attorney (DDA) could determine if the case fell within the statute of limitations.

I delivered the fraud referral personally and discussed the case with local DDA Armando Martinez in the District Attorney's Insurance Fraud Division. We watched the surveillance video together, reviewed the deposition transcript and went over the elements of fraud. DDA Martinez accepted the case, and I called Jamie to give her the status update. Soon thereafter DDA Martinez filed criminal charges, and Georgia was arrested.

Armando charged Georgia with 12 criminal counts; two were misdemeanors and ten were felony charges. The charges included:

• Seven counts of insurance fraud
• Three counts of presenting false statement concerning payment from an insurance policy
• Two counts of attempted perjury

Georgia pleaded not guilty at the arraignment and was provided a court-appointed criminal defense attorney. DDA Martinez provided a full and complete copy of all of the evidence (including the surveillance video) to Georgia and her attorney. The date was set for the preliminary hearing, and I coordinated with Martinez to prepare my witness testimony. At the preliminary hearing a portion of the evidence was presented in court, including some of the surveillance video, excerpts from the deposition, testimony by the investigators and a portion of the medical records. The judge ruled there was sufficient evidence for the case to move forward. The case was then calendared for trial, and I expected Georgia would hope for a plea deal. Martinez did offer her reduction from the 12 counts to two counts with no jail time if Georgia would plead guilty and make restitution payments. She declined the offer, did not make a counteroffer and the case was calendared for trial.

Realities of the Courtroom

The date of the trial arrived, and the attorneys appeared at the court to learn that a courtroom was not available and that the trial date would be calendared again. We were not surprised because the criminal courts are very full and, in my experience, it is rare for an insurance fraud case to be assigned a courtroom on the first try. While I was prepared for the trial date to be bumped, I was unprepared for what happened next.

Georgia's attorney advised the judge that his client was “not fit to stand trial.” He offered various reasons, including stress, anxiety and a dependence on pain medication. This situation put the burden on the prosecution to prove Georgia could stand trial, and I was not confident that the county would pay the cost for the two independent psychologists who were required to analyze Georgia, as that is an expense that the county must cover. However, I was relieved when DDA Martinez ordered the two independent evaluations. In the meantime, the case was taken off of the trial calendar and we anxiously awaited the results.

The evaluations were conducted, and both psychiatrists independently found Georgia fit to stand trial. Consequently the judge ordered that the case be put back on the calendar for criminal jury trial. After the case was bumped two more times due to overbooked courtrooms, and as the third date approached, DDA Martinez made a similar plea deal. Again Georgia declined the offer. It appeared that she wanted her day in court.

I was in disbelief the day that the jury was selected because I had always believed Georgia would eventually plead guilty. Twelve jurors and two alternates were seated, and for the next two weeks they heard evidence of a crime. Perhaps they were expecting a driving under the influence case, or a drug-related crime or maybe even a murder. I imagine they were rather surprised and maybe disappointed when they learned that the suspect had been charged with insurance fraud.

During the trial, the jury heard how workers' compensation benefits are administered, learned the details of Georgia's claim and viewed the evidence. Opening remarks by DDA Martinez explained that Georgia sustained a legitimate industrial injury and was entitled to WC benefits including medical treatment and temporary disability while she was unable to work. Martinez advised the jury that evidence would prove that Georgia abused the system and lied to medical professionals to steal temporary disability benefits from her self-insured employer. After opening remarks, the first to take the stand for the prosecution was the claims administrator, Jamie. She laid the foundation for the claim and had the task of explaining to the jury how WC claims are handled and how the benefits are administered. The next to take the stand was Paula, the risk manager from Buzz Agency. Paula explained to the jury the return-to-work program that Buzz offered and the availability of Georgia's job throughout the course of her claim. All of Georgia's medical providers involved in the claim testified that Georgia had an injury but then misrepresented her physical abilities and remained off work, receiving disability benefits to which she was not entitled. The surveillance investigators testified after the video was shown to the jury. I took the stand to provide information regarding the investigation, including the gathering of evidence, chain of custody and discovery of fraud.

During my testimony, I was questioned about the surveillance and if it was possible that the investigators might have turned off the video camera when Georgia was showing signs of pain or limitation, and only filmed her doing activities that made her appear to move normally. I testified that it was not possible because our investigators always videotape all activity and they never make determinations about what should or should not be captured on film. Doing otherwise would destroy the admissibility of evidence and our credibility.

Then the defense provided their witnesses. Georgia took the stand and testified that she had no use of her hands. She told the jury and the judge that her hands caused her severe pain constantly and that she was not able to use them to perform normal daily functions. Georgia's youngest daughter testified on behalf of her mother. The defense subpoenaed medical providers who were not involved with Georgia's claim, but who testified that she had an industrial injury that resulted in pain, loss of strength and diminished ability. These medical providers also testified that Georgia might need future medical care, including medication and therapy as a result of her injury.

DDA Martinez provided closing arguments that the evidence proved Georgia misrepresented her ability to work in order to obtain WC disability benefits to which she was not entitled, thereby stealing from Buzz Agency.

The jury deliberated for three full days and watched all of the surveillance video again in chambers. I worried that we might have a hung-jury situation, given the amount of time they were deliberating. It's not unheard of for juries to be overwhelmed by the technicalities of fraud cases and be unable to come to a conclusion. I felt nervous when the announcement finally arrived that the jury had reached a verdict, and I held my breath as the verdict was read.

The foreman of the jury announced that the jury found the defendant, Georgia Getty, guilty on all 12 counts.

The Verdict Is Only the First Step

The judge thanked the jury for their service and set a date for the sentencing hearing five weeks later. I gathered the data and provided DDA Martinez with the restitution figures and supporting evidence of the amount of theft. In addition to the benefits stolen, we were seeking the money that Buzz Agency paid for the surveillance costs and my fees since those expenses would not have been incurred in the normal course of a claim and were incurred only as a result of the fraud. The total restitution DDA Martinez wanted exceeded $60,000.

I returned to court for the sentencing and heard the defense recommend that Georgia not serve any jail time because she had no prior criminal record. He asked instead that she be sentenced to community service, probation and an order for restitution. The judge said he was unable to order community service considering that Georgia's entire defense was that she could not do anything with her hands. The judge said that because community service was inappropriate, Georgia would serve 90 days in jail. She was also ordered formal probation upon release and payment of restitution.

Georgia's attorney attempted to negotiate the terms of the sentencing, saying that the terms were predicated on Georgia's conviction of 12 counts, ten of which were felonies. Georgia's attorney made a formal request that the ten felony counts be reduced to misdemeanors, but the judge immediately denied the request on the grounds that Georgia had been given ample opportunity to negotiate a plea bargain but chose not to accept any of the offers made by the DDA. The amount of her restitution payment was the final issue to be decided.

DDA Martinez asked the judge to grant a forensic audit of Georgia's finances to determine her ability to pay restitution. He argued that Georgia could not simply be asked what she could afford based on the fact that she had just been convicted of 12 criminal counts that involved lying. The court scheduled a follow-up restitution hearing two weeks later for further discussion and consideration of restitution. The judge advised that he would take into consideration the terms of the probation and restitution amount then.

At the hearing two weeks later, the judge acknowledged that Georgia did not manufacture her entire claim because her carpal-tunnel surgery was necessary, but said she had exaggerated her symptoms after the surgery. Although Georgia did not have a prior criminal record, the judge said probation was warranted and imposed the maximum term of five years. Additionally, mandatory fines were imposed, and the judge ordered Georgia to repay the full amount of restitution that DDA Martinez asked for. To conclude the case, Georgia was ordered to surrender into custody to serve her 90-day sentence.

About the Author

Dalene Bartholomew is a Certified Fraud Examiner, Certified Insurance Fraud Investigator and vice president of the SIU at Probe Information Services, Inc. (www.probeinfo.com). She began directing Probe's highly successful, compliant, innovative and award-winning insurance fraud team in 2004. Ms. Bartholomew is a recognized speaker, anti-fraud trainer, author and insurance fraud consultant.