Can statements made by a workers’ comp claimant to an IME physician be used to convict the claimant of workers’ comp fraud?

The court in, Commonwealth v. Wilson, Mass: Appeals Court 2013, said yes.

The court upheld the conviction for workers’ comp fraud based substantially on the misrepresentations by the claimant to the two IME physicians.

The court stated:

On August 2, 2007, the defendant underwent an independent medical evaluation so that Sentry could determine whether to adjust or maintain his benefits. Dr. Kenneth Polivy examined the defendant and reported: `At the present time [the defendant] is not working.’ Dr. Polivy testified that it was customary to ask whether a patient was working; he believed he asked that question and that the defendant clearly understood it to mean whether he was working anywhere, not just at Milton CAT. On August 20, 2007, the defendant completed an employee earning report at the behest of Sentry — he verified that he had `not received earning for any period in which [he] was entitled to receive Workers’ Compensation Benefits.’ On September 4, 2007, the defendant underwent a second independent medical examination by Dr. Vincent R. Giustolisi. Dr. Guistolisi testified that the defendant stated that he was not currently working.

Between April 12, and August 20, 2007, Sentry paid the defendant $857 per week. As of April 4, 2007, however, the defendant was performing heavy machine maintenance for Scott Construction Company (Scott), a general building contractor. Between April 4, and September 11, 2007, the defendant was paid $11,711.17 by Scott.

At the end of trial, the defendant moved for a required finding of not guilty. The judge denied the motion and instructed the jury as to the elements of workers’ compensation fraud. Specifically, the judge instructed the jury that `[t]he Commonwealth need not prove that the party receiving the statement believed it or relied on it, but it must prove that the statement was made in a workers’ compensation proceeding. . . .


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