California Insurance Fraud Laws and Landmark Cases
The issue of whether an employee who is convicted of workers' compensation insurance fraud in violation of Insurance Code section 1871.4(a)(1) is barred by application of Insurance Code section 1871.5 from making any future claims for workers' compensation benefits was addressed by the Court of Appeal in Tensfeldt v. Workers' Comp. Appeals Bd. (1998) 66 Cal.App.4th 116 (Tensfeldt)
The determination of whether the convicted employee is barred from receiving all workers' compensation benefits depends on the nature of the employee's misrepresentation. (1 Hanna, Cal. Law of Employee Injuries and Workers' Compensation (rev. 2d ed. 2001) 2.032, p. 2-15.)
The Tensfeldt court held that "when an employee is convicted for fraud because of a lie about the statutory compensability of an injury, section 1871.5 precludes that employee from 'receiving or retaining' all workers' compensation benefits, because the fraudulent misrepresentation is material to entitlement to any benefits under the Labor Code." (Tensfeldt, supra, 66 Cal.App.4th at p. 124.)
The court emphasized that "as a general rule these fraud cases must be determined on an ad hoc basis. It is unworkable to attempt a fixed rule interpreting Insurance Code section 1871.5 to completely bar individuals convicted under section 1871.4 from forever receiving or retaining any workers' compensation benefits connected with a claim for an otherwise legitimate industrial injury, without regard for the specific facts of the case." (Tensfeldt, supra, 66 Cal.App.4th at p. 124.)
The Court of Appeal in Tensfeldt then created a three-prong test (the Tensfeldt test) for determining whether a worker convicted of workers' compensation insurance fraud is entitled to receive further workers' compensation benefits for an injury when the fraud conviction is not the result of a lie about the statutory compensability of that injury:
"Entitlement to receive further compensation benefits after a fraud conviction necessarily will require (1) an actual, otherwise compensable, industrial injury; (2) substantial medical evidence supporting an award of compensation not stemming from the fraudulent misrepresentation for which the claimant was convicted; and (3) that claimant's credibility is not so destroyed as to make claimant unbelievable concerning any disputed issue in the underlying compensation case." ( Tensfeldt, supra, 66 Cal.App.4th at pp. 125-126.)
Applying these principles, the Tensfeldt court held that section 1871.5 precluded the injured employee in that case from "seeking any and all compensation benefits for the same knee injury" (Tensfeldt, supra, 66 Cal.App.4th at p. 126) because (1) he had been convicted under section 1871.4 for lying about "the very fact of compensability, the essential event which is material to establishing an industrial injury, and which is necessary to trigger his employer's statutory liability for workers' compensation benefits in the first place" (Tensfeldt, supra, at p. 126); and (2) it was undisputed that the employee's "second, so-called 'truthful' claim, was seeking the same benefits sought by the false claim leading to his conviction." (Ibid.)
California Insurance Code sections 1871.4(a)(1) and 1871.5 (discussed, post), were enacted as part of the Insurance Frauds Prevention Act ( 1871 et seq.), a series of comprehensive reform legislation (Stats. 1989, ch. 1119, 3, p. 4130 et seq.) that has been supplemented in subsequent legislation. (Tensfeldt v. Workers' Comp. Appeals Bd. (1998) 66 Cal.App.4th 116 (Tensfeldt).)
"The Insurance Frauds Prevention Act . . . was aimed at reducing fraudulent workers' compensation claims as well as other insurance fraud. 'The clear aim of the legislation was to control fraudulent claim practices by increasing professional and criminal penalties and actively investigating and prosecuting fraud.' " (Tensfeldt, supra, 66 Cal.App.4th at p. 122.)
i. Section 1871.4(a)(1)
To this end of controlling fraudulent claim practices, section 1871.4(a)(1), which was enacted in 1991, makes it a crime to "make or cause to be made any knowingly false or fraudulent material statement or material representation for the purpose of obtaining or denying any compensation, as defined in Section 3207." (Stats. 1991, ch. 116, 13, p. 688; see Tensfeldt, supra, 66 Cal.App.4th at p. 122.)
"In 1991, the Legislature added various sections to the Business and Professions, Insurance, Labor, and Penal Codes to 'assist in restoring confidence and faith in the workers' compensation system' by preventing fraudulent activities." (1 Cal. Workers' Compensation Practice (Cont.Ed.Bar 4th ed. 2001) 1.12, p. 11, quoting 1871, subd. (e); see also Longval v. Workers' Comp. Appeals Bd. (1996) 51 Cal.App.4th 792, 800, fn. 8 (Longval).)
Section 1871.4 provides in its entirety: "(a) It is unlawful to do any of the following:
(1) Make or cause to be made any knowingly false or fraudulent material statement or material representation for the purpose of obtaining or denying any compensation, as defined in Section 3207 of the Labor Code.
(2) Present or cause to be presented any knowingly false or fraudulent written or oral material statement in support of, or in opposition to, any claim for compensation for the purpose of obtaining or denying any compensation, as defined in Section 3207 of the Labor Code. (3) Knowingly assist, abet, conspire with, or solicit any person in an unlawful act under this section.
(4) Make or cause to be made any knowingly false or fraudulent statements with regard to entitlement to benefits with the intent to discourage an injured worker from claiming benefits or pursuing a claim.
For the purposes of this subdivision, 'statement' includes, but is not limited to, any notice, proof of injury, bill for services, payment for services, hospital or doctor records, X-ray, test results, medical-legal expense as defined in Section 4620 of the Labor Code, other evidence of loss, injury, or expense, or payment. (b) Every person who violates subdivision (a) shall be punished by imprisonment in county jail for one year, or in the state prison, for two, three, or five years, or by a fine not exceeding fifty thousand dollars ($ 50,000) or double the value of the fraud, whichever is greater, or by both imprisonment and fine. Restitution shall be ordered, including restitution for any medical evaluation or treatment services obtained or provided. The court shall determine the amount of restitution and the person or persons to whom the restitution shall be paid. (c) Any person who violates subdivision (a) and who has a prior felony conviction of that subdivision, of former Section 556, of former Section 1871.1, or of Section 548 or 550 of the Penal Code, shall receive a two-year enhancement for each prior conviction in addition to the sentence provided in subdivision (b). The existence of any fact that would subject a person to a penalty enhancement shall be alleged in the information or indictment and either admitted by the defendant in open court, or found to be true by the jury trying the issue of guilt or by the court where guilt is established by plea of guilty or nolo contendere or by trial by the court sitting without a jury. (d) This section shall not be construed to preclude the applicability of any other provision of criminal law that applies or may apply to any transaction."
ii. Section 1871.5
Section 1871.5 was enacted in 1993 to provide further limitations on receipt of compensation benefits by individuals convicted of workers' compensation fraud. ( Tensfeldt, supra, 66 Cal.App.4th at p. 123, fn. omitted.) That section provides in part:
"Any person convicted of workers' compensation fraud pursuant to Section 1871.4 . . . shall be ineligible to receive or retain any compensation . . . where that compensation was owed or received as a result of a violation . . . for which the recipient of the compensation was convicted."
Section 1871.5 provides in its entirety: "Any person convicted of workers' compensation fraud pursuant to Section 1871.4 or Section 550 of the Penal Code shall be ineligible to receive or retain any compensation, as defined in Section 3207 of the Labor Code, where that compensation was owed or received as a result of a violation of Section 1871.4 or Section 550 of the Penal Code for which the recipient of the compensation was convicted." (Added by Stats. 1993, ch. 120, 3.1.)
"Giving the language its ordinary meaning, section 1871.5 unambiguously provides that an injured worker must return only 'that compensation' obtained by fraud, and may not receive further compensation stemming from the fraud." ( Tensfeldt, supra, 66 Cal.App.4th at p. 123.)
Section 1871.5 thus "bars an individual who has been convicted of workers' compensation fraud under section 1871.4(a)(1) from retaining or receiving any compensation that stems directly from the fraud." (1 Cal. Workers' Compensation Practice, supra, 1.14, p. 12.)
iii. Labor Code section 5803.5
In 1991, the Legislature also enacted Labor Code section 5803.5, which provides:
"Any conviction pursuant to section 1871.4 that materially affects the basis of any order, decision, or award of the appeals board shall be sufficient grounds for a reconsideration of that order, decision, or award." (Stats. 1991, ch. 116, 33, p. 700.)
"That section, consistent with section 1871.5 discussed, ante, posits a fraud conviction which 'materially' affects the basis of an award, as a predicate condition to 'reconsideration' of an order, decision, or award theretofore made. Obviously, such 'reconsideration' may, dependent on the facts of a case, result in annulment of the award previously made." (Tensfeldt, supra, 66 Cal.App.4th at pp. 123-124.)
The elements of a fraud claim are:
(1) a misrepresentation;
(2) with knowledge of its falsity;
(3) with the intent to induce another's reliance upon the misrepresentation;
(4) justifiable reliance;
(5) resulting damage. (Conroy v. Regents of University of California (2009) 45 Cal.4th 1244, 1255.)
"Justifiable reliance" consists of two elements:
(1) Actual reliance, that is a "'"complete causal relationship" between the alleged misrepresentations and the harm claimed to have resulted therefrom'"; and (2) reasonable reliance, meaning "'circumstances were such to make it reasonable for the plaintiff to accept the defendant's statements without an independent inquiry or investigation.'" (OCM Principal Opportunities Fund, L.P. v. CIBC World Markets Corp. (2007) 157 Cal.App.4th 835, 864.)