Is it Fraud?
If a workers is injured and then after a recovery, begins another work with his/her spouse in the spouse's restaurant business, earning no money at all (just “helping” the business) is that fraud?
This was a close case I handled in Gainesville, Georgia, and one in which all parties decided to settle instead of going to court.
My client had cervical spine treatment from her job injury. During her recovery, her husband began work as the owner/manager of a small restaurant serving breakfast and lunch. My client, as she was recovering, was doing very light cashier work at the restaurant. She apparently thought that since this was a family business and she was not earning money doing this work, it would be acceptable to help out. She did not tell me she was doing this. The restaurant did not open for business until six months after my client's job injury.
The insurance company, acting on a tip, sent a private investigator to the restaurant to “catch” her doing heavy work. This they did not find but they still took pictures of her pouring coffee and handling the cash register. Then the insurance company terminated her workers' compensation benefits. The insurance company argued that she hurt herself again doing this job at the restaurant. Two doctors said no to that idea. Then they argued that she was working within the meaning of the workers' compensation laws and not eligible for future weekly benefits.
So we were stuck with whether helping her husband at the restaurant would be considered work, even if it were only 2 or so hours a day (and not every day).
The Workers' Compensation Code says:
“A person employed to perform services in the affairs of another and who with respect to the physical conduct in the performance of the services is subject to the other's control or right of control.”
O.C.G.A. § 34-9-1 (2). Payment does not have to be in cash or check but can be in the form of virtually anything of value.
Was my client doing a “work around” of the law? I felt that if my client was not at the restaurant doing what she did, her husband may have needed another worker, thus showing the value of the wife's services to her husband's restaurant. This could be Fraud but since the employer/insurer knew she was “working”, the question of fraud was eliminated for the most part. I was glad we settled this case.
Practice area(s): Workers Compensation