Are fraud and misrepresentation claims the best way to enforce doctor choice for injured workers?

A case out of Texas may provide injured workers to a way to enforce their state’s doctor choice laws.  In Warneke v. Nabors Drilling USA, a Texas appellate court held that a workers’ fraud and misrepresentation case against his employer for lying about having workers compensation coverage was not barred by the exclusive remedy of the workers compensation statute because the fraud was separate from the work injury.

In Warneke, the employer lied when it told their injured employee that they did not have workers compensation insurance. The court said the fraud caused the plaintiff to incur unpaid medical bills as well as emotional damages from economic distress.

Fraud and misrepresentation in regards to doctor choice could be proved to showing that the employer and/or insurer knew that an injured worker could chose their own doctor yet told the worker they could not see their own doctor. Damages in a doctor choice fraud case could be pain for working while the worker should have been on light duty and/or off work. A fraud claim could also be paired with a constructive discharge claim if working while an injured workers should have been convalescing caused an injured worker to quit.

A doctor choice faruad case many challenges. First of all it would likely require a medical doctor to examine an injured worker and to review the records of the employer-chosen doctor to see if the treatment was appropriate. That would be a major expense. Secondly, should such a case get to a jury there is the ingrained bias that workers compensation fraud is usually committed by workers trying to “milk the system.”

A workers compensation doctor choice fraud and misrepresentation claim would be difficult to prosecute, but as a fellow trial lawyer told me at a recent AAJ membership and PAC drive, if things were easy people wouldn’t need lawyers.




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