Archive for the ‘fraud’ Category

IMEs in a New York Minute

Tuesday, July 23rd, 2013

Back in 2009, we blogged an expose from the New York Times concerning the abuse of independent medical exams (IMEs) in New York. The article quoted 79 year old Dr. Hershel Samuels, who performed as many as 50 exams in a day. He filled out a checklist and let others write the reports. Did he read these reports? “I don’t,” he said. “That’s the problem. If I read them all, I’d have them coming out of my ears and I’d never have time to talk to my wife. They want speed and volume. That’s the name of the game.”
Muckraking journalism apparently did not solve New York’s IME problem. Which brings us to orthopedist Michael Katz, who makes a pretty good living performing, among other things, about 1,000 IMEs a year for the state of New York. [Details can be found at the invaluable Workcompcentral (subscription required).] After examining an injured worker, Manuel Bermejo, Dr. Katz wrote up his findings. In testimony, he declared that he spent 10 to 20 minutes with Bermejo. Unfortunately for Dr. Katz, Bermejo secretly recorded the session, which lasted just four seconds shy of 2 minutes.
Tantrum in the Court
When presented evidence of the IME’s duration, Queens Supreme Court Judge Duane Hart went ballistic. “How do I stop carriers from putting people like Dr. Katz on the stand and causing the state to spend thousands and thousands of dollars trying a case and putting a lying witness on the stand?” Judge Hart referred the transcripts of the proceedings to a Queens administrative law judge for potential perjury action against Dr. Katz.
The judge’s rage is understandable: IMEs are a vital activity in workers comp: in theory, IMEs offer a fresh, objective look at a worker’s injuries to determine what, if anything, is wrong, the extent of the disability and the role work played in it. In an ideal world, the IME is dispassionate, with no vested interest in the ultimate determination of compensability.
Good Faith, Bad Faith, No Faith
Dr. Katz claims he has been set up by plaintiff attorneys, who believe he acts primarily to further the interests of insurance carriers. (Here is a link to a plaintiff attorney’s blog featured Dr. Katz and other alleged abusers of IMEs.) On the other hand, there are surely IME doctors who tend to find in favor of injured workers and are thus favored by plaintiff attorneys, .
The world of medicine is supposed to be driven by objective medical evidence, but doctors are hardly robots, evidence is in the eye of the beholder and what the doctor sees might well be influenced by political views, personal history and, yes, even financial considerations.
It is interesting to note that the Bermejo claim began in the workers comp system, where the benefits are limited to lost wages and medical costs. Because the injury involved a fall from heights, the claim also fell under New York’s unique – and understandably unreplicated – Scaffold Law. But the claim now involved literally millions of dollars: Bermejo was suing the hospital where he was treated for malpractice. It is this last suit that brought Dr. Katz into Judge Hart’s courtroom. The judge was hoping for an objective analysis of the claim in order to determine whether the hospital had really screwed up. Alas, he ended up with no faith whatsoever in the quickie IME performed in the proverbial New York minute.

New Hampshire: Are Injured Workers Avoiding Comp?

Thursday, September 6th, 2012

The Insider has come across an intriguing but ultimately frustrating study concerning the under-reporting of workers comp claims in New Hampshire. Under the auspices of the NH Department of Health and Human Services, the Behavioral Risk Factor Surveillance System survey (with the unfortunate acronym of BRFSS) conducted phone interviews with nearly 7,000 adults who were employed during 2008. About 340 people – close to 5 percent – reported that they had been injured at work sometime during the prior year – injured, that is, seriously enough to require “medical advice or treatment.” (Sigh, when you include “medical advice,” you might be including the first-aid-only incidents that should be excluded from the study.)
Here is the interesting – if somewhat compromised – nugget from the study. Among those who were injured, only 54 percent reported that their treatment was paid (“all or in part”) by workers compensation. The remaining 46% reported their treatment was paid for by private or government insurance (25%) or by other means (21%). Unfortunately, by the time you get down to the 150 people in the non-comp segment, the combination of small numbers and ambiguous questions seriously reduces our ability to draw any meaningful conclusions. The study may indicate substantial under-reporting, but to know for sure, the researchers are going to have to ask some more questions.
Focus on Comp
Because the survey is conducted by the Department of Health and Human Services, the focus on workers comp is, pardon the expression, almost accidental. In fact, the 2008 survey was the first time they included questions about workplace injuries and payment for related treatment. While I applaud their interest in comp, I hope they would consider adding just a few questions to make the survey more effective. Assuming the survey guarantees anonymity, the questions might include:
– For those reporting that they are self-employed, ask whether they carry workers comp insurance (it is optional in NH).
– For those reporting that they were injured, the follow-up questions should be limited to those who secured outside medical treatment (and not those seeking only “advice”).
– If comp paid just “part” of the treatment cost, who paid the remainder?
– For any worker whose treatment was not covered 100% by workers comp, ask whether they paid anything out of pocket (which would be a violation of comp law).
– If treatment was covered by a non-comp insurer, ask whether workers were instructed by their employer to report the injury as “non-work related” (employers giving this instruction and employees following it are committing insurance fraud).
– For any workers reporting injuries, ask whether they lost time from work due to the injury and whether they were paid for the time they missed. (Some employers are so determined to avoid the comp system, they pay wages for employees missing time due to injury, even beyond the state’s three day waiting period.)
Cost-Shifting?
Lurking in the shadows of this study is the distinct possibility that under-reporting is real and possibly instigated by employers trying to game the experience rating system; they are shifting costs onto forms of insurance that are less loss sensitive. In addition, Injured workers may fear retaliation for reporting legitimate injuries: they may face disciplinary action, may be fired, may be denied overtime or may even ruin the “days without accident” program that dangles the promise of a pizza lunch and drawing for a TV if a certain number of days are free from (reported) injuries.
The BRFSS study provides just enough data to tease us: there may be a serious issue here, but then again, there may be no problem at all. To the good folks in New Hampshire, let this be a word of encouragement. Your study, to put it rather harshly, may be kind of useless in its current form, but with a little tweaking, it might lead to genuine insight into the way injuries are managed in – and possibly diverted from – the state’s workers comp system.

North Carolina’s “ghost workers” allow scofflaws to thrive while by-the-book employers suffer

Tuesday, August 28th, 2012

What happens to honest businesses when unscrupulous competitive businesses fail to carry workers’ compensation insurance for their employees? In the difficult economy, some of the honest players have suffered losses while scofflaws thrive. North Carolina’s NewsObserver features an investigative series on Ghost Workers, which takes an in-depth look at the many ramifications of workers’ comp avoidance schemes and the ways that this type of fraud hurts other businesses, the state’s coffers, and any workers who are injured on the job.

State legislators and candidates in the upcoming state elections are competing to raise the outrage meter in the wake of the NewsObserver‘s revelations that as many as 30,000 employers are failing to carry workers’ compensation insurance. Many of these employers are misclassifying workers as independent contractors, so they are also thumbing their noses at other statutory obligations such as taxes, Social Security, unemployment tax, and overtime pay.
Unsurprisingly to those who have followed the misclassification trail in other states, the construction industry offers a fertile climate for fraud to thrive. The NewsObserver explains how a unique bureaucratic loophole in the state can be worked to game the system:

“A business owner, often in the construction industry, tells his insurance agent that he has no employees. He excludes himself from the policy, which is his right as a sole proprietor. He buys a policy to cover a “ghost,” an unknown employee who might unexpectedly join him to work during the year.

These policies can make a business look like it has more insurance coverage for its workers than it has.”

Tax dodging employers can hide under layers of subcontractors, as well as by hiring illegal immigrants. And state agencies that operate in silos are not coordinating to thwart this practice.
Not all the employers are small operations – the expose talks about a firm named Martin’s Bricklaying, which supplied 76,000 hours of labor to help build the $125 million Wake County Detention Center, earning $1,066,538 for this work.

“The company’s owner, Sabas Martin Galeana, has run afoul of state and federal tax obligations in years past, court records show; he settled the last of three liens in 2009. A review of several employees’ recent pay stubs shows that Martin has failed to withhold state and federal taxes as recently as July. The workers say he didn’t provide his workers the tax forms they needed to settle their own obligations.”

The practice of employee misclassification isn’t unique and it’s hardly surprising. But what is surprising is that North Carolina is so slow off the mark when other states and the federal government have been taking aggressive steps to curb misclassification and to penalize scofflaws. We’ve been covering stories of states getting tough on misclassification and workers comp avoidance since 2004. We wonder how the heads of various agencies in North Carolina never noticed. The state has faced serious budget cuts to valued services in recent years, all the while bleeding much needed tax revenue to lawbreakers. Kudos to the NewsObserver for their series.
North Carolina legislators will be working to plug this hole – particularly since it’s an election year. They may also want to sign on to federal efforts such as the
Deparment of Labor’s Misclassification Initiative. Thirteen states have signed Memorandum of Understanding (MOUs) with the Department of Labor’s Wage and Hour Division, and in some cases, with its Employee Benefits Security Administration (EBSA), Occupational Safety and Health Administration (OSHA), Office of Federal Contract Compliance Programs (OFCCP), and the Office of the Solicitor. The DOL says that these MOUs, “will enable the Department to share information and to coordinate enforcement efforts with participating states in order to level the playing field for law-abiding employers and to ensure that employees receive the protections to which they are entitled under federal and state law. Employers that misclassify their employees may not be paying the proper overtime compensation, FICA and Unemployment Insurances taxes, or workers’ compensation premiums.”

Doggone fraudster of the month

Tuesday, July 17th, 2012

Fraud of any flavor is to be decried, but somehow it bothers us just that much more when the perpetrator is a physician. Call us sentimentalists, but we like to think of the Hippocratic oath as more than just a quaint mythic tradition. You know, the “do no harm” thing. But with the proliferation of prescription pain pill abuse, addiction, and deaths, it’s inevitable that some physicians are involved. We happened to spy a recent news story about the bust of a California pill mill.
Police had complaints that Dr. Rolando Lodevico Atiga of Glendora was essentially selling prescriptions for strong painkillers, such as oxycodone and Vicodin. Atiga was already on probation from prior charges related to fraudulent activity. Undercover agents went to obtain proof by trying to obtain fraudulent prescriptions. At one point, Atiga asked the officer for proof that she suffered from pain. How conscientious!

“This undercover officer obtained X-rays of her dog, brought these X-rays into the office, showed the doctor,” Staab said. “He looked at these X-rays, immediately said that pain medicine for her would be warranted and for $400 immediately issued a prescription for hydrocodone. Either Sparky the dog really, really badly needs Percocet or this doctor is a petty drug dealer masquerading as a physician,” Staab said.”

Now the dog x-ray angle of this story is pretty humorous, but there is nothing whatsoever that is funny about the underlying issue. Propelled by an increase in prescription narcotic overdoses, drug deaths now outnumber traffic fatalities in U.S.. When you think about druglords and pushers, doctors are probably not the image that comes to mind … but as the prescription drug problem worsens, that may change.

Risk Transfer as Three-Card Monte

Tuesday, May 22nd, 2012

When you’re looking for ethically-challenged business practices, Florida is usually a good place to begin. The latest kerfluffle involves a toxic combination of very high deductibles for workers comp insurance and employee leasing companies. Oklahoma based Park Avenue Property and Casualty Insurance sold policies with deductibles as high as $1 million to PEOs. Think about that for a moment: a million dollar deductible is virtually self-insurance, as very few claims break that formidable barrier. Park Avenue, along with its successor companies, sold these policies to employee leasing companies, who in turn passed the coverage through to their client companies. With such a huge deductible, the coverage must have been relatively inexpensive compared to standard market rates.
Under large deductible programs, the insurance company pays all the bills and then seeks reimbursement from the client company, up to the deductible amount. It’s not hard to figure out the flaw in this business model: client companies will welcome the discounted premiums, but when it comes time to pay back the insurer for paid losses, they will be unable to cut the checks. Given the complete absence of regulatory-mandated collateralization for the claims liability, there is no way the insurer will be reimbursed for large loss claims.
That’s where the three-card Monte comes in: the insurer wrote these policies knowing full well that the deductibles would never be paid. That’s why Park Avenue morphed into Pegasus Insurance, which morphed into Southern Eagle Insurance, which flies off into the pastel sunset of bankruptcy.
Gaming Risk Transfer
The cards have been moved around at blinding speed, but who ends up paying? Once again, those who played by the rules will have to pay for those who didn’t. (For a more egregious example of punishing the innocent, see our blogs on the New York Trusts.) Policy holders in Florida will be charged somewhere between 2% and 3.5% of premiums to cover the $100 million plus of losses.
In the WorkComp Central article by Jim Sams (subscription required), Paul Hughes, CEO of Risk Transfer Company, which markets insurance to PEOs, complains that singling out the PEO industry is unfair. The state should never have allowed Park Avenue and its winged successors to write insurance, as they were clearly incapable of assuming the risk. True enough, but even Hughes would have to admit that the PEO industry offered a ripe venue for the scam: individually, PEO clients would never have qualified for high deductible coverage, but somehow, under the collective umbrella of a PEO, they did.
Meanwhile, PEOs are being sued for failing to reimburse the claims payments of Park Avenue and its successors. After the PEOs lose these cases, they will seek payment from their clients, who are unlikely to have the ability to pay anywhere near what is owed. The litigation will go on for a long time, but the bottom line is simple: risk transfer cannot exist where none of the parties can cover the exposure. That isn’t risk transfer: it’s a shell game, where those who did not play are left holding the bag.
Follow Up – June 7, 2012
After posting this blog, I received a call from Paul Hughes, CEO of Risk Transfer in Florida, who is quoted above. While not contesting the premise that large deductibles are poorly managed in Florida (and elsewhere), he believes that I unfairly singled out PEOs in the blog. The fundamental issue is the failure of the state to adequately regulate and oversee large deductible programs. I agree.
Please take a few moments to read Paul’s response, which employs the useful metaphor of a casino for the risk transfer industry:

The core issue to me is the role of the regulator versus the business owner in the management of the “casino” (insurance marketplace). That is one of the parts of Jon’s article in Workers Comp Insider that blurs the line a bit on what the PEO’s role is within the casino and whose job it is to set the rules. The casino is the State as they certify the dealers to play workers’ compensation (Carriers, MGU’s, MGA’s, Agents and Brokers) and the State also certifies that the players are credible (not convicted of insurance fraud) and can pay/play by the rules of the house. The rules are set by the house and the games all require public filings – ability to write workers’ compensation (certificate of authority), ability to offer a large deductible plan (large deductible filings), agent license, agency license, adjusters license and any other deviation from usual business practices (like the allegations that one now defunct insurance carrier illegally charged surplus notes to desperate PEO’s in the hardest market the industry has ever seen). The “three-card monte” that Jon alludes to in this article is managed not by the dealers (carriers), but by the house (state). Would a real life casino consider it prudent to allow one of their dealers to expose 20% of their $5m in surplus through high deductibles sold to PEO’s with minimal financial underwriting and inadequate collateralization? Would any casino write harder to place (severity-driven) clients to include USL&H, roofers etc with the minimum amount of surplus needed to even operate a carrier…? Of course not. These “big boy” bets would never be allowed in Vegas without the pockets being deep enough to cover the losses.

Pennsylvania: Crime Wave in a Bureaucracy

Wednesday, March 21st, 2012

The Insider does not normally think of state workers comp insurance funds as hubs of criminal activity, but then again, we haven’t been to Scranton lately. James McDonnell, 53, is a supervisor in the State Workers’ Insurance Fund (SWIF). He makes about $51,000 a year – at least, that’s his declared income. He has apparently been pulling in a whole lot more than that. He was arrested this week for running a kickback scheme involving premium discounts for Pennsylvania employers. In exchange for (undocumented) discounts in premiums owed, McDonnell secured cash kickbacks of one third to one half the discount. Between 1999 and 2011, McDonnell and his wife pulled in at least $80,000.
WorkCompCentral (subscription required) offers additional background on this case, including PDFs of the criminal indictment. McDonnell offered premium discounts to individual employers, in one case, a roofer, whose premiums, instead of going up $50K, came down $10K. He then insisted that the roofer join one of the three staffing firms with whom he did business. In exchange for steering clients their way, these firms paid McDonnell a relatively modest 1% commission, in addition to paying him substantial cash kickbacks on the premium discounts. In honor of family values, McDonnell’s wife was given several jobs which apparently did not require that she perform any work.
Kickbacks and Harassment
McDonnell must have been a busy man, systematically exploiting his position with SWIF, but he allegedly found time to harass a fellow fund employee. Last September he was accused of “making sexual advances on the employee, identified only as Jane Doe, such as asking her to lick a piece of Twizzlers candy taken from her work desk before he ate it and telling her to bend over and pick up a time sheet he dropped to the ground.” Would you be shocked to learn that the fund did not take these accusations seriously?
There may well be slow days at a typical state fund, but McDonnell sure knew how to make time fly. That skill will come in handy when and if he finds himself doing time in a bureaucracy of a different sort altogether.
Comp fraud takes many forms and encompasses opportunities for each and every stakeholder in the system: doctors, lawyers, insurers, state bureaucrats, business people, workers and, I suppose, even consultants. Today’s little saga of greed arises from the midst of a state bureaucracy. But no matter where the crime originates, the result is the same: higher costs for the vast majority of people who play by the rules.

A Window Into Fraud

Monday, February 13th, 2012

A couple of years ago we blogged the performance incentive program at Smurfit-Stone Container Corporation in California. The performance numbers were stellar, but not necessarily because the work was performed safely. Instead, the company conspired with local medical providers to secure limited treatment outside of the workers comp system. Two supervisors pled no contest in conspiring to deny comp benefits to injured workers.
With the recent conviction of chiropractor Robert Schreiner, we see into the black box of the conspiracy. Workers complaining of work-related problems were referred to doctors like Schreiner – giving rise, alas, to a new and ominous definition of provider network. In one instance a worker complained about a neck and shoulder injury. Schreiner denied that the problem was work related, saying that it was caused by carrying a back pack as a child. He provided a handful of treatments and then encouraged the worker to file the claim under his health plan to continue treatments. When the worker persisted and filed a comp claim, he was fired.
Schreiner is headed to jail to serve a mostly symbolic sentence of 30 days, to be followed by three years of probation. Perhaps he can provide some adjustments to his fellow inmates. Confined spaces sure can mess up the spine.
Faking Safety
Smurfit-Stone was bought out last year by RockTenn. You can still read about the company in Wikipedia. Here is the (unattributed) description of the company’s safety program:

Smurfit-Stone has been an industry leader in safety performance since 2001 [NOTE: the conspiracy to under-report claims began in 1999!]. In 2007, Smurfit-Stone’s U.S. operations had an OSHA recordable case rate of 1.05, the best in company and industry history. This represents an 84 percent improvement in the company’s recordable case rate since the implementation of Smurfit-Stone’s SAFE process in 1995.The SAFE process, which stands for Smurfit-Stone Accident-Free Environment, promotes five core beliefs:
1.All injuries are preventable
2.Safety is everyone’s responsibility
3.Working safely is a condition of employment
4.Training employees to work safely is essential
5.Safety is good business

As litigation has proven, Smurfit-Stone’s low OSHA case rate has less to do with safety than with a conspiracy to under-report claims. Perhaps the SAFE program stood for something else: Screw All Forsaken Employees. Aggressive safety goals are a good business practice; circumventing the workers comp system is not just a bad practice, it’s illegal. Just ask Robert Schreiber.

Social Media as Evidence: Good Times Yield Bad Results

Monday, February 6th, 2012

ABC news has picked up a story out of Arkansas: Zack Clement suffered a hernia while moving a refrigerator for his employer, Johnson’s Warehouse Showroom. He underwent multiple surgeries, but the pain lingered, so he filed for a continuation of benefits. Among the pieces of evidence at his trial were party photos posted on his Facebook page, which show Clement drinking (and little else). When his claim for reinstatement was denied, Clement appealed, citing the unfairness of the Facebook evidence.
ABC wrote as follows:

In an opinion, written by Judge David M. Glover, the Arkansas Court of Appeals states: “We find no abuse of discretion in the allowance of photographs. Clement contended that he was in excruciating pain, but these pictures show him drinking and partying.”
“Certainly these pictures could have a bearing on a Clement’s credibility, albeit a negative effect that Clement might not wish to be demonstrated to the ALJ or the Commission, ” Glover continues. “We hold that there was not an abuse of discretion in allowing the photographs.”

Justice in the Details
At first glance, the judge’s comments might be cause for alarm. An injured worker suffering from chronic pain might well be capable of having a few drinks with friends. (One can only hope that the alcohol does not interfere with any prescribed -or unprescribed – pain medications.) If the photos were the primary evidence of Clement’s condition and the basis for denying the claim, Clement would have good reason to object. However, this is not the case.
In the course of his carefully reasoned findings, Judge Glover reviews in detail the medical history of Clement’s claim. Even after multiple surgeries and several changes in treating doctors, Clement complained of ongoing pain. Extensive medical testing revealed no abnormalities and no evidence for the pain itself. He has been released to full duty. It is this detailed history and the lack of medical evidence that lead Glover to conclude that any further treatment would fall outside of the workers comp system. The Facebook photos are by no means the foundation of his findings. Nonetheless, he decides that the photos are a legitimate piece of the case file and admissable as evidence.
In my limited experience, Facebook seems to be a platform for superficial news and, for the most part, images of the good times. It is difficult to imagine that Clement would have used this public forum to post pictures of himself suffering excrutiating pain. If he had chosen to do so, this might have provided evidence in his favor. However, his friends would likely have chided him for being such a downer and even then, the court might have dismissed the images as theatrical exaggeration.
Facebook may now be the preferred means of presenting our personal narratives, but it is unlikely to help us make our case in a court of law.

Annals of Fraud: Pickells in a Pickle

Monday, August 15th, 2011

Kevin and Bob Pickell ran KDN Lanchester Insurance Agency in Sinking Spring PA. It’s not just the spring that’s sunk. The not-so-kissing cousins (bad day photos here) have been convicted of diverting workers comp premium payments from area school systems into their own pockets.
As fraud goes, agents pocketing premiums is pretty dreary stuff: it’s not a matter of if, but when they get caught. In this case, the carrier notified one of the schools that premiums had not been paid. In jumps the state attorney general, with the result that the Pickells are going to prison for over a year, followed by restitution and 20 years of probation.
The cousins do not appear to be planning a return to the brokerage business. They have offered the domain site (kdnins.com) for sale. Let’s see. Brokers in jail, a bit of bad press. Not exactly a once-in-a-lifetime business opportunity.
Many good folks testified to the character of the defendants. They were known for their generosity in the community, along with living the lavish life style that inevitably accompanies this type of crime: big houses, fancy cars, expensive wines…
Opportunities for Fraud
Agents are just one of a number of parties in the workers comp system who see opportunities for making money the fast and not-exactly-legal way. Along with agents we have:
Employees:
• Faking injuries
• Lying about health problems that impact their ability to perform jobs safely
• Exaggerating symptoms to prolong disability (malingering)
• Being injured away from work and claiming the injury is work related
• Working a second job (usually under the table) while still collecting indemnity
Employers:
• Under-reporting payroll
• Misclassifying employees as “independent contractors”
• Misclassifying employees into lower risk – and lower premium – job classes
• Failing to report injuries
• Threatening employees who do report injuries
Doctors:
• Billing insurance companies for treatments not provided
• Exaggerating the nature of services provided
• Performing unnecessary tests
• Selling drugs (pain killers) to injured workers
• Conspiring with attorneys by faking diagnoses of compensable injuries
Attorneys:
• Helping workers exaggerate medical symptoms to secure benefits (providing unnecessary neck braces, crutches, slings, etc.)
• Coaching injured workers on malingering
• Helping workers develop a false “injury narrative”
• Stealing settlement dollars (very rare)
Claims adjusters:
• Securing kick-backs on medical or indemnity payments
• Setting up phony claims and pocketing payments
Investment companies:
• Bribing public officials to secure dollars for investment (see the “Coingate” scandal in Ohio)
• Offering (illegal) perks to decision makers who manage public dollars
Despite the myriad opportunities for fraud in the comp system, outright fraud is still relatively rare. The vast majority of transactions within the system, involving all of the above players in every state across the nation, are carried out with integrity and good faith. Nonetheless, eternal vigilance is necessary to ensure that comp dollars are spent prudently, wisely and fairly.

Annals of Fraud: Buffed, Ripped, Indicted

Tuesday, August 9th, 2011

When we last left bodybuilding firefighter Felix Arroyo, his application for disability retirement ($65K per year, tax free) had been rejected and he had been offered back his (relatively light duty) job with the Boston Fire Department. Arroyo declined to accept the job and was fired. Now we read in the Boston Globe that he is facing criminal charges in federal court for mail fraud, the result of a seemingly able-bodied individual claiming to be disabled.
The case against Arroyo is as powerful as his biceps. Two back specialists have testified that there is no objective evidence of a back problem and that Arroyo’s description of the pain (“8 out of 10”) was inconsistent with his mobility. Testimony was also given by Dr. John Mahoney, the doctor who originally disabled Arroyo (and whose original diagnosis we termed “Mahoney’s Baloney“). Mahoney testified that he would have changed his evaluation if he had known Arroyo was a body builder.
“If someone is bodybuilding, they’re playing baseball, they’re doing activities…that’s not compliant” with their recovery,” Mahoney said.
Good for Dr. Mahoney. He owned up to his mistake and assumed responsibility for it.
Tough Defense
Arroyo’s attorney, Timothy Watkins, has his work cut out, for sure. He says that Arroyo was “working through the pain.” (Aren’t we all?) He also noted that the doctors’s interpretations of the exams are subjective and that the pain Arroyo suffered could have been the result of stress (the stress, for example, of fabricating a disability?).
Perhaps the most damaging evidence is the video of Arroyo flexing for an audience at a bodybuilding competition a few weeks after he filed for disabiility. The video shows him prancing around the stage, stretching his ripped arms and chiseled legs in all directions and flexing the formidable muscles in his back. Then again, maybe he was just having a good day.
Arroyo is by no means alone in his attempt to take advantage of a lax system. He could argue that he was only doing what many other firefighters have done. True enough, but Arroyo alone is on trial here. Testimony continues. And while no trial result is a foregone conclusion (did someone say “Casey Anthony”?), Arroyo is likely to be working out for a while in a relatively confined space.