Safety and OSHA News

Injured employee working in a bar: Does she lose comp?

No joke. An injured employee on workers’ comp walks into a bar … and goes to work. What did a court have to say about this?  

Brenda Fletcher suffered a low back injury in October 2012 while working for Aramark in Ohio. She was unable to work and received temporary total compensation.

In February 2014, Fletcher signed a form (one in an ongoing series) certifying she wasn’t currently working in any capacity and the last time she worked was Oct. 21, 2012. The form said:

“Working includes full or part-time, self-employment, income-producing hobbies, commission work, or unpaid activities that are not minimal and directly earn income for someone else.”

Aramark was self-insured. Its third-party administrator (TPA) hired a private investigator (PI) to look into reports Fletcher was working.

On April 4, 2014, the PI followed Fletcher to Clancy’s Pub in Delaware, Ohio. The PI sat at the bar for two to three hours and recorded video with his phone of Fletcher pouring several buckets of ice into a receptacle at the end of the bar and serving drinks.

The TPA asked the Ohio Bureau of Workers’ Compensation (BWC) to look into the possibility of fraud. A BWC agent observed Fletcher several times in Clancy’s pub performing work-related duties.

In October 2015, two BWC agents went to Clancy’s and struck up a conversation with Fletcher who told them:

  • she’d been a bartender her whole life
  • she works September through May at the pub and makes enough money to carry her through the summer, and
  • she makes more on Saturday nights than most people make in a week.

Following the BWC investigation, Fletcher was indicted and charged with one count of perjury, two counts of workers’ compensation fraud and one count of theft. Fletcher pleaded not guilty to all four counts.

A jury found Fletcher guilty of one count of workers’ comp fraud and one count of theft. It also found that the value of the benefits in question were $7,500 or more. The court sentenced Fletcher to a community-control sanction of two years.

Fletcher appealed. She argued she had no notice that her activity at the pub would disqualify her from receiving benefits because the last form she signed was dated February 2014. Fletcher said she wasn’t working when she signed the form.

But the court said it didn’t buy her argument that somehow she didn’t realize her work at the pub could disqualify her from receiving comp benefits. The court noted the February 2014 form wasn’t the first one she signed after being injured at work.

Fletcher also argued that she didn’t commit theft because Aramark wasn’t deceived – the company was aware she was working because it initiated the investigation into her activity.

Interesting argument, but it didn’t hold up either. The court rejected this second reason for her appeal.

The appeals court found Fletcher’s “deception is the basis upon which Aramark paid her over $10,000 in benefits to which she was not entitled.” The appeals court affirmed the trial court verdict.

(State of Ohio v. Brenda J. Fletcher, Court of Appeals Delaware County, Ohio Fifth Appellate Dist., No. 17CAA030016, 12/21/17)

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  1. They should have jailed her. Probation just doesn’t send the message to others. The Ohio definitions don’t leave any wiggle room you are either working or totally disabled there is no in between and no excuses.

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