American Association of State Compensation insurance Fund
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member fund.

CopperPoint Mutual Insurance Company
Phone: (602) 631-2000
Address: 3030 North Third Street
Phoenix, AZ   85012

State Compensation Insurance Fund
Address: 333 Bush Street
Suite 800
San Francisco, CA   94104

Pinnacol Assurance
Phone: (303) 361-4000
Address: 7501 East Lowry Boulevard
Suite 800
Denver, CO   80230-7006

Hawaii Employers' Mutual Insurance Co. Inc.
Phone: (808) 524-3642
Address: 1100 Alakea Street
Suite 1400
Honolulu, HI   96813

Idaho State Insurance Fund
Phone: (208) 332-2100
Address: 1215 West State Street
P.O. Box 83720
Boise, ID   83720-0044

Kentucky Employers Mutual Insurance
Phone: (859) 425-7800
Address: 250 West Main Street Suite 900
P.O. Box 83720
Lexington, KY   40507-1724

Louisiana Workers' Compensation Corporation
Phone: (225) 924-7788
Address: 2237 South Acadian Thruway
P.O. Box 83720
Baton Rouge, LA   70808

Maine Employers Mutual Insurance Company (MEMIC)
Phone: (207) 791-3300
Address: 261 Commercial Street
P.O. Box 11409
Portland, ME   04104

Chesapeake Employers’ Insurance Company
Phone: (410) 494-2000
Address: 8722 Loch Raven Boulevard
P.O. Box 11409
Towson, MD   21286-2235

SFM Mutual Insurance Company
Phone: (952) 838-4200
Address: 3500 American Boulevard West Suite 700
P.O. Box 11409
Bloomington, MN   55431-4434

Missouri Employers Mutual Insurance
Phone: (800) 442-0590
Address: 101 N Keene St
P.O. Box 11409
Columbia, MO   65201

Montana State Fund
Phone: (406) 495-5015
Address: 855 Front Street
P.O. Box 4759
Helena, MT   59604-4759

New Mexico Mutual Group
Phone: (505) 345-7260
Address: 3900 Singer Boulevard NE
P.O. Box 4759
Albuquerque, NM   87109

New York State Insurance Fund
Phone: (212) 312-7001
Address: 199 Church Street
P.O. Box 4759
New York, NY   10007

Workforce Safety and Insurance
Phone: (701) 328-3800
Address: 1600 East Century Avenue Suite 1
P.O. Box 4759
Bismarck, ND   58506-5585

Ohio Bureau of Workers Compensation
Phone: (800) 644-6292
Address: 30 West Spring Street
P.O. Box 4759
Columbus, OH   43215-2256

CompSource Mutual Insurance Company
Phone: (405) 232-7663
Address: 1901 North Walnut Ave.
P.O. Box 53505
Oklahoma City, OK   73152-3505

State Accident Insurance Fund (SAIF)
Phone: (503) 373-8000
Address: 400 High Street SE
P.O. Box 53505
Salem, OR   97312-1000

Pennsylvania State Workers Insurance Fund
Phone: (570) 963-4635
Address: 100 Lackawanna Avenue
P.O. Box 5100
Scranton, PA   18505-5100

Beacon Mutual Insurance Company
Phone: (401) 825-2667
Address: One Beacon Centre
P.O. Box 5100
Warwick, RI   02886-1378

South Carolina State Accident Fund
Phone: (803) 896-5800
Address: P.O. Box 102100
P.O. Box 5100
Columbia, SC   29221-5000

Texas Mutual Insurance Company
Phone: (800) 859-5995
Address: 6210 East Highway 290
P.O. Box 5100
Austin, TX   78723-1098

Workers Compensation Fund
Phone: (800) 446-2667
Address: 100 West Towne Ridge Parkway
P.O. Box 2227
Sandy, UT   84070

Washington Department of Labor and Industries
Phone: (360) 902-5800
Address: P.O. Box 44001
P.O. Box 2227
Olympia, WA   98504-4001

Wyoming Division of Workers Safety & Compensation
Phone: (307) 777-7159
Address: Cheyenne Business Center
1510 East Pershing Boulevard
Cheyenne, WY   82002

Workers Compensation Board - Alberta
Phone: (780) 498-3999
Address: 9925-107 Street
P.O. Box 2415
Edmonton, AB   T5J 2S5

Workers Compensation Board of British Columbia (WORKSAFEBC)
Phone: (604) 273-2266
Address: P.O. Box 5350 Station Terminal
P.O. Box 2415
Vancouver, BC   V6B 5L5

Manitoba Workers Compensation Board
Phone: (204) 954-4321
Address: 333 Broadway
P.O. Box 2415
Winnipeg, MB   R3C 4W3

Phone: (506) 632-2200
Address: 1 Portland Street
P.O. Box 160
Saint John, NB   E2L 3X9

Workers Compensation Board of Nova Scotia
Phone: (902) 491-8999
Address: 5668 South Street
P.O. Box 1150
Halifax, NS   B3J 2Y2

Prince Edward Island Workers Compensation Board
Phone: (902) 368-5680
Address: 14 Weymouth Street
P.O. Box 1150
Charlottetown, PE   C1A 7L7

Saskatchewan Workers Compensation Board
Phone: (306) 787-4370
Address: 200 - 1881 Scarth Street
P.O. Box 1150
Regina, SK   S4P 4L1

Puerto Rico State Insurance Fund Corporation
Phone: (787) 793-5959
Address: G.P.O. Box 365028
P.O. Box 1150
San Juan, PR   00936-5028
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AASCIF Newsletter

To Pretext or Not to Pretext: That Is the Question

By Timothy C. Feld, Esq.
Associate General Counsel/Director of Legal Services

Almost every attorney and adjuster has a favorite story involving a deceptive plaintiff attempting to defraud the workers’ compensation system—whether it is the plaintiff who is working while receiving temporary disability, participating in a demolition derby contest (and winning) while collecting permanent disability, or entering a powerlifting competition with a low back strain. The biggest concern for carriers is how this information is obtained, and we must ask ourselves: Is it acceptable to use deception to discover deception? 

Pretext:  A purpose or motive alleged in order to cloak the real intention

Pretext investigations have become a focal point in the legal community, causing companies to evaluate the legal and ethical ramifications of utilizing this investigative technique. This article will focus on two questions:

  1. Are the methods of pretext investigation legal?
  2. Are the methods of pretext investigation ethical?

1. Are the methods of pretext investigation legal?

The legality of pretext investigations became a popular topic of discussion in the legal community after information from Hewlett Packard’s board of directors meetings was illegally released to the media, and the company began its own pretext investigation to determine the source of the leak. When the initial investigation did not identify the source of the leak, Hewlett Packard’s chairman of the board ordered a second investigation and authorized the investigators to use someone else’s identity to obtain the phone records of all board members and the journalist involved. With this information in hand, the investigators were able to identify the person leaking the information.   However, gaining the source of the leak resulted in the chairman of the board, senior in-house counsel, and several private investigators being indicted under California law for fraudulent wire communications, wrongful use of computer data, and pretexting. The chairman defended herself by asserting that she relied on the advice of in-house counsel that all investigative methods used were lawful. Unfortunately, she was advised incorrectly. 

Should companies use pretext to obtain relevant and valuable information? This may be an area where investigators and attorneys disagree. The International Association of Security & Investigative Regulators states that it is “common practice to use pretext as an investigative tool in lawful investigations by both public law enforcement and licensed private investigators and security practitioners.”

The investigator is tasked with uncovering the truth and, most often in the workers’ compensation arena, the true extent of the plaintiff’s alleged injuries. To determine if an investigative action is legal, one must determine whether any law forbids it. A number of federal and state laws could be implicated by an investigation, including criminal laws, telecommunication laws (including internet communications), consumer protection laws, the Gramm-Leach-Bliley Act, the Fair Credit Reporting Act, eavesdropping laws, and privacy protection laws. These laws, and others, may place limitations on the investigation activity. It is imperative that attorneys and companies perform complete research to determine if the investigative activity is legal prior to engaging in the activity.

2. Are the methods of pretext investigation ethical?

It is the role of the attorney to defend claims against policyholders, and the defense naturally involves investigating the claimant’s accident and the extent of the injuries. To assist with this responsibility, attorneys will often hire investigators, and typically the investigators are undercover or covert in nature. The attorney must consider the ethical implications of an investigator utilizing pretext to assist in the defense of the claim. Despite the public’s perception of the legal community, there are ethical rules that control an attorney’s activity, and the majority of states have adopted the Rules of Professional Conduct, which ensures attorneys follow ethical guidelines and perform their duties honestly. Attorneys must realize that these rules apply to their investigations. 

There are several ethical rules implicated when utilizing the services of an investigator. Attorneys must review Rule of Professional Conduct (RPC) 8.3, which states, “It is professional misconduct for a lawyer to (a) Violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another…” and RPC 4.1, which states that an attorney “shall not knowingly make a false statement.” In essence, the workers’ compensation defense attorney cannot direct the investigator to use deception to obtain information helpful to the defense of the claim. 

The attorney may believe that the investigator is independent and that attorneys cannot be held responsible for the deceptive acts of the investigator.  RPC 5.3 states, “A lawyer having direct supervisory authority over the non-lawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer….” This rule goes on to state, “Willful blindness, studied ignorance, or plausible deniability tactics by a supervising lawyer will not relieve the lawyer from responsibility for an investigator’s misconduct.” However, it is argued by ethics scholars that “some misrepresentation and overreaching are accepted and perhaps even required if one is to adequately represent a client. The rub is to define the boundary between the acceptable and the unacceptable.”  

Please be aware that some states allow pretext investigations if they are supported by absolute necessity and public policy. Pretext investigations in criminal matters are commonplace and more accepted; however, in civil matters, the rules and limitations on utilizing pretext are much more stringent. 

Companies must consider whether their investigation department is supervised by an attorney. A negative answer may eliminate the ethical rules lawyers must follow; however, this path may still be filled with risk and potential exposure. If an attorney or general counsel supervises the investigative department, it is counsel’s responsibility to the client and herself to serve as a check on the desire for results when those results will be achieved by questionable means.  There is no doubt that in this information age, various, and possibly deceptive, tactics will be created to gather information. As attorneys, we have the duty to ensure that these tactics are not employed, even though they may arguably be considered legal.



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