Company couldn’t cut disabled worker’s benefits, so it ‘went rogue,’ lawyer says

Oct. 23--In 2003, after Mario Seguro-Suarez fell 18 feet head-first onto the concrete floor of his Lincolnton workplace, his employer and its insurance carrier acknowledged that his disabling brain injury qualified him for workers' compensation benefits.

Court documents reveal the lengths that Key Risk Insurance Co. went not to pay them.

The Greensboro-based company disregarded years of medical opinions -- including several from its own doctors -- that Seguro-Suarez was indeed left disabled from his fall at the Southern Fiber factory, documents show.

Over the past 15 years, Key Risk has made multiple trips to courts and before the N.C. Industrial Commission to argue that Seguro-Suarez has been faking his symptoms and that his benefits should be cut off.

When the company lost those fights, it kept appealing -- and losing.

When all else failed, says veteran Charlotte attorney Woody Connette, Key Risk "went rogue."

First, it had the idled worker followed and videotaped for weeks, court documents say. A private investigator then took what a detective would describe as misleading information to Lincolnton police to accuse Seguro-Suarez of insurance fraud. He was arrested, jailed and later indicted.

The charges were thrown out in 2014, drawing a withering rebuke from the Lincoln County judge who heard them.

Now, Seguro-Suarez and his attorneys are suing Key Risk and others for malicious prosecution. In September, the N.C. Court of Appeals -- the state's second highest judicial body -- refused the company's motion to have the 2016 lawsuit thrown out.

Charlotte attorney Woody Connette, who is serving as legal guardian for Seguro-Suarez in his Key Risk lawsuit because the worker has been found incapable of representing himself, says the company's actions are unlike any he's encountered in his 40-year legal career.

"I have seen some outrageous abuses of the system by insurance companies, but this is the most outrageous," Connette told the Observer.

Attorney Mel Garafalo of Charlotte, who is representing Key Risk in the lawsuit, told the Observer that it is the company's policy "not to comment on pending litigation."

J.D. Prather, the company's Raleigh-based attorney for its workers' comp case against Seguro-Suarez, did not respond to a phone call seeking comment.

Leonard Jernigan, a veteran worker's comp lawyer in Raleigh and law professor at N.C. Central, says the recent appeals court ruling to allow the Seguro-Suarez lawsuit to continue may serve as a deterrent to future abuses involving injured workers who can't afford to defend themselves.

"I've never seen something this bad," Jernigan said of the case, "and this is really, really bad."

Company's fight called 'unfounded'

Across North Carolina, tens of thousands of workers are injured on the job each year. Most routinely receive benefits from the workers' compensation insurance coverage that their companies are required to buy.

Only a relatively few of these cases lead to disputes.

Legal fights in worker's comp cases often arise when an insurer faces the payout of long-term or lifelong benefits, says Mike Duff, a University of Wyoming law professor and an expert in employment issues. With some insurance companies, that can lead to a hyper-vigilant atmosphere in which every injured worker is suspect, he says.

"Fairly or unfairly, if you get hurt, you're guilty of something. You become a presumptive criminal out to game the system," says Duff, who reviewed some of the Seguro-Suarez documents at the Observer's request.

While fraudulent worker's comp cases do occur, Duff says, Key Risk provided no proof that Seguro-Suarez was among them. "Administrators, courts, doctors ... nobody thought this guy was malingering."

Seguro-Suarez' fall in January 2003 left him in a coma and put him on a respirator.

Following emergency brain surgery at Carolinas Medical Center in Charlotte, the Costa Rican native was unable to clothe, feed or clean himself, documents say. He also displayed radical mood swings and was deemed incapable of returning to work.

A doctor who treated Seguro-Suarez described him as "childlike." One of his workers' comp attorneys, Rick Anderson of Charlotte, says multiple tests place Seguro-Suarez' current IQ at around 70, in the bottom 1 percent of all North Carolinians.

Southern Fiber and Key Risk, one of the state's largest carriers of workers' comp insurance, both initially acknowledged that the injuries, were "compensable," court and Industrial Commission documents say.

Yet, the company quickly began taking steps to limit what it paid.

After his release from the hospital, doctors said Seguro-Suarez needed 24-hour care. Rather than pay for him to have it, Key Risk arranged for his 17-year-old daughter, who had immigrated to the country two months earlier, to attend to her father for free, documents say.

Key Risk did send weekly checks of $345.35 to cover some of the disabled man's lost wages, Anderson says. But in 2010, Key Risk and Southern Fiber went before the Industrial Commission to accuse Seguro-Suarez of "fraud and deception," and to call for his benefits to end. The deputy commissioner who heard the case refused.

When Key Risk appealed, the full commission upheld the earlier ruling and described the company's case against Seguro-Suarez as "stubborn, unfounded litigiousness." It also ordered the insurer to reimburse his daughter and a family friend for years of unpaid caregiving, and to cover the cost of daily attendant care for the worker.

Two court appeals by Key Risk failed. In 2013, a decade after Seguro-Suarez's fall, Key Risk tried something new.

Insurance fraud arrest

According to the Industrial Commission's findings in the case, Key Risk hired private investigators who followed and filmed Seguro-Suarez for weeks.

In July 2013, one of the investigators, Robert Hill, took what documents describe as an "extensively edited" video to the Lincolnton police to persuade them to arrest Seguro-Suarez for insurance fraud.

The footage showed Seguro-Suarez doing manual labor. The investigating police detective would later say he was never shown medical reports that corroborated the worker's injuries and was never told that his disabilities were mental, not physical.

In October 2014, Seguro-Suarez was arrested on 25 felony counts, including insurance fraud and obtaining property under false pretenses, documents indicate.

The criminal case against him began crumbling early on. After his first court appearance, a psychologist with the state prison system found Seguro-Suarez mentally incapable of standing trial, documents say.

Superior Court Judge Forrest Bridges of Lincolnton ridiculed the charges. According to a transcript from a December 2014 hearing, he asked the assistant district attorney handling the case if she "really wanted to assist in the establishment of a malicious-prosecution claim?"

Key Risk, the judge concluded, had Seguro-Suarez arrested "for continuing to receive the checks they were ordered to pay," the transcript says.

"There are some personal injury lawyers out there ... that are drooling over this case," Bridges said. "I would be very surprised if they aren't waiting at the courthouse steps."

In October 2016, Seguro-Suarez sued for malicious prosecution. The complaint names Key Risk and four of its employees, including Senior Vice President Joseph Abriola, as defendants. Hill, the investigator, is also included.

Key Risk appealed. In January 2017, Superior Court Judge Jesse Caldwell of Gaston County refused to dismiss the complaint. Again, Key Risk challenged the ruling, this time to the Court of Appeals. In September, Key Risk again lost.

In June, the Industrial Commission rejected the latest company latest appeal and locked in Seguro-Suarez' benefits for life.

Seguro-Suarez no longer lives in Lincolnton. His attorneys say he was so shaken by his arrest five years ago that he moved to Greenville to be near his daughter, Viviana Seguro-Arce.

The family sent word through its attorneys that it did not want to comment.

Michael Gordon: 704-358-5095

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