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Attorneys: LIRR disability probe flawed

Dr. Peter J. Ajemian exits federal court in

Dr. Peter J. Ajemian exits federal court in Manhattan. Ajemian was one of 10 people arrested by federal agents in connection with a $300 million scheme to defraud the Long Island Rail Road on disability claims. (Oct. 27, 2011) Photo Credit: Charles Eckert

When they charged 11 defendants in October with participating in a massive, decade-long scheme by Long Island Rail Road workers to collect phony disability benefits, law enforcement authorities had an ominous warning for hundreds of others who may have also cashed in on dubious claims.

"Who has better information about this scheme . . . than those who perpetrated it?" said top New York FBI official Diego Rodriguez. "We look forward to hearing from you. For those who choose not to contact us, there's a good chance we'll be contacting you." He declined to offer amnesty.

Six weeks later, the FBI says it has collected some new tips on possible disability abuses. But the bureau concedes, without citing specific numbers, that the response to its invitation has been tepid.

That doesn't surprise Long Island criminal defense lawyers, who say they've heard from only a few ex-LIRR workers, and don't think the FBI strategy will pay big dividends without a clear offer of leniency.

"I think naturally people would be very reluctant to take an offer of, 'We're from the government and just trust us,' " said Hauppauge defense lawyer Paul Gianelli. "I think there has to be some sort of carrot extended."

Federal prosecutors in Manhattan accused two Long Island doctors -- Dr. Peter Ajemian, of Syosset, and Dr. Peter Lesniewski, of Rockville Centre -- of approving hundreds of phony disability claims dating back to the late 1990s. Two people were charged as facilitators of the scheme and seven ex-workers whose cases prosecutors called "egregious" also were charged. The defendants did not enter pleas.

Beyond those accused, the government suspects broader abuse. The LIRR system encouraged workers to retire early and claim a disability; the accused doctors approved 90 percent of their retiring LIRR patients for disabilities; and LIRR workers made disability claims at a rate 12 times that of Metro-North Railroad workers, it has charged. Overall, the government estimates the scheme could have cost $1 billion.

Government filings indicate that potential additional cases may top 1,000. In light of those numbers, defense lawyers said, the FBI's unusual call for volunteers appeared to have two goals -- recruiting some disability recipients to act as informants, and finding a way to dispose of a large volume of potential cases without a full-blown investigation and prosecution of each one.

Despite evidence of systemic abuse, some lawyers said, proving individual cases may be difficult. Medical privacy laws, for example, may hamper investigators' access to everyone's treatment records, and at trial it may be hard to disprove the claimants' insistence that they felt pain or discomfort when they applied for benefits.

"They probably look at it as a cost-benefit analysis and look at their ability to win every case," said Robert del Col, a Smithtown defense lawyer, who said he has heard from one potential client. "Even the government can't do everything. If you have 1,000 people, you're going to have to conduct the trial at Yankee Stadium."

Bruce Barket, a Garden City defense lawyer, said he suspected that the FBI wasn't willing to broadly offer leniency without evaluating individual cases because egregious violators might take advantage of it. But without a promise of leniency, he said, the idea people will turn themselves in is "a little silly.

"Absent information the government has targeted you, you shouldn't go wandering in," he said. "They may never come for you."

Other lawyers, however, said a hint of leniency was implicit in the FBI's call for people to come forward. If the government is willing to discuss civil settlements in which disability recipients return money but avoid criminal charges, the FBI's strategy may yet get a fair number of people to come forward, defense lawyer Ray Perini of Hauppauge said.

"The splash they've gotten from this case is a real shot across the bow," he said. "A lot of these people are not hardened criminals. They're just hardworking people who got a disability. They may be very scared right now and may come in."

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