SMART CLAIM

MANAGEMENT

David M. Drobny

October 22, 2010

ACCEPTANCE OR DENIAL AND

INVESTIGATION

Section 1:

Was the Employee injured in the course

of employment?

This asks whether the injury happened

at work

Where was the employee when he herniated his disc at L4-L5?

Only the Employee knows for sure.

In many jurisdictions, the Employee has the keys to compensability because he’s the

only one who knows when and where the pain began

Unless you do something about it.

Investigate

Immediately!

Love Your Attorney

Gather photos, diagrams, reports, etc. Put them in one place.

Have witnesses put statements in writing before controversy begins

Secure your witnesses – don’t let them disappear!

Supervisors are typically better potential witnesses than co-workers.

Is the employee credible?

What is going on in the employee’s life- hobbies, side jobs, drug abuse?

It is cheaper for you to do this, because the attorney would charge you for doing it herself. Your attorney can give you more complete advice if you can

give her more information sooner rather than later.

Thinking of Denying the Claim?

Call your attorney to find out what is needed to prove the defense

Call your adjuster to avoid penalties and initiate investigation

What you think is important , what should be important and what the law says rarely align.

Section 2:Did the employee’s injury arise

from his/her work?

This really asks whether work caused the injury.

Depends on what the doctor

says

Which doctor is on your panel?

Be sure the doctor knows exactly

what the employee alleged.

Nail Down the Mechanism of Injury

Was the injury gradual or acute?

Hit by the hammer vs. swinging the hammer

Several defenses depend on this – especially time-sensitive defenses.

Section 3: Fraud

Does your jurisdiction

care?

Fraud has a mens reacomponent.

Mens rea is a fancy legal word for criminal intent; knowing what you’re doing is illegal or wrong.

Red Flags for Fraud Upset, dissatisfied or disgruntled employee with a motive to

fabricate (I’m About To Quit; I’ll Show Them!)

The injured employee is difficult to contact (Nothing Bad Will Happen If I Don’t Answer The Phone)

Newly hired employees (I Hate This Job; Suckers!)

No witnesses to the alleged accident (I Have the Keys, So I’m Stealing the Car)

Changing stories and varied accounts of injury (As Difficult As The Truth Is, Lying is Even Harder)

Monday and Friday accidents (If I Can Make It To Monday, I’ll Say I Fell Off the Roof At Work)

More Red Flags for Fraud

Injured worker delays or refuses medical and diagnostic procedures to confirm injury (No Way Am I Passing That Drug Test)

Injuries cannot be proven by medical evidence (Please Diagnose Me With RSD)

Moving/changing symptoms of pain (I Think I Can Dupe That Doctor)

Failure to report injury in a timely or immediate manner(Without Health Insurance, I’ll Just Say It Happened At Work)

Prosecutors want you to put the fraud case on a platter.

And because the employee often has the “keys,” the judge wants it on a platter, too. They don’t want to worry about the

mens rea.

Third Party Surveillance

Know your

commissioner/judge: do they

credit surveillance?

If not, don’t bother.

Most surveillance produces a

PI in front of an empty house

Before Ordering

Surveillance:

Have a reason to think it will work.

Give your Private Investigator leads.

Be sure your Private Investigator is a good witness.

After you get surveillance, evaluate it against common

excuses . . .

“I was

having a

good day.”

“That’s not

me. That’s

my brother

and my

cousin.”

“The doctor’s restriction was

unclear.”

“I was in a ton of pain after I

did that.”

Workers’ Comp Fraud Can Be a

Drag.

Consider Waiting for MMI

and a Restriction

Catches him in a lie “close in time.”

Disclosure Duties

Have the employee tailed after

his statement or deposition, or

get him leaving the doctor’s

office

Rural vs. Urban Areas

You have one chance!

You don’t always need surveillance.

Witnesses may be more effective.

Litmus Test:

Show the surveillance to your spouse.

Is he or she outraged?

break

Zurich North America Claims

Raffles Risk Control Workshop Nashville, TN

October 22, 2010

Players in the Return to Work Strategy

Employee

Medical Care Provider

Insured

Claims Adjuster

Nurse Case Manager

Insured Initiatives to Return an Injured Employee to Work

Report the claim immediately

Direct the employee to a medical

provider (jurisdiction dependent)

Have light duty and transitional jobs

available

Make certain that the medical

provider is aware that light duty and

transitional jobs are available

Advise the medical provider of the

requirements and demands of the

light duty, transition duty, and

regular duty positions

Communication is Key

Notify the adjuster of the light,

transitional, or regular job duties

Maintain regular communication

with the injured worker, claims

adjuster, and medical provider

Partner with nurse case

management to facilitate early

return to work

Make the injured worker feel like

a partner vs. an outsider

Reserve exposure

Attorney involvement

Factors Impacted by Return to Work

Other Benefits

Less business / production interruption

More productive employees

SETTLEMENT

STRATEGIES

Closing Medicals

Will the law allow it?

Medicare Set-Asides…

(In)Voluntary Resignation

You don’t want the employee anymore because

he’s going to get hurt again

he’s a problem employee

Watch out for ADA and retaliatory discharge

Comingling Resignation and

Workers’ Comp Settlements

Comp settlements can reflect, but not establish, resignation.

Co-mingling will cause a problem with your workers’ compensation carrier.

Negotiate them together, but execute them separately.

COMMON EMPLOYER

MISTAKES

Mistake #1: Not Having, or Following, a Settlement

Philosophy

Philosophy #1: Deny, Deny, Deny

“We don’t roll over.”

Consequences:

Discourages claims

Less attractive target for claimant’s attorneys

You’ll get a “reputation” if you deny everything, so ask

if it’s worth it.

Philosophy #2: Settle Fast

“How do I save money on this file?”

Accept questionable claims because litigation costs more

Chances of a solid defense may dictate early settlement

Expensive lawyers, deposition fees, court costs, etc.

Consequences:

The workforce will talk: “I got $5,000. It was easy. Here’s how.”

Increases frequency of minor claims

Do you save money in the long run?

Ask Your Lawyer!

He or she should know exactly what will happen (in most cases) five minutes into

your description of the claim.

&

Know Your Workforce!

Remember the Employee’s

Costs

May fear litigation

Time

Financial Expense

Emotional Expense

Claimant’s attorney generally wins by getting a big

settlement early; they never want to work for a small

to medium case.

Mistake #2: Failing to

Document

Remember:

All successful defenses require compelling proof to actually arrive before the

commissioner or judge.

Consider:

Penalties For Bad Denials

Spoilation of Proof

Email or Electronic Trails

Mistake #3: Denying First, Asking

Questions Later

To Avoid This Mistake:

Know the technical elements of your defense before you deny it

What your defense looks like today is not what it will look like tomorrow

Consult your adjuster for another opinion

If you can’t prove it, you can’t use it

Mistake #4:

Not Telling Your Attorney

the Bad Parts of the Case

It’s the day of trial…

SURPRISE!

“Well, that’s not really correct…”

Mistake #5:

Delay

Delay Causes Penalties

The supervisor must get the claim to you

You must get the claim to the adjuster

Mistake #6:

Using Bad Doctor Panels

To Avoid This Mistake:

Use your NCM, adjuster, and attorneys to give an employee a good panel.

Caution

The doctor who always releases everyone back to work is not always your friend. No one believes him.

The doctor who always gives 0% PPI is rarely your friend. The AMA Guides require some effort from the doctor.

The good doctor who gives a bad deposition is useless in litigation.

That’s It! Questions?

You can contact me at any time for a copy of this

presentation.

Call/Email me if you have any questions. I am a

Tennessee workers’ comp attorney. I only defend

employers and insurers, and I handle the entire

state.

I have useful Quick Guides you’re welcome to grab

on your way out. There is a separate guide for

Tennessee, Louisiana, Alabama and Mississippi.

ddrobny@manierherod.com; 615/742-9327