Slides for the presentation given with Gallagher Basset and Zurich at the Raffles conference on October 22, 2010.
- 1. SMART CLAIM MANAGEMENT David M. Drobny October 22, 2010
2. ACCEPTANCE OR DENIAL AND INVESTIGATION 3. Section 1: Was the Employee injured in the course of employment? This asks whether the injury happened at work 4. Where was the employee when he herniated his disc at L4-L5? 5. Only the Employee knows for sure. In many jurisdictions, the Employee has the keys to compensability because hes the only one who knows when and where the pain began 6. Unless you do something about it. 7. Investigate Immediately! 8. LoveYour Attorney Gather photos, diagrams, reports, etc. Put them in one place. Have witnesses put statements in writing before controversy begins Secure your witnesses dont let them disappear! Supervisors are typically better potential witnesses than co-workers. Is the employee credible? What is going on in the employees 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. 9. 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. 10. Section 2: Did the employees injury arise from his/her work? This really asks whether work caused the injury. 11. Depends on what the doctor says Which doctor is on your panel? 12. Be sure the doctor knows exactly what the employee alleged. 13. 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. 14. Section 3: Fraud Does your jurisdiction care? 15. Fraud has a mens rea component. Mens rea is a fancy legal word for criminal intent; knowing what youre doing is illegal or wrong. 16. Red Flags for Fraud Upset, dissatisfied or disgruntled employee with a motive to fabricate (Im About To Quit; Ill Show Them!) The injured employee is difficult to contact (Nothing Bad Will Happen If I Dont Answer The Phone) Newly hired employees (I Hate This Job; Suckers!) No witnesses to the alleged accident (I Have the Keys, So Im 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, Ill Say I Fell Off the Roof At Work) 17. 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, Ill Just Say It Happened At Work) 18. 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 dont want to worry about the mens rea. 19. Third Party Surveillance 20. Know your commissioner/judge: do they credit surveillance? If not, dont bother. 21. Most surveillance produces a PI in front of an empty house 22. 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. 23. After you get surveillance, evaluate it against common excuses . . . 24. I was having a good day. 25. Thats not me. Thats my brother and my cousin. 26. The doctors restriction was unclear. 27. I was in a ton of pain after I did that. 28. Workers Comp Fraud Can Be a Drag. 29. Consider Waiting for MMI and a Restriction Catches him in a lie close in time. Disclosure Duties 30. Have the employee tailed after his statement or deposition, or get him leaving the doctors office 31. Rural vs. Urban Areas 32. You have one chance! 33. You dont always need surveillance. Witnesses may be more effective. 34. Litmus Test: Show the surveillance to your spouse. Is he or she outraged? break 35. Zurich North America Claims Raffles Risk Control Workshop Nashville, TN October 22, 2010 36. Players in the Return to Work Strategy Employee Medical Care Provider Insured Claims Adjuster Nurse Case Manager 37. 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 38. 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 39. Reserve exposure Attorney involvement Factors Impacted by Return to Work 40. Other Benefits Less business / production interruption More productive employees 41. SETTLEMENT STRATEGIES 42. Closing Medicals Will the law allow it? Medicare Set-Asides 43. (In)Voluntary Resignation You dont want the employee anymore because hes going to get hurt again hes a problem employee Watch out for ADA and retaliatory discharge 44. 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. 45. COMMON EMPLOYER MISTAKES 46. Mistake #1: Not Having, or Following, a Settlement Philosophy 47. Philosophy #1: Deny, Deny, Deny We dont roll over. Consequences: Discourages claims Less attractive target for claimants attorneys Youll get a reputation if you deny everything, so ask if its worth it. 48. 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. Heres how. Increases frequency of minor claims Do you save money in the long run? 49. AskYour Lawyer! He or she should know exactly what will happen (in most cases) five minutes into your description of the claim. & KnowYour Workforce! 50. Remember the Employees Costs May fear litigation Time Financial Expense Emotional Expense Claimants attorney generally wins by getting a big settlement early; they never want to work for a small to medium case. 51. Mistake #2: Failing to Document 52. Remember: All successful defenses require compelling proof to actually arrive before the commissioner or judge. 53. Consider: Penalties For Bad Denials Spoilation of Proof Email or ElectronicTrails 54. Mistake #3: Denying First, Asking Questions Later 55. 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 cant prove it, you cant use it 56. Mistake #4: Not Telling Your Attorney the Bad Parts of the Case 57. Its the day of trial SURPRISE! Well, thats not really correct 58. Mistake #5: Delay 59. Delay Causes Penalties The supervisor must get the claim to you You must get the claim to the adjuster 60. Mistake #6: Using Bad Doctor Panels 61. To AvoidThis Mistake: Use your NCM, adjuster, and attorneys to give an employee a good panel. 62. 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. 63. Thats 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 youre welcome to grab on your way out. There is a separate guide for Tennessee, Louisiana, Alabama and Mississippi. firstname.lastname@example.org; 615/742-9327