Raffles Presentation
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Transcript of Raffles Presentation
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.
[email protected]; 615/742-9327