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.

LoveYour 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 rea
component.
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.

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

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

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.

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?

AskYour Lawyer!
He or she should know exactly what will
happen (in most cases) five minutes into
your description of the claim.
&
KnowYour 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 ElectronicTrails

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…”

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 AvoidThis 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

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