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Tailoring questions to the individual issues of the injury claim is a popular approach among Worker’s Compensation attorneys (both defense and plaintiff).  The advantage is having the doctor directly address only the issues at hand.  This approach will often cite specific facts or records and ask the doctor to address how the facts or records affect the claim for injury or compensation.  For example, the doctor may be asked whether the injured worker’s statement to an emergency room doctor that his back has been bothering him on-and-off for several months suggests that his current symptoms relate to a preexisting condition rather than to the specific industrial injury at issue. 

The benefit of this approach is that the writer uses the question to ensure that the doctor addresses a critical piece of evidence in their answer.  The writer cannot ensure that the physician will address a critical piece of evidence if the writer asks a generic question such as, “what is your opinion on whether the injured worker’s current condition relates to the industrial injury?”  Using a tailored question is the most effective way to focus the physician’s attention on specific evidence or records that the writer knows are critical to the claim.  It also ensures other issues that were previously irrelevant to the claim are not inadvertently brought out by the expert.

The detriment to this approach is that it can be difficult to ask a tailored question that is not leading.  In Wisconsin worker’s compensation cases, attorneys have considerably more leeway on direct examination than they would be given in a civil, personal injury case; nevertheless, it is possible that a blatantly leading question could be deemed impermissible.  Also, tailored questions can be seen as compromising the reviewing physician’s independence.  The expert is being retained to issue an independent opinion and while it is true that the expert, especially in worker’s compensation, will be expected to answer specific questions related to the claim, it is also true that the ALJ will expect the expert to reach her own conclusion and not merely parrot a conclusion suggested in a question.  In addition, the writer must be careful when drafting tailored questions that the questions are broad enough in their entirety to ensure that the expert addresses all of the relevant issues in the case.  

In summary, the tailored question approach has the advantage of ensuring that the expert will addresses critical evidence or records in her report and not bring other unconnected issues into the scope of the evaluation.  The writer who takes this approach should, however, take care to draft the questions so that they are not impermissibly leading and do not compromise the experts independence.

Do you have any advice for drafting questions?  Or maybe a particular approach that has worked well for you?

The most common approach to cover letter questions in personal injury litigation is to completely avoid asking specific questions.  The reason has to do with the nature of discoverable information in civil litigation.  Since all communications between the attorney and the medical expert are discoverable, some attorneys prefer not to tip their hand to opposing counsel by asking questions that might reveal their strategy or approach to the case.  In addition, the doctor is the retaining party’s witness so leading questions in a cover letter may be deemed impermissible.  Hence, some attorneys will not risk asking a specific question that could be deemed leading and result in the doctor’s answer being stricken from the report. 

Those who take this approach do not want to be seen as influencing the independent physician’s opinion in any way.  This can be especially significant if the case ends up in front of a jury because jurors are considerably less skeptical of medical experts’ independence.  But, the detriment to not asking specific questions is that this approach relies solely on the doctor to glean the relevant information and issues that need to be addressed from the materials provided.  Sometimes the issues to be addressed are obvious, but sometimes they are not. 

The risk of not asking any specific questions is the report may not address all of the issues that need to be addressed.  This is a very real possibility if no communication takes place with the expert concerning the issues of the case. 

This approach for Worker’s Compensation may be a convoluted way to get to the same result as if questions were asked.  Additionally, the concerns in a Worker’s Compensation case are not the same because there is no jury to worry about and there is no concerns about leading a witness.

Do you ask specific questions or do you let the doctor provide information to the doctor and simply ask for conclusions?  Why?

At Medical Systems, we see a lot of cover letters!  Many include questions in the body of the letter that are not included in the specific questions section.  Unfortunately, this approach frequently causes problems because many doctors only directly answer questions in the specific questions section of the report.  Thus, writers are often surprised when they ask a specific question in the body of the cover letter but the doctor does not specifically answer it. 

The reasons for this disconnect between writer and expert are simple.  Questions buried in the cover letter’s medical record summary may not be answered because not all experts read the cover letter’s summary of medical records.  Why?  Because they do not want to be influenced by the writer’s take on the claim.  Additionally, many experts assume (rightly or wrongly) that the only questions they are being retained to answer are those that are posed in the specific interrogatives section and do not look anywhere but there for questions.  Finally, some experts simply forget the questions that have been asked outside of the specific questions section by the time they dictate the report.  Hence, they will often only be looking at the specific questions when they are dictating their general impressions and specific answers. 

The bottom line is that if a writer wants a question answered, she should ask it in the specific questions section.  The specific interrogatives section is your best opportunity to communicate directly with doctor.  Doctors read cover letters with varying degrees of thoroughness.  All doctors, however, read the specific questions section of the report.  Therefore, the specific questions should be drafted carefully to elicit precisely the information sought – no more or no less.  The last thing you want is to get an IME report back and find that the doctor did not address an issue that needed to be addressed.

What strategy do you use for cover letter questions?  And Why?  

In most cases, the cover letter is the first, last, and only time you will be able to explain the case to the IME doctor and to ask specific questions about the case.  As a result, the cover letter is an important document.  The question, however, is how important is the cover letter?  How much of a difference can a good cover letter make?  Can the cover letter determine the outcome of an opinion or even have any impact on the doctor’s opinion?

Like most things in the medico-legal world, the answer is not black or white.  Cover letters matter more for some doctors than others:  sometimes the cover letter can help shape how an IME doctor answers a question, sometimes the cover letter can precipitate a bad result, and sometimes the cover letter will make little difference in the IME doctor’s opinion.  Nevertheless, there are some basic rules that can ensure the reviewing physician squarely addresses the relevant issues and maximize the likelihood of receiving a favorable opinion. 

The most important feature of the IME cover letter is the specific questions section, often titled “specific interrogatives.”  As a matter of semantics, there is no functional difference between the words “questions” and “interrogatives” though “interrogatives” at least feels more formal.  The specific questions posed to an IME physician are often the only questions that an IME physician will answer directly so there is much utility in how the questions are drafted. 

How do you approach cover letter questions?  What is important to you in drafting a cover letter?

In the UK, the “whiplash capital of Europe,” for every single accident reported, there are 2.7 claims for whiplash damages.  In the United States, whiplash injuries make up for 25% of payments made by insurance companies, with approximately $2.7 billion being paid out annually.  So, it is clear that whiplash is a claim to be reckoned with.

So, what exactly is whiplash?  Whiplash is caused by the head’s jerking action pulling muscles and ligaments beyond their typical range of motion, causing fibers to tear.  Torn fibers in muscle or tendon is termed a “strain.”  If it involves a ligament, it is referred to as a “sprain.”  Whiplash often involves a combined strain and sprain.  A whiplash injury can involve cervical muscles, intervertebral joints, disks, ligaments and/or nerve roots.  Most often it is limited to soft-tissue injury.  However, whiplash injuries can be complex and could include many related problems such as joint dysfunction, disk herniation, nervous system problems, chronic pain, and cognitive dysfunction.

Symptoms of whiplash become apparent usually within the first 24 hours following the accident, but typically appear within the first six to 12 hours.  Symptoms can continue to get worse days after the injury.  Common symptoms often include neck pain and stiffness, and headaches that usually start at the base of the skull.  Other symptoms might include:  dizziness, pain that hurts more with neck movement, fatigue, loss of range of motion in the neck, tingling or numbness in the arms, and/or tenderness or pain in the upper back, shoulder or arms.

Risk factors for whiplash include degenerative disease, pre-existing health problems, vehicle size, headrest position, position of head at impact, and age.  Women and children are more seriously injured then men because they have smaller necks.  Not using the shoulder harness and failure to wear a seatbelt greatly increase the risk of whiplash injury.

So, how is whiplash treated?  Usually, recovery is complete within the first few months, though some people experience ongoing symptoms.  Generally, symptoms that extend beyond six months are considered chronic.  Typically, treatment includes pain medication and special exercises to help increase range of motion in the neck.

Here are some interesting facts about whiplash:

  • A cervical spine soft tissue injury can occur in a motor vehicle traveling at only 5 miles per hour
  • Most injuries occur at speeds below 12 miles per hour
  • Crashed vehicles can often withstand collision speeds of 10 miles per hour with no damage
  • It is normal for a delay in the onset of whiplash symptoms, which means someone could say they weren’t hurt at the time of accident and then complain of pain later
  • Mild traumatic brain injury can be the result of a whiplash-type injury
  • Up to 10% of whiplash patients become totally disabled
  • Studies since 1956 show that over 60% of whiplash injuries required long-term medical follow-up

Want to learn more about Whiplash?  Register to attend the 2017 Advanced Topics in Civil Litigation.  For more information or to register, click here.

Sources:

http://www.truckinfo.net/trucking/whiplash-statiscs.htm

http://www.livescience.com/54566-whiplash.html

http://www.bbc.com/news/magazine-34925933

http://www.spine-health.com/conditions/neck-pain/what-whiplash

2/23/2017 in Medical Conditions, News

Surveys show that two out of every three employers viewed prescription drug abuse as a bigger workplace problem than illegal drugs.  One in five reported an injury or near-miss related to prescription drug use.  A quarter indicated employees borrowed or sold prescription drugs at work and 40% indicate that they have an employee who misses work because of prescription drug abuse.  The Centers for Disease Control report that 44 persons die each day as a result of prescription opioid abuse.  Everyone is at risk for addiction, but here are some factors that increase the risk:

  • History of addiction or substance abuse (personal or family)
  • History of participating in treatment programs for addiction
  • Suffering from anxiety or depression
  • Long-term use of prescription opioids

How can you tell if someone you know is abusing drugs?  It may be difficult to notice first thing in the morning or upon return from break because the employee may appear to be relaxed and functioning well.  But, as the day goes on and more time passes between breaks you may notice mood swings or major changes in energy level.  They may nod off or even fall asleep at their workstation, in their car, or while using the bathroom.  Withdrawal symptoms often appear to be like the flu with nausea, diarrhea, sweating, shaking, aches and a runny nose, and the employee may become irritable and anxious.  This cycle may repeat itself several times throughout the day.  Other signs might include the development of financial problems, social withdrawal and a once outgoing worker may become quiet and grim.

What can employers do to prevent drug abuse in the workplace?  Conduct pre-employment and random drug screenings (but make sure opioid screening is included).  Create a clearly written Drug-Free Workplace Policy which provides employee education, supervisor training, and an employee assistance program.

The problem of opioid abuse in the workplace is staggering.  In Wisconsin 80% of worker’s compensation claims involve pain medications, including opioids.  One good way to make sure addiction doesn’t occur in the first place is to closely monitor injured workers who are prescribed opioids by their treating doctors.  For worker’s compensation cases, Involving nurse case managers after opioids are prescribed may be beneficial to assuring that drug use is monitored and treating physicians are being held accountable for the prescriptions they write.

The topic for the 2017 Advanced Topics in Worker’s Compensation Symposium will be Opioid Abuse in the Workplace.  For more information or to register, click here.

2/9/2017 in Blog Categories, News

OSHA has made some changes to how employers track work injuries that brings drug policies into question.  The new final rule, passed in May of 2016 and goes into effect January 1, 2017, states that employees have a right to report work-related injuries and illnesses free from retaliation.  That is to say an employer’s procedure for reporting work injuries must be reasonable and not deter or discourage employees from reporting.  The concern is if an employer has a mandatory drug test following a work injury, an employee under the influence of drugs or alcohol when their work injury occurred may not report it. 

Interestingly, OSHA feels that this rule will prevent injuries, illnesses and death.  Their thinking is that all work injuries will be reported and workplace hazards will be better identified and eliminated.  This makes good sense if drugs or alcohol didn’t play an active role in the actual occurrence of injury.  Of course, the exception would be drug testing following an accident for the purpose of complying with state or federal law or regulation.

While the rule doesn’t specifically prohibit drug testing of employees, it does prohibit employers from using drug testing as a form of retaliation against employees who report injuries or illnesses.  So, beginning in January of 2017, employers will need a compelling reason for post-accident drug testing.  The view on this is it will be very difficult for employers to prove it was “reasonable” for them to do any kind of post-incident testing on a worker reporting injury without having another law to point to. OSHA says that employer policies should limit post-accident testing to situations where drug use is likely to have contributed to the incident.  For example, it would not be appropriate to drug-test an employee reporting a repetitive strain injury or bee sting.  Employers do not have to specifically suspect drug use before testing, but there should be a reasonable possibility that drug use by the reporting employee contributed to the injury.  So the million dollar question becomes, what is the definition of “reasonable possibility?” 

The bad news is that there are no hard and fast rules for what the IME expert needs to see.  The good news is that you can follow some general principles to help you determine what evidence the expert should see to give you the strongest and most credible opinion possible.  And when in doubt the kitchen sink approach is always an option.  Despite being costly, the kitchen sink approach at least guarantees that nothing important will be left out.

So if the kitchen sink approach guarantees that nothing will be left out, why not use it for every IME opinion?  Two reasons mitigate against this approach.  First, many doctors prefer not to see everything.  Second, narrowing the scope of the records presented focuses the expert’s attention.   

What if you decide  to take a more judicious approach than throwing in everything but the kitchen sink?  How do you decide what to give the physician?  You want include all relevant evidence to avoid the allegation that your expert’s opinion is not credible because she did not review all relevant evidence.  Making this determination can be daunting, but in many cases it is a matter of common sense.  For example, in a meniscus tear case the expert will probably not need to see records from the time the claimant broke his wrist when he was 15.  At a minimum, the IME expert should review everything the opposing party’s expert reviews.  When in doubt, err on the side of providing more information than less.  If you cannot decide whether to include something, ask yourself two simple questions:

  1. Would this evidence impact what the doctor might say about the claims at issue?
  2. Would this evidence impact the doctor’s assessment of the examinee’s truthfulness?

If you can answer both questions with an unequivocal “no” then the doctor probably does not need to see the record.  If you cannot answer both questions with an unequivocal “no,” then the doctor should see the record. 

            Examples are myriad.  A doctor would probably want to see dermatology records in an examinee with a history of psoriasis and a claim involving degenerative joint disease of the lumbar spine since psoriatic arthritis would be a potential differential (and non-claim-related) diagnosis.  On the other hand, a doctor would probably not want to see dermatology records in an examinee with a history of psoriasis who is making a claim involving a torn anterior cruciate ligament (“ACL”).  A doctor probably would not want to see endocrinology records in an examinee with diabetes whose claim involves pulmonary injury.  On the other hand, the doctor probably would want to see the endocrinology records if the claim involved nerve compression and symptoms of paresthesia in the fingers or toes. 

One of the most vexing questions is whether to include such records as inpatient nursing notes from a postoperative period.  As the party responsible for handling the claim, you will be most knowledgeable about the claim and will have noted any relevant information in what is otherwise extraneous material.  Few IME experts need to review post-operative nursing notes and the like when they contain no information relevant to the injury at issue; however, some experts such as pulmonologist and infectious disease specialists will need to see everything.  When in doubt, contact your IME vendor to determine what records the doctor wants to review.  This will help ensure that you are providing the doctor only with the records she wants to review, will focus her attention, and prove more cost-effective than including everything but the kitchen sink.

In many claims, the file contains non-medical information.  Common non-medical information includes surveillance, witness statements, job descriptions/videos, material safety data sheets (MSDSs), accident reports, expert reports (i.e., accident reconstruction reports, industrial hygiene reports, learned treatises, etc.), and investigative reports (i.e., law enforcement, OSHA, etc.).  The physician should review non-medical information that is likely to affect her assessment of causation or nature and extent of injury.  Sometimes making this determination can be difficult.

The physician should review witness statements that question the mechanism of injury, the severity of injury, the extent of disability, or the work-relatedness of injury.  In some cases, you may want to withhold the witness statements if you intend call the witness to rebut the examinee’s claim at hearing or trial.  However, withholding the witness statement runs the risk of losing a plausible basis for the IME physician to refute causation, work-relatedness, or nature and extent of injury.  When determining whether to submit a witness statement to the physician you should ask whether the statement might impact the physician’s opinion on cause, relatedness, or nature and extent.  If the answer is ‘yes,’ then they physician should see the statement. 

The exception (assuming that you have no other strategic reason for holding the witness statement back) is if there will be evidentiary problems with the witness statement at hearing.  Specifically, you may not want to submit a witness statement to a physician if you cannot produce the witness at hearing or trial to authenticate the statement.  If you cannot produce the witness at hearing or trial, the physician would be relying on inadmissible hearsay (absent an exception) to form her opinion and the trier of fact would most likely strike any portion of her report that relies on inadmissible hearsay.  While this is less of a problem in liability cases than in worker’s compensation cases because the discovery is more extensive, you should still be careful to ensure that what you submit will not make the doctor’s opinion in part inadmissible.

IME physicians often review job descriptions and videos.  At first blush this makes sense in cases involving occupational/ repetitive motion injuries or where the mechanism of an accidental injury is disputed.  However, not all job descriptions and videos are created equal.  Before incurring the cost of having an IME physician review a job description or video, you should determine if the materials will add any value to the physician’s opinion.  The job description or video should be specific, accurate, and complete.  A job description that is written in nonspecific, generic terms will likely be of little persuasive value to either the doctor or the trier of fact.  The job description or video needs to articulate or demonstrate exactly what the examinee does, for how long the examinee does it, and how physically demanding the task is.  For example, if an examinee lifts a product off of a conveyor belt and places it on a cart, the physician should know the weight of the objects being lifted, the frequency that the objects are lifted, the height of the conveyor belt, the distance the person has to reach, the distance the person has to travel to get to the cart, the height of the cart, etc.  If the physician does not know this information any opinion based on a job description or video will not be persuasive.

Claims for injury or disability often have myriad non-medical reports.  These include law enforcement accident reports, MSDSs, accident reconstruction reports, other independent medical examination reports, industrial hygiene reports, engineering reports, learned treatises, and investigative reports (i.e., OSHA, law enforcement), etc.  Assessing whether to give these reports to the IME physician introduces a new question:  witness competence.  While any one of the reports listed above may be relevant to claim, this does not mean that the report will be useful or that the physician will be competent to comment on the relationship between the report and the claimed injuries.  For example, a physician without biomechanics or human kinematics training may not be able to competently judge an engineering report to determine if the forces documented in the report are sufficient to cause injury

Another problem that arises in non-medical reports is whether the report adds anything substantive to the doctor’s opinion.  For example, law enforcement motor vehicle accident reports are notoriously vague and imprecise in accidents that do not involve serious physical injury.  Even the severity of damages section is of dubious value because the categories are vague, the meaning of each category is unclear, and the assessment is based entirely on the subjective opinion of the officer preparing the report. 

Determining whether to have the IME expert view surveillance footage, photographs, or reports can be vexing.  The main issue is whether withholding the footage to maintain the element of surprise at trial outweighs the benefits to the IME expert’s opinion of incorporating the surveillance into her report.  A less common but no less significant issue is whether the surveillance footage will actually help the case. 

In the best case scenario, surveillance provides inculpatory evidence or the “gotcha” moment that will turn the case from marginal to a winner.  So should you hold the information back or should you give it to the IME expert to review and incorporate into her report?  The most sensible place to start when there is any doubt is with litigation counsel.  If the person who will try the case wants the surveillance held back, it is probably wise to listen.  In general though, you must determine the value of using the surveillance as a surprise versus the value of allowing the IME doctor to view and comment on the surveillance.

There are examples where it is more important for the IME expert to view surveillance than it is to hold the information back for trial.  This is particularly true when medical causation is not an issue and the chief issue is the period of temporary total disability.  Often issues surrounding the period of temporary total disability are amenable to attack using surveillance footage.  Take a torn meniscus claim.  The injured worker alleges that he cannot return to anything but sedentary work because standing for any length of time causes pain during the postoperative recovery period.  However, you have surveillance footage that captures the claimant standing for an extended period of time without any apparent difficulty.  Having the expert view the footage and comment on it may be the only way the expert will be convinced that a healing plateau has been reached. 

Dubious claim for permanent disability are a different story.  In those cases, the effect of revealing surveillance before trial can be that the claimant will have an opportunity to prepare to address the surveillance in advance of trial, increasing the likelihood that he will be able to offer a credible explanation of what is going on in the footage.  In addition, when permanency is the main issue the surveillance footage will usually not change or otherwise bolster the IME expert’s opinion.  If the claimant does not have objective sign of permanent injury, the expert will find that out by reviewing the medical records and conducting the physical examination.  Surveillance footage is not likely to change the expert’s opinion in any substantive way.  Also, withholding the video until trial has the advantage of bolstering the expert’s opinion to the trier of fact on permanency without giving the claimant an opportunity to explain the footage away.

In general, most people will want to withhold surveillance until trial unless the expert cannot form an adequate opinion without viewing the surveillance, i.e., declaring end of healing on a conceded causation claim.  When in doubt, consulting with litigation counsel is the most sensible way to determine whether to use the footage.  This does not answer the question of whether the surveillance is any good.  If you are going to provide footage for the IME expert’s review, the last thing you want is for the report to disclose the footage without altering or strengthening the expert’s opinion.

“But she was carrying a bag of groceries and she had a 10 pound lifting restriction!” or “he was lifting his daughter out of her car seat and he isn’t supposed to bend or lift!” 

The biggest problem with surveillance is that we forget a) that people have to live their lives and b) surveillance often lacks context.  A claimant is not excused from performing activities of daily living because he got hurt and has work restrictions.  To the cry, “but she was carrying a bag of groceries!” comes the retort:  “and who, exactly, would have gone grocery shopping if she didn’t?”  At hearing the usual litany of redirect questions would elicit the following information:  a) the bag didn’t weigh that much and b) I paid for it later when I couldn’t get out of bed because of the increased pain.  In this fashion, that documentary of fraud and exaggeration becomes instead persuasive evidence of the severity of the claimant’s condition and the callousness of the insurer in denying the claim.  In addition, if the expert views the surveillance and issues opinions based on assumptions that cannot be supported by the actual visual evidence, the doctor’s credibility will suffer.

So when is surveillance footage ‘good’?  When it unassailably rebuts a claim the injured person is making.  This means that the grocery shopping footage is probably out unless the claimant alleges she is wheelchair-bound and is seen walking without assistance of any kind.  If there is any doubt as to what the footage shows or whether it can be explained by putting it in the proper context, then it probably is not as good as you might think.  To be useful, surveillance must not be subject to reasonable disputes as to what it depicts.

There is no hard and fast calculus for determining what the IME expert needs to see.  The general rule is when in doubt, give more information rather than less.  However, in many cases what information will be relevant or germane to the expert’s opinion will be obvious.  As a practical matter, just because you have a medical record or other evidence does not mean the expert needs to see it.  Instead, ask yourself if the record or evidence will have any impact on the expert’s opinion.  You should also rely on your IME vendor to ensure that the expert gets the records he or she wants to see.  If you take these simple steps, it will help you obtain the best IME possible.

Claim handlers often have access to medical records from the beginning of the claim and can identify references to prior treatment or inconsistencies that suggest the claim is problematic. Claim handlers also have the opportunity to present the injured worker with a release that can potentially allow the claim handler to obtain records that are outside of the scope of the claim but that could otherwise prove useful for the independent medical expert. As is often the case, when a claimant hires counsel the attorney typically revokes or otherwise limits the authorizations. Thus, it is important for claim handlers to obtain broad releases early on to increase the likelihood that the whole story will be told. Once an attorney is involved with the claim, she will exercise “editorial” control over the claim that will limit the claim handler’s ability to administer the claim effectively. Access to purportedly “unrelated” records can often be a critical point of analysis for the independent medical expert.

One key role the claim handler plays is editor. During the course of any case, claim handlers can spot areas of concern as they arise and take actions to shape how any concerns affect the claim. A problem in a claim may trigger an IME or, if the claim handler flags it, can be useful for an expert who subsequently performs an IME. While claim handlers are not physicians, they have a wealth of experience in dealing with myriad injuries and the normal course of treatment and healing for the injuries. Thus, the claim handler knows that a person with a low back strain without objective evidence of tissue yielding or definite breakage typically heals in 6-8 weeks with conservative treatment. That same claims handler is likely to know that something isn’t right when 12 weeks have elapsed and the injured person shows little or no signs of improvement. Claim Handlers are also in the best position to catch doctor shopping, narcotics abuse, and significant inconsistencies as they occur. Scheduling an IME that flags problems and delineates the claim handler’s suspicions as soon as they arise is significantly more likely to yield a credible IME than doing so a year or more after the fact when the claimant has undergone costly medical procedures or developed a poorly managed chronic pain problem. Again, the claim handler can exercise “editorial” control over how the claim plays out so that problems are headed off before they can become intractable.

Claim handlers are also like investigative journalists. Claim handlers develop a relationship with injured parties that puts them in a unique position to gauge the credibility of a claim. The claim handler will know if a particular injured party is evasive, defensive, honest, etc. and can take advantage of this personal knowledge to adopt the most effective strategy for managing the claim. This personal knowledge can also be useful for claims that move into litigation because the claim handler will be able to convey their knowledge of the claimant and other witnesses to counsel (which is especially important in worker’s compensation jurisdictions that do not have discovery). As everyone who has been involved with litigated claims knows, the claimant’s credibility is always important and often is the most important aspect of the claim. Claim handlers can use their regular contacts with claimants not only to fulfill the technical functions of adjusting the claims but also to learn about the claimant and assess whether he or she is likely to make a credible witness if the case goes to trial or hearing. Such insights into credibility may also be relevant to the analysis of the independent medical expert.

The advantages of being involved with a legal claim from its inception are legion. Every claim essentially involves competing narratives. Whether a claim is paid; how much is paid; whether it is litigated or settled; and for how much it is settled are really just functions of how believable each side’s story is. Following some simple steps in the claim handling process can help shape the story from the beginning to help control whose version is most believable. It can also lead to information, be it medical records, witness statements or employment records, which may be critical to the analysis and conclusions of the independent medical expert. As the outcome of a case often turns on the credibility of the independent medical expert, these early steps can have an important impact on the overall outcome of the claim.

Claims professionals form the foundation of the liability and worker’s compensation world. Every case starts with a claim handler and what the claim handler does with the case will likely have a profound and lasting effect on how the case is resolved.

In essence, every claim is a story constructed out of the evidence. The claim handler’s early involvement can shape what story gets told and whose version is ultimately most credible. IMEs are an integral part of the narrative of any claim. Claim handlers can take a number of steps to increase the likelihood that the IME is consistent with the narrative. This starts with the claimant: the claim handler is the first person in the process with access to the claimant.

An effective recorded statement taken soon after the injury forces the claimant to commit to a specific version of events. Because the statement is recorded, the claimant cannot later say that the statement does not accurately reflect what he said (as claimants will often do with damaging information in the medical records). In addition, the recorded statement provides the independent medical expert with a version of events that is usually more detailed than versions found in the first report of injury and medical records. Thus, if an injured worker changes the history of injury over time, the independent medical expert will be able to contrast the subsequent inconsistencies with the recorded statement (which is often the most credible version of events because of its proximity to the accident). Also, the claim handler can ask questions about prior claims, injuries, and treatment to the same body part. If a claimant is not forthright about the prior medical history in the recorded statement, he or she will appear to be evasive and untruthful when the prior history eventually comes out. And if a claimant is forthright, the claim handler will get access to potentially valuable information for the IME expert to review. Either way, the claims handler can provide additional useful information to the independent medical expert.

Claim handlers have access to the employer and witnesses from the time a claim is reported. In worker’s compensation claims, the employer can provide valuable information about the circumstances of the accident and the injured worker’s job duties which helps to gauge whether the claim is credible or not. Also obtaining witness statements early on can establish a concrete and credible history of injury not subject to the vicissitudes of memory over time. In addition, obtaining witness statements early on is important because witnesses are frequently difficult to locate later in the litigation. Having a concrete and credible history will help ensure that the independent medical expert has the best information available and that his opinion cannot be impugned by appeals to credible, alternate versions of events.

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