Kicking The Old Dog (Run It Out In The Open And Shoot It)

National Association Of Insurance Women's Meeting
Thursday, April 11, 1996
Speaker: Robert D. Ingram - "Handling Compensable Claims with Questionable Injuries and Disability"

Create Controversy

Gather and carefully review all medical records and search for:

Signs of improvement

Inconsistencies in description of accident, complaints of medical problems, etc.

Missed appointments or non-cooperation with ATP's orders

References to activity claimant performing inconsistent with injury

References to other physicians treating claimant whose records you have not previously obtained

New accidents or injuries or complaints of injuries

Distinctions between medical history shared with different providers

Review First Report of Injury and Notice of Claim

Search for contradictions in claimant's description of accident

Search for contradictions in claimant's description of injuries

Request for change of physician

Proximity of physician's office to employee's residence

Accessibility of physician to employee

Necessity for specialized care

Language barrier

Referral by authorized physician

Duration of treatment without appreciable improvement

Current physician indicates nothing more to offer

Excessive treatment or use of prescription medication

Offer light duty work

Determine claimant's alien or immigration status: (If claimant (1) illegal alien, and (2) doctor has given light duty release - file motion for suspension of benefits)

Identify non-cooperation or non-compliance issues

Missed medical appointments

Missed physical therapy appointments

Non-cooperation with functional capacity evaluation

Non-cooperation with work hardening program

Failure to follow orders of ATP regarding use of prescription medication, weight loss, etc.

Seek suspension of benefits on basis of change in condition

New accident with different employer

New accident during claimant's personal activities

Aggravation of pre-existing condition compensable "but only for so long as aggravation of the pre-existing condition continues to be the cause of the disability" (dfn. of injury found at § 34-9-1 (4))

Release to return to work by conservative IME physician (prime the pump with the IME physician by giving them the complete picture, i.e. claimant's criminal record, claimant's prior workers' comp. claims, claimant's prior p.i. claims, inconsistent statements, claimant's poor work history, good things about employer, small company, etc.)

Work the authorized treating physician (ATP)
nice guy approach first requesting treatment plan
escalate involvement with ATP providing them with accountability in following treatment plan
prime the pump with ATP by providing complete picture
pressure ATP with consulting physician

Make Life Miserable (Make The Alternative Of Returning To Work Appear Appealing)

Periodic phone calls to claimant questioning his or her activity and/or absence from home

Seek ATP order for physical therapy

Seek ATP order for FCE

Seek ATP order for work hardening program

Seek ATP order for pain management program

Assign rehab/vocational counselor (in non-catastrophic cases where claimant refuses to cooperate use counselor to assist adjuster or attorney without making contact with claimant or claimant's attorney)

Counselor can help determine work limitations and restrictions by meeting with physician

Counselor can consult with physician

Counselor can attempt to identify jobs within claimant's work restrictions

Counselor can help interpret medical records

Counselor can work with employer in developing light duty job consistent with ATP's restrictions

Keep Them In Doubt

Never let claimant or claimant's attorney know you are showing all cards even when you are

Request affidavit from claimant during settlement negotiations with claimant denying:

post-accident employment

activity inconsistent with restrictions

subsequent accidents or aggravations

Attempt surveillance in appropriate cases

Before playing cards give claimant opportunity to lie
Example: If claimant's attorney asks whether surveillance of claimant has occurred, refuse to answer until claimant under oath denies post-accident employment and activity inconsistent with restrictions. Requiring same will (1) prevent claimant from explaining away activity (i.e., admitting he did try working after stating in deposition that he had not but that he was only able to work a few days and was flat on his back for extended period of time after attempting work); (2) cause claimant to admit employment and engaging in activities inconsistent with restrictions for fear that he was caught in the act on the surveillance video. The impact of surveillance videos can be explained away by crafty claimants (particularly when coached by their attorney) if the claimant is not on record denying employment or the ability to perform activity inconsistent with restrictions subsequent to surveillance being conducted.