From an early age, we learn through literature and movies that fantasy is attainable. A young woman living in obscurity and neglect can slip on glass shoes and ride a pumpkin to the castle to marry a prince. Is it any wonder that a claimant might expect a soft-tissue injury to generate a windfall?
The challenge of settling a claim with a claimant who has unrealistic expectations is simultaneously the bane and victory of our work. Claimants fall prey to advertisements that promise a victim’s claims can be settled in six figures. They undergo exhaustive medical care, diagnostic examinations, and sometimes even surgery in the hope that they will net enough money to retire, without a real understanding of how claims can be mitigated by discovery of pre-existing conditions and prior treatment.
Time to Get Real
Claimants often do not realize that claims databases are becoming more available and that, in many forums, making a personal injury complaint can open their medical histories, which would otherwise enjoy the protective shield of HIPAA, to investigation. Frequently, claimants with an extensive history will deny or minimize it to their counsel. A claims professional who researches claims data and relays to an attorney enough information to cause concern (without disclosing the full history—defense counsel who inherit the claim will not be happy to have evidence already disclosed) may just open the door to a more honest discussion of the real value of what then may be downgraded to an exaggeration of a pre-existing injury claim.
A claims professional who is able to obtain a signed HIPAA authorization from a claimant may benefit from the ability to review the records without the interpretation of the claimant or her counsel. Some minimal research through Medline or other internet medical resource may provide key insights into causation when, for example, a slip-and-fall claimant suffers from a prior chronic condition impacting gait.
Most states have a code of ethics or rules of professional conduct that require attorneys to timely reveal to their clients a written settlement offer, classified as a communication. A written offer including citation of the applicable rule of professional conduct may carry more weight when counsel is compelled to convey an offer that they feel is insubstantial but may be attractive to the client’s need to move on.
Investigation can sometimes deflate a claim that, at first blush, seems like a slam dunk. Further consideration by counsel might prompt a reassessment of the claim’s value. Counsel may not wish to undertake a protracted discovery process, opting instead to recommend that a client accept an offer earlier thought to be insufficient.
Counteroffer Strategies
When a negotiation gets bogged down by small increment moves, a larger increment may indicate to the other side that the authority is nearly exhausted, thereby encouraging a similar counter move. A claims professional should be open to such moves and recognize that there may be a willingness to bridge the gap. The claims professional should likewise appreciate a similar initiation by a claimant or counsel and respond accordingly. When a large increment counteroffer is met with a small increment move, it may signify to the other side that settlement is not achievable. Negotiations may stall. It’s important to be candid about a small increment response if the reason is simply lack of information. When a mediation concludes with the hope of continued negotiation, recognizing that the window is still open by reaffirming the insured’s willingness to work toward settlement may keep the dialogue alive.
The Pro Se Claimant
Claimants without counsel want first and foremost to be heard. They frequently feel traumatized, even if they may be at fault, and they want an audience. Listening is the best tool a claims professional can employ. Claimants want the claims professional to know that their dog was in the car, or their car seats need to be replaced, or that they were late for church and they were going to be a greeter that day. They want their unique circumstances and experiences recognized, even if their claims are ultimately going to be denied. A good claims professional will calmly listen to their stories without conveying adversity. Sometimes a shared experience or expression of concern can loosen the conversation. Here’s an example:
Claimant: “My little doggy was in the front seat.”
Claims Professional: “What kind of dog do you have? Is it all right?”
Claimant: “A Chihuahua, and she’s fine.”
Claims Professional: “Oh, glad to hear that. I have a dog that travels with me, too!”
Seemingly small kindnesses can reduce the fear and uncertainty that a claimant feels in a recorded statement. When claimants on the phone can “hear” a claims professional smile, they may be more inclined to be reasonable in their pursuits.
A pro se claimant is hoping to return to normalcy. The claims professional should employ this understanding throughout the claims process. Contact should be maintained and delays avoided whenever possible. The claims professional should be accessible. When there is an easy, cost-effective fix that will help the claims professional maintain control of the claim, the carrier may wish to consider it.
Know the File
Sometimes claims are managed on the fly with little time to prepare for important conversations. In these times, it’s important to confess a lack of familiarity. When possible, though, make sure to know what happened: Who said what; who did what; how many people were involved; what are the known damages claimed; what may have been the cause; and what may be the solution sought. Know the claimant’s background as well as the insured’s. Know the local rules governing the claim. Know what is favorable and unfavorable to the claim. Omit the possibility of surprises through preparation and knowledge. Seek answers before they are necessary to know.
When the News Isn’t Good
It can be challenging to relay a denial to a claimant with whom a friendly working demeanor has been cultivated. As the process of developing an understanding of what happened unfolds, it is important to maintain references that confirm that a settlement is not promised. “If” is a key word in negotiating claims and it cannot be employed enough. The claims professional’s cooperative and amiable demeanor can be misinterpreted, so each conversation must confirm that an investigation is underway and the liability decision may not be in their favor. When the time comes to issue a denial, it should be handled with respect and understanding.
Claims can be managed with grace, even when someone is going to be disappointed. Claimants and counsel can lose their tempers and behave in such a way that will make it hard to maintain composure. Occasionally, a claim will erupt into hostility. Claims professionals will serve themselves well if they remember that self-control is required to maintain constructive movement. If necessary, take a small break from negotiations. When discussions resume, remind the parties that the negotiations are occurring because it is the carrier’s desire to resolve the claim equitably.
Additionally, there should be no sacrifice of dignity in claims handling, either on the part of the claims professional or the claimant. Remember that the claimant is present in the claim because something happened to her whether by her own act; that of an insured or some third party; or by completely unforeseeable happenstance.
The claims process is about gathering information and finding resolution, but unfortunately there is almost always a party that walks away having relinquished something. It should never be self-respect.