A good strategy will pay dividends come resolution time. Here’s how to get there
We have all had claims where, once we get to the end of the case, we wish we could go back to the beginning and start over.
Maybe we missed that one piece of evidence that could have tied our theory of the case into a tidy little package with a nicely wrapped bow on top. Or maybe we did not get to interview one of the key witnesses because she left the employer a week after the claimant’s accident, never to be heard from again. Maybe we did not have any security camera footage of the accident because the security system records over itself after a three-day cycle. Whatever it may be, there is always something more we wish we had.
This article is aimed at outlining strategies to efficiently, effectively, and thoroughly investigate workers’ compensation claims from the outset to make for better outcomes if the claim ends up in litigation.
From the Beginning
An employee is injured. What now? The ultimate outcome of a claim is often dictated by the initial investigative steps taken after a claimant is injured. Initial investigation is of paramount importance. As soon as the injury occurs, people’s memories begin to fade, evidence starts to disappear, and, most unfortunately, claimants begin to think about lawyering up. It is important to have an investigative game plan in place from the outset.
The initial claimant interview is one of the most important aspects of a claim and should be done as quickly after an injury as possible. Once the claimant retains an attorney, that attorney will likely advise petitioner not to give a statement since the claim is in litigation. The statement should also be recorded, if at all possible. It is important to nail the claimant down on how the injury occurred and what body parts were involved. Other areas of exploration should include:
The answers to these questions will provide a great jumping-off point for further investigation. It is important to record this initial interview because it locks in the claimant’s version of how the injury occurred while the memories are freshest in the claimant’s mind. In some cases, claimants will attempt to add a body part to the claim later in litigation—a recorded interview stating that only one body part was involved will go a long way in supporting the argument that the new body part should not be part of the claim.
While taking the recorded statement, have the claimant sign a medical record authorization. You can keep the authorization on file to obtain records if the petitioner presents to any physicians not authorized by the carrier. Once the claim is in litigation, the claimant’s attorney might object to signing a blank authorization, or will demand proof that the claimant was treated with a certain doctor for the alleged body part prior to signing the authorization. If there is already an authorization on file, that problem is solved.
Next Steps
Once you know exactly how, when, and where an accident occurred, you should determine whether there is a security camera in the area and preserve the footage as soon as possible. A picture is worth a thousand words, but video footage of an alleged accident is priceless.
Video footage of an accident can be helpful in a number of ways. First, it lays the foundation for the investigation. It shows the scene, potential witnesses, and what items may be used as demonstrative evidence.
Second, you can provide the video footage to the evaluating physician to determine whether the mechanism of the injury could have caused the complaints and/or pathology in a particular case. In a recent case where footage was provided, the evaluating physician’s opinion was that a box falling on a claimant’s wrist could have caused a contusion, but the tears shown on the MRI would not have resulted from the box falling because of the particular area on the wrist where the box made contact.
Finally, video footage can be very helpful with the finder of fact. Judges are human and, regardless of the expert testimony regarding an injury, seeing the actual injury can greatly inform how they may rule on a particular case.
If you suspect the claimant may have been injured previously but is using an alleged injury at work as a reason to obtain treatment through the workers’ compensation system, a medical canvas is a great way to determine whether the petitioner had any recent treatment prior to the current alleged injury. Often, the provider will not give any information over the phone and will require a signed medical record authorization (you did already obtain that during the recorded statement, right?). Other times, the provider will give dates of service. A medical canvas is a great way to determine what providers a claimant saw and what treatment he received.
The above is not an exhaustive list. Each case will have its unique factors and avenues that should be investigated. If there is one takeaway, it is “Just Do It…Now!” The claims universe is a busy field and there is certainly not enough time in a day to explore every theory of every case. However, immediate investigation of a claim will pay dividends to the successful resolution of the claim in litigation.
Noah L. Dennison, Esq. is a partner at Goldberg Segalla LLP. ndennison@goldbergsegalla.com
