Members of the claim management team need to be creative when investigating workers’ compensation claims and to determine issues of compensability.  This includes using claim investigation techniques that go beyond interviewing the employee, witnesses, experts, and reviewing medical records.  To be effective, proactive claim handlers and investigators need to do a deeper dive to reduce program costs.

Surveillance is Often Used Incorrectly

Over the years, defense interests in the workers’ compensation industry have become dependent on using private investigators to conduct surveillance on an injured worker.  Surveillance is a recommended and effective technique. However, it is often :

• Limiting surveillance to one day: The problem is this provides only a Not obtaining of what the employee is doing and allows for them to argue you watched them on “a good day;”

• Not obtaining complete background information on the employee: This includes not knowing the habits of an employee and what activities they might be doing when under the watchful eye of an investigator. In worst case scenarios, the employee will do nothing at all – not even coming outside their home; and

• Following the rules: Many jurisdictions have specific timelines as to when and how documentary evidence from surveillance needs to be disclosed to the employee and/or their attorney.  Failure to follow these rules can have significant consequences.

Using Other Resources to Uncover Favorable Claim Information

Claim handlers need to be creative and ethical when uncovering information on a claim and developing their theory of the case.  This requires patience, persistence, and creativity.

Job Site Videos

Job site videos are useful in a number of ways when done.  For example, if an employee is claiming that a certain activity (especially those that require repetitive movements) is includes using of an injury, it allows for a medical expert to evaluate whether be effective of injury is consistent with the objective medical evidence.  It also reduces or eliminates the ability ofan employee to exaggerate movements, including the frequency at which it is performed.

When creating such videos, it is important to remember key items.  This includes having a workplace station or machine set up exactly how it was at the time of the injury. When possible, have the employee to perform the motions or movements.  If this is not possible, itis essential to have someone of a similar size perform the activity.  Failure to exactly recreate these motions in question can result in the job site video not being admitted into evidence at the hearing.

Timing and Work Schedules

Records documenting the coming and going of an employee, an employee and the number of shifts they worked can be relevant in a number of circumstances. Instances when this can be useful include the following circumstances:

• Claims made by the employee as to their physical presence at a location at a specific time, or when other identified witnesses claim to have been present;

• The number of hours or shifts worked by an employee.  This is important information to have in workplace exposure cases; and

• Tracking movements of traveling employees. This can be important when trying to determine the applicability of “portal-to-portal” coverage where an employee may have made a personal deviation, which took them outside the “course and scope of” their employment

Social Media Investigation

While fewer Americans are using social media platforms on a consistent basis, it is still relevant to any claim investigation.  Key points to remember include checking common programs such as Facebook, Twitter, and Instagram.  Ethical considerations apply.  Do not obtain access to an employee’s account under false pretenses or by using a strawman.  Attorneys representing defense interests should also take note of case law that warned, “It should now be a matter of professional competence for attorneys to take the time to investigate social networking sites.” Griffin v. Maryland, 192 Md.App. 518, 535 (2010).

Conclusions

Running an effective workers’ compensation claim program requires hard work and creativity.  In order to be cost-effective, one needs to think outside the box and go beyond the “cookie cutter” approach to investigating and defending workers’ compensation claims.  By looking for alternative methods, members of the claim management team can make better decisions and move cases toward settlement.

Author Michael Stack, CEO Amaxx LLC. He is an expert in workers’ compensation cost containment systems and helps employers reduce their workers’ comp costs by 20% to 50%.  He works as a consultant to large and mid-market clients, is a co-author of Your Ultimate Guide To Mastering Workers Comp Costs, a comprehensive step-by-step manual of cost containment strategies based on hands-on field experience, and is founder &lead trainer of Amaxx Workers’ Comp Training Center.

Contact: mstack@reduceyourworkerscomp.com. 

Workers’ Comp Roundup Blog: https://blog.reduceyourworkerscomp.com/

©2018 Amaxx LLC. All rights reserved under InternationalCopyright Law.

Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker, attorney, or qualified professional.

Now and then one comes across a claimant who knows the twists and turns of the workers’ compensation system. The claimant could be a dependable and good worker, but the employee is dragging out their workers’ compensation claim.

The insurance industry calls these people “career claimants.” When a background check is done, they have a list of prior claims a mile long. Having many prior claims does not necessarily mean they are bad workers; perhaps they are injury-prone. It is very interesting, however, when claims are filed, they are sneaky enough to do just enough to keep the wheels turning and drag out their workers’ comp claim to remain out of work or on medical restrictions. Odd how that happens…

Adjusters can use their defensive tools to get these claimants off workers comp. Even when adjusters do IMEs, surveillance, and speak with the physicians providing the treatment, nothing seems to get this type of worker back to full duty.

When claimants know too much about how the system works, they drage out their workers’ comp claim by:

1. Having the Physician on their Side 

Physicians usually base opinions on evidence-based medicine. Tricky claimants know what to tell and what not to tell the doctor. They use the Internet as an information source. For example, if someone sustains a back strain, acceptable symptoms are researched to report without over-exaggerating the symptomology to cause the treating physician to see red flags.

Limited range of motion, muscle spasm, and bringing up pain complaints tell a doctor if the person is or is not hurt. The doctor proceeds presuming the patient is reporting honesty and may keep the patient on restrictions, on continuing treatment, and off work. This is where the independent medical examination (IME) comes into play. It is always good to have another opinion just in case the treating doctor is not being proactive in moving the patient along to full duty, especially if the subjective complaints do not match the objective evidence on examination.

2. Rescheduling Doctor and Physical Therapy Appointments

Everyone has a life outside of work. However, constant rescheduling of medical appointments is a red flag for the adjuster. Maybe now and then a physical therapy appointment is missed, especially when working light duty. But, it is important to remember legitimately injured workers want to get treatment, heal, return to full duty, and not drag out their workers’ comp claim.

A typical lumbar strain does not necessarily prevent a person from being active or running errands, but if a trend arises of constant rescheduling — THINK — what else is going on besides the injured worker’s schedule? Surveillance is a handy tool to confirm suspicions. It is especially helpful if the injured worker is caught in a lie. If the worker reports to the adjuster therapy is missed even when off work and surveillance shows the employee doing yard work instead of going to physical therapy, that is evidence to suspend the claim due to non-compliance with the treatment plan provided by the doctor.

Hot Tip: One therapy office has a policy of charging the patient the full amount of the missed appointment unless given 24-hour notice. They present patients with this written policy at the beginning of therapy and make them sign indicating they understand they will be charged and their insurance will not be billed.

3. The Claimant Knows the Lingo

One thing jumping right into the adjuster’s face is a claimant knowledgeable about the injury in medical terms. The average person does not use words like radiculopathy, impingement, and stenosis or know what they mean.

Even more striking is when a worker discusses a settlement or redemption early on in the claim. This behavior should lead the adjuster to believe the worker has been down the workers’ comp claim road before. Most times, when a background check is done, it shows prior litigation experience with prior employers. These are all red flags indicating you want to keep an eye on this claimant as they may be dragging out their workers’ comp claim.

4. The Claimant is Off Work and Cannot be Found

When a claimant has a legitimate injury and is off work for a while, it is a good idea to do surveillance to get additional information. After a few days, if the video only shows the worker poking a head out of the front door to retrieve the mail, it is always a red flag. The person may have a prior claim history, broke restrictions, and the claim was denied or suspended.

Or even worse, when you go to do surveillance, the worker cannot be found anywhere. The worker might be staying at another location or at another property. When you talk to the employee, excuses are made about how pain is so disabling all that can be done is to stay home and rest. However, something is awry if you go to do surveillance and the car is not in the driveway.

5. The Worker Misses a Few Therapy Appointments Every Week

Remember, injured workers with legitimate injuries want treatment so they can heal, return to work, and not drag out their workers’ comp claim.  In a red flag claim when a person goes to some treatment, but not all and not all the time, this means they are doing just enough to keep the claim alive, but missing just enough treatments not to get better.

The unsaid rule in claims is the longer a person is off work, the harder it is to get them back to work. This challenge is where a light-duty work program comes in handy. Light duty forces the worker to go to work. It also forces them to go to treatment, especially if one has to leave work to go to therapy and then return to work to finish the shift.

Doing just enough to keep the adjuster from disputing the claim shows the claimant knows a little bit about how the claims system works. As an adjuster, if a person makes 75 percent of the medical appointments, is that going to stand up in court if you pull the trigger and file a dispute or suspension?

Summary

Just one of these points does not mean your employee is cheating you and trying to drag out their workers’ comp claim. But, some smart claimants know how to work the system. If, as the adjuster, you spot one of these claims, it is your role to stay on top of every aspect of the claim. Make sure if workers miss appointments they have some documentation to support absences. The more pressure you put on them, the better result you will have in defeating unethical claimants at their own game.

Author Michael Stack, CEO Amaxx LLC. He is an expert in workers’ compensation cost containment systems and helps employers reduce their workers’ comp costs by 20% to 50%.  He works as a consultant to large and mid-market clients, is a co-author of Your Ultimate Guide To Mastering Workers Comp Costs, a comprehensive step-by-step manual of cost containment strategies based on hands-on field experience, and is founder & lead trainer of Amaxx Workers’ Comp Training Center.

Contact: mstack@reduceyourworkerscomp.com.

Workers’ Comp Roundup Blog: https://blog.reduceyourworkerscomp.com/

©2018 Amaxx LLC. All rights reserved under International Copyright Law.

Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker, attorney, or qualified professional.