Claims-Acceptance Rules
Monday, January 4, 2010 | 0
By Eugene Keefe
We are starting to see more and more assignments come in with a truly anomalous claims issue—claims that have been:
- “Held” by the adjuster for weeks, months and years prior to being sent to defense counsel;
- Substantial TTD and medical bills have been paid; and
- No true accident investigation has been performed with interviews conducted or forms completed;
- The initial treating medical records have not been received and reviewed.
So we all have some tools at our disposal to see if the claim is either questionable or bona fide. As we have told our clients, readers, arbitrators/commissioners and law students for years, the matrix every workers’ compensation hearing officer, attorney, claims handler, participant or risk manager has to review is to compare the initial report(s) of accident with the first medical history or histories to see if they “match” in a meaningful way. If the accident investigation and medical records don’t align, benefits shouldn’t be paid until the questions that arise get answered.
The problem we see across the country is claims adjusters are under the gun. They are handling lots and lots of files, many are at record-high levels to justify their jobs and pay in this demanding economy. The problem they face is it takes a little or a lot of time to get accident investigation protocols completed and medical records in their files. It is tough to match all of it up and make sense out of what they are doing on a file-by-file basis. Most veteran claims adjusters know the easiest way to quiet down a demanding file is to just take the initial report and just start paying benefits—by doing so, claimants and potentially their attorneys will stop calling/crabbing and sending penalty/fee petitions and making threats of one sort or the other. The problem this causes is files some times get accepted and lots of benefits paid with very minimal accident information and late or lacking medical documentation.
The problem for the defense attorney who later gets the file is multi-layered. In our experience, claims handlers don’t like to be “questioned.” They know if the defense attorney starts to ask pointed questions about the initial determination to simply start paying benefits without a minimal accident investigation; it may put the adjuster in a bad light. The defense attorney knows the claims adjuster usually handles the spigot that sends files—if you tell the adjuster the matter needs to be more fully investigated, they can go to a less aggressive attorney who won’t roil the waters, no matter how poorly the file has been initially set up. The problem for the corporate risk manager or insurance broker with a demanding account is you may be paying a lot of money on a claim when your claims staff and attorneys don’t have the very basic defense tools in the file—you aren’t sure an accident happened or if the medical care your adjuster is paying for relates to the claimed event!
So what are the three Keefe, Campbell Claim-Acceptance Rules? We recommend the Illinois and possibly U.S. claims industry demand three simple things on every litigated claim or defense assignment.
First, each file has to have some definitive accident report in it. The best of all worlds is a hand-written accident investigation report filled out by claimant in their own words and language and signed. If they can’t fill it out due to an inability to write, audiotape or videotape it. If union rules or other administrative issues block a statement from the injured worker, our first rule requires a handwritten accident investigation report completed by the supervisor to whom the event was initially reported. For insurance/risk managers and insurance brokers who watch claims handlers, you shouldn’t allow any adjuster to pay benefits without something other than a call from the account saying “claimant hurt at work.”
If the claim is litigated early, what do you do about getting an accident investigation report filled out when claimant is represented by counsel? Tell the claimant attorney you have to have the accident investigation report and you are willing to interview their client on the phone with counsel on the line. Tell them your handling rules require it and you can’t pay benefits without a completed accident investigation report. While we don’t mean to talk for Illinois arbitrators, we assure you most of them support the concept that an injured worker has to preliminarily cooperate with claims adjuster before you start paying lots of benefits. They will not require you to pay blindly.
Next, the claims handler has to have the initial medical treatment records; whatever they might be. As part of this process, we recommend having every injured worker sign a HIPAA-compliant medical release. After you have the signed release, if you don’t know where claimant went for care, ask them! If you know where claimant went for care, call and fax the HIPAA-compliant release and ask for the initial treating records. Please always remember the medical course starts on the date of loss—if they don’t get care for some time after the event, it is always a red flag—it doesn’t mean you can always deny the claim but it is always something to further review and consider. Please also remember to CYA—if you don’t have initial treating records and you aren’t paying benefits, write either claimant or counsel early and often to tell them where you are at in trying to get them. Make clear in all correspondence to tell them you follow the KCCA Rules and you can’t and won’t pay benefits until you have them.
Third and last, when you have an accident investigation report and the initial medical records with a clear medical history—read and compare them! It sounds simple but we get lots and lots of claims which indicate the claims or risk manager did not take these three simple steps. If the accident investigation report and initial medical history match, you can and should pay benefits. If they don’t match, you don’t and shouldn’t pay benefits. Sounds simple, doesn’t it?
We point out to everyone in the WC claims industry, if you send a file to defense and they aren’t asking these questions and confirming analysis of this matrix, they aren’t doing their job. If these three steps aren’t followed, you are almost certainly paying benefits totally in the dark—you and your defense counsel won’t be able to do most of the important claims steps such as fighting a phony accident, targeting MMI or return to work. When we audit claims files for our clients and potential clients, this is the first thing we look for—we are amazed at how many times it is missing. If it isn’t in the file early, you need to try to “rebuild” it later at usually a major disadvantage due to the passage of time. We recommend everyone look at your major litigated claim files to see if this matrix is present or let us do it for you in an audit.
If you need an accident investigation form, send a reply. If you need/want our recommended questions to interview an injured worker, send a reply. If you want a copy of our HIPAA-compliant release, send a reply. All of these documents are offered at no charge.
Eugene Keefe is a principal of Keefe Campbell & Associates, a Chicago workers' compensation defense law firm. This column is reprinted with the firm's permission from its newsletter.
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