Brady: The Wrong Question Asked Too Late
Friday, September 28, 2018 | 969 | 0 | min read
“Why is this file still open?”
That is a charged question, one that no employer wants to ask and that none of its representatives wish to try to answer. It is born of deep consternation on the part of the former, and triggers excessive defensiveness in the latter.
Given its negative connotations and destructive impact, this article proposes methods by which the question need never be asked.
As a starting point, it’s important to acknowledge that the question is, fundamentally, a significant miscommunication. A far better inquiry is seeking to know what can be done to completely understand the circumstances of the claim.
Moreover, the question about the file remaining open is almost always posed far too late. The moment to focus on closing the file should not come years into litigation but at the claim’s very outset.
Just as soon as the accident is reported, the employer and its representatives should fully evaluate its every aspect. If that inquiry is made early enough, there is a very good chance that no one will, several years later, ask why the claim still pends.
But, even asking the right question at the most opportune moment will not, in and of itself, gain closure. It is not the asking but the answering that will bring about an ending.
The answering, first and foremost, should entail the realization that three topics are going to control outcomes in the majority of Illinois workers’ compensation claims. The first is the character of the injured worker. Determining his reliability will guide further investigation and help to accurately evaluate exposure. Assessing the worker’s motivation, not only in bringing a claim, but also as to recovering physically, will likewise shed light on further handling.
The second topic crucial to expeditiously concluding the claim concerns the circumstances of the accident. What was the worker’s job title and description? How was he paid? What precisely was he doing when he was hurt, and who saw the injury occur?
The third topic to investigate is the condition petitioner is suffering. What is his diagnosis, and is it consistent from treater to treater? How much care was rendered, and was it repetitive or even helpful? Are the conditions diagnosed consistent with a traumatic onset, or are they more in alignment with a degenerative etiology?
Grasping that these topics are the ones that provide a framework for adjusting the case lays the proper foundation. But to be of the greatest utility, they have to be fully explored by the employer and its representatives.
That begs the question: How specifically are the topics to be looked at? Sources of likely information have to be identified and accessed. A list of them includes:
- Statement from petitioner.
- Statement from employer.
- Statement from coworkers.
- Social media search.
- Medical canvass.
- ISO submission.
- A substantive 8(a) letter detailing to health care providers the legal basis of the employer’s right to know.
Timing, too, is critical. To achieve maximum impact, this investigation ought to be done just as soon as the claim is known. Choosing to hold it to see how developments unfold, to try and limit expense, often has just the opposite effect. It may be a counterintuitive proposition, but it is real nevertheless: Husbanding resources at the start quite often results in spending a great deal more down the line.
It is tempting to focus on the quick resolution. And getting to a worker promptly with an offer once it seems the exposure is small is a laudable ambition. But do these open-and-shut situations occur frequently in Illinois?
Obviously, some areas of the employment market are more conducive to the streamlined settlement than others. But even in those areas, as you maintain contact with the pro se worker, what does it hurt to gain as much awareness of him and the circumstances as possible?
The worker will not always accept the offer and, in a significant number of cases, goes to a lawyer. Indeed, he may go to a lawyer even as he considers the offer. And what if, at the urging of his lawyer, or even on his own, petitioner wants to go back to treatment?
Possessing substantive information (for example, you uncover evidence that petitioner has had prior problems and care, perhaps even objective testing, regarding the same body part he now complains about) gives leverage to deny treatment and push back effectively when the new attorney files the inevitable emergency Petition.
The 19(b) and 8(a) can put the employer in a deep hole. But if a detailed investigation has already been undertaken, medical information is often available that can be promptly gotten to a Section 12 examiner who will provide an opinion allowing not only a good faith defense to the petition, but also insulation from penalties.
The cost associated with a thorough, prompt investigation is far outweighed by the tactical and strategic advantages gained if, as is often the case, things do not work out as precisely as the employer hopes.
Do not wait years and then demand to know why the file is still open. Pay attention the minute the accident occurs and ask then, what can be done to facilitate full understanding? The quicker the employer and its representatives possess all the facts, the quicker they can effectively lean into the worker to leverage a resolution.
The employer who knows more wins more.
Francis M. Brady is a founding partner of Brady, Connolly & Masuda PC, a Chicago law firm whose practice includes workers' compensation defense. This column is published with permission.