What if this Is Not the Correct Carrier?

Thursday, May 9, 2013 | 0

I receive periodic complaints from carriers. They note their receipt of “numerous Petitions” from claimants' attorneys with their company erroneously listed as the carrier or third-party administrator.

I receive periodic requests from claimants' attorneys asking that a particular carrier or TPA be added to our list in e-JCC. Several times recently, the company someone has sought to have added has been an insurance agent, not a carrier. As I begin my investigative process for such a request, I will check the “coverage database” maintained by the Division of Workers’ Compensation. I often find that the employer’s carrier is listed, and it is not the company that we are being asked to add.

One recent example involved an attorney’s staff insisting that a particular company was the carrier. After multiple phone calls and emails, I was finally able to convince them that a different company was the actual carrier. To convince the claimant’s counsel, though, I ended up having to provide the correct carrier name, their claim number, the phone number of the adjuster and defense counsel. All of which I obtained by looking up the employer on the coverage database and calling the carrier listed there. Before you say it, I concede at the outset that I sometimes enjoy some advantage in getting through red tape to speak to the appropriate person.

I received a recent carrier request for help “getting off of a claim.” The carrier had received multiple petitions from a particular claimants' attorney. They reviewed their data and concluded that they did not represent/insure the employer and had never done so. They repeatedly telephoned the claimants' attorney, without the courtesy of a returned call. This has serious professionalism implications which I trust that I need not discuss further. The carrier wants to be removed from this case. They write to me in frustration asking how to be removed from the case.

First, I cannot give legal advice. I suspect that each day there are defendants in lawsuits across this country who feel they have been inappropriately included. I find the telephone call efforts described above are appropriate. It was a good way to start. If I were a defendant in a case, which I thought was error, and telephone calls went unanswered, I would then follow with email requesting dismissal of the claims against me. I would reiterate in the emails that I had left phone messages without the courtesy of a reply. If the emails were unsuccessful, I would likely next send a letter by U.S. Mail, with copies of the email and again reiterating the efforts expended in the effort.

I tell people/carriers who contact me with these issues that I cannot unilaterally change or remove a carrier or TPA from a case based upon anyone's word. I appreciate that this may seem like the most expeditious method for correcting an error. However, it would not afford the claimant due process if I received such complaints and then just took the carrier or TPA at their word and removed them from the case. With that said, I respect that there are carriers that should be removed from a particular case. In our system, however, the merits of an allegation often come down to finding facts, and that is the penultimate role of the assigned judge.

I understand that injured workers have to select the carrier that they file against. This is sometimes based on imperfect information. I understand that all human beings make errors. I understand that whether a particular employer or carrier is appropriately included in a given case may often come down to factual conclusions.

So, when erroneously added to a case, the carrier or third-party administrator should communicate the error. Claimant’s counsel should first use the coverage database to determine the identity of the appropriate party; when contacted by a carrier who disclaims responsibility, consulting the coverage database is an appropriate follow-up. Unfortunately, some situations will not be resolved by this contact, and there are those on both sides of the table who will not return calls or respond to requests. As a side note, there are likely petitions that could be prevented if the claimant’s attorney could get an initial, pre-petition call returned by the adjuster in some instances. I acknowledge that life is busy, and returning calls takes time. However, the evidence supports that people are more likely to resolve their differences when they speak to each other.

If the contacts described above are not successful, then the procedural tool for dismissal from a case would be a motion. Rule 60Q6.115(1) (“any request for an order or for other relief shall be by motion.”). That is the vehicle that will focus the attention of the assigned judge upon your dispute. Admittedly, this may cause expense. There is a potential for a carrier to recover attorneys' fees under Fla. Stat. §440.32(2) or Rule 60Q6.125 in such an instance. It is hoped that the phone call, email or U.S. mail route described above would preclude the vast majority of such errors from reaching the motion and thus the stage for any claiming of attorneys' fees. The factual support for such a motion might include the documentation of the carrier’s phone calls, emails and letter to claimant’s attorney.

At the end of the analysis, better communication is the key to avoid misunderstandings. Carriers may preclude claims by speaking with claimant's counsel. Claimants may preempt motions regarding the appropriate party by discussing assertions that this carrier or TPA believes it does not belong on the case.

David Langham is the Deputy Chief Judge of Compensation Claims for the Florida Office of Judges of Compensation Claims and Division of Administrative Hearings. This column was reprinted with his permission from his Florida Workers' Comp Adjudication blog.