Adjuster should adjusters never underestimate the importance of liability as a critical element of the claims investigation. (Photo: Shutterstock)
One of the most complex aspects of claims adjusting involves bodily injury investigations.
Provided coverage is in line, the immediate task is to determine liability. It’s important to remember that a claimant must prove both liability and damages in order to be legally entitled to compensation.
Liability is crucial because comparative negligence is often overlooked. Claims executives lament that claims are settled at either zero or 100%, with the occasional 50/50 sprinkled in for good measure. The reality is that roughly 3% of all claims are settled with a comparative negligence assessment. When compared to the more than 50% of all cases adjudicated by juries where comparative negligence is assessed, a huge opportunity for organizational improvement emerges.
Consider the sheer number of claims involving intersections, lane changes, parking lots, slip and falls, assumption of risk, or liquor liability and the comparative negligence that should almost always be evident. While there are numerous reasons for not assessing comparative negligence, there are also solutions. A tremendous upside has been identified through carriers who have incorporated proven tools into the end-to-end third-party process.
A good rule of thumb for all adjusters is to never underestimate the importance of liability as a critical element of the claims investigation. Beyond the potential accuracy improvement in indemnity payments, there is a dramatic rise in subrogation potential. An estimated 15% of all claims are closed with a missed subrogation opportunity, costing the industry $15 billion annually.
When it comes to the actual bodily injury evaluation, there are key elements adjusters need to focus on when completing their investigation. First is the relationship between the accident and the injury. An adjuster may need to ask, “Just how did the sideswipe accident cause a disk herniation at L4-5?” or “How did the $500 bumper ding result in the need for a spinal fusion?” These may seem like basic questions, but they are rarely asked during the course of a claim.
Adjusters should be curious
This aspect of the investigation requires an insatiable curiosity by all adjusters. There are cases where some adjusters will accept what is presented by the attorney and simply try to negotiate down from the demand rather than arguing the facts.
When an injury is identified in an auto claim, the first step should be to examine the vehicles. Telltale signs such as principle direction of force, metal deformation or striations can provide key clues to the veracity of the alleged injuries. In any auto claim it is important to get detailed photographs of all vehicles from all angles, with photos that depict all damage.
A good photograph will show the damage in relation to the other parts of the car. Pictures should be taken from angles, front to rear and rear to front, and then straight on. Photos should never be close up unless there is some key piece of evidence such as hair in a windshield crack. Photos can always be magnified, but it is virtually impossible to improve a blurry photo taken from two feet away.
Attorneys don’t like to argue causation because that is often a weakness for many claimants. In a country where the American Medial Association estimates that 80% of Americans will suffer back pain, causation is a very legitimate concern in virtually any claim where back problems are alleged.
The next consideration is the veracity of the claimant. According to the Insurance Research Council, insurance fraud and buildup accounts for 13% to 18% in excess auto claim payments annually.
Adjusters should investigate to see if the claimant has been involved in any previous incidents. (Photo: Shutterstock)
Who is the claimant?
A good claimant profile is critical to building a quality investigation. Has the claimant had prior claims? If so, when? How many? Was the claimant at fault? Was there a payment? What were the prior injuries?
Surprisingly, many claimants have prior serious accidents where they were at fault, but claimed no injuries. However, when they are not at fault, even in low impact claims, they suddenly have a myriad of problems that are all related to this once incident. It is this type of detail that will sour a jury on a claimant and will inspire adjusters to dig for more information.
Look at criminal records. Does the claimant have prior felonies? Don’t limit the search to the claimant. Having an insured with a criminal record can pose just as many problems for the insurance company as a felonious claimant does for a trial lawyer.
Years ago during deposition, the defense attorney asked the claimant about his prior sexual battery conviction. After a quick kick under the table, I reminded the attorney it was our insured who had the conviction and we were trying to settle this prior to trial for a very good reason. Some information may not be admissible, but just like a good poker player effectively plays the cards dealt, so too does the effective adjuster.
Consider the claimant’s financial profile. If this case heads to trial, a proposal for settlement, offer of judgment or similar document may need to be filed. This can act as a loser pay law, entitling the carrier to defense attorney costs with the right outcome. If the claimant is judgment proof, this becomes a far less powerful tool. While most claims don’t go to trial, it is a very effective tool to leverage in negotiations with the attorney, who is duty-bound to take all offers to the claimant.
Look at the claimant’s professional licensure. In many states, licenses are required for numerous occupations. There was a claim involving a claimant who was an exotic dancer, and a city occupational license was required. Surveillance was ordered, exotic dancing was observed, and the case went away almost instantaneously. This can be powerful information when professions involving physical activity are known.
Request a medical history. Depending on the injury, ask for anywhere from five to 20 years. Always provide a medical authorization, and offer to do the search as well. While attorneys probably won’t accept the offer, this demonstrates aggressive good faith claims handling. If there is a history, it will be discoverable should litigation ensue, and the attorney will be well aware of this.
Never forget to check the licensure status of the plaintiff attorney and treating providers. This can usually be done through the secretary of state or appropriate governing body in the jurisdiction. Look for prior disciplinary action and make sure that licenses are in good standing.
Research neighbors and known associates who can provide powerful testimony. Arguably, some of my best character witnesses were ex-spouses willing to share a multitude of details, including pre-existing conditions and their causes. Neighbors are also great sources of information to share information like the injured party routinely does yard work.
Once the veracity of the claimant has been established, evaluate the claim for special and general damages. The complexity of the investigation will vary based upon the type of claim. Some key aspects of the medical bills will be to identify what is reasonably related to the accident.
Intentional miscoding, upcoding or unbundling the claims can manipulate billing amounts. (Photo: Shutterstock)
Beware of ‘games’
There is no shortage of “games” that can occur such as upcoding, unbundling, modifier abuse or improper use of global surgical edits. Medical coding is very complex and requires significant training to become a certified coder. Basic information is available to adjusters such as benchmark pricing, but that does little good if the provider has manipulated the bills in other ways. An effective tool for adjusters is a software application which can provide significant insight into what billings are allowable, and what treatment and duration were reasonable.
Beyond the medical specials will be claims for lost wages, transportation or household replacement services. Again, it will take a lot of investigation to determine the real damages, especially among the self-employed. Always request a copy of the most recent Schedule C from the claimant’s income tax return. In some instances there will be resistance to releasing this information, which can be a red flag.
The same goes for replacement services and transportation. To understand what is owed requires digging into case law in your particular jurisdiction. The insatiably curious may go so far as to ask the claimant for the route traveled and a description of the clinic, nurses and doctors.
Once the specials are evaluated, the generals must be considered. This is a subjective area and inconsistencies often arise. The use of a decision support tool can provide more consistency.
Adjusters are responsible for evaluating each claim based upon its own merits. Hopefully, these tips will help adjusters more thoroughly investigate each claim, since curiosity can provide immeasurable returns.
Christopher Tidball (firstname.lastname@example.org) is a casualty claims consultant and author of multiple books including Re-Adjusted: 20 Essential Rules to Take Your Claims Organization from Ordinary to Extraordinary! and the insurance fraud thriller, Swoop & Squat. He spent more than 20 years as an adjuster, manager and business leader with multiple top tier insurance companies. Visit www.christidball.com for more information.
John is a Jacksonville native who grew up on the First Coast. He graduated from Bishop Kenny High School in 1975 and went to college at Florida State University where he completed a 4-year program in 3 years. John graduated from the Florida State University College of Business in 1978 and went straight into Florida State University College of Law. While in law school, John earned a position on the prestigious Law Review Board serving as its Business Editor. As a law student, John studied in the Oxford program. He also interned with the Florida Legislature working in the Florida House of Representatives Criminal Justice Committee. John was admitted to the Florida Bar in 1981.
John began his legal career as a law school intern in the State Attorney's Office in Jacksonville in 1981. After his internship, legendary State Attorney Ed Austin hired John as a full-time Assistant State Attorney for the Fourth Judicial Circuit (Clay, Duval, and Nassau Counties). As a prosecutor, John tried jury and non-jury trial on charges ranging from DUI to Murder.
In 1983, John moved from the State Attorney's Office to begin his career in private practice. He has practiced law for 30 years on the First Coast. For the last 20 years, John and his family have made Clay County their home.
John limits his practice to personal injury and disability cases. While there are many fine attorneys in Clay County, John is one of only a few Clay County attorneys who limit their practice to personal injury and disability cases. John takes pride in helping clients resolve injury claims in ways that avoid the stress, uncertainty, and the expense of unnecessary litigation.
John is the past President of the Clay County Bar Association and has served on the Board of the Clay County Bar Association from 2009-2013. He is an active member of the Florida Bar, and the Federal Bar of the Middle and Southern Districts of Florida. He is also a member of the American Association of Justice, the Florida Association of Justice, the National Organization of Social Security Claimants' Representatives, and the National Organization of Veterans' Advocates.
Service to the Community
John is involved in the Clay County Community serving as a member and Director of the Rotary Club of Orange Park, of the Clay County Bar Association, and the Putnam County Bar Association.
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