The importance of thoroughly investigating a claim at its inception cannot be overly stressed. Whether a case is accepted or controverted, a thorough investigation is necessary to be prepared to raise all defenses at the first hearing to set the case on a course to the least exposure and the most cost-effective management of liability.
In the event a case is accepted, a thorough investigation entails getting a detailed reporting from the insured such that the FROI-00 and FROI-02 outlines the mechanism and sites of injury. In addition to sending a C-3.3 form, it is recommended that a letter of inquiry be sent to the claimant requesting information on all prior injuries to the same site, as well as a general HIPAA release to obtaining any records from those overlapping sites. In circumstances where a claimant has a significant pre-existing injury to the same site, it may be appropriate accept the case as an exacerbation injury.
When a claim is controverted, an early investigation is even more important. In summary, the following evidence should be forwarded to counsel to investigate for relevance and to support the controversy:
- The accident/incident report completed by the claimant or the employee;
- Witness statements, names, job titles and contact information;
- List of any prior work related injuries if known with this employer or prior employers;
- A HIPAA release should be sent to the claimant for execution;
- Any video surveillance of the mechanism of injury;
- Any relevant evidence of the claimant’s employment history such as truancy, insubordination, warnings, or any other evidence that may be relevant to a defense of a “claim filed as an afterthought.”
Providing defense counsel with a copy of the accident/incident report serves provide insight as to the facts surrounding the injury as close in time to the injury; that is, if the report is completed contemporaneous with the accident. It also is indicative as to whether adequate notice was provided within 30 days of the accident if the claimant is relying on the accident report as his/her form of notice.
Witness statements detailing the mechanism should be obtained as soon after the accident as possible. If there were no witnesses to the accident, then any supervisor, manager, safety specialist, or analogous person responsible for receiving notice of the accident should be provided as a witness for the controversy.
Running an ISO for any prior accidents should be a step of investigation in both accepted and controverted claims. Oftentimes, a claimant may have prior work-related injuries or motor vehicle accidents where the same sites were injured. In such a case, if the claimant’s last treatment was close in time to the relevant date of accident, this can be raised as a defense. Contemporaneous with the ISO search, a HIPAA release should be sent to the claimant for execution to obtain the medical records for any prior accidents or injuries.
If there is video surveillance of the accident, and the case is controverted, this surveillance should be furnished to counsel at the outset with witness information when a pre-hearing conference statement is to be completed. Upon review, counsel will advise as to whether a controversy can be pursued based on the video surveillance.
Evidence of the claimant’s track record with the employer serves to give a background as to how he/she may testify, particularly if there are doubts as to the claimant’s veracity or there is any belief that the claim is filed as an afterthought. For example, if the claimant first reports an injury at the end of his termination proceedings, it provides convincing evidence for even the most claimant friendly judge to disallow a claim.
In summary, a thorough investigation at the outset of a claim lays the foundation for effective management of future exposure. The more information you gather as to a claimant’s background, the better you can manage your costs.