Experts Provide Tips on Handling Litigated Files

Handling litigated claim files isn’t always easy, but experts at the Risk and Insurance Management Society national conference held in Denver last month provided several tips adjusters can use to strengthen their cases.

The panelists: Heath Sherman, a Chicago-based partner at Leahy, Eisenberg & Fraenkel; Toni Herwaldt, a risk manager at Kraft Foods Group, Inc.; and Cindy Slubowski, vice president and head of manufacturing at Zurich, started by discussing the initial claims investigation.

The experts recommended the following while investigating a claim:

1. Adjust to the facts.
2. Consider an accident investigation as a static event.
3. Consider surveillance.
4. Don’t get statements of every witness if an accident is clear cut and facts are clear.
5. Consider early retention of experts – it’s not always necessary to get a written report.
6. Investigate potential subrogation.

During claims investigations, Slubowski, who previously worked at Kraft Foods, recommended that adjusters keep an open mind.

“Don’t jump to conclusions,” Slubowski said.

As for surveillance, she said the key is to understand what is expected. She recommended having an action plan for each claim and suggested conducting it early and often in the claim.

Sherman, who has handled worker’s compensation claims for 16 years, said that from a legal angle adjusters should consider repeat surveillance – that’s because a claimant could claim that a situation where he or she was more active than medical evidence suggested was a one-time occurrence.

Herwaldt recommended conducting surveillance only when there is a good reason for it. She outlined an example where a claimant had a five pound lifting limitation but was found to be playing softball.

When retaining outside counsel, the experts recommended the following:

• Retain an attorney with experience handling a particular issue.
• Don’t retain an attorney until you have met his or her partners.
• Don’t retain an attorney that tells you what you want to hear.
• Retain an attorney who will follow guidelines.

The experts addressed medical management and recommended adjusters use caution when evaluating a treating doctor’s recommendations.

“That is why we have IMEs,” Herwaldt said.

A hot issue in workers’ compensation treatment is medical marijuana. Slubowski called it “a game changer.” The experts recommended adjusters understand its potential impact on general liability, auto and workers’ compensation claims.

Adjusters should consider the use of nurse managers, utilization reviews, IMEs and AMA impairment rating reports when handling workers’ compensation claims.

A vocational consultant with a positive track record and credible litigation history can also assist during return to work evaluations.

When it’s time to consider settlement, they recommended getting a full analysis of the potential trial exposure which should include analysis of the jurisdiction, judge and opposing counsel.

Finally, when it comes to evaluating third party subrogation possibilities, they recommended adjusters know the applicable statute of limitations for subrogation actions and to remember that even small recoveries can add up over time.