Strategies for Positioning Your Difficult Claims for Closure
By: Blake Staten
We have all been involved in problematic claims where it would appear there is no end in sight. Income benefits are continuing to be paid, and have been for months or even years, and the medical component of the claim seems to be spiraling. It can be a frustrating and helpless feeling where it would appear the status quo is resistant to change. But, in such situations, there are certain courses of action that can potentially provide traction and position these types of cases for a reasonable and cost-effective closure by settlement. We explore a number of those strategies here and hope to provide some helpful guidance to increase the frequency at which you are able to resolve those most problematic claims.
WC-240 Return to Work Process
In a claim where income benefits are continually being paid, the ability to return the claimant to a suitable light duty position and suspend such benefits provides strong leverage for closure. Indeed, an employer/insurer is in a much stronger bargaining position at a settlement mediation if income benefits are no longer being paid. Typically, if a suitable light duty position is available, the claimant’s authorized treating physician (ATP) is willing to review and possibly approve the job. This process has a number of technical rules found under Georgia Code Section 34-9-240 and corresponding Board Rule, which if not followed, can invalidate the effort. First, a written job description must be sent to the ATP and simultaneously copied to the claimant and his attorney. Also, at the time the physician reviews and approves the job description, the claimant must have been evaluated by the physician within the last 60 days. Once the position is approved, the employer/insurer will need to send a written job offer to the claimant, attaching the approved job description and providing at least 10-days’ notice of the start date of the position. When the claimant then appears for and accepts the position, income benefits can be suspended. On the other hand, and if the above process was correctly executed, income benefits can likewise be suspended in the event the claimant fails to appear for the position at all. Either way, with the suspension of income benefits, you are now in a stronger leveraging position to try and close your file. While the return to work might only be a temporary solution, recognizing the claimant’s restrictions often times cannot be accommodated long term, employer/insurers can “strike while the iron is hot” and make efforts to negotiate a favorable settlement as soon as benefits are suspended.
Surveillance and Doctor Conferencing
Surveillance and doctor conferencing are two courses of action that, when used in conjunction, can often times change the entire trajectory of a claim. In accepted claims where income benefits are continually being paid and the employee is not working, the assignment of surveillance has proven to be an effective means of obtaining useful information and monitoring an employee’s activities. Indeed, some claimants are not always truthful when being examined by the ATP. They might mislead as to the level or frequency of their symptoms, or not accurately report to the physician the level of activity in which they can engage. They understand the stakes, and unfortunately, may not always have the best of intentions when pursuing a workers’ compensation claim in the first place. For example, consider the claimant who uses a cane when presenting to his doctor’s office, limping through the parking lot and into the exam room. The treating physician sees this presentation and little else, given he or she only has the opportunity to observe the claimant in the office. However, with the help of a private investigator, the claimant is later caught on camera playing basketball at local gym – running up and down the court without issue. Once such video is obtained, the opportunity then arises to conference with the claimant’s physician and observe the video. Typically, the treating physician will not appreciate the fact the claimant has not been truthful during his “in-office” presentation, and will at that point fully understand the situation and likely deem any injury to have fully resolved. Under such circumstances, having the physician then execute a medical questionnaire to that effect during the same conference will then provide the needed medical evidence to often suspend income benefit and deny further care. This in turn will dramatically change the parties’ respective stances on the claim and position the matter for a reduced and quick closure.
Independent Medical Evaluation (IME)
An Independent Medical Evaluation (IME) can often be an effective tool for incorporating another expert medical opinion into a claim. Oftentimes, the ATP, while doing a fine job treating the claimant and providing all reasonable and necessary items of care, can become somewhat indecisive as to the claimant’s diagnosis and appropriate future treatment plan. As a result, the claim can plateau with little additional forward movement occurring. At this point in time an IME can be useful. Under Georgia Code Section 34-9-202, the employer/insurer can arrange for the evaluation at a reasonable time and place and the employee is obligated to attend if properly notified. Under a best case, the IME physician might opine that, given the amount of care rendered to date, the injury at issue has been appropriately treated and since resolved. If the employer/insurer is in-fact able to obtain such an opinion, it can then be provided to the ATP for consideration. With another physician’s supporting opinion in-hand, the ATP might then agree to the IME opinion(s), which in turn would likewise serve to dramatically change the employer/insurer’s position on the claim, especially where income benefits and an inordinate amount of medical treatment have been provided. Under such scenario, a problematic, expensive and potentially complicated claim has been mitigated to what most likely can now become a reduced and cost-effective closure – well worth the expense of the IME.
Hopefully, you have only a few of the aforementioned types of claims where expenses are becoming exceedingly high for both income benefits and medical treatment. Should you find yourself in that difficult scenario, try and incorporate some of these strategies to determine if the status quo can be altered. Oftentimes, it is well worth the expense to pursue such an action plan, as the result could be very rewarding.
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