02/02/2000
I read with great interest the recent posting of Peter Livengood's posting
to the list comments on the approach of the claims department to soft tissue injuries, a
term as Peter correctly notes is a poor way to describe an injury
Mikes Rule : He who has the gold makes the rules, but you do
not have to play by their rules
The typical case that crosses the adjusters desk, once again the 80/20 rule is
that 80% of your cases are those that are " grind " business, or smaller cases,
say under $50,000. This is where the carriers focus is to save up front dollars. They have
special departments to deal with the 20% that driver 80% of their loss dollars, that is
the " Major Claims Unit "
Now you might ask why devote time and staff to the 80%, well again my law of large numbers
if 80% of your BI book of say 10,000 cases in six states has an average settlement size of
$8,000 if you save $500 a case works out good.
To start with the name of the game on the defense side, " The Inside Game " is
to lower expectations right up front, keep in mind if you do not set expectations up
front, then the plaintiff or claimant sets their own. So if you tell the plaintiff
attorney up front, you got a soft tissue, low speed, low velocity impact case and we fight
those and we only pay $X, then the attorney in most cases, just looks at the numbers and
says it is not worth the investment give me $X.
So why play the game their way, Peter makes an excellent suggestion, write the letter to
the adjuster and remind the adjuster this is not such a case, and as was noted in a recent
posting, I think from this list, from the State of Arizona Dept. of Insurance, you the
carrier must in good faith do an investigation and that investigation must not just look
at a low speed impact it must look at the medical, the injury, the impact, etc., read that
bulletin and use it. Tell the adjuster up front what your expectations are as to what they
must do.
The next point:
Mikes Rule : There is nothing Independent about an IME.
The goal pure and simple is to reduce exposure and to get an opinion that in essence
supports your view of the case, this does not always occur, but that is the goal. Keep in
mind most objective doctors whose practice is not 90% funded by IME funds, does not want
to do an IME, they do not want to defend their opinion, they can practice and make money.
Mikes Question: Why do plaintiff law firms do business their
way when it comes to IME?
There is nothing independent about the IME, they are picked through National or Regional
providers who prepare the letters and select the doctors. I have rarely seen a plaintiff
firm challenge an IME, and say furnish a list of five doctors to pick from or before we go
to the IME, we want to know the % of income this doctor makes from exams. Or the carrier
has breached the policy condition of cooperation by placing their interests over that of
their insured by forcing this IME upon them.
I recognize the legal issues faced, but one must question why as a whole
plaintiffs do not set expectations up front with the carrier we will fight you on the IME
and if you cut my client off before the IME that is bad faith, note all to many carriers
do just that set the IME and say no payments until the IME. Take a hard line on those
issues, you can and I have seen it work, what right does the carrier possess pending an
IME to say treatment is not reasonable and necessary, they are not doctors and not
providing treatment.
In balance I do not see a fight all that often, all to often it is, we need to do business
there way, they have the power of the policy, you may be surprised; tell them no and often
they pay.
Mike Cerf
Expert Witness Insurance Claims
Sherwood, Oregon
503-925-1937
mcerf@teleport.com
