Damages, Chapter
4, 12/16/99
In response to my chapter three musing I have been asked to comment on what
happens when the carrier, writes and states yes we agree we have liability and will handle
the claim.
Mikes Rule: Just because they are at fault does not mean you
collect what you feel you deserve.
This leads me to chapter four, "damages", or better yet, you will not get what you deserve
unless you fight for it and fight hard and even then you may not get what you deserve.
Mikes Rule: The inside game is played to minimize loss and
maximize gain for the benefit of the carrier only.
Once the carrier takes the position that they agree the insured caused this accident and
accepts liability, you may have won the battle, but not yet the war to come. The issue
now becomes one of damages, and how much can we save off our projected value, or can we
hold out and force the matter into protracted litigation or a wait and see who blinks
first position.
Damages are gathered by the adjuster in a slow and tedious process, somewhat as follows:
1. The adjuster wants your personal information to send your information of to the index
bureau to see how many "Hits" they will get on you, that is how many prior
claims you have. If you have "Hits" then the other carrier where you made a
claim is contacted and the adjusters chat about your prior claim or claims.
2. If you have "Red Flags", that being SIU ( Special Investigation Unit) hits,
such as low impact, low velocity claim - Two people represented by same attorney, treating
with same doctor, very new policy, no witnesses, accident in certain areas of the city,
your are a certain nationality (this is denied by carriers), you are represented by a
certain law firm or treating with a certain doctor, then off to SIU a form goes and you
are checked out with NICB (National Insurance Crimes Bureau)
3. You are asked for a medical
authorization which is broad enough to check your credit, get every medical records since
you were born, read them carefully and strongly consider just rejecting the signing of
one. The authorization is used to the advantage of the adjuster only.
4. Depending on the nature of the claim a detailed background check will be done on you
regarding past
suits, claims, workers compensation accidents, etc.
5. Activity checks or talking to your neighbors may be done, but this is not done often,
mostly when you have been off work on a disability over 90 days.
6. Surveillance can be done in some cases where you are represented and alleging a long
term disability.
7. When your medical records are received they are in most cases broken down into
diagnostic and treatment, diagnostic being all tests and office visits, exams, ambulance
bills, x-rays etc.
Things that are looked at.
a. Is treatment with a Chiropractor
b. Was there delay in treatment
c. Is there a high level of diagnostic testing
d. Is there massage with the Chiropractic treatment
e. If you have treated with a Chiropractor, most likely your bills will be sent to a
review service
f. In certain cases an in house nurse practitioner will review records
g. Adjuster will get your PIP adjuster to do an IME
In some cases they will run your medical provider though NICB to see if there are
referrals.
Reserves:
As a case progress the adjuster will adjust the reserve based on the medical he has as
well as liability, in most cases a reserve is set to reflect the max exposure based on
liability, but is not a reflection of what they will pay. For example the reserve could be
$50,000. Your offer may be $15,000.
Once your case is at a point where you have completed treatment then the adjuster will
start to evaluate the records, keep in mind they will look for holes in the medical,
indication of subjective complaints and no objective findings, little things like you are
complaining one day your neck hurts, the next your low back and no prior mention of low
back pain. They will question long term off work for soft tissue issue, for example
a brick layer off work for five months for a soft tissue injury. All of your prescriptions
can be checked in a data base to see if they are related or if they are narcotic in nature
do you have a habit?
The adjuster will look for anything that suggests a prior injury, they will look for other
problems after the accident, they will look and see if at the time you became represented
you went to the doctor or there is a note your attorney referred you to the doctor. They
will look for patterns in referral from your doctor to the same doctor that they have seen
in other cases.
They will question any and all gaps in treatment, for example you start treating one
day after the accident for 45 days. You then stop treating for 30 days, then you start
again. This will be looked at very closely.
They may ask for an IME, if that occurs, you should, in my estimation, seek an attorney.
Mikes Rule: Never agree to an IME under any circumstances
without the advise of counsel, be it a PIP IME or a third Party IME. The IME is a
legal issue and you need legal advise.
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CHAPTER 5
Mike Cerf
Expert Witness Insurance Claims
Sherwood, Oregon
503-925-1937
mcerf@teleport.com
