Keefe, Campbell & Associates, LLC

Editor’s comment: As consultants to Illinois risk managers and claims handlers, we are constantly asked about one topic—how do we nail down accident investigation on every single claim? How do we make sure to pay the good ones and fight the bad ones? What is the best evidence for an Arbitrator to truly deny a phony case?

On a preliminary basis, we assure our readers accident investigation is a paramount importance in Illinois workers’ compensation claims handling and legal practice. Our system is very demanding—defense counsel is not allowed the right to depose or send written interrogatories or requests to produce to their opponents. If the employer doesn’t maximize the opportunity to investigate claims at the early stages of reporting, the claims handler and attorneys may be “flying blind” in trying to protect you from a questionable claim. The only true method to avoid paying WC or employment claims you may not owe is to insure you have an aggressive accident investigation system in place and insure all of your managers are keenly aware of its importance.

With that in mind, we want all of our readers to understand there is a very simple and somewhat inexpensive tool we feel would dramatically nail down and improve accident investigation protocols. It is called a video camera. We are so used to them and they are so ubiquitous, we almost forget how powerful they would be, if properly used in the claims environment. This is particularly important in Illinois where any opportunity to maximize accident investigation is so critical.

At present, we feel the vast majority of outside claims representatives and in-house risk managers focus on developing paper files. If a recorded statement is taken, it is transcribed onto paper. Accident investigation forms are all paper. Claimants, supervisors and witnesses are all routinely asked to fill out paper forms. Effective immediately, we are trying to get all of you to think about what investigating accidents on paper means. If the dispute is about the condition of a set of stairs—say for example, claimant says the stairs were damaged and in a state of complete disrepair; we consider of questionable value to have a supervisor look at the stairs and say they are in a state of good repair. Many Arbitrators in the state would routinely rule claimant was correct and will view the supervisor’s statements as suspect—the worker fell so something had to be wrong? In contrast, if the supervisor took out a camera phone and took ten pictures of the stairs, it locks in the facts. The Arbitrator can view the “independent” video evidence and see a much more accurate view of the stairs.

We will give you another example of a simple questionable claim. The matter involves a fully disputed cervical fusion for an Illinois truck driver. If you have any medical or claims background, rest assured, such a claim has a six or even seven-figure exposure. Medical care for a cervical fusion by itself may cost $50-300,000 in this state for surgeon’s fees, hospital charges, pre-surgical workup and post-surgical physical therapy. In this claim, the injured worker reported the disputed claimed event as occurring the Tuesday before Thanksgiving. He doesn’t tell anyone about the claimed event for three weeks. He fills out the report and says he strained his neck lifting freight.

Thereafter, three co-workers step forward and all three of them indicate the injured worker told them a dramatically different tale. All three independent witnesses confirm the injured worker told them he injured himself at home on Thanksgiving. This sets up a fraud case and a solid defense to compensability. However, at present, everyone in Illinois WC claims would have them write stuff down on a piece of paper.

We are telling all of you simply taking written reports is a minimalist thing to do when you are investigating major losses with six and seven-figure values. A much better approach would be to have all of the defense witnesses provide videotaped statements on a webcam or other video camera to the claims adjuster. The adjuster should then burn all of it to a DVD. If you have clear videotaped statements from all three witnesses who independently verify claimant is lying, what can you do with them? You could:

1. Send them to claimant’s counsel and tell him/her to drop the fraudulent claim and not waste their money getting medical records and IME’s for a phony;
2. Send them to the IDFPR and have them start a fraud investigation—the videos could be forwarded to the appropriate states’ attorney for prosecution of claimant;
3. Send them to your defense attorney for use in defense of the claim;
4. Send them to the IME doctor for their consideration in reviewing the medical chart.
5. Use them at pre-trials to get the Arbitrators to see how strong your defenses are and to try to get the other side to drop or discount their case.
6. Use them at any later hearing to support testimony given at trial.

Are such videotaped statements admissible into evidence? Well, you would need the person on the tape to be present to provide foundation and make themselves subject to cross-examination by Petitioner’s counsel. We are also suggesting a better “second-step” in phony claims is to get an expedited videotaped evidence deposition of your crucial defense witnesses. In so doing, defense counsel is locking in your case-in-chief. The concern we have is most Petitioner’s attorneys put questionable claims on the back burner—they want the claim to sit to avoid having to confront their clients and deal with the phony claimant. They also don’t want to invest time and money in questionable claims. This works directly contrary to insuring a defense attorney has a solid case.

Every day that goes by, defense witnesses quit, get fired, lose interest and forget details. In a major claim, every veteran risk manager knows claimant is certain to eventually come forward and tell a well-prepared tale of woe. It is much harder to track down and prepare a defense witness who has nothing to gain by participating. If you have videotaped evidence depositions of your lead witnesses, you are ready whenever the other side gets their ducks in a row. Our vote in major claims is take the extra step and be sure you are ready. Take advantage of your advantage.

Please let us know your thoughts and comments.