July 2019 Spark Knowledge

Questioning Claims: Things Are Not Always As They Seem

Alan Daigrepont, CWCP, CMSP

Senior Claims Consultant

No matter the extenuating circumstances surrounding an incident, it is wise to pose diligent questions and provide any information vital to an investigation. Consider this claim, where circumstances unrelated to the incident influenced the findings after a thorough investigation.

EXTENUATING CIRCUMSTANCES:  It was known for months that a particular employee was under investigation by local authorities. Allegations began to bleed into the office dynamics. Our claimant, assistant to the employee under investigation, became embroiled in the controversy and was protected as much as feasibly possible by the employer. The claimant alleged she had been harassed at her home and on her personal phone. She voiced concerns about her family becoming involved or personally harmed.  The employer took precautionary measures to insulate the office staff from the controversy.

INCIDENT:  Shortly after a safety meeting addressing the investigation mentioned above, the claimant was making her way back to the office. The route from the meeting room to the office was between two of the employer’s buildings. The employee was walking several feet behind the office manager, who turned and entered the office door. The employee then claimed she was grabbed from behind by an unknown assailant, taken around to the back of one of the buildings and pistol whipped for information.  She stated she was unable to identify her assailant, but he wore black clothing and a hoodie to conceal his face.

Due to the extreme nature of the allegations, potential injuries reported and the local investigation, the employer took this incident very seriously. The claim was reported in a timely manner and the claimant received immediate medical attention. Given the details reported by the employer, the claim was immediately accepted as a compensable workers’ compensation claim.

Appropriate medical attention was provided, including emergent treatment in the Emergency Department (ED). Psychological counseling was offered and the employee’s choices of physician(s) were granted.  Suspicions began to arise when the employee chose a physician with a reputation of being quite liberal with treatment and slow to return to work.  Rather quickly, the employee sought the services of counsel and the claim began to escalate.

Our investigation included obtaining medical records from the ED treatment and comparing the notes with those of the claimant’s physician(s) of choice.  Oddly enough, the ED physician indicated no sign of trauma, despite the employee’s report of having been “pistol whipped” to unconsciousness. This information was brought to the attention of the employee’s attorney, who down-played the commentary. The attorney insisted his client had sustained a concussion and cervical injuries and required extensive psychological treatment for Acute Post Traumatic Stress.

Second medical opinions (SMO) were requested as soon as feasibly possible to answer the questions of why there was no evidence of trauma and if this employee could return to gainful employment. Unfortunately, this process took some time. Once obtained, the SMO opinions were helpful in answering many questions to the validity of the reported events.

GENERAL LIABILITY:  As suspected, the attorney for the claimant brought action in Workers’ Compensation (WC) Court as well as allegations in tort that the employer was responsible for lack of security to the employees.

Since the claim crossed over both WC and general liability, the investigation proceeded under both coverages. The WC matter was defended through the use of medical opinions and video surveillance. The GL investigation took other avenues, primarily by identifying a potential witness. The witness was questioned in the GL matter to determine what he saw. The GL litigation then stalled due to a legal issue, so the deposition of the witness could not be obtained. However, the WC litigation was not prevented from obtaining the witness deposition and, prior to same, defense counsel held an extensive interview with the witness regarding what he’d seen on that day.

WITNESS:  The witness was parked and sitting in his vehicle, which was facing in the direction of the alleged incident. He distinctly recalled seeing the employee alone as she walked to the back of the building. She even waved at him. Then she disappeared behind the building.

RESOLUTION:  The witness testimony, along with the comments of the ED physician, were just enough to convince the claimant’s attorney that his client was not as truthful as she led everyone to believe. Rather than allowing his client to have charges of insurance fraud pressed against her, he accepted a full and final settlement of both WC and GL claims for a nominal amount.  Thus, the employer was released of the WC and any other liability in the tort matter.

CONCLUSION:  In this particular claim, there was a prior investigation that may have given the injured employee motivation to fabricate the details of this alleged accident. Claims representatives are trained to handle confidential information and uses it to investigate WC claims. In order to properly and quickly evaluate the exposure of a WC claim for compensability, claims representatives benefit from knowing all employment circumstances/issues that are known by the employer and should give them due consideration during the claim investigation. After all, things are not always what they seem.

This article was first published in December 2018 as an LHA Trust Funds Claims & Conclusions newsletter.

If you have any questions related to this newsletter, please contact:

Kathy Terry
Vice President of Business Development
Lindsay Minzey
Business Development Specialist