Unwitnessed Claims: 10 Strategies for Employers to Prevail

Chicago, IL (WorkersCompensation.com) -- When an unwitnessed workers' compensation claim arises, employers face significant challenges in gathering evidence and determining the claim's validity. In a recent roundtable discussion titled "When a Tree Falls in the Forest… Does It Have a Claim?," industry experts shared valuable insights and strategies to help employers navigate these situations effectively at the 2023 Claims and Litigation Management Alliance Workers' Compensation, Casualty, and Risk Management Conference at The Westin in Chicago, Ill. The panelists included Jay Gates from Arthur J. Gallagher & Co., Lara Pearson from Culver Franchising System, and Patrick Sodoro from Sodoro Law Group. This article summarizes the key takeaways from their discussion, providing employers with practical approaches to handling unwitnessed workers' compensation claims.

(1) Gathering Evidence: Statements, Videos, and Photos

The first step in addressing an unwitnessed workers' compensation claim is to gather as much relevant evidence as possible. Panelist Lara Pearson emphasized the importance of obtaining statements from involved parties. Additionally, any available videos or photos of the incident should be collected. These pieces of evidence can provide valuable insights into the circumstances surrounding the claim and help establish the facts.

(2) Incident Reporting and Documentation

Lara Pearson highlighted the significance of incident reporting and documentation. Timely and accurate documentation is crucial for managing claims effectively and meeting legal obligations. In general liability (GL) and workers' compensation (WC) cases, employers must ensure that the appropriate incident report forms are filled out accurately. Moreover, specific forms may need to be filed with the insurance company or per state-specific reporting requirements.

(3) Obtaining Medical Notes and Assessing Injuries

Jay Gates stressed the importance of obtaining medical notes from the first treatment received by the injured worker. These notes provide insights into the initial diagnosis, treatment plan, and any statements made by the worker. Reviewing this information is essential to determine the nature of the injury and whether it falls under workers' compensation or personal health. Prioritizing the worker's well-being and facilitating their return to work should be a primary concern for employers.

(4) Consistency in Narrative: Identifying Discrepancies

Drawing from law enforcement practices, Patrick Sodoro suggested a proper investigative method. He recommended having multiple individuals separately ask the injured worker about the incident. If there are significant differences in their narratives, it may indicate a potential issue. Identifying inconsistencies in the worker's account can help employers assess the claim's validity and uncover possible fraudulent activity.

(5) Corporate Culture and Claims Programs

The corporate culture within an organization plays a significant role in shaping the handling of workers' compensation claims. The panelists highlighted that a positive, caring culture focused on employees' well-being could profoundly impact claims management. Conversely, a negative culture that harbors biases or doubts about injured workers can negatively affect litigation outcomes. Employers are encouraged to foster a culture that prioritizes employee welfare and facilitates collaboration between all stakeholders involved in the claims process.

(6) Prevention, Investigation, and Leverage

Investing in thorough claims investigations can save employers money in the long run. Panelists stressed the importance of not only investigating claims allegations that have been denied but also thoroughly investigating claims that have been accepted. Conducting a comprehensive investigation provides valuable leverage in determining the extent of the injury and aids in the resolution or settlement of the claim. Employers should prioritize the collection of evidence and ensure it is ready for trial or mediation.

(7) Language Barriers and Resources

Accurate communication and understanding from the onset of the claim are essential to ensure the correct information is recorded and reported. Language barriers can complicate the claims process, mainly when gathering statements or conducting interviews. Resources such as telephonic or field case management and professional translators can help overcome these challenges.

(8) Social Media, Surveillance, and Refuting Claims

Social media plays a significant role in workers' compensation claims in the digital age. Lara Pearson emphasized that colleagues of injured workers often share information and updates on social media platforms. Employers can leverage this information to gather additional evidence or refute the extent of the claimed injury. However, handling social media investigations carefully is crucial to maintain the chain of custody and ensuring admissibility in legal proceedings. Employers are advised to engage third-party experts to obtain and analyze social media content, providing a robust and unbiased report for collaboration and further investigative steps.

Surveillance is another effective tool in assessing the validity of an unwitnessed workers' compensation claim. Panelists shared examples where surveillance efforts uncovered discrepancies between the claimed limitations and the activities the injured worker performed. By thinking outside the box, employers can arrange surveillance opportunities that capture the worker engaging in activities contradicting their reported injuries or restrictions. These surveillance partnerships must be established for success, ensuring practical and legally permissible evidence gathering.

(9) The Value of Physical Therapists

Physical therapists can provide invaluable insights into the injured worker's progress, challenges, and psychosocial aspects of the claim. Employers can learn about the worker's condition, treatment plan, and prognosis by carefully reading and digesting physical therapy notes. These notes can inform the assessment of the claim's validity and assist in developing a strategic plan for managing the case effectively.

(10) The Importance of Complete and Accurate Information

Panelists highlighted the critical role of complete and accurate information in making informed decisions regarding workers' compensation claims. Employers must remain diligent in gathering, reviewing, and documenting all available evidence to build a comprehensive case. Employers should consider all relevant medical records, reports, and statements during the claims process. Please include vital information to ensure the outcome of the claim is accurate.

The insights shared during the roundtable discussion underscored the importance of corporate culture, prevention, and collaboration among all stakeholders. Addressing unwitnessed workers' compensation claims requires a systematic approach and thorough investigation. Employers must gather evidence through statements, videos, and photos while adhering to proper incident reporting and documentation procedures. Social media and surveillance can provide valuable evidence to refute or support claims, but handling them professionally and ethically is crucial. Lastly, physical therapy notes and complete information are pivotal in accurately assessing the extent of injuries and making informed decisions.

By implementing the strategies and best practices shared by industry experts, employers can navigate unwitnessed workers' compensation claims more effectively, protect their interests, and ensure the well-being of their workforce. Taking proactive measures, conducting thorough investigations, and fostering a culture of care and collaboration are essential to successfully managing these complex claims.

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