By: Lisa Truitt (612) 746-3471 | ltruitt@fitchjohnson.com Dan Skarie (612) 746-6631 | dskarie@fitchjohnson.com
Most claims are accepted. However, each claim will need to have an investigation completed before determining compensability. By the time you, the claims representative, gets notice of the claim – the clock may already be running on your compensability decision.
The first step is to conduct a good faith investigation, but what is a good faith investigation?
According to DOLI, a good investigation is one that does three things:
- The insurer should contact the employee and investigate what the claim is.
- The insurer should contact the employer to determine what information they have to confirm or dispute the claim.
- Medical records should be reviewed.
The next question is, how does a claims professional obtain this information in the investigation process?
One such method is to speak with, and/or obtain a recorded statement, of the employee. (TIP: Before substantive communications with an employee you want to establish that the employee is not represented! Talking to an attorney is not the same as being represented, so you want to know if the employee has signed a retainer agreement. If an employee is represented you cannot continue with the interview without the approval of their attorney.)
Goals of a recorded interview may include one or more of the following:
- Determining if the injury arose out of and in the course and scope of employment.
- Discovering if a pre-existing condition exists that is relevant to an employee’s current claims.
- Determining if prior work injuries are present and at issue.
- Evaluating the credibility of the employee.
- Set up surveillance or other investigation.
- Prepare for or determine the necessity of an IME.
Possible Topics for a thorough investigation include:
- The injury itself.
- Confirm if the injury or condition is work related and identify the employer.
- Work activities – particularly important for Gillette claims.
- Past medical conditions.
- Get specific;
- Don’t limit yourself to just the body part the employee is claiming. Other body parts may be relevant to identify past injuries and medical treatment.
- Medical treatment, past and present.
- Names of doctors and clinics. This information can be used to track down medical records, which can be further relevant in the initial investigation process.
- Get the employee’s general practitioner for the last 15 years if possible.
- Miscellaneous information:
- Medicare/Social Security issues.
- Child Support.
- Hobbies and activities – helpful to establish activity level.
- Driver’s license and vehicle information.
- Convictions and what those crimes involved.
Another important part of investigation is to discuss the claim with the employer. Discussions with the employer should include the following:
- What does the employer know about the injury?
- Did the employee report the injury and when?
- What are the employee’s work activities? – This can be especially important when investigating an alleged Gillette injury. For example:
- Are the work activities repetitive?
- How long has the employee been working that position?
- Does an employee rotate positions?
- Confirm date of hire.
- Ask about employment status and periods of missed work?
- Ask about modified duty if applicable.
- Ask about supervisors. Follow up with supervisors if applicable.
- Discuss wages, both for purposes of confirming an average weekly wage, as well as determining potential issues of wage loss.
Obtaining medical records may be the most important part of an initial investigation. Medical records, of course, can tell us what treatment has been done and what is being recommended. Of equal importance, medical records also can be used to see what an employee reported to his or her treating provider regarding how the alleged injury occurred. Requesting and obtaining medical records is a very useful tool in the initial investigation process to determine whether or not to accept or deny a claim.
Billing offices often send medical records with their bills. This is a good starting place, but can be incomplete. Requesting complete records is the best approach.
Under Minn. Stat. 176.138(a), a release of information related to a workers’ compensation claim to the employee, employer or insurers who are parties to the claim does not require prior approval of any party to a claim. This does not include medical data that is not directly related to the current injury or disability. Providers do not always comply with this statute due to concerns with HIPPA. For this reason, and to ensure complete records, it is best to obtain HIPPA complaint authorizations signed by the employee get a full picture of the employee’s relevant health and medical history.
Even if you do not yet have a medical authorization, it may be possible to obtain some medical records related to the employee’s treatment for the work injury by contacting the medical provider and explaining that the records are needed in connection with a workers’ compensation claim. The provider will likely request information regarding the date of injury, the body parts involved and any known diagnoses related to the claim.
There are various other initial investigation tools that can be used, some of which is case specific. For example, perhaps there are red flags, and early surveillance is appropriate. If the employer has security footage that contradicts the claimed mechanism of injury, that is important information. ISO reports are also great, as they can show other relevant injuries, although it is unlikely an ISO report will, alone, be a reason to deny a claim. It may also be appropriate to interview other potential witnesses if applicable.
As always, if you need assistance during this investigation phase with respect to what additional information may be relevant to a determination of compensability, please reach out to any of the attorneys at FJL!