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By Michael McLarney
John Williams was stopped at a traffic light in his employer’s delivery van. He was looking to his left, turned sideways in his seat, when the van was struck from the rear by another vehicle. Later, John would describe the circumstances of the accident to both the workers’ compensation and the third party carriers with two very different results.
The third party carrier was First Choice Insurance, and its adjuster was Judy Smith. Judy had been an adjuster for six years and her experience told her there was a problem with John’s claim. The pictures of the vehicles showed very minor damage. In fact, the damage to the van was less than $500. Despite this physical evidence of a minor accident, John claimed that he had suffered permanent partial disability as a result of the accident.
When Judy obtained the records from the workers’ compensation carrier, she found that John was scheduled for surgery on his right knee. The medical records indicated that John had a tear in the medial meniscus and the anterior cruciate ligament was fully separated. Judy was certain that such an injury could not happen in an accident like the one described in her file. She had seen this sort of thing before.
Just a few months earlier she had had a man claim to have torn his rotator cuff in a similar accident. Judy hired a biomechanics expert who said the injury could not have occurred in the manner described. An independent medical examination had confirmed that the injury was an old one that preexisted the accident in question. The claim was denied and the claimant did not pursue the matter further.
On another occasion, Judy had dealt with an uninsured motorist claim involving a low back injury. That accident was a low speed rear-end collision as well. It was clear to Judy from the outset that the injury could not have occurred in the manner described. In that case, Judy had dropped some not so subtle hints that there might be a problem with the claim and the claimant withdrew her request for coverage. With this past experience, Judy knew just what to do with John Williams.
There is a problem with his hypothetical claim, but the problem is not with John or his injury. Sometime in the past, Judy fell into a way of speaking that has begun to affect her thinking and her investigations. She started by using verbs like can’t and won’t and adverbs like never and always. Eventually, this pattern of speaking led to a pattern of thinking. Finally, her thinking became so narrow that she begun to draw conclusions first and seek evidence after.
It isn’t something that happens often, but it happens often enough for all of us to be on our guard. The end product could be sizeable extra contractual damages, or worse, an adjuster’s career!
When I first began my career in insurance claims, I worked in a bodily injury claim unit. While there, I learned the most valuable lesson I would ever learn as an adjuster. I had gone to my superintendent and told him about a claim that I was handling. I was certain that the claimant was not injured in our accident, and I wanted to defend the third party claim. I explained my position with fervor and my superintendent listened to every word.
After I finished, I waited for what I knew would be his absolute support of my argument. He looked at me silently for a moment and then said, “Don’t tell me what you know. Tell me what you can prove.”
The reminder is needed by us all. Too often in our discussion of insurance fraud issues, we professionals will speak in terms of absolutes. We understand that for most of us this is not the practice in our investigations, but the way we speak can often lead to the way we behave. It can even lead to the way other people behave.
When the most experienced individual speaks, the less experienced listen. If a relatively new adjuster hears the experienced one-use absolutes, the new adjuster will too. Even if the experienced person slips in a comment about dealing with claims on their own merits, the new adjuster will remember the majority of comments about can’t and won’t, never and always.
To say that a certain injury cannot occur given the scenario of a low speed impact is to use lazy speech. It is more correct to say that such an injury is not likely to occur. When you make such an adjustment in your speech, you make the same adjustment in your thinking.
In my career, I have seen people who have had asymptomatic disc bulges, but became surgical candidates after a bump in a hallway, a sneeze, twisting to pick up a paper or being involved in a minor motor vehicle accident. I can remember the 60 year old woman, whose osteoporosis was so bad that she broke three vertebrae in a minor accident.
In the hypothetical case of John Williams, the most important medical records were not those of the orthopedist who performed the surgery. The most important medical records belonged to his rheumatologist. Prior to the accident, John Williams had been treated for several years for Sjogren’s Syndrome, a variant of rheumatoid arthritis.
There are certain people suffering from collagen disorders like arthritis who could experience muscle tears, including a cruciate ligament injury, in a minor accident. The disease can weaken muscle tissue, making muscle and tendon more susceptible to injury. These tissues are so weak that they are just waiting for the proverbial straw to break the camel’s back.
The average, healthy individual is not going to be injured in such circumstances. However, we take claimants the way we find them. People who fit the “eggshell” profile or the parameters of the “thin skull” doctrine are all around us. We need to be aware of that. We need to remind each other of that.
In the not so distant past, insurance carriers paid all or most claims that came along. If someone claimed to fit the eggshell profile, their claim was paid quickly to avoid extra contractual damages. The pendulum of public opinion has changed the face of insurance claims investigation. We can now take a second look at those types of claims. When we discover fraud, we can avoid the inappropriate payment.
The public is tired of being duped by crooks and paying higher premiums because of it. However, if we become too zealous or too careless, if we apply those absolutes too quickly, the pendulum could swing again.
We have made great strides in the last ten or fifteen years. Let us be sure to remind each other often that we need to deal with each claim on its own merits. It doesn’t matter what we think we know. What we can prove is all that matters. If we avoid absolutes in our speech, we will avoid them in our investigations as well.
Michael McLarney, FCLA, WCLA, is an SIU investigator with State Farm. He can be reached at (916) 569-2588.
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