C32 Chapter 1 Bodily Injury Claims Study

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Bodily Injury Claims: Study 1

Investigation

Conduct:

• Adjuster should approach each claim with curiosity, imagination and common sense.
• Communication is essential
• Behave fairly and honestly.
• Professional and courteous manner
• Understanding of cultural diversity
• Be respectful
  
  

Adjuster needs to have knowledge of:

• Human anatomy
• Physiology – how the body functions
• Common types of traumatic injury
• Processes and methods used to treat traumatic injury
• Psychological consequences of traumatic injury
• Recovery and disability periods

Death and very serious injury:

• Be understanding
• Express sympathy personally and on behalf of the company
• Set an appointment for a later date
• Be patient

The Investigation:

• Special focus of BI investigation:
• Information is gathered about
• the injury
• claimant’s history
• how injury will affect claimant’s future
• Position of knowledge will
• Protect the rights of the insurer
• Permit a claim to be assessed fairly
• Ensure good faith
• Lead to proper settlement
• Thorough investigation
• Decreases inflated claims
• Helps detect staged claims
• This results in moderate premiums because legitimate claims are settled for fair sums
• General Liability Claims:
• The adjuster must:
• Confirm coverage under the policy
• Determine the insured’s legal responsibility to the third party
• Establish the amount of the claim
• First Party Claims:
• Differ from third party claims because benefits are paid regardless of fault
• Instead of fault finding, adjuster must find if claimant is eligible to receive policy benefits
• Adjuster concerned with contractual obligations and legislation
• Adjuster pays only for injuries resulting from the accident
• Automobile Claims:
• Adjuster settles injury claims under first party accident benefit coverage
• Must comply with provincial auto legislation and contractual obligations
• For first party claims the adjuster must:
• Confirm policy coverage
• Determine entitlement to benefits and dispense payments accordingly
• Control the amount of the claim

Policy Coverage:

• Coverage Questions:
• Automobile Claims:
• Does the policy cover the vehicle involved?
• Did the accident arise out of the ownership, use or operation of the automobile?
• Was the automobile used with the consent of the owner?
• Liability Claims:
• Does the incident that gave rise to the claim constitute an accident or occurrence as defined in the policy?
• Is it a bodily injury, as defined in the policy, and does it involve the legal liability of the insured?

Information Gathering:

• Scene of the accident:
• Detailed diagram
• Photographs
• Police Reports:
• Interview police officer
• In serious cases police also reconstruct the accident and take photographs
• Official written police report filed by the investigating officer
• Facts of the accident:
• Interview and take statement from insured/claimants/any other witnesses ASAP
• When represented by lawyer the adjuster must secure permission to interview or take statement from the claimant
• Subrogation:
• Must be considered at outset of each claim
• Particular urgency exists if a municipality, township or other government entity is involved (short limitation periods)
• Notice must be given that an action has been started to preserve recovery rights
• Signed authorization:
• Adjuster must secure signed authorization to obtain
• medical reports from hospitals and doctors
• employment and salary records

Statements:

• Important and relevant facts should be recorded in the style of language used by the person giving the statement
• Provide prepared diagrams or photographs to serve as guides to recall details of event
• Before taking statement review the information with statement giver
• Prepare checklist of questions that need to be asked
• Choose interview location depending on personality of person giving statement
• Aggressive – in your office so you control it
• Passive – in their office so they are comfortable and open up
• Even if adjuster senses statement being given is untruthful the information must be recorded as given
• The Mechanics of Statement Taking:
• Use a pen
• Leave no blank spaces – not even margins
• Do not underline
• Number each page
• Mark through any deletions with a single line
• Have statement giver initial each page and each correction
• Do not use a date stamp
• Have the statement giver read it, make any corrections and sign it
• Have the signature witnessed
• Have the statement read back and then signed if given through an interpreter
• Signing the statement:
• Adjuster may witness the signature of the person giving the statement
• Worth of statement will be limited if claimant refuses to sign statement
• Unsigned statement better than no statement at all
• After the statement is signed and witnessed it should not be tampered with in any way
• Background details:
• Identify person by:
• Name
• Date of birth
• Sex
• Marital status
• Dependents
• Address
• Telephone number
• Social insurance number
• Health insurance number
• Place of employment and occupation
• Detailed description of the physical aspects of job duties
• Dependents and obligations to them should be outlined
• Statement Checklist for the Claimant
• Claimant        Personal information

Employment information

• Pre-accident        Describe the circumstances

Date, time and place

Describe the scene

• Accident            Details of the accident

Details of the injury

Witnesses

Investigation by authorities or owner

• Injury            Diagnosis

Treatment; disabilities; limitation

Present status; pain and suffering

Prognosis

• Damages        Out-of-pocket expenses

Property damage

Wage loss to date

Future income loss; future care costs

• Other Eligible Claimants    Dependents
• Details of the event:
• Date, time, parties involved
• A sequential description of the accident event including what transpired immediately before and after
• Before the accident:
• Where the insured was before the accident
• Can sometimes clarify why an accident occurred
• Explanation of injury and consequences:
• Claimant must describe injuries sustained
• Provide medical history
• Report time lost from work
• Declare any loss of earnings up to the time of the statement
• Details required of any subjective injuries such as aches and pains
• Site and extent of the injury and any visible scarring should be described and pinpointed
• If statement giver is in hospital or nursing home:
• Get permission from appropriate medical authority
• Statement giver must be physically able, of sound mind and not under the influence of drugs
• Doctor or nurse may wish to be present
• Statements can be used as memory tools: witness may be called to testify months or years later
• For recorded statements: should begin by identifying the parties and the adjuster and asking permission for taping the interview. Avoid leading questions.

Sources of Injury Information:

• Questioning the claimant more thoroughly as the case develops
• Discussing the case with the claimant’s attending doctor
• Requesting an independent medical exam by a doctor of the insured’s choice
• Questioning the claimant’s employer about job duties or a back-to-work plan

Questioning to reveal injury and fault apportionment:

• Type of impact:
• Where was the claimant’s vehicle struck and how?
• Was the vehicle equipped with safety equipment and was it in use at the time of the accident?
• Position of claimant:
• What position was the claimant in just prior to the collision?
• Where was the claimant sitting?
• Did the claimant have any warning of the impact?
• In which direction did the claimant’s head move?
• Injury:
• Where is the exact location of pain and tenderness?
• What symptoms are being experienced by the claimant?
• Did the claimant have prior injuries?
• Initial treatment:
• What treatments were administered and where?
• What instructions did the claimant receive from the hospital or from the doctor upon being sent home?
• What type of medication was prescribed?
• Diagnosis:
• How did the claimant’s doctor describe the condition suffered?
• What tests did the doctor conduct to determine the nature and extent of injury?
• What is the precise nature of the claimant’s complaints?
• Prognosis:
• How does the doctor forecast the probable outcome of the trauma suffered?
• When is recovery expected?

Activities check:

• May be necessary when disability continues over an extended period of time and symptoms are subjective
• Some injuries must be verified because of the seriousness of the consequences of the injury
• Adjusters may question neighbors and employers
• Licensed private investigators may be hired for in-depth investigation
• Photographs and videotapes can be used as visual evidence
• Establish a trend, an isolated activity may not be sufficient
• Keep records of the date, time and place of evidence collected

Suspicious Claims:

• SIU’s:
• Effective control against fraud
• Made up of individuals with law enforcement backgrounds and experienced claims personnel with knowledge of evidence gathering and legal limitations
• Possible Fraud Indicators:
• Some of these indicators are:
• Exceptional unusual circumstances
• Connections between many claimants
• A rental car involved in the accident
• An employer who is difficult to contact
• A claimant who refuses to meet with the adjuster
• A claimant who does not disclose a source of collateral benefits
• Specific to injury claims:
• A claimant with a lengthy claims history or extensive pre-existing medical history
• A claimant who uses doctors or other professionals known to represent claimants in prior suspicious claims
• A claimant with subjective soft tissue injuries
• Many subjective symptoms

Determining Liability:

• Plaintiff vs. Defendeant or Defendant ats (at the suit) Plaintiff
• Defenses available:
• Joint and several liability: 1% rule – If the insured is found as little as 1% liable it may be possible for the plaintiff to collect the full amount from the insured. If the joint-tortfeasors lack insurance coverage or are judgment-proof, the insured may be 1% responsible, having to pay 100% of the claim, and being unable to recover any part of the amount paid from the other responsible parties.
• Limitation periods: Be sure to put third parties on notice within the limitation periods.
• Voluntary assumption of risk
• Act of god
• Inevitable accident
• Statute defense
• Contributory negligence
• Damages not foreseeable
• Damages too remote

Definitions

Diagnosis: is the conclusion reached by the doctor after examining a patient, classifying or identifying the nature of the condition from which he or she is suffering.

Prognosis: is a forecast made by the doctor as to the probable recovery from an injury based on the nature and symptoms of the case

Forensic experts: may be called to establish a legal case or to prove certain specific points based on information they gathered, organized or analyzed within the field of their expertise.

Judgment-Proof: describes persons against whom judgments for money cannot be satisfied because they do not own sufficient property to pay the judgment, do not earn sufficient wages, or are otherwise protected by statute.

Evidence: is anything that can be presented to a court that serves to establish the truth about the facts of a case