Effectively Investigating, Evaluating and Negotiating Your Way to a Competitive Advantage
We see it time and time again, the stacks of papers that pile up on adjusters’ desks in the form of bodily injury (BI) demands from attorneys for injuries being claimed as the result of an accident. Of course, the attorney’s client is never at fault and most certainly the alleged injuries are always the result of your insured’s negligence.
Attorneys are well aware that adjusters are very busy, often to the point of being overworked. The same often holds true for attorneys, who often utilize a staff of associates, or negotiators, to push through an even greater volume of work. Fortunately, this latter bit of information can be of invaluable assistance when evaluating and negotiating injury claims.
When considering BI demands, it’s important to focus on the fundamentals of claims handling. While there are many important aspects to a claims investigation, the two most critical are liability and damages, for without both the claim does not exist.
Liability– Who was at fault for the accident. There are only three possible outcomes: A) the insured was at fault, B) another party was at fault, or C) there was shared fault among two or more parties. Far too often adjusters select either A or B while juries, more often than not, choose C and apportion liability.
Damages– What was the economic and non-economic loss from the accident. Again, there are three possible outcomes: A) There are damages and they are related to the accident, B) There are no damages, C) There are damages, but some or all of them are unrelated to the accident.
The challenge to insurers is that both liability and damages should be investigated concurrently. Often, one or both are either overlooked or incomplete, having an adverse impact on outcomes. Consider that the average assessment of comparative negligence by insurers nationwide is somewhere around 3 percent. Then consider that more than half of all claims adjudicated involve scenarios other than clear liability. Examples such as intersection accidents, sideswipes, slip and falls and liquor liability, to name a few, create myriad opportunities to improve basic blocking and tackling skills in the comparative negligence arena.
To improve overall BI claims outcomes, it is critical that claims investigations consistently focus on the fundamentals. At the outset of the claim, the injured party should be contacted. If they are represented, then a request for a statement should be made through legal counsel, even though the request may not be granted. It is an important aspect of the claim to document when and why this request was made. The attorney needs to understand early on that you have an obligation to thoroughly investigate causation, duration and frequency of treatment.
There should be due diligence regarding the mechanism for injury, as well as a thorough investigation of potential pre-existing conditions or intervening causes. Index information, hospital checks and public records searches provide a wealth of information. So to do friends, neighbors, witnesses and, in particular, ex-spouses. Taking the time to seek out those who may be able to shed light on the existence of pre-existing conditions can prove invaluable in settlement negotiations, arbitration or litigation.
Another key component of the BI demand are the medical specials. Just because the attorney says it is so, doesn’t make it so. In many instances, there is a wide variety of subjectivity to findings. There are also numerous opportunities for billing errors, or even worse, intentional billing fraud.
There is a high probability that bills contained in a BI demand are upcoded or unbundled. There may also be an issue with causation, duration and frequency of treatment. While adjusters generally aren’t medical professionals, they do have the training to identify questionable billing practices or treatment patterns. It is the job of the adjuster to identify these issues and raise questions, often documented with the assistance of medical bill review software to identify potential fraud, billing errors or improper edits.
By further leveraging medical experts or those fluent in billing and coding, a tremendous amount of medical inflation could be avoided. By coupling this knowledge with proper liability assessment, the benefit to the insurers and the consumer is significant. Furthermore, by paying the right amount, insurers immediately gain a tremendous advantage in an increasingly challenging marketplace.
When the BI demand is received, the adjuster should review all contents to ensure that it includes the necessary documentation to complete the injury evaluation. There should also be a notation of any time limit demand requirements with the appropriate action taken to ensure a timely response. Generally, this requirement is met by either tendering money (when warranted) or notifying the attorney, in writing, of additional documentation necessary to complete the injury evaluation.
When reviewing the medical records, it is important to look at a variety of critical information:
1) Police report – Was there mention of any injury at the scene? Was the injured party transported to a medical facility? Was there any mention of contributing factors against the claimant?
2) Vehicle photographs (auto claims) – Does the damage match? Are there paint transfers? What is the directional force of impact? Is the damage such that the injury being claimed may be related?
3) Accident scene – Are there any other potential tortfeasors? Also look for overgrown bushes, signal outages, missing or blocked signage, absentee third parties, etc.
4) Emergency room records – What does the admission statement say? What type of pain was related to the treating physician? Was there a mention of symptoms other than what may be related to the accident?
5) Treatment patterns – How soon did treatment start? Were there gaps in treatment? Was there treatment on evenings and/or weekends?
6) Provider type – Was the claimant seen by a chiropractor or medical doctor? If the latter, what was their specialty? What are their credentials? Is their licensure current? Are there any prior or pending disciplinary actions with their current state, or prior states?
7) Duration and frequency– When did treatment start? How long did it last? Was it active or passive? Was it longer than an anticipated expected recovery date among the general population for a similar complaint?
8) Objectivity – Were there objective findings (X-Ray, MRI, CT Scan)? Were the records and films obtained and reviewed by an independent medical expert?
9) Pain management – Did the doctor prescribe medication to ease the complaints of pain? What type (analgesics, prescriptions, injections)?
10) SOAP notes – Does the treatment billed match the medical providers SOAP (subjective, objective, assessment, plan) notes which can be a great indicator of not only what treatment actually occurred, but also a red flag for CPT coding modifier abuse.
While just touching on some of the key components of the proper investigation, it becomes easier to visualize just how complex the role of the casualty adjuster can be. But, the BI evaluation is just part of the equation, as there must be an effective negotiation strategy to bring the claim to closure.
The job of the adjuster is to recognize impediments to the case being presented. For example, if the claimant is saying their lower back hurts but they were sideswiped, where is the mechanism for injury? Similarly, look for red flags such as a claimant stating they were rear-ended yet thrown forward, defying the laws of physics.
It is this attention to detail that allows for a case to be built to most accurately support and settle the pending claim. By further leveraging tools to identify potential fraud or billing errors, the adjuster not only increases productivity but also gathers the proof necessary to support contentions gathered during the investigative phase.
Consider a recent situation on a claim where the adjuster reviewed a lumbar MRI billed under CPT codes 72148 (MRI lumbar spine with contrast) and 72149 (MRI lumbar spine without contrast) for $4200 dollars. At first glance, the adjuster may not realize that this is an unbundling scheme that should have been billed as CPT code 72158 (MRI lumbar spine with and without contrast) for $2300 dollars in that particular geographic area.
A further review of the medical records may show CPT codes billed as multiple regions, yet the SOAP notes indicate only one region, a red flag for upcoding.
Perhaps a modifier of 93 was used, which is for interpreter services. Who is the interpreter and why were they needed?
According to the Office of the Inspector General modifiers 25 (significant, separately identifiable evaluation and management services by the same physician on the same day of the procedure or other service) and 59 (distinct procedural service independent of other services performed on the same day) are used improperly more than 40 percent of the time, resulting in significant medical inflation.
When done properly, bodily injury claims investigations, evaluations and settlements take a significant amount of time, knowledge and expertise. They require painstaking attention to detail and a fundamental understanding of biomechanics and medicine. When carrier’s focus on the key elements of claims success, people, processes and technology, the result is an optimized process that increases productivity while reducing severities, a benefit for carrier and consumer alike. In the end, quantifiable correlation to best in class service, quality and outcomes that separates the extraordinary from the ordinary.
Christopher Tidball is a casualty claims consultant with Mitchell International, speaker and author of Re-Adjusted: 20 Essential Rules To Take Your Claims Organization From Ordinary To Extraordinary. He is a claims veteran, having held a variety of adjusting, management and leadership positions with multiple Top 10 P&C organizations. To learn more, please visit www.christidball.com or e-mail firstname.lastname@example.org.
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