By CYRIL TUOHY, managing editor
You'd think that at $350 an hour, or whatever workers' comp lawyers are getting paid, that they could at least collect the proper documents to substantiate a comp defense, even if a judge rules against the client.
But no. Not according to James E. Pocius, a workers' comp lawyer with Marshall, Dennehey, Warner, Coleman & Goggin, speaking during a session at the NWCDC in Vegas (LR2).
It's worth taking note of the counsel of a wise man who loves regaling his audience with real-life examples of legal faux pas--especially if you're going to court over a claim. So here's some of Pocius' Pet Peeves:
Don't forget about the insured. Maintain contact with them and keep the employer in the loop. They do pay the premiums, after all. That will start the legal proceedings on a good note.
"I don't know anybody that wants to be ignored," said Pocius. Come to think of it, neither do we.
Get a hold of the necessary medical files. "Always do the research," said Pocius. "You have one shot at not picking it (medical discrepancies) up on workers' comp. Not going in with the records is like going in with an unloaded gun."
Be specific about the nature of an injury, which can then be updated as new details become available.
"You can expand what to put down, but you can never go back if the wording is too expansive," he said.
Please, don't send in the wrong form. It makes you look like a poorly prepared student taking his or her PSATs.
"We have to get over that hurdle before putting up a substantive defense," he said. "I hate going into court that way." The world is imperfect enough as it is, why add to it?
Don't accept medical tests on blind faith. Doctors, like lawyers, always make mistakes.
"We have to attack that underlying science if you're going to dispute medical treatment," said Pocius.
Case in point: nerve conduction studies. Nerve damage often doesn't show itself in a patient until 16 weeks after the incident. Yet doctors sometimes order such studies within days after an incident.
Outsourcing independent medical exams has its risks, said Pocius.
"Why not spend a little time to get a good IME doctor," he said. "I call my friends who are doctors, I get a referral."
Or claimants can call carriers and ask them which M.D.s have been thorough in their IMEs ... not that doctors will produce the answer you're looking for but that they've done a thorough job in conducting the exam. Oh, and one more thing: Don't forget to send the entire medical record to the IME doctor.
Pocius said litigants need to be careful in the case of adjuster turnover as it breaks the continuity of the file.
"You need a record so someone can pick up the file and follow the case," he said. Multiple lawyers involved in a case often lead to a bad defense because nobody takes ownership or responsibility for the case.
"It's tough to get good results that way," said Pocius. "We need documentation in the file. Most bad cases don't get better over time."
If a Medicare set-aside is required, you don't have to get approval from Medicare, but you should, said Pocius, because that will give you an idea of what the liability is.
"The early estimates on people who qualify is very important," he said. "It gives the indemnity number you're working with."
Not forwarding the entire file to defense counsel when entering litigation is a no-no, said Pocius.
"Not telling me what's going on doesn't help you. I'm the only guy in there. The judge isn't necessarily on your side."
And lastly, Pocius said it is a good idea to monitor the claimant's file for excessive drug utilization because that's the most expensive portion of the claim. In one study, for example, the National Council on Compensation Insurance Inc. found that up to 33 percent of patients were not taking their prescribed drugs.
"Urine analysis will tell me if they are taking their drugs or not," he said.
Presenting the results always looks better in front of a judge.
(Read our write-up and commentary
on other Wednesday sessions at the NWCDC.)
November 19, 2008
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