Adjuster X

Through the Gap

By: | September 2, 2014

This column is based on the experiences of a group of long-time claims adjusters. The situations they describe are real, but the names and key details are kept confidential. Michelle Kerr is the editor of this column and can be reached at [email protected].

A caller reported a serious workers’ comp injury involving a 44-year-old truck driver, Phil Howard. Initial facts were sparse. What we knew was that Howard was driving a truck in familiar territory when the truck inexplicably careened down a steep embankment.

Howard suffered multiple fractures and severe head trauma requiring hospitalization. The employer, a regional trucking line, was self insured for $350,000. My carrier had the remaining coverage.

Phil was married with two children and had worked at the company for 15 months. The employer described his performance as “adequate” and left it at that. There were no prior workers’ comp claims.

The accident investigation was ongoing. I explained that I would need to know if there were any state or national OSHA investigations planned but the employer remained circumspect.

A case manager had been to the hospital to visit with Phil and his family. Unfortunately, he was in a medically induced coma and the family was too distraught to speak.

The case manager confirmed blunt head trauma, opining it would result in cognitive damage. She didn’t yet know the extent of his other injuries.

No details about the truck were available, but to my way of thinking, examining the truck for steering or braking mechanism defects would be a good place to start, to determine if subrogation potential existed.

The employer hadn’t responded to our specialist’s request to examine the truck. I had 21 days to make a decision on compensability. The police report was still pending.

I called the claimant’s attorney and requested permission for continued case management — he agreed. He said he didn’t yet have subrogation information but he was open to protecting our subrogation interests.

I called the underwriter and advised on the truck inspection stalemate. Within four days, the truck was evaluated with a finding of no observed defects.

The police report yielded a perplexing surprise. The truck had left the interstate and traveled behind barriers on a portion undergoing reconstruction before plummeting 15 feet. There was a gap where a new bridge was planned. I spoke with the insured and advised that Phil’s unexplained actions raised serious compensability questions. Defense counsel concurred and planned to deny the case.

Eventually, Phil regained consciousness but had challenges with cognition, speech and vision. He was transferred to a post-acute rehabilitation facility.

As we prepared our defense, we decided to obtain the group health claims records. We also informally canvassed co-workers. They described Phil as moody and rumored to have an unhappy marriage. Group claims records reflected three hospitalizations for major depression/suicide threats.

An accident re-creation analysis concluded it was “highly probable” this was an intentional act. It noted the presence of warning signs and barriers, and the fact that it happened in broad daylight.

Despite a sympathy factor, we remained confident that we could successfully defend the case, but Phil’s inability to speak didn’t help either party. The judge recommended settlement considering Phil’s total disability. Ultimately, we reached a compromise paying only 30 percent of indemnity and medical, net of the self-insured retention.

Accidental or intentional? You decide.

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