May 29, 2020 BY Thomas Cauthen
To Accept or Deny: That is the Question (Factors to Consider)
1. Notice of an alleged injury
2. Obtaining statements of the employee and any witnesses
3. Reviewing and preserving CCTV footage of the alleged accident
4. Obtaining an ISO claims report to investigate the employee’s history of claims
5. Acquiring and examining the employee’s personnel file and disciplinary records
6. Conducting a comprehensive social media investigation
7. Considering the employee’s motivation if counsel is retained early in the claim
Once notice of an on-the-job injury is given in a timely manner, it is important to begin the investigation as soon as possible. To that end, the more time that passes between the alleged accident and reporting of the same, the more scrutiny is raised. As more time elapses, memories fade, evidence is lost or destroyed, and stories evolve. Obtaining the employee’s written statement is paramount. Locking the employee into a narrative as to the exact mechanism of injury and which body parts were injured will serve the defense well in the event the employee later attempts to alter his narrative to seem more dramatic or add body parts to the claim. A statement should be signed and dated by the employee to prevent any confusion as to who authored it and when it was given. Once the employee’s statement is obtained, the employer or its agents should move to obtain statements from any witnesses to incident. If those statements differ significantly from the employee’s own recollection of events, then his account bears closer scrutiny. Witnesses and supervisors may also be able to shed light on whether the employee had any pre-injury physical complaints that may point toward an alternative cause of the alleged injury.
As more and more employers utilize technology in the workplace to monitor both their employees and the facility, CCTV footage of the accident can be a very useful tool. Steps should be taken to review and preserve the footage in question in order to verify the employee’s narrative and preserve the same for future use. Too frequently, stories will surface that the manager or supervisor reviewed the footage, deemed the incident to be minor in nature, and either deleted the footage or allowed it to be written over. Retention of any surveillance footage is critical, even if the employee initially declines medical treatment. It is impossible to know if the employee will later retain an attorney to work up the claim, or if a future treating physician or Administrative Law Judge’s opinion may be swayed by footage of the accident. In that same vein, injuries that are reported just after surveillance footage is written over or suspiciously outside of camera range may also bear a closer enquiry.
Other factors that may raise a reg flag in a claim include the length of employment and current disciplinary status. Employees who report an accident within the first few weeks of work may bear closer scrutiny. Did the employee secure the job and work a few days before reporting an incident in order to obtain a quick settlement? This type of injury can often take the form of an unwitnessed back or shoulder strain that may not pass muster under a thorough investigation.
Questionable reports of injury based on employment status include the employee who has been the subject of recent disciplinary action and/or is on a final written warning. Whether the issue stems from attendance or job performance, employees alleging injuries to stave off termination or demotion can be common. Unscrupulous employees faced with a looming termination may seek redress through filing a workers’ compensation claim; reasoning that they will not be terminated during the pendency of the claim, as the employer’s inability to offer modified duty work following separation of employment often increases the value of a claim. Pulling an employee’s personnel file immediately after the reporting of the injury can help to guide the investigation and lead to relevant questions concerning a possible motive for pursuing a claim apart from an actual on-the-job injury.
Another avenue of immediate inquiry by any claims professional should be to obtain an ISO claims search. It is now common to find employees with three to four reported workers’ compensation claims over a ten year period and as many as ten our more over the course of their career. This begs the question: “Is this person truly unlucky and accident prone or have they found a creative way to earn extra money?” Sometimes the latter is the answer. Use of the ISO report, though it may provide limited information, can help identify the number of prior claims, how recently those claims occurred, status of the claims, and if the body parts allegedly injured in those claims match the injuries alleged in the current claim. This tool is inexpensive yet invaluable and can greatly assist in the initial phase of an investigation. Not only can the ISO results alert the adjuster to an employee who is litigious and/or deceitful, it may provide information as to whether the injury alleged may be due to prior accident rather than the alleged work-related incident.
A comprehensive social medical investigation, whether undertaken by the employer or claims professional, can also be of great value during the investigation of an incident. If the employee reports an injury and then calls out of work for several shifts due to alleged pain, a quick social media check may be of benefit. If the employee is making TikTok videos dancing or posting pictures on Facebook of a fishing trip with his friends, while he alleges being unable to get out of bed, then the claims professional may want to either consider denying the claim in its entirety or contacting the treating physician with the evidence contradicting the employee’s alleged disability.
Another helpful factor to consider, if applicable, is the point at which the employee hires an attorney. An allegedly injured worker who moves to secure counsel within days of an incident—many times before any benefits are due or have been denied—can be a red flag. While an injured worker has an absolute right to hire an attorney at any time during the claim, someone who does so within two days of an alleged incident may be playing the system. Such a quick move to “lawyer up” and assume what is often an adversarial posture before the claim is fully investigated often shows considerable familiarity with the claims process or an attempt to cover-up unfavorable aspects of the claim—such as a long history of prior treatment for the purportedly injured body part or that the work related injury may have been fabricated.
Remember that Georgia law assigns the burden of proof to the employee to show that an injury by accident arising out of and in the course of employment has occurred. O.C.G.A. § 34-9-1. The employer is not tasked with disproving the occurrence of an on-the-job injury. The aforementioned factors for consideration are not magic bullets, and it is imperative to note that while a single investigatory red flag will likely be insufficient to defeat the employee in his quest to satisfy the statutory burden, two or more of the red flags should cast doubt on the compensability of the alleged incident.
The Journal is a publication for the clients of Drew Eckl & Farnham, LLP. It is written in a general format and is not intended to be legal advice to any specific circumstance. Legal Opinions may vary when based upon subtle factual differences. All rights reserved.
H. Michael Bagley