At the 2015 National Council of Self-Insurers conference, a panel of defense attorneys presented their views on cost control and management of claims. The panel included Charles Brown from Dickie, McCamey & Chilcote, Elaine Newquest from Gannon & Shapiro, Stewart Rubens from Grancel, Stander, Reubens, Thomas & Kinsey, and Kent Smith from Scheldrup, Blades, Schrock, Smith & Aranza.
Initial Case Analysis / Assessment
- The first step is identifying all of the issues on the claim and the viability of these issues. It is important to know your client and their claims-handling strategy so that you approach the litigation accordingly.
- Costs increase over time, so you need a plan of action to reduce costs and get the claim to a point where you know if it can either be resolved or, ultimately, will be litigated to conclusion.
- It is imperative that an attorney is up front with their client on the chances of prevailing in the litigation. Nothing frustrates a client more than spending a bunch on litigation and then being told by your attorney that the claim is a “loser” in litigation.
- It is important to know your client. Sometimes they may have reasons to spend more on litigation than they could resolve a claim for to discourage filing frivolous claims.
- Your defense attorney can assist in identifying the proper experts that can effectively assist in mitigating claims exposures.
Every Claim Has a Value
- Even in defending what appears to be a frivolous claim has settlement value. It costs money to litigate the claim and there are no sure things in front of a judge.
- With any claim in litigation, there needs to be a plan for resolution. The courts will liberally interpret the statutes to the benefit of the injured worker, so taking cases to trial with the hope of getting a “zero” verdict is very challenging.
- It is important to understand what your client wants your role to be in the litigation. Do they want you being aggressive, requesting medical records, scheduling depositions, etc.? Some clients want to control all of these issues and prefer that the attorney hold off on discovery as long as possible.
- The judge will see the injured worker at their best after they have been coached by their attorney. While the employer may view the person in some way based on past behavior, the judge may not see the person in the same light.
Evaluating the Potential Exposure of a Claim
- Need to factor in wage loss, medical and litigation expense plus the chances of succeeding in litigation.
- As claim values have increased over time, risks associated with litigation have also increased. This creates additional incentive to settle disputed claims for a nuisance value when possible.
- The litigation expenses of the plaintiff must also be considered because the employer has to cover these if they lose in litigation.