Workers’ Compensation Claims: Initial Investigation Strategies Beyond Safety and Reliability March 24, 2015 Presented by: Justin T. Nestor Kirsten Kaiser

Workers’ Compensation Claims: Initial Investigation Strategies

Beyond Safety and ReliabilityMarch 24, 2015

Presented by: Justin T. Nestor

Kirsten Kaiser Kus

© Bryce Downey & Lenkov LLC, 2015, All Rights Reserved

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Disclaimer The content of this presentation has been prepared by Bryce

Downey & Lenkov LLC for informational purposes This information is not intended to create, and receipt of it does not

constitute, a lawyer-client relationship You should not act upon this information without seeking advice

from a lawyer licensed in your own state In considering prior results, please be aware that:

• Each matter is unique• You should not rely on prior results related to past performance to predict

success or results in future matters, which will differ from other cases on the facts and in some cases on the law

Please do not send or disclose to our firm confidential information or sensitive materials without our consent

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Recent Webinar

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Kirsten Kaiser Kus

(219) 488-2591 [email protected]

Speakers

Justin Nestor(219) [email protected]

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11065 S. Broadway

Suite B

Crown Point, IN 46307

Tel: 219.488.2590

Fax: 219.213.2259

© Bryce Downey & Lenkov LLC, 2015, All Rights Reserved 5

Requirements for a Compensable Injury

Injury by accident Arising out of employment

An injury arises out of the employment if there is a causal connection between the injury and the performance of some service of the employment

There is a causal connection between the injury and the performance of some service of the employment when the accident arises out of a risk which a reasonably prudent person might comprehend as incidental to the employment

During the course and scope of employment An injury takes place during the course and scope of employment when it takes

place within the period of employment, at a place where the employee might reasonably expect to be, while he was performing the duties of his employment or duties incidental thereto. Tom Joyce 7 Up Co. v. Layman, 44 N.E.2d 998 (Ind.App. 1942).


Defenses to Compensability

Defenses to the requirement that the injury arise out of employment Pre-existing injuries Unexplained falls

Defenses to the requirement that the injury occur in the course and scope of employment Horseplay Frolic, detour, and personal errand Assault

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Defenses to Compensability (cont’d)

Affirmative defenses Intoxication Knowing violation of a reasonable and posted safety rule Knowing failure to use a safety appliance Self-inflicted injury

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Purposes of the Initial Investigation

Determine compensability Identify and document possible defenses Preserve evidence Prevent accidents from recurring Identify any liable third parties

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General Principles

Investigate immediately 3-point contact

Obtain statements from the injured worker, employer/supervisors and witnesses

Preserve any evidence Site inspection? Photograph the site, if necessary Chain of custody issues Expert inspection?

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Gathering the General Facts

What did the injured worker say happened? Where and when did the accident occur?

Were there any witnesses? What did the witnesses see? Speak to any witnesses early and obtain (recorded or written)

statements when possible Employees might change employment and memories fade, so early

documentation is key Obtain contact information from witnesses so that they can be reached if

they change employment What did the injured worker tell witnesses, co-workers, or supervisors

about the injury or accident?

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Gathering the General Facts (cont’d)

Speak to the injured worker’s supervisor as soon as possible Get the supervisor to be as specific as possible regarding dates, times,

and conversations Ask about the scene of the accident

Note any defects, hazards, unusual conditions, housekeeping or maintenance issues

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Asking the Important Follow-Up Questions

Pre-existing injuries Ask the injured worker for as complete a medical history as possible Identify all doctors, hospitals, clinics or other medical providers within the last 10

years and any subsequent providers with whom the injured worker has treated Question the employer/insured regarding any known restrictions or medical aides

that the injured worker was already using at the time of the injury Obtain a HIPAA from the injured worker and obtain medical records ASAP Ask the injured worker about prior problems for which he has not sought medical

treatment If they had been experiencing prior problems, but had not sought treatment, why not?

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Asking the Important Follow-Up Questions (cont’d)

Unexplained Falls Question the injured worker thoroughly regarding the scene of the fall

What was the weather like? Sunny and clear? Rainy? Foggy? Icy? Cold? Hot? Where precisely did the fall occur? Was the hallway, passageway, staircase, or site

free of debris, clutter, obstructions, defects, water, oil, or other hazards or unusual conditions?

Ask to describe any other objects, furniture, or machinery in the room and what if any body parts were struck and on what items

Ask about how the injured worker was feeling prior to work? Any prior issues with syncope, fainting or passing out?

Ask about the working conditions, size of the room, ventilation, temperature, etc. Verify with the employer regarding any conditions described by the injured worker

or other details

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Frolic/detour, personal comfort, and horseplay Find out the purpose of the activity leading to the injury Find out what the employer/insured knew of the activity Find out from the employer/insured if the injured worker or other employees had

previously engaged in the activity What steps the employer took to actively prohibit or encourage the activity

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Intoxication Must establish:

(1) Injured worker was intoxicated; and (2) Intoxication was the proximate cause of the accident

Obtain drug test results where possible Will need to obtain an expert report confirming that injured worker was intoxicated Question witnesses regarding injured worker’s behavior on the date of injury

Slurred speech? Bloodshot and watery eyes? Smell of alcohol? Abnormal behavior? Anyone notice difficulty in performing activities?

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Violation of safety rules, failure to use safety appliance, and self-inflicted injuries

Hearing Members focus on the “knowing” requirement, mere inadvertence will not be sufficient

Question the employer regarding the rules and safety appliances: How were the rules conveyed? In writing? Where posted? Employee signature? Was the employee trained regarding the use of the safety appliance? When? How?

Question the employee about the rules: How were they made aware of the rule? Whether they were aware of the rule at the time of the injury? What they were doing at the time of the injury, i.e., talking to a co-worker, any distractions, running late for work, etc.

Ask the employer about any prior problems with the safety rule or safety appliance with the injured worker or other employees? If prior problems, when did the employer become aware and what did they do about it? Verbal warning, safety meetings, issued a safety memo, etc.?

Note: Make sure to secure any relevant documents

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Other Investigation Strategies

ISO Medical provider canvass Social media search Surveillance

Of the injured worker after the injury But, also ask whether the employer had any of the premises or location

where injury occurred? Personnel file Discovery

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Subrogation Investigation

Potential third-party involvement Unsafe Place Unsafe Procedure Unsafe Machinery/Equipment

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Types of cases Auto Construction Products Medical Malpractice

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Methods Photos Statements

Plaintiff Eyewitnesses Supervisors Safety Representatives Other

Testing Expert retention

Records OSHA reports Police reports Employer’s purchase, maintenance and repair records

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Conclusion

Investigate early and often Preservation of evidence is crucial Documents are key Memory sometimes fails us Pay attention to detail Stay consistent Spend time Be thorough Share information

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11065 S. Broadway

Suite B

Crown Point, IN 46307

Tel: 219.488.2590

Fax: 219.213.2259Kirsten Kaiser Kus

(219) 488-2591 [email protected]

Questions & Answers

Justin Nestor(219) [email protected]

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