surance Institute of America textbook,
explains the Burden of Proof:
In most areas, the claimant has the
minimal burden of proof to show
that he or she sustained an accidental
injury arising out of and in the course
of employment. This is not a rigorous
standard. A claimant’s uncorroborated
testimony may establish a prima fa-
cie case of compensability. Once the
claimant meets this burden of proof,
the burden shifts to the employer/
insurer to show why the claimant’s
injury is not compensable.
If there is a reasonable question or red
flag indicating possible non-compensability, then an investigation should be
promptly initiated and completed. The
adjuster should try as hard or harder to
prove compensability as he does to prove
non-compensability. The claims handler
should not focus solely on finding an excuse or basis for denial or delay. It would
be bad faith to ignore facts supporting
compensability while trying to find facts
to support a denial.
A denial or delay in providing benefits should not be based on speculation,
rumor or ambiguous information. An
investigation and coverage decision cannot rely on a gut-feeling or a doubt by
the employer or the adjuster. Any denial
or delay should be based on documented
and proven facts and explained as such
in the file. If the adjuster cannot clearly
list the facts and proof being relied on to
deny or delay the claim, then strong consideration should be given to accepting
and paying the claim without delay.
To do otherwise is to invite what has
become a common result—fines, penalties, audits or a lawsuit for bad faith. If
your state has not allowed bad faith lawsuits in workers’ comp cases, an egregious
enough case might be a tipping point.
Everette Lee Herndon Jr. is a claim consultant and expert witness who works primarily
with insurance claims handling, coverages,
and bad faith cases. Herndon worked as an
adjuster for more than 25 years and is an
inactive member of the California Bar. He
may be reached at www.leeherndon.com;
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