Liability – Which driver was at-fault
for the accident? There are only three
possible outcomes: a.) the insured was
at fault; b.) another party was at fault; or
c.) there was shared fault among two or
more parties. Far too often claims adjusters select either option “A” or “B.” Meanwhile juries, more often than not, choose
“C” and apportion liability accordingly.
Damages – What were the economic and
non-economic losses from the accident?
Again, there are three possible outcomes:
■ There are damages, and they are related
to the accident.
■ There are no damages.
■ There are damages, but some or all of
them are unrelated to the accident.
Like liability, it is important to remember that the path of least resistance often
yields the wrong answer, as claimed injuries are not always related to the accident.
The challenge to insurers is ensuring that
both liability and damages are investigated concurrently. Commonly one or
both are either overlooked or incomplete,
thereby adversely impacting outcomes.
There are immense opportunities for
improving the accuracy and efficiency of
claims investigations, evaluations, and
negotiation strategies. At the outset of
any claim, all involved parties should be
contacted, including those who are claiming injury. If they are represented, then a
request for a statement should be made
through legal counsel, even though the
request may not be granted. It is an important aspect of claims handling to document
when and why this request was made. The
attorney needs to understand early on that
you have an obligation to thoroughly investigate injury causation as well as the frequency and duration of treatment.
There should be due diligence regarding the mechanism for injury, as well as
a thorough investigation of potential pre-existing conditions or intervening causes.
Index information, hospital checks, and
public records searches provide a wealth
of information, as do friends, neighbors,
witnesses, and particularly ex-spouses.
1. The police report. Was there mention of any injury at the scene?
Was the injured party transported to a medical facility? Was there
mention of contributing factors against the claimant? Were any
2. Vehicle photographs (auto claims). Review the metal deformation,
principal direction of force and pain transfers, telltale signs that can
give rise to question or causation.
3. Accident scene. Are there any other potential tortfeasors?
Overgrown bushes, signal outages, missing or blocked signage,
absentee third parties, and similar factors should always be
4. Emergency room records. What was said to the EMTs at the
scene and during transport? What does the ER admission statement
say? What type of pain was relayed to the treating physician? Was
there a mention of symptoms other than what may be related to the
accident? Is there any indication of drug or alcohol usage that could
have contributed to the loss?
5. Medical treatment patterns. How soon did treatment begin?
Were there gaps in treatment? Was treatment provided on evenings
and/or weekends? Were you able to verify the treating physician’s
6. Provider type. Was the claimant seen by a chiropractor or a
medical doctor? If the latter, then what was his or her specialty,
such as neurology, orthopedics, and so on? What are the medical
professional’s credentials? Is his or her licensure current? Are there
any prior or pending disciplinary actions within the current state, or
in prior states?
7. Treatment charges, duration, frequency and necessity. When
did treatment start? How long did it last? Was it active or passive?
Was it longer than an anticipated expected recovery date among
the general population for a similar complaint? Are there indications
of deceptive billing practices, such as upcoding, unbundling or
Consider the situation where an adjuster is reviewing a lumbar
MRI that was billed under CPT codes 72148 and 72149 for $6,000
in a specific zip code. Without the proper tools to assist in medical
bill repricing, they likely wouldn’t realize that this is an unbundling
scheme that should have been billed as CPT code 72158 for $3,900
in this particular zip code.
8. Objectivity. Where there objective findings, such as those from
an x-ray, MRI, or CT scan? Were the records and films obtained and
reviewed by an independent medical expert?
9. Pain management. Did the doctor prescribe medication to
ease the complaints of pain? If so, then what type (analgesics,
10. SOAP notes. Does the treatment being provided and billed match
the medical providers SOAP (subjective, objective, assessment, plan)
notes which can be a great indicator of not only what treatment really
occurred, but also a red flag for CPT coding and modifier abuse.