Morgan’s Tip of the Week – Discovery Delays


One of the impacts of the Coronavirus on litigation is the delay on the ability to do the level of discovery that is really essential in defeating or driving down the value in WC claims.  Getting our arms around a claimant’s past medical history, prior accidents, income, preexisting conditions, etc…are key components to our ability to truly manage claims.  Here is what I am a seeing:

  • Requests for Unemployment information from the DEO-  Yeah good luck.   This is important for us to ensure proper offsets.
  • Requests for Social Security Disability information from the SSA-   They have been very slow to respond if at all.   We need this information for possible offsets and to be aware if we are going to face any Medicare issues.
  • Subpoenas to the claimant’s personal primary care doctor-  We are getting few responses, and those that we are getting are very untimely.  Approximately 20% of all PCP offices have closed at least temporarily during the past few months, and many that have re-opened are running on reduced staffing.  Getting records out for subpoenas has not appeared to be a priority.  
  • Subpoenas to prior accidents/MVA from the ISO index-  Again, the response times are much slower, and it delays us getting the big picture.  Often times these records are the what is needed to determine Major Contributing Cause and shall we say, verify the claimant’s candor, credibility, veracity and truthfulness (and other words that imply possible fraud).

We are following up and putting as much pressure on getting responses as we can without formally serving all subpoenas due to process server costs.  We send RTP’s to opposing counsel and file Motions to Compel, but if the claimant doesn’t have the records in his or her position that doesn’t help.  If we already know the records are essential, we can set records custodian depositions, but these are also costly.   Especially when we aren’t even sure the records exist.

So, what can you do to help as the adjuster?

  • Take a detailed and effective statement (recorded preferably if you can).   The more we know early on, the better our chances are of getting responses sooner.   Our firm offers a CEU called “Taking an Effective Recorded Statement”, if you’d like that set up for your office just let me know.
  • Send out DWC-19’s regularly.  While this is the claimant self-reporting income such as SSD or UE, it is at least a good double check while we await the official responses from the agencies.
  • Follow up on getting a signed medical release from the claimant and send that to their PCP.   Again, time is of the essence.
  • Get us the file sooner rather than later.  The bigger window we have to find the information and get responses the better.

Keep up the good fight.

Morgan  Indek | Managing Partner