Morgan’s Tip of the Week – Claim Strategy
Greetings,
Well we are 6 months (6 months 3 days and 21 hours but who is counting) since the decision in Castellanos, and the sky has not fallen entirely. Yes, we have seen a 14.5% rate increase, adjuster and employer depositions are being set, and we have been hit with fees on some claims, but overall it has not returned completely to the “old days”.
From what I am seeing, claims are falling into one of three categories:
- Settling as they were before the change, but now the claimant’s attorneys are taking a larger percentage fee based on the Miles case. These are costing us a little more, but not an extraordinary amount more.
- A small amount of litigation on the claim so the attorney can establish fee entitlement, and then a settlement with the claimant’s attorney claiming a carrier-paid side attorney fee. Most of these I am seeing are in the $5-10.000 range on the fee.
- Claims not settling, the claimant attorney’s litigate to secure fee entitlement, and then “puts the file back on the shelf”, citing no settlement interest. And then continuing to litigate every issue that arises.
The third one is the most expensive, and certainly the most frustrating. It’s also the type of claim where a good strategy can have the most cost-saving impact.
Certainly we need to pick our battles, but on the ones that are simply hanging around for potential future fees, we can attack them on whether future care is “medically necessary”. Below is my Tip from last year on the Echevarria v. Luxor Investments case regarding medical necessity.
I went to trial two weeks ago on one of these 2 year old claims. We argued under Echevarria, that no further care was medically necessary and we won. So, this is a valid strategy on the right claim to shut it down. You don’t want to create litigation on claims where it doesn’t make economic sense, but sometimes it is the most cost-effective way to close the claim down. Order attached, and the prior Tip is below.
Save the dates for our upcoming holiday events:
Orlando- 12/08, An Tobar, Sheraton Maitland
Tampa- 12/15, Brio, International Mall
Greetings,
Last week the 1st DCA issued a pretty good decision for us regarding claimant’s who simply follow up with a doctor on an annual basis to keep their statute of limitations from expiring.
In Echevarria v. Luxor Investments, 1D14-3540 (Fla 1st DCA 2015), the Employer/Carrier argued that no further neurological treatment was medically necessary as the accident did not remain the Major Contributing Cause.
The claimant argued that because he had a permanent impairment rating he was entitled to ongoing palliative care for his condition, citing a prior DCA case, Homler. However the court noted that in Homler the claimant had proved medical necessity of ongoing treatment in addition to the permanent impairment.
In Echevarria, the court noted the claimant did not establish that either periodic visits or further evaluations are appropriate for the workplace injury, and they upheld the denial.
So, on any of those claims where the claimant is only seeing the doctor to keep the SOL from expiring, we can obtain an opinion from the treater that no further treatment is medically necessary and therefore the accident does not remain the MCC of the need for treatment (as there is no need at all).
Here is the link to the decision….as always let me know if you have any questions.
https://edca.1dca.org/DCADocs/2014/3540/143540_DC05_03182015_115411_i.pdf
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Sincerely, Morgan Indek | Partner