Insurance expert witness advises on workplace injury and workers’ compensation benefits


insurance expert witnessInsurance network expert witness advises on a case involving a workplace injury and a long battle for benefits.  The plaintiff slipped and fell on ice while working. She injured her head, lower back and neck. The employer notified its workers’ compensation insurer, which assigned a third-party adjusting firm to investigate the claim and administer income and medical benefits. The plaintiff saw her own doctor, who prevented her from working because of her injuries. The adjuster began paying temporary income benefits and requested the plaintiff see a designated doctor.  The adjuster asked the designated doctor to assess maximum medical improvement (MMI) and permanent impairment, but not the extent of injury. The plaintiff’s personal doctor referred the plaintiff to a neurologist to assess her back and neck pain, headaches, dizziness and blurred vision. The designated doctor certified MMI with a 10 percent impairment rating for her back and neck condition; he did not consider the post-concussion injury. The adjuster began impairment income benefits. The neurologist continued to treat the plaintiff for concussion syndrome. The plaintiff was treated by an optometrist for visual disturbances. The optometrist confirmed the plaintiff suffered visual nerve damage from the injury. The plaintiff began to suffer from depression and anxiety. Nine months after the injury, the adjuster terminated impairment income benefits and filed a notice of disputed issue regarding the depression and anxiety and the vision injury.

At a contested case hearing before the state insurance department’s worker’s compensation division, the officer determined that the injury extended to include depression and anxiety. A year after the accident, a designated doctor determined that the injury extended to include cervical disc syndrome, nerve root compression, lumbar radiculopathy, cervical radiculopathy and bilateral scotomas. Four months later, another designated doctor certified MMI as of that date, with a 10 percent impairment. The adjuster refused to pay income benefits and instead found the first impairment rating was final. At another contested hearing, the officer said the first rating was not final and found that the plaintiff was disabled from two months after the accident. After another designated doctor assessment that resulted in a 15 percent impairment rating, the adjuster again refused to pay benefits and another contested case hearing was required. The officer rejected the dispute and ordered that the impairment rating was 15 percent. The defendant paid additional income. The plaintiff then sought supplemental income benefits, which the defendant denied but later agreed to pay. The plaintiff sued the insurer for breach of the duty of good faith and fair dealing.

Question(s) For Expert Witness

  • 1. Was liability reasonably clear?
  • 2. Did the defendant breach accepted standards in refusing or delaying payment?

Expert Witness Response

It is my opinion that the defendant violated the state labor code, the administrative rules of the state insurance department, and the common law duty of good faith and fair dealing by failing to conduct a reasonable investigation to determine the plaintiff’s extent of injury, by failing to investigate and accept the revised date of MMI and the revised impairment rating, by failing to comply with the determinations of designated doctors, and by failing to investigate and promptly pay supplemental income benefits. Further, I believe liability was reasonably clear with regards to the date of MMI, impairment rating, extent of injury and supplemental income benefits, though defendant did not pay the benefits.

I do not believe the defendant performed a reasonable investigation before denying the extent of injury to depression and the visual problems. There is no documentation that the adjuster made any effort to comply with her obligation to investigate relatedness by obtaining medical opinions going to the issue. This requirement, in my opinion is elementary. Further, when the adjuster filed the dispute concerning the conditions, she made material misrepresentations by stating that they had not been previously disclosed by the plaintiff and that no medical evidence supported causation. Both of these facts were untrue. In fact, the conditions had been routinely and regularly documented by the treating doctors, supported by diagnostic testing. Defendant failed to reasonably investigate extent of injury, and failed to pay for the conditions though liability had become reasonably clear.

The designated doctor process is designed to resolve certain questions concerning entitlement to workers’ compensation benefits. In this case, the defendant clearly violated provisions of the labor code by ignoring the designated doctors’ opinions. It was unreasonable to fail to investigate defendant’s obligation to pay according to these decisions, and liability was reasonably clear.

The expert is an attorney who has advised and represented workers’ compensation insurance carriers, handled administrative hearings and provided continuing education for adjusters. A former workers’ compensation adjuster, the expert handled thousands of claims from investigation through conclusion.

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