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| | How Can A Workers’ Comp Adjuster Be Out On Workers’ Comp?
By Jorge Alexandria - August 26, 2013
In a case currently at trial, Beverly Bernell Myres, a 60-year-old workers’ compensation claims examiner with San Francisco’s Housing Authority, was fired while she was out on medical leave and in receipt of temporary total disability benefits for a knee injury. Her lawsuits states that then Executive Director or Housing Chief, Henry Alvarez, asked in a meeting, “How can the workers’ comp person be out on workers’ comp?”
In a strange turn of events, Chief Alvarez himself went out on paid medical leave back in February, before being fired in April. Two weeks later he filed a workers’ compensation claim contending he was injured from the stress on the job. He is seeking disability payments, medical care, and a voucher for job training. His question, “How can the workers’ comp person be out on workers’ comp?”, begs a reply. So, I’ll make a beeline for the archives here.
For me this line of work, especially at the beginning, has always been fun, different, stressful, and quite frankly, sometimes dangerous. I’ve been cursed by claimants and belligerent (lien) professionals alike. I’ve been called names I can’t print in this article, and some by reputable law firms during the all-consuming and emotionally charged process of settlement negotiations.
I’ve had the phone slammed in my ear. One time, during the Los Angeles riots, the entire Industrial Indemnity claims staff was run out from their mid-Wilshire office and out of town by an angry mob.
I was there! I’ve also been threatened with great bodily harm by many a claimant and their relatives. What is more is that the building where the claims were being administered has had its run-of- the- mill bomb threats. Then there are the fun aspects of the job that are no less dangerous.
I’ve gotten to fly in a Los Angeles County fire helicopter, got to board a navy frigate, and have toured many offbeat and interesting production (think machinery) work sites- a privilege not afforded to just anyone but to claims personnel exclusively by invitation by insureds who wish to showcase their line of business in an attempt to get you to get a feel of their personnel and the claims you will be seeing from them. Then there’s travel, and I did that quite a bit, never knowing whether or not the plane was going to make the runway.
What I am trying to illustrate here is that there are inherent risks in every occupation and claims adjusters by virtue of their occupation are not exempt from these risks. However, when a claims professional is injured on duty, he or she, like anyone else, is entitled to pursue a work comp claim. But just like everyone else they need to prove it.
In fact, they need to go beyond the standard of proof as there is a subculture within the workers’ compensation community that believes workers’ compensation professionals should not be allowed to file for workers’ compensation. There is a bad stigma attached to it and you become radioactive. Plus in a blink of an eye you move into a new category; you become a claimant, and you get investigated. A claim is a claim is a claim!
I think that as an injured worker, there are pitfalls for not taking action and filing a claim for a legitimate injury irrespective of the claims job/title you hold. Adjusters are people too, who when injured are simply trying navigate the maze of forms and procedures and pay the bills like everyone else. The bad news is that a claims examiner turned injured worker belies the usual role and paints a picture of a put-on, subterfuge, or manipulation.
Everyone will think you are a fraud. Unless there are reliable witnesses to the incident you are most likely in for quite a contentious legal battle with a zealous adjuster that has the power of an insurance company behind him just as you did when at your claims job.
Now that the tables and the exercise of power are turned, a real game of chess may begin to take place akin to the famous Spy vs. Spy wordless comic strip that debuted in Mad Magazine. Unfortunately now, your intellectual abilities that served you well as a sophisticated claims examiner are actually a detriment as a claimant injured worker. For one you are a sophisticated claims examiner and the gain you would get from successful pursuit of your disability claim provides an ideal case for malingering. Think about it. You have the keys and knowledge of the Medical Provider Network (MPN) to open the door and walk away with a prescription for a year-long supply of powerful opioids, if you want to, to extend your disability. For this you are in a class all by yourself and I would lose all respect for your case manager if he or she did not fully harvest this knowledge and employ delay tactics to wear you down and cut off access to benefit entitlements.
Secondly, as a claims examiner turned injured worker-- whose claim for benefits has been denied-- your automatic coping mechanism is to defend yourself: aggressively rebutting labor code provision with labor code provision. This may make you appear unrepentantly hostile and your claims administrator may conclude that you are playing sophomoric games with them designed to frustrate their best discovery efforts.
Case in point: your firm (but not rude) refusal to take a recorded interview (which is often used by the adjuster to cast doubt on your claimed injury) can be misconstrued as you not being cooperative or worse that you have something to hide. Similarly, refusing to sign a medical authorization form to obtain all medical and personnel records, which allows the insurance company to go on a fishing expedition for problems that may be irrelevant to the claimed injury, can be deemed as a hostile action by the carrier even if it is based on privacy concerns. And sure enough, work comp files eventually can become public documents. So your privacy concerns are not overblown.
Either way, refusing one or the other, will likely inspire your carrier to take the step to obtain your testimony under oath where hired guns, via a deposition, will attempt to make whatever credibility you possess non-existent. By this time you are wishing you didn't have a Facebook and/or YouTube account as you are able to feed the insurance carrier what they sought all along. Also , at this time you might have already been placed under surveillance for impeachment purposes and surveillance firms notorious for trying to make a legitimately injured person appear healthy. Just because you can drag a garbage can to the curb and do some light housework does not mean you are not going to pay for it later on by having more pain. And if you had any friends at work, your trust in them is probably misplaced as 99% of them will almost always choose to be in good standing with your employer rather than with you. Trust me they can be like self-appointed hall monitors. I read investigative reports daily. Co-workers tend to throw you under the bus.
So, what can one do? Amid all this discussion, it is perhaps most interesting that your nom-de- guerre adversary, a plaintiff’s attorney, is suddenly one of the best friends you will ever have; if he takes your case. It’s natural to assume that he or she would be more than happy to take your case since as a then-claims-examiner you’ve produced (paid him or her) enough money through years of settling contentious cases with their firm. Unfortunately, that doesn’t always hold water as applicant attorneys can sense, justly or erroneously, that you are out for vengeance, in a nano minute, against your insurance company employer with whom they still have and need to maintain a business relationship.
Still, it is advisable to retain the best of the best plaintiff attorney to take your case. Add some spice to your substance. Attorneys of this caliber tend to have your best interest in mind and are more factual than emotional and are better equipped to evaluate the risks and make decisions regarding your claim.
Jorge Alexandría is a U.S. Army veteran who received his B.A. in Political Science from Cal State Los Angeles, and graduated from Cal Poly Pomona with a Master’s in Public Administration.
He holds both a California Workers Compensation Claims Professional (WCCP) designation and the State of California’s Self-Insured Administrator’s License. He has more than 20 years of experience in claims handling, supervision, and risk management.
He currently practices federal workers’ compensation of maritime interest.
He can be reached at Riskletter@mail.com. The views and knowledge expressed in this article are Jorge Alexandría’s alone.
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