by Kenneth A. David, Esq.

It’s the end of the year and the same “old dog” file you have had for many years just won’t go away. It’s not for a lack of effort. No matter what you try, some claims seem to be stuck in neutral. You have a compensable claim, surgery has been done with only moderate success, if any, and neither the claimant nor the attorney seem interested in a reasonable settlement. You have already tried the standard fare of an IME and surveillance. Here are some non-traditional tips for what to do when you seem to be at a dead end. These ideas will take more of your time, but it will be worth it if you close the claim.

1. Review the file again, from the beginning, or at least far enough back that you can get perspective. What may not have seemed particularly significant initially now may be important after a few months or years. Maybe some early medical. Maybe a seemingly unrelated medical condition. Maybe something about the claimant’s background.

2. Compare the pharmacy records to the doctor’s recommendation in her notes. Confirm the claimant is actually following doctor’s orders. Is he taking his medications? If there are discrepancies, this can be used as leverage with the doctor who may not be paying as much attention as you are.

3. Think beyond the traditional IME. You don’t always need an in-person exam. Sometimes a medical review by another doctor, or even a nurse, can provide insight. Let the experts find the clues. And for the traditional IME, think about other ways to use it. Frequently, we think of IMEs as a way to contradict a treating doctor’s opinion. However, an IME can help a treating doctor get comfortable with being more decisive with a patient.

4. Speak with the doctor. It is a privilege, not a right, for the doctor to be on the panel of physicians. Doctors should know this from the beginning when they are placed on the panel and should be responsive to your requests for information, including requests to discuss treatment. Even if there is a charge for answering questions, if you get the opinion you are seeking, it is worth it.

5. Consider offering light duty even when it is not realistic as a long term solution. Put pressure on a claimant to come back to work. An optimist would say he or she might actually do well and transition to regular duty work. But even if it seems doomed to fail, is it really better for an employee to sit at home and collect a check? At least make them come to work for a couple of days. Pressure can work in many ways.

6. Use surveillance to confirm the claimant is not active. We think about surveillance as a tool to catch a claimant doing something he should not be doing. However, in a large claim with potential high settlement value, before you spend six figures to settle, it is useful to spend $1500-$2000 to know that your claimant is truly disabled.

7. Do social media checks regularly, not just at the outset of a claim or litigation. We know many people, not just claimants, are not particularly discreet when posting, but a claimant might “go dark” for a few weeks after his attorney tells him to lay low. But inevitably, most claimants, like most people, cannot resist the temptation of social media.

8. Call the claimant (if unrepresented) to just check in. Build trust. A claimant may be suspicious at first and this is most effective if the initial communications went well. Don’t push settlement right away. If the claimant is represented, then have a frank conversation with the attorney about where the claim stands and what the impediments are.

9. Involve lawyers. No, this is not self-promotion. Sometimes, you want to push the claimant in some way to get a lawyer as communication may be better and there will be someone who can counsel the claimant on the benefits of settlement. On the defense side, the reality is that certain claimant’s attorneys are more likely to engage with another lawyer. Additionally, lawyers can request a hearing on issues like the claimant’s failure to cooperate with medical and a refusal to continue in suitable light duty work.

10. Do nothing. Really. Sometimes, after a concerted effort, it is clear you have run into a brick wall. The claimant has gotten a lot of attention and may feel like she has control over the situation. Take a break – not a long one – but “actively” show a lack of interest. With no attention the claimant may then reach out wanting to re-engage. This can be particularly effective after making a reasonable settlement offer which the claimant rejects and has nothing reasonable to propose in return. This is not a long term solution but can be effective to send a message.

We all have heard the expression that insanity is doing the same thing over and over and expecting a different result. Don’t be insane. Try different approaches. In my 24 years of defending comp claims, I know there is a solution to each and every claim out there. It just may not be readily apparent.