Every defense lawyer knows that success in workers’ compensation court is the ultimate team sport. There are many key participants: employers, supervisors, adjusters, counsel, account managers, brokers, experts, IME doctors, physicians, nurse case managers and vendors such as investigators. All play important roles, but more often than not, the adjuster is the quarterback.

John H. Geaney

It has been my experience that the role of the adjuster is absolutely vital to the outcome of a workers’ compensation case.

There are many dozens of skills needed to be a successful adjuster. This blog focuses on only eight skills that successful adjusters all have in common.

Understanding that not everything that happens at work is compensable

Good adjusters have a sound understanding of their state workers’ compensation laws. They know that claims must arise out of and in the course of employment. They will deny a case, for example, where an employee is just walking along a corridor at work and feels knee pain but does not fall or strike anything, or an employee puts on a coat to leave for home and feels a tear in the shoulder, or the employee starts jumping rope during a break on the premises, falls and fractures an arm.

These are examples of incidents that happen at work but do not arise from work. Good adjusters immediately flag the causation issue and focus the attention of counsel on potential defenses. 

Mastering a checklist of important issues in every case

Whether an adjuster has a written or a mental checklist of issues, good adjusters have many important tasks to complete with new files:

• Checking on prior claims.
• Ordering an ISO.
• Considering whether there is jurisdiction in the state.
• Determining the accurate wage and rate.
• Investigating whether there is joint employment.
• Discovering whether there is subrogation potential and reserving lien rights.
• Evaluating whether to retain a nurse case manager.
• Deciding whether and when to put excess carriers on notice.
• Assessing whether there is Second Injury Fund potential.
• Focusing on potential Medicare and Medicaid liens.  
• Properly reserving the file.
• Taking statements from the injured worker and witnesses.  

These are just some of the many analytical issues that adjusters focus on every day and all day long. Defense counsel and clients in every state can attest to how invaluable it is to receive a well-prepared and comprehensive file. It speeds up the life of the file and puts the case on the right path.

Knowing when to do surveillance or social media searches

A talented adjuster has an intuitive sense of when to do surveillance. Many times defense counsel will receive a file pre-packaged for success. For example, in one case our office received a file from an adjuster with surveillance videos showing a man working a physical job over a period of days while out of work and receiving temporary disability benefits for an injury. When I asked the adjuster what led her to obtain surveillance, she said, “The doctor said his injury would require him to remain home and rest. I called several days in a row, and he never answered his phone. So I assigned surveillance right away and found him working another job.” 

The case was dismissed for fraud.  

There are various points in the case when adjusters will consider surveillance and social media investigation. The adjusters know the case better than anyone, having read all the treating notes and often having spoken with the injured worker before counsel is retained. 

Reading all the medical records and physical therapy notes

Good adjusters read everything of a medical nature, including PT notes. In fact, they will often say that the most helpful records are the PT notes because physical therapists ask a lot of questions that doctors often do not ask, including recent recreational or home activities.

In one of our firm’s cases, an adjuster pored over dozens of pages of PT notes involving a worker who was having protracted problems with his knee long after surgery. The doctor was puzzled by the slow recovery. The adjuster sent us PT records, called our office and said, “See page 17, first paragraph. The petitioner was hiking in New Hampshire six weeks ago, jumped from a height, reinjured his knee and went to the ER.”

That brief comment in the PT notes observed by the adjuster won the case.

Focusing on subtle changes in the mechanism of injury

Every good adjuster pays very close attention to changes in how the injured worker says he or she was injured and then checks for any significant variation in the mechanism of injury. It may be that the worker initially says he or she slipped but did not fall or strike anything, but when seen by the treating orthopedic doctor later, the history suddenly changes to falling out of a truck and landing hard on one’s spine. 

Adjusters live their cases and seldom miss material changes in the history of the accident. They spot the red flags that then become the basis for defense counsel to contest the claim petition.  

Knowing when to settle and when to try the case

As Kenny Rogers so famously said, “You’ve got to know when to hold 'em and know when to fold 'em.” 

The decision when to settle and when to go to trial is seldom a simple one. There are often many complicated factors having to do with the proof in the case and the chances of success at trial or on appeal. Good adjusters are in constant communication with their clients throughout the case, and collaboration is critical on this issue.

Ultimately, the carrier or the client makes the final decision on whether to settle or to go to trial, but defense counsel and the adjuster must be on the same page.

Recommending highly credentialed treating and evaluating doctors

Sometimes adjusters make recommendations on the appropriate treating and evaluating doctors, and sometimes nurses or defense counsel make recommendations, or all of the above. 

Experienced adjusters know the reputation for excellence of many physicians and also know which physicians understand the workers’ compensation system. The physician must not only have great credentials but must understand what terms like “maximal medical improvement” or “aggravation” mean in the context of workers’ compensation.

Adjusters also know which doctors take the time to obtain a detailed past medical history and which doctors ask about other potential causes for the impairment at issue.   

Quarterbacking the case

One of the most significant skills of a good adjuster is the ability to keep all stakeholders informed, move the file from point A to point B, and keep the file moving toward closure. 

Skilled adjusters know the importance of communication and keeping clients, brokers, counsel, nurses and all those involved in the case well informed. No matter how involved or complex the file is, the skilled adjuster strives for timely communication.

It is certainly true that the best adjusters are proactive. They anticipate issues and make suggestions throughout the life of the case. Success in court depends heavily on timely and frequent communication.

The job of a workers’ compensation adjuster can be challenging, sometimes stressful and is always impactful. In my view, adjusters are the lifeblood of every insurance company or third-party administrator. 

There are probably dozens of additional skills that make a huge difference in the outcome of a case, far more than the eight mentioned briefly above. For example, every adjuster must communicate effectively with injured workers and their attorneys, document their files and keep a diary. Those skills alone could be the subject of an interesting blog.

From a defense lawyer’s standpoint, the importance of having a talented adjuster on a file can never be overstated. Time and again it is the adjuster’s good work that allows defense counsel to reach a successful outcome in workers’ compensation court.

John H. Geaney is an attorney, executive committee member and shareholder with Capehart Scatchard, a defense law firm in New Jersey. This post appears with permission from Geaney's New Jersey Workers' Comp Blog.