The Insurer Can Take Your Statement
Once you file a workers' compensation claim in Oregon, the workers' compensation rules allow insurers to investigate your claim. Insurers can obtain your medical records, talk to your employer and co-workers, search for prior injury claims you may have filed, and require that you attend a medical examination with a doctor of its choice. Insurers will often take and record your statement. This article gives you some important tips to help you avoid the fatal mistakes that can kill your claim.
You Can Have Attorney Help You, and The Insurance Company Has to Pay for It
A recent change in the law gives you a big advantage when providing a recorded statement to an insurer. Most injured workers were left on their own when submitting to a recorded statement because the workers' compensation law provided no attorney fees for a lawyer wanting to help an injured worker through the statement. Only when an injured workers' attorney was "instrumental" in getting a benefit denial overturned or increased did the insurer have to pay attorney fees. New laws now require the insurer to pay attorney fees to any lawyer that helps an injured worker through a recorded statement. Even though the insurer is paying the attorney's fee, the attorney is your advocate, and is there with you during the statement to make sure the rules are followed.
The Insurance Company Already Knows the Answers
When you sign a claims form, you are authorizing the insurance company to obtain your medical records, and not just those records related to the on the job injury. This authorization also allows the insurance company to speak to your doctors. Insurance companies also maintain a "claims index" database. The insurance company can use the index to determine if you have ever filed any other insurance claims involving an injury. When we meet with a client to prepare for a recorded statement, we tell our client that in some ways, the insurance company knows more about them than they do! In a lot of ways, that is true.
So, here are rules to remember when preparing for your statement:
Tell The Truth
Every time I meet with a client to prepare for a recorded statement, I am reminded that most people are honest. Still, I always begin with a caution that the client must tell the truth. Giving false information is guaranteed to kill your claim more than anything else. Insurers will compare your statement against what you told the employer, the ER doctor, and your physical therapist. You will get caught if you are trying to overstate or understate any part of your claim. Don't do it.
Also consider this. Insurance companies will not hesitate to hire a private investigator to follow you around, and video record your every movement. If you say something to a claims adjuster, and video footage contradicts your statement, your claim will probably be denied, and there will not be a whole lot you can do about it.
Honesty is usually not the issue, but these other issues are.
Listen to The Whole Question
This sounds basic, but it is sometimes hard to do. Some clients are nervous going into a statement and will cut off the questioner and blurt out the answer before listening to the whole question. The problem is that you may be answering one question, and the investigator may be asking a different question. Also, the statements are often put into writing, and the written interview, called a "transcript," may end up in front of an Administrative Law Judge at a hearing. A transcript of two people talking over each other is confusing, and confusion only helps the insurance company.
Make Sure You Understand the Question Before You Answer It
Again, giving a recorded statement can be stressful, and at the risk of embarrassment, people sometimes answer questions they do not understand. The interviewer will assume that you understood a question if you answered it, so if you do not understand the question, you must ask the interviewer to re-phrase the question. It's no big deal, and most investigators are willing to rephrase the question for you.
This is probably the most frequent mistake clients make when giving statements and testimony. Thinking they are being tested, some people will give an answer just to give an answer. The problem is that if you guess incorrectly, an insurance company will try to make it look like you are being dishonest.
The recorded statement is not a test, and you are only responsible for what you know and remember. Do not be forced to speculate on an answer. "I don't know" and "I do not remember" are perfect answers if they are honest answers.
Another way to avoid guessing is to make it clear if you are not 100% confident about your answer. Some people will state they are giving the answer “to the best of their memory,” or will simply add that they are “not exactly sure” about their answer. This is a good way to show the adjuster you are giving your best response, even if you are not certain. Estimates also work well. If you can provide your best estimate in response to any question, you are showing the questioner you are doing your best to answer the question honestly and accurately.
Be careful about responding to questions that include terms like "ever," and "never." For example, "Have you ever injured your low back before?" "Ever" means "ever." There may be that one time you hurt yourself, and it was not a big deal. That counts. So, if you are not sure, you can say something like, "As far as I know . . . . . "
What Questions Can You Avoid?
The insurer may ask about your background and off work activities to find out if your work injury is really a work injury, but there are limits. The insurance adjuster must limit questions that are "relevant to the claim." If you feel that the question has absolutely nothing to do with the claim, you can ask the adjuster why he or she is asking that kind of question, and if you are still uncomfortable, politely decline to answer the question, and ask the adjuster to move on to the next question. When I am with a client during a statement, and the questioner is wandering too far from the point, I will ask them to explain how a certain question in relevant. They usually move on or change the question.
If you have a pending claim, and have questions about the claims process, contact us. We help injured workers with these issues every day.