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Written by: Luke West and Tracey Jones
Originally appeared on Teague Campbell website.
As part of the employer’s and carrier’s prompt investigation of a claim, NCIC Rule 608 allows the taking of a recorded statement to determine the facts and circumstances surrounding the injury. Rule 608 is broad in scope. It requires the adjuster to tell the claimant the statement they are giving may be used to determine whether to pay or deny their claim. These frequently play a critical role in determining compensability of a claim or defending a denial, particularly when it seems the claimant did not experience an injury that arose “by accident” – e.g., where the claimant was doing nothing unusual at the moment of injury and performing his or her usual job tasks in the usual way. However, the utility of the recorded statement is far reaching and can be an important barometer of the claimant’s credibility.
As always, the burden to prove compensability of any claim lies with the claimant. In order to make an informed decision about compensability and prepare a proper defense, adjusters should take the following tips into consideration when taking the recorded statement:
Memories fade. Stories change. In many cases, the description of the claimant’s injury will be the only evidence you have when determining whether the injury is compensable. We recommend contacting the claimant as soon as possible after notice of the claim to take their statement – ideally before claimant retains representation. With time, the claimant’s description of that injury may change, but a contemporaneous description of the injury will often be the most reliable account of events leading to the injury.
The content of the recorded statement is decidedly broad and includes the “facts and circumstances surrounding the injury.” Therefore, it pays to be thorough.
Always obtain the claimant’s address and e-mail, relevant medical history, the claimed mechanism of injury, other plausible explanations of the injury including hobbies and sports activities, identification of witnesses, and the claimant’s employment history. In addition, it is wise to include questions on covering the following topics:
Ask enough questions for a full understanding of the exact mechanism that caused injury. Lifting a tire may cause a shoulder injury, but if the claimant lifted the tire in the same way and under the same circumstances he or she always encounters, the injury did not arise “by accident.” Also obtain a full description of the injury itself – what hurts and where the injury took place.
Be sure to ask for a full description of claimant’s job tasks, including whether they work in multiple locations, roles, or job descriptions. Identify anything new or unusual within the claimant’s job and the length of time that new or unusual activity has been a part of the claimant’s regular job.
Always request the identity and contact information of Claimant’s supervisor, any claimed witnesses, and the co-workers claimant most often encounters on a day-to-day basis to allow interviews and fact investigation with those individuals.
Additional things to look out for include a short tenure with the employer of injury, an unwitnessed injury or injury that the employer disputes, or a shifting description of the mechanism of injury.
Always include questions regarding the alleged injured body part and whether there has been treatment to that body part in the past. If so, get the name of the provider and practice and when the treatment occurred and the length of that treatment. While the law does generally find new exacerbations of chronic injuries to be compensable, depending on the circumstances, a claimant may assert a chronic condition to be a new and distinct injury when that is not really the case. These cases require a physician’s testimony to support causation.
Ask about motor vehicle accidents and injuries associated with same. We strongly encourage carriers to include questions regarding the name and contact information of claimant’s primary care physician and any other specialist they have seen.
While psychological-only claims are rare, a psychological component of a physical injury may arise much later. Therefore, carriers should ask questions in the recorded statement regarding a claimant’s history of mental illness and to identify any treatment providers for that issue.
In addition, primary care physician records can offer a wealth of knowledge about past problems and treatment that a claimant may overlook or forget.
You want to know if claimant is actively involved in any activities that may lead to injury such as archery, concerts, off-roading, hunting, weightlifting, or woodworking. Ask enough questions to understand how frequently and where hobbies and activities take place so that further investigation can be done.
In order to maximize the claimant’s post-injury earning capacity, be sure to identify enough background information to help gauge their candidacy for other work in the event permanent claim-related restrictions preclude the claimant’s pre-injury job at some point during the claim.
If the claimant is working from home, focus questions on their activities at the time of injury and the normal routine they have developed while working remotely. Questions should include a specific description of the home office layout and timeline of usual daily activities including personal activities.
Like any occupational disease, the claimant has the burden to prove they had an increased risk of contracting COVID-19 because of their specific job, as opposed to elsewhere in the general public. With that in mind, the recorded statement is a good opportunity to assess compensability and potential defenses. In addition to the usual topics, COVID-19 claims require a more specific line of questioning.
We recommend obtaining a 14-day timeline prior to the date of the first symptoms. For that period of time, you will want to know:
You will need to know the claimant’s vaccination status. If the claimant is vaccinated, find out which vaccine they have and whether and when they received a booster. If the claimant is not vaccinated, find out why. Determine whether and under what circumstances the claimant wears a mask and whether the mask is an N95 or KN95.
Consider the claimant’s job (e.g., healthcare, retail, service, professional) and trace work-related contacts as described above for a 14-day period prior to the date of first symptoms or positive testing. In addition,
A claimant’s refusal to give a recorded statement can support a denial of the claim on the grounds that they will not comply with the investigation or provide enough details from which to determine compensability. By and large, claimants comply with the request for a recorded statement and Rule 608 tells adjusters to advise the claimant that the statement may be used to determine whether the claim will be paid or denied, and) to provide a copy to the claimant within 45 days after a request for a copy or after a Form 33 hearing request is filed. Failure to comply with the rule can prohibit introduction of the recorded statement at a hearing.
By incorporating these principles into your recorded statements, you will have a clearer understanding of the compensability of your claims, reduce the frequency and potential cost of litigation, and provide defense counsel with a head start in our defense of the claim. If you have questions about recorded statements or wish to discuss further, reach out to a member of our workers’ compensation team.