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CHICAGO — Stepping back to look at the whole picture when evaluating a claim and treating each case as unique is important for determining the best course of action, said legal experts in a presentation Monday at the Chicagoland Risk Forum at the Marriott Magnificent Mile in Chicago.
Claims are as unique as snowflakes, and depending on the circumstances, when the defendant was made aware of the issue and the potential costs and losses that may be considered in court are important parts of the claim evaluation process, said Jason Pearlman, partner in the Chicago office of law firm Hennessy & Roach P.C.
When an incident occurs, whether it’s a compensable employee injury or a premises liability claim filed by a customer or car accident, the first strategy should be obtaining information, he said, because “ a lot can happen” between the date of the loss and the filing of the complaint.
“…Incident reports are gold mines of information” and are much better than relying on memories that fade over a year or two, said Jim Kendzoir, Chicago-based senior associate at Hennessy & Roach.
When a workplace is notified of a complaint, either the day of the incident or by a plaintiffs’ counsel’s demand letter, the first step is to collect incident reports, statements, photographs or video and other documents and evidence, said Mr. Pearlman.
“All those things are the most important things to gather when they’re freshest in time,” he said. “What (people) remember changes historically over time.”
The next step is determining whether there really was wrongdoing on the part of the business, the medical and other associated costs, potential damages and any other losses, he said, noting that subjective components — such as pain and suffering, loss of one’s normal life, disability and disfigurement — must also be considered.
At that time, the cost-benefit analysis can be made, considering other individual factors from the claim, such as if you’re dealing with a habitual plaintiff, the venue where the claim will be tried, the physician the individual is using and the plaintiff’s attorney, said Mr. Pearlman, and come up with a way to resolve the claim in as expedited a way as possible.
“I have a client that has a 20-question analysis, and the first question is, did we do anything wrong,” he said. “If the answer is no, I know they’re not going … to settle the case.”
But, Mr. Pearlman warns, the expense of litigation, such as the thousands of dollars it costs to take physician depositions, hiring experts and paying the court reporter and outside counsel, may mean settlement makes more sense regardless of who was really at fault.
“If you’re looking at a case that can be resolved for under $50,000, you have to at each phase decide, what am I going to invest?” he said. “We may spend all this money and win, but are we wining when we spend all this money when we could have settled.”
While the overall use of opioids among injured workers is trending downward due to the combined efforts of doctors, insurers, pharmacy benefit managers and regulators, older claims remain troublesome, experts say.