leveraging demand letters to obtain high settlements in...

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Presenting a live 90-minute webinar with interactive Q&A

Leveraging Demand Letters to Obtain

High Settlements in Auto Accident Cases

Today’s faculty features:

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific

THURSDAY, FEBRUARY 25, 2016

Richard P. Hastings, Founding Partner, Hastings Cohan & Walsh, Ridgefield, Conn.

Dr. Frank Liberti, St. Petersburg, Fla.

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Leveraging Demand Letters

to Obtain Higher Settlements

in Auto Accident Claims

TIPS AND TECHNIQUES FOR INCREASING THE VALUE OF YOUR CLIENT’S CLAIM

Richard Hastings

[email protected]

Pulling Back the Curtain Behind the Process of Drafting the Settlement Demand Letter

The Client

The Healthcare Providers

The Adjuster

6

Richard P. Hastings - Connecticut Personal Injury & Accident Attorney Hastings, Cohan & Walsh, LLP

The Plaintiff’s Attorney

& How YOU Can Affect the Value

• Detailed intake;

• Educate your client about responsibilities and

expectations;

• Review client’s medical records and provide to client;

• Go over inconsistencies and have client review them with

their medical provider; and

• Develop a rapport with the adjuster and constantly

provide updates.

7


How Your Client

• Specifically describing all problems to medical

professionals;

• Prepare for each medical appointment;

• Regular and consistent treatment; and

• Carefully review medical records and report inaccuracies

to the doctor.

Can Affect the Value of their Case

8


How Your Dealings with the Adjuster

Can Affect the Value

•Develop a relationship;

•Under promise and over deliver;

•Constantly update;

•Learn about the adjuster;

•Know what you want to accomplish before you call; and

•Always be prepared and don’t let the adjuster know more

about your client than you do.

9


Adding Value

Through Your Client’s Medical Records

•Educate your client;

•Specifically describing pain complaints;

•How do these problems affect them;

•Duties under duress; and

•Home health activities and aids.

10


Value Drivers

•Medical bills;

•Specialists;

•Positive diagnostic testing;

•Buzz words and key phrases;

•Documented out of pocket expenses;

•Medical insurance premiums;

•Property damage to your vehicle;

•Documented lost time from work; and

•Duties under duress.

11


Tying it ALL Together

1. Client education;

2. Robust medical records;

3. Detailed client challenges; and

4. Constant communication with adjuster.

12


ADJUSTER SECRETS Attorney & Adjuster Tips & Techniques That Guarantee Larger

Settlements

FREE Chapter Download

www.adjustersecrets.com

Richard P. Hastings - Connecticut Personal Injury & Accident Attorney Hastings, Cohan & Walsh, LLP 13

Using Value Divers and Decision Points to

Leverage Demand Letters to Obtain Higher

Settlements in Auto Accident Cases

Dr. Frank Liberti

[email protected]

727-520-3961

mailto:[email protected]

Its No Secret

…to personal injury lawyers that the insurance industry uses an armory of claims handling software and computer programs to determine claim value and cut settlement case value reserves.

15

As the software’s engage cost containment measures to limit bodily

injury settlements, it has made it difficult for plaintiff attorneys to oppose, without specific knowledge of how the system works, adding a new layer of complexity to the drafting of demand letters.

16

Colossus One of the most widely used claims settlement software’s is Colossus, from Computer Sciences Corp. (CSC).

According to CSC spokesperson Marian Kelley, Colossus is used by more than 50 percent of the nation's claims adjusters and by 38 agencies that represent more than 300 insurance companies.

17

Mr. Smith of American National

Property and Casualty Co.

Mr. Smith of American National

… “insurers have invested big-time bucks in Colossus and every adjuster is expected to use the computer program for all applicable claims.

Colossus' price is a well-kept secret, but it's very expensive," according to Smith.

18

There are 80 different Software’s as;

• Injury IQ

• Teach

• Injury Claims Evaluations (“ICE”) and

• Claims Outcome Advisor (“COA”)

Every Insurance Company Uses A

Claims Handling Software.

19

Sylvia Hsieh, Lawyers USA (2006):

…”plaintiffs' attorneys are not keeping up with the insurance companies, and for

the most part are getting beaten by the system”.

20

Here Is A Major Problem:

Insurance companies use software’s and physicians use software’s too.

The software’s physician use are named “Electronic Health Record” Systems (EHR’s).

THE PROBLEM: The software’s used by insurers and those used by physicians are based on different guidelines.

21

Physicians use medical software’s that are based on Government Guidelines comprised by the “Center For Medicare Services” (CMS).

These government based software’s that physicians use are not designed to exchange the complex data requirements of the personal injury industry.

The insurance companies are 3rd party, independent “commercial” entities and they have developed their own set of injury guidelines that are vastly different from the guidelines physicians use.

22

Decision Points

Personal injury is driven by 3rd party, “commercial” auto insurers who have created their own software’s and record systems based on their own set of injury factors categorized as “Decision Points”.

23

Speaking from a personal injury and commercial insurer/Colossus perspective, those physicians who use EHR systems based on Government Guidelines established by the “Center For Medicare Services” (CMS), are not able to provide a sufficient exchange of insurer Decision Points to convey and input data into an injury claim.

24

As this “commercial” data is missing or interpreted differently, collaboration is limited, it takes longer to communicate and is not efficient.

Exchanging data with insurers can be a challenge due to the Colossus language barriers, different specifications of formats, sequencing and varieties of categorizations.

Many more hindrances can be identified. (See bullet points below).

25

Commercial Insurers Use the Following Decision

Point Factors That Are Not Found In The Physician

Government Guides:

• 10,720 “Decision Points”

• 14,357 “Value Drivers”

• 27,125 “Severity Drivers”

• 26,350 “Standard Multipliers”

• 33 “Liability Drivers”

• 15 “Additional Increase Multipliers”

78,597 Decision Point Variances

26

PLUS Insurers Use:

“Case Maximizers”

“Injury Severity Points”

“Prolonged Modifiers” and

Administrative

Legal &

Economic

…Decision Points of a Personal Injury claim

27

A Shocking Problem In Personal Injury;

A formula commercial insurers use to determine claim value is based on the above listed Decision Point factors and is named the:

“Decision Point To Dollar

Translation Percentage Multiplier”

28

Points Convert Into Dollars

The Decision Points convert into settlement dollar valuation according to each insurers own rate.

29

Missing Points = Missing $$$

30

Missing Valuation

When Decision Points are missing in the medical records, values for those factors are missing from the claim.

Claim factors and physician reimbursement is challenged, denied or disputed and the injured party receives a lower settlement valuation.

31

Difference

Physician record systems are based on Government, Center For Medicare Services (CMS) Guidelines designed for treating average patient conditions and do not apply to personal injury patient care or record documentation leaving a need among injury treating physicians unfulfilled.

32

Solution

To solve the complexity of commercial insurer Decision Point guidelines that are missing from the doctors government guidelines, one company named CASE, worked within and across organizational boundaries to create ZEUS, a personal injury specific medical software to counter Colossus.

33

Lawyer and Colossus Expert Aaron

DeShaw:

“only a minority of lawyers and doctors have a clue what’s going on”

SURVEYS SHOW 80% OF DECISION POINTS ARE FOUND MISSING IN THE AVERAGE

MEDICAL SYSTEM

34

Zeus was created with “Computer Aided Decision Making” - a Decision Support System (DSS) - an adaptive and evolving information system that presents very suitable information when approaching numerous and various medical evaluation, acceptable treatment planning and control problems that are often complex and complicated in a commercial insurance environment that differs from and are not part of government guidelines. Particular emphasis is put on real-time DSS with advanced solutions such as mixed knowledge systems, that combine Decision Point medical assessment methods with the prospects of using Ambient Intelligence concept DSS in an injury and commercial insurer/colossus environment.

35

The physician is a participant in the medical discovery process, who can now critically analyze Colossus/ commercial insurer guidelines and Decision Points to communicate new Colossus knowledge in a variety of ways (both collaboratively with the computer aided decision making ability and individually), communicate what has been learned and access references and tools appropriate for the medical documentation and representation tasks and to show his findings have greater believability.

36

This automated ‘Decision Support System’ (DSS) will search, tag and extract commercial/Colossus Decision Points and formulate them in the correct language, format and sequence to interface and input value into the commercial insurer claim.

37

Karen Greig, ESQ. in Bellevue, Wash.,

…who's litigated dozens of bodily injury suits

against Allstate says:

"There's something sinister and surreal about a computer becoming the arbiter of the value of human life"

"You can't negotiate with a computer."

38

Plaintiff Attorneys Agree

“Various Elements Of The Software’s Operate In A Systematic Way to Deny Policyholders Legitimate Benefits”

39

Plaintiff Disadvantage

...since Colossus guidelines are not available to the public, it puts plaintiffs at a severe disadvantage.

40

Since 2004, …All State has been ignoring a Superior Court order to release the 10,720 power points that comprise Colossus guidelines known as:

“Decision Points” &

“Value Drivers”

…the very same points from which they determine settlement value.

They claim their Decision Point Guidelines are proprietary and they elect their right to “Civil Disrespect”.

41

FINE

Allstate Agreed to Pay a Ten

Million Dollar ($10,000,000.00)

Regulatory Settlement.

42

SUPREME COURT RULING

• Allstate’s Practice of Law under

CCPR Harms the Public Interest.

The Supreme Court believes CCPR gives a competitive edge

that goes beyond expense control in reducing claims costs.

• Washington State Bar Assn. v. Great Western Union Federal Sav. and Loan Ass’n., 91 Wn.2d 48, 54-55, 586 P.2d 870 (1978).

CCPR HARMFUL TO PUBLIC

“CCPR HARMS PUBLIC INTEREST”

43

• Consumer Federation Of America …released it's report citing court documents that reveal; “insurer's utilization of claims evaluation software's result in huge and questionable insurer claims’ savings”

44

The Report Stated;

…“computer claims software’s utilized by

95% of the nation’s largest insurance companies, can be manipulated to produce unjustifiably low injury payments to

consumers and tens of millions of dollars

in illegitimate ‘savings’ for insurers.”

45

The Report Also Stated:

…”unfortunately, these companies violate their obligation to deliver fair claims’ payments to their own policyholders on a huge scale, in order to increase profits.”

46

And finally:

…”most of the nation’s top insurers use “Claim’s Handling Software’s” in ways that put millions of American consumers at risk of not getting the claims payments that they paid for with their premiums”.

47

We Practice In A World Of Improper Claims Tactics,

Driven By Computers And Decision Point Guidelines

48

Decision Points

…The set of factors for which Colossus determines a range of values that convert into settlement dollars using a formula.

Decision points are the

points by which

Decisions are made regards value

49

RECAP:The Formula To Convert

“Decision Points” Into Settlement

Dollars Is:

“Point to Dollar Translation Percentage Multiplier” Formula!

50

RECAP:Decision Points that

Determine Value

• 10,720 “Decision Points”

• 14,357 “Value Drivers”

• 27,125 “Severity Drivers”

• 26,350 “Standard Multipliers”

• 33 “Liability Drivers”

• 15 “Additional Increase Multipliers”

• 78,597 Decision Point Variances

•PLUS:

• Injury Severity Points

•Case Maximizers

•Prolonged Modifiers

51

Since

…these decision points are not well known by either the legal profession nor are they not found in the government guidelines used by the medical community. This makes it difficult to represent the full value of the injury without the appropriate medical-legal software.

52

80% Of The Decision Points Are

Missing In The Average Demand

53

Missing Decision Points Equal

Missing Settlement Dollars

54

Understanding that missing “Decision Points” cause missing settlement value.

55

How It Works

To use these claim settlement software’s as Colossus, an adjuster inputs the “Decision Points” and “Value Drivers” about a claim and Colossus calculates a range of values for the claim's worth.

56

Original programmers at CSC,

…Report Colossus was set up to calculate GENERAL DAMAGE CATEGORIES based upon Decision Point Guidelines in:

Administrative

Economic and

Legal Areas

57

Original programmers at CSC

…Report Colossus was also set up to

calculate

GENERAL MEDICAL INJURY

(non-economic) damages based upon four (4) medical decision point

corners of a claim.

58

1. Injury Severity Points

2. Duties Under Duress

3. Loss Of Enjoyment

4. % Whole Person Impairment

59

Assessing Medical Claim Value

Injury Types:………………………..25% value

Duties under Duress:…………….25% value

Loss Of Enjoyment:……………….25% value

% Whole Person Impairment:..25% value

100% value

60

#1 Injury Severity Points

Injuries are represented by diagnoses.

Colossus requires double digit diagnoses represented by ICD Codes.

Average # of diagnosis = 4

HCFA form = room for 4 diagnoses

1st area of missing Decision Points and missing value therefore is the diagnoses = 25% value

63

…"When it comes to discussing the damages issues re injuries, the lawyer must stick to the four corners of the medical records documents.

1. Injury Severity Points

2. Duties Under Duress

3. Loss of Enjoyment

4. % Whole Person Impairment

If it is not in the medical records, it doesn't count. Stupid rule, but that's apparently how it's done."

Las Vegas Attorney Steven Burris

Reports

64

Therefore the physician is the single most important aspect of a Colossus case and data contained within the doctor’s chart notes, [not narrative] are the only source of information that adjustors are allowed to derive decision points from to enter into Colossus.

65

Aaron DeShaw, ESQ

“It’s no secret that many plaintiffs' attorneys believe there is nothing that can be done to prevent unfair settlements unless they involve major injuries”.

DeShaw points out that this is NOT the case as soft tissue injuries meet the “Serious Injury Threshold”.

66

1. MTBI = Closed Head Injuries

2. Sensory Loss

3. Motor Loss /weakness

4. Range Of Motion Loss

5. Diminished Deep Tendon Responses

6. Disc (Disorder/Derangement)

7. Ligament Laxity (728.4 Loss of Segment Integrity/AOMSI)

8. Radiculopathies

9. Fractures (Vertebral Body, Uncinate Process)

10. Spondylolisthesis

11. Stenosis

67

#2 % Whole Person Impairment

The evaluator must identify the involved body; • Parts • Systems and • Functions

…The evaluator must list: • AMA Guide Edition • Chapter and • Table …used to make the WPI Determination.

68

All claims should be assessed for whole person impairment according to 5th edition guides.

Colossus Uses 5th Edition AMA

Guides

69

Attorney Aaron DeShaw:

"While the legal profession has historically used narrative-style demand letters to convey claims, much of the information provided in medical or legal narrative style demand letters has no value in Colossus. Adjusters look almost entirely to the medical records for the decision points that input value required by Colossus.

70

Attorney Aaron DeShaw:

Only a minority of lawyers and doctors have a clue what's going on.

Attorneys need to convey data about the claim using TABLE format”.

71

SO, HOW CAN WE PREVENT OR REDUCE IMPROPER,

LOW VALUATION? 73

2 Main Factors

All settlement claims will be devalued due to the use of the insurance company’s software’s and Business Process Improvement (BPI) culture, however settling a claim favorably without trial is dependent upon two main factors:

1). The physician’s ability to chart the medical decision points so they input value into Colossus

and

2). The attorneys specific mirroring,

formatting and sequencing of the decision points

in the demand letter

74

Strict Requirements of Adjuster

“The claims handling software’s themselves make a lot of demands on adjusters, requiring them to enter scores of information. You have to have a good medical record of what the injury is"

…says Mr. Smith of American National Property and Casualty Co.

75

Peripherals

"Any injury can have many peripherals attached to it. Colossus is very good at finding out what kind of injuries are actually present. But the doctor has to be able to search, tag and extract the Decision Points and is unable to do so with his standard government record system.

76

The more information an adjuster inputs, the more accurate Colossus' calculation becomes”.

Now you can understand how injury claim case settlement value reserve is lost.

Missing Decision Points = Missing Settlement Valuation

Physicians who use standard medical record systems miss up to 805 OF THE Decision Points

77

What To Include In Demand

Because Colossus asks many specific questions about claims factors, you need to know what is being asked, what is being valued, what is missing and what to include in the medical file and in your demand.

78

Decision Points Normally Included

In The Average Demand:

Summary of Claim

Background

Damages Facts and faults of Accident - Liability

Injuries and Treatment

Economic factors (property damage, lost wages, etc).

Medical Expenses – current and future

Administrative & Legal Decision Points

Past Medical History

Evaluation, Summary, settlement demand and supporting documents

79

Colossus Expert & Attorney Aaron

Deshaw

DeShaw says:

“Plaintiffs' lawyers are frequently

unaware of what other decision points & value drivers are treated as significant by Colossus”.

80

Value Drivers That Should Be

Included In Every Demand:

In response to the data contained in both the medical chart notes and the demand, Colossus will then bring up “drop-down” screens seeking additional information.

81

Colossus Questions

Here are some of the medical “pop-up” questions Colossus will ask when seeking data.

82

As we review the following list, compare how many Administrative Legal Economic and Medical Decision Points are included and how many are omitted in both your medical experts chart notes and also in your demand. www.demandsthatcommand.com

83

Points To Be Included In Demand

Medical Decision Points Administrative Decision Points Legal Decision Points Economic Decision Points Value Drivers Injury Severity Points Case Maximizers Prolonged Modifiers Standard Multipliers Additional Increase Multipliers Liability Drivers Injury Drivers Mileage Drivers Undisputed Statements Of Fact Points Of Memorandum Evidentiary Burdens Of Proof & Authorities Declarations To Establish Preponderance

84

Points To Be Included In Demand

Medical History

Medical Office Records with Laboratory

Tests, Special Tests, Diagnostic Procedures

Hospital Records

Records From Client

Records From Other Sources

Explanations For Delay In Seeking Care (72 Hrs)

Explanations For Gaps In Treatment (5 Days)

Medical Validation Letter – 2nd opinion from

independent 3rd medical party

85

Functional Physical Examination

Injury Types (ICD’s) [25% value of claim]

Symptoms (Documented)

Laboratory Tests

Special Tests (CRMA/UPFX)

Diagnostic Procedures

Specialist’s Evaluation

Diagnoses (Double Digits)

Complaints – (intensity, frequency, type,

radiation, further effects)

Duties Under Duress [25% value of claim]

Loss Of Enjoyment [25% value of claim]

Treatment

Stability of Each Medical Condition

Static Conditions

86

Medical Determination of Future Treatment

Prognosis Overall

Prognosis Each Body Area

Future Treatment Plan

Number of Future Visits (On stable injuries)

Future Treatment Duration and Time Lines

MMI For Each Body Part

% Whole Person Impairment with Medical

Validation Letter. [25% value of claim]

Evidentiary burdens of proof showing soft tissue

injuries meet “Serious Injury Thresholds”

Diagnostic Related Estimates (DRE’s)

Diagnosis Based Injuries (DBI’s)

Spine Impairment Summary

Specific Disorders Of The Spine

Whole Person Impairment

87

Monetary Factors

Administrative and legal costs

Damages

Current Medical Costs

RMP of Future Medical Costs With Full Probability Scale

Economic Expenses & Loses

Property Damage & any additional losses

Vehicle Repair Costs

Car Rental Expenses

Mileage calculated @52 cents per mile

Current Income Loss

Future Income Loss

Supportive Statements of Costs & Losses

88

1. Medical History

2. Medical Office records

3. Hospital Records

4. Records From Other Source

5. Records From Client

6. Explain Delay in Seeking

Care

7. Explain Gaps in Treatment

8. Physical Examination

9. Injuries (ICD-9 codes)

10.Symptoms (Documented)

11.Laboratory Tests

12.Special Tests

13.Diagnostic Procedures

14.Specialist’s Evaluation

15.Medical Validation &

Determination Letter

16.Diagnoses(double digits)

Attorney

ATTORNEY OUTLINE/ CHECKLIST FOR DEMAND LETTER

Attorney Demand Letter Use this checklist to

tag and extract decision points and value drivers to be

included in the demand to input

value into Colossus Demandsthatcommand.com

89

28.MMI For Each Body Part 29.% Whole Person Impairment (Provided by MD Utilizing 5th Edition AMA Guidelines or with a Medical Validation Letter as a 2nd Opinion from an MD) 30.Monetary Damages

• Current Medical Costs • Future Medical Costs

and Probability • Economic Loses • Property Damage & any

additional losses • Vehicle Repair Costs • Car Rental Expenses • Mileage calculated @52

cents per mile • Current Income Loss • Future Income Loss • Supportive Statements

of Costs & Losses

Attorney

ATTORNEY OUTLINE/ CHECKLIST FOR DEMAND LETTER “Claim Finalization and Demand Letter”

Attorney Demand Letter 17. Complaints – have to be

rated according to;

intensity, frequency,

type, radiation, further

effects

18.Duties Under Duress

19.Loss Of Enjoyment

20.Treatment

21.Stability of Medical

Condition

22.Medical Determination of

Future Treatment

23.Prognosis Overall

24.Prognosis Each Body Area

25.Future Treatment Plan

26.Number of Future Visits

(if Not Stable)

27. Future Treatment Duration

and Time Line

90

SOFT TISSUE INJURY LIABILITY

CASE CLAIM RESERVE

2004 was $15,800

2015 is $5,800

92

To Prevent the insurance companies “software’s” de-valuing your case, cite all applicable Decision Points and formulate your demand using the correct language, terminology, format and sequence to interface with the insurance companies' ‘Decision Point” claims handling software’s.

Start Speaking In Their Code

Language!

93

ZEUS VS COLOSSUS We recommend physicians use Zeusclaim to tag and extract the medical decision points to INPUT ADDED VALUE into Colossus!

94

ZEUS VS COLOSSUS We recommend plaintiff attorneys use Zeusdemand which will assemble the medical points for you and then tag and extract the remaining administrative, legal and economic decision points to INPUT VALUE into Colossus!

95

Zeusdemand

•Available to strafford clients on trial basis

•www.zeusdemand.com

•Dr Liberti

•[email protected]

•727-520-3961

104

http://www.zeusdemand.com/







mailto:[email protected]

How Do We Win the “Greater Weight” of

the Evidence Challenges?

105

Colossus rates a 2nd opinion with weighted value.

A 2nd opinion, validation letter from an independent 3rd medical party, is the court approved method to meet evidentiary burdens of proof to win the Greater Weight of the evidence challenges.

Validate The Medical Findings

106

1. Eliminate varying opinions

2. Establish preponderance meeting court accepted evidentiary burdens of proof

3. Win the “Greater Weight” of the Evidence challenges

4. Prevent Unfair Settlements

Validate The Case To:

107

Simply Stated

• Improving Settlement Claim Value Is A Matter Of; …understanding and sequencing the Medical Decision Points with the Administrative, Economic and Legal Decision Points to interface with the

insurance company software’s and input value into Colossus.

•…And win the Great Weight Challenges!

113

www.independentmedicalvalidation.com

115

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