ClaimClinic: Adjuster Tactics
Requesting More Records
Despite your efforts to collect and produce all your medical records, the adjuster may come back to you asking to see more records. The most common request is to see a radiology report for an X-Ray or MRI or to see medical records for treatments that occurred before the accident. The prior treatment records are because they are most likely looking for a pre-existing injury to lower the value of your case.
You should first ask the adjuster why they are making the request. Make the adjuster explain why their request is relevant to your claim. It is ultimately up to you to decide with to produce additional records. You response should be largely based on how the adjuster explains their request. If you decide to provide the records, keep in mind:
- You can ask the adjuster to pay for the production and copying charges you will incur;
- You should obtain the records first to review before forwarding them on to the adjuster. Remember, you are in control.
- You should redact irrelevant information just like you did in your Demand Package before sending.
Custom Doctor Reports
Adjusters also sometimes ask your permission to get a medical report from one of your treating doctors. This is usually because they are tryng to determine if your claimed injuries pre-existed and/or were completely healed prior to the accident.
Adjusters are not allowed to speak to your doctor’s without your consent. Do not let the adjuster talk to your doctor. Control, control, control. Instead, ask the adjuster the reason why they want to talk to the doctor and/or get a report from them. Tell them to give you a few days to make a decision. Then, call your doctor and explain what the adjuster wants and why. Ask the doctor if his opinion/report is going to be favorable to your claim. If the doctor says it won’t be, then call back the adjuster and tell them no. If the doctor says their opinion is favorable to your case, then ask them how much a report will cost. Call back the adjuster and tell them you will have your doctor prepare a report so long as the adjuster pays for it and the adjuster sends a letter TO YOU setting forth the topics/issues for the report, which you will forward on to the doctor. Once you get the check and topics letter from the adjuster, write you own cover letter to the doctor explaining the request and reminding them you have an open personal injury claim. Do not write anything in the cover letter you wouldn’t want a lawyer to see at a later date because if your claim does not settle, that letter will be in the doctor’s file for the insurance company’s attorney to see.
Independent Medical Exams
The adjuster may ask you to take an IME (Independent Medical Exam). These are anything but independent. The exam will be conducted by a doctor that makes a lot of money writing medical reports that favor insurance companies. The adjuster is usually looking for a medical opinion stating your claim injuries were not caused by the accident. The only time you should agree to this request is if it is your insurance company that is asking as part of your UM claim. You should not agree to the IME for the at-fault’s adjuster. The only time an IME might make sense is if the at-fault adjuster agrees to pay for it and allows you to pick the IME doctor, but then you will have to ask some personal injury attorneys who the claimant friendly physicians are.
If you must comply with an IME as part of your UM claim, demand that the insurance doctor provide you with a complete copy of his/her notes and report. You can also try to get the adjuster to agree to limit the scope of the IME to just those parts of your body that were injured.
Not Offering Full Medical Expenses
The adjuster may tell you they won’t pay you the full value of your medical expenses because you did not pay for them 100% with your own money, that your health insurance paid for it. Whether a health insurance company paid for the expenses or some other party (like a family member) is called a “collateral source.” Generally, evidence that someone else paid for your expenses is inadmissible in court. Juries usually get to hear and see the full value of the bill. That is because the law does not want to give the at-fault party a “bonus” of not having to pay the full value of your damages. The at-fault person should always pay 100%. Additionally, any money you collect from your claim may be subject to the health insurance company asking for reimbursement. So if you only get out of pocket expenses and then the health insurance company gets reimbursed, your claim result would actually be negative.
You should only have to tell the adjuster you know the collateral source rule and they should back off this disingenuous argument. If they do not acknowledge they are wrong, immediately ask to speak to their supervisor and inform them you are writing your State’s insurance commissioner to inform them of this “bad faith tactic.”
No Lost Wages Without MD Note
Sometimes adjusters will not pay for full missed days of work without a doctor’s note/order stating you are to miss work. If you are faced with this argument, respond by telling the adjuster you do not have to present that type of evidence at a trial in order to get lost wages so it should not be necessary for settlement purposes.
If the adjuster refuses to reconsider their lost wages position, you have a couple of limited options:
- You can ask them if they can accept a note from your doctor explaining the missed days from work were expected and reasonable given your injuries
- You can ask them to put the lost wages over into your pain and suffering component. This is just you moving the dollars from one category over to another.
Threats to Withdraw Offer
Adjusters will sometimes bluff about withdrawing their last offer if you don’t accept it ASAP. This is a bluff 9 times out of 10. Your claim has an intrinsic value. The value is going to be the same to the insurance company today, tomorrow, or next year. There are several problems with the adjuster taking this position:
- Withdrawing their offer sends your case into litigation, which costs the insurance company money in attorney’s fees, court costs, experts, and deposition costs.
- The adjuster wants to close claims to keep his/her case load manageable. Withdrawing the offer will keep your claim on his/her desk.
Negotiating Against Yourself
Never lower your demand amount without first getting a higher offer from the adjuster. Lowering your demand two times consecutively without the adjuster giving you a counter-offer is called negotiating against yourself. When you do this, you send a message that you are not confident in your claim and/or that you are impatient. You always need to get something from the adjuster before lowering your demand – a quid pro quo. It can either be an increased counter-offer or some sort of concession, like a stipulation that you are getting all of your medical expenses accounted for in their offer.