High Settlements in Auto Accident Cases THURSDAY, FEBRUARY 25, 2016 - - PowerPoint PPT Presentation

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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 RPHASTINGS@SNET.NET

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

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

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

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

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

Tying it ALL Together

• 1. Client education;
• 2. Robust medical records;
• 3. Detailed client challenges; and
• 4. Constant communication with adjuster.

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

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

f_liberti@msn.com 727-520-3961

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.

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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.

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• 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.

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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.

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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”.

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Her ere e Is Is A A Maj ajor

• r Pro

roble lem: m:

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

• n different guidelines.

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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

• wn set of injury guidelines that are vastly different

from the guidelines physicians use.

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Decision Points

Personal injury is driven by 3rd party, “commercial” auto insurers who have created their own software’s and record systems based

• n their own set of injury factors categorized as

“Decision Points”.

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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.

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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).

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Commercial mercial Insurers urers Use the Followin wing Decisi ision

• n

Point nt Factors rs That Are Not Found In The Physicia ician Govern rnmen ment t Guides: es:

• 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

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PLUS Insurers Use:

“Case Maximizers” “Injury Severity Points” “Prolonged Modifiers” and Administrative Legal & Economic …Decision Points of a Personal Injury claim

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A S A Shock cking ng Pro roblem m In Pers rsonal al Injury; y;

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”

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Points Convert Into Dollars

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

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Missing Points = Missing $$$

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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.

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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.

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So Solu luti tion

• n

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.

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Law awye yer r an and Co Colo loss ssus s Exp xper ert t Aa Aaro ron DeS eShaw haw:

“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

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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.

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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.

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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.

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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."

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Plaintiff Attorneys Agree “Various Elements Of The

Software’s Operate In A Systematic Way to Deny Policyholders Legitimate Benefits”

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Plaintiff Disadvantage

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

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Since 2004,

…All State has been ignoring a Superior Court

• rder 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”.

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FINE Allstate Agreed to Pay a Ten Million Dollar ($10,000,000.00) Regulatory Settlement.

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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”

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• 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”

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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.”

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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.”

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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”.

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We Practice In A World Of Improper Claims Tactics, Driven By Computers And Decision Point Guidelines

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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

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RE RECAP AP:The Formula To Convert “Decision Points” Into Settlement Dollars Is:

“Point to Dollar Translation Percentage Multiplier” Formula!

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RE RECAP AP: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

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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.

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80% 0% Of Of The De Decision ision Poin ints ts Ar Are Mi Miss ssin ing g In The Avera rage ge De Dema mand

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Mi Miss ssin ing g De Decision ision Poin ints ts Equal ual Mi Miss ssin ing g Settl ttlement ement Do Dolla lars

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

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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.

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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

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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.

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• 1. Injury Severity Points
• 2. Duties Under Duress
• 3. Loss Of Enjoyment
• 4. % Whole Person Impairment

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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

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#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

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…"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

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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

• f information that adjustors are allowed

to derive decision points from to enter into Colossus.

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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”.

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• 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

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#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.

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

Colossus Uses 5th Edition AMA Guides

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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.

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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”.

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SO, HOW CAN WE PREVENT OR REDUCE IMPROPER, LOW VALUATION?

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2 Main Factors

All settlement claims will be devalued due to the use

• f 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

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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.

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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.

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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

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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.

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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

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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”.

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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.

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Colossus Questions

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

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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

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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

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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

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 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

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 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

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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

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• 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

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28.MMI For Each Body Part 29.% Whole Person Impairment (Provided by MD Utilizing

5th Edition AMA Guidelines

• r 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
• f 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

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SOFT TISSUE INJURY LIABILITY CASE CLAIM RESERVE

2004 was $15,800 2015 is $5,800

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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!

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ZEUS VS COLOSSUS

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

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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!

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Zeusdemand

• Available to strafford clients on trial basis
• www.zeusdemand.com
• Dr Liberti
• F_liberti@msn.com
• 727-520-3961

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How Do We Win the “Greater Weight” of the Evidence Challenges?

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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

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• 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:

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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!

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www.independentmedicalvalidation.com

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