Don’t Go in Blind

Defending unwitnessed workers’ compensation cases

November 16, 2023 Photo

A common, although frustrating, hurdle to successful workers’ compensation claim outcomes is the unwitnessed accident. In this article, we will share how to overcome the challenges of an unwitnessed accident and how supporting evidence can be found or secured when no eyewitnesses are identified. We will also discuss the burden of proof and identifying “best evidence.”

Before we jump into the best ways to defend against an unwitnessed accident, we need to discuss how to prevent these types of accidents. In the words of Benjamin Franklin, “An ounce of prevention is worth a pound of cure.”

•    A company should have an updated handbook that contains proper safety protocols and information on how an employee needs to report a work injury.

•    Daily or weekly safety meetings should be in place to get your workers united and in the right mindset.

•    If there is a part of the job where many injuries occur, signage should be placed to remind workers what they are to avoid doing so they can prevent injury.

•    Surveillance cameras should also be in place in work environments where there are numerous accidents reported. 

•    Proper PPE (personal protective equipment) should also be supplied to all workers. Some companies have complained about the cost of new PPE, but paying for the proper PPE now could prevent costly, lengthy litigation fees later. When claims are investigated, insureds frequently say, “They [the worker] are trained, and they should know better. We need to deny this claim.” Unfortunately, stupidity does not bar compensability. The fact that they should have known better is not a basis for denying a claim. We must be our first line of defense.

The Unwitnessed Accident

We have all heard the claim where the worker states he was injured on a Friday, moved furniture or engaged in other strenuous activities over the weekend, and then reported the alleged Friday work injury on Monday morning. In instances where it appears there were no eyewitnesses to a claimed work accident, employers, insurers/claims specialists, and counsel must consider all available resources for investigating, valuing, and defending the claim.

One of the first strategies for better handling and valuing an unwitnessed claim is to ensure that everyone involved in the claim process is well educated on providing complete and timely reporting and has all the tools in their toolbox to assist them in carrying out that task. This may include easy and immediate contact information for supervisors, risk managers, and third-party administrators; proficiency in electronic reporting processes and requirements; and identification of who and where to get assistance from when needed. Employers and insurance carriers have specific reporting duties under the respective governing laws. Completing all required reporting quickly and accurately will provide the best narrative of events to defend the claim while keeping everyone in compliance.

When there are no witnesses to a work accident, assessing an employee’s immediate injuries may be difficult. If there is any doubt, calling for on-site medical care or emergency responders is the best bet. In addition to protecting the injured employee, a first responder’s initial reporting will assist in investigating claims in which the narrative would otherwise be left to the injured worker due to a lack of eyewitnesses. Paramount to ensuring a complete and truthful history from the worker requires attention to each instance in which he described the accident and resulting injuries. This includes discussions with friends and family, coworkers, first responders, and treating physicians.

Secure and Preserve Electronic and Video Evidence

Preservation of electronic or video evidence is invaluable in these types of claims. If the worksite does not have surveillance video or other recording methods, consider the location of the accident and whether a neighboring business or resident might be able to help. Any questions about whether a video or other recording can be used as evidence at a hearing or trial, authentication, and preservation should be discussed with counsel. Additionally, demands that a worker’s recording (for example, dashcam, cellphone, Fitbit, Apple Watch, and home security camera) be preserved can be issued.

Social media sites should also be considered and investigated for supporting and condemning evidence. Expert vendors can be retained to obtain and authenticate social media posts if it cannot be accomplished by admission or deposition. Destruction of these types of evidence by the worker after initiating a claim can provide leverage in litigation. 

Identify Potential Witnesses

Even when there are no eyewitnesses to an acute event, there are often witnesses to events immediately before or after a work accident. Careful consideration and attention to detail when obtaining these statements are more important than ever when piecing together an unseen event.

Talk to everyone around the worker on the day in question, even if it was not during the accident. Some witnesses can tell you if the worker acted out of the ordinary, appeared under the influence, or was already complaining of pain in the body part before the alleged accident.

Further, witnesses can pick up on critical statements that signal you to investigate further. For example, a witness heard a worker behind a closed door say, “There it goes again. There goes my knee again.” Based upon those statements, a claims professional would know that there were prior issues with that knee and consult with defense counsel for the best way to defend and secure those records.

Obtaining Key Information

Everyone must understand the various ways to uncover evidence of unseen events without distortion or delay. It is best to obtain as much information as possible directly from the worker before retaining counsel, including family physician information and prior medical history.

Where there are red flags, an ISO (Insurance Services Office) report and medical canvass can give you a complete picture of the worker’s medical history and preexisting conditions. They should both be used together, as they show you accident claims and all of the providers the worker has visited over a set period. In certain states, there are online case management systems where you can look up the worker’s history of criminal, civil, and family-filed actions to get a complete picture of the individual you are dealing with and whether he has multiple crimes of dishonesty on his record.

The law allows only specific evidence of a worker’s character or propensity for being untruthful. It is important not to let human emotion or preconceived impressions of a worker cloud the investigation and valuation process. The investigation process should emphasize evidentiary considerations while casting a broad net to secure the most opportunity to reveal the facts when the worker alone witnessed the accident.

The Burden of Proof

We can look to the statutes and rules governing workers’ compensation claims to provide the exact measure of evidence that workers must present to meet their burden of proof. In general, the worker has the burden to prove his claims and entitlement to benefits. The defendant employer does not have to disprove plaintiff’s allegations but must provide evidence to support a denial. The employer also carries the burden of proving any affirmative defense asserted. Although the defendant need not disprove plaintiff’s claims, it is sometimes more efficient and less expensive to get ahead of questions of causation and other medical disputes by gathering the beneficial evidence to your position right at the beginning of the claim when memories are fresh and information is available.

Most importantly, communication with your defense team is crucial. It is best to have defense counsel in place that can train your new team members on proper claim prevention, investigation, and reporting, and be available for questions on how to investigate a claim. Invite your defense counsel to visit on-site and complete a walk-through so they can become familiar with the types of claims you incur and advise you of any issues they see on-site for prevention. A good defense counsel should work hand-in-hand with the insured and claims professional to provide a roadmap of the best route to take, what questions to ask, and how to avoid common pitfalls in unwitnessed accident claims. 

About The Authors
Multiple Contributors
Kirsten Kaiser Kus

Kirsten Kaiser Kus is a capital member at Downey & Lenkov LLC.

Ben Kincheloe

Dr. Ben Kincheloe is director of HSSE and Risk at Albanese Confectionery.

Kate Claudio

Kate Claudio is senior claims specialist at Strategic Comp.

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