An accident happens. You get injured. Your first instinct is to go to a hospital or clinic to get treatment and try to get better. In those moments it is rare to think of the case you might have against the responsible party, or even the need to go to court. The normal thing is just to think: how can I get better and put this behind me?
Often in these situations the first non-first responder, non-medical contact will be with the insurance company, either (in a workers' compensation case) the insurance adjuster for the employer's insurance carrier, or in the case of a personal injury matter, the insurance adjuster for the negligent party.
Most people at that stage want to view the insurance adjuster as someone who is there to help. And that is how they will present themselves. They will be kind and sympathetic. They will offer assurances about how they can help, how it will be okay, and how they want you to call them with any questions.
I'm not saying any of this is a lie. I'm sure they genuinely care in that moment. But the reality is their job is to pay out as little as possible on the claim. Yes, their job is to pay the claim. But their job is to pay less if they can. So from the very beginning they will be taking steps to see if there are facts they can interpret or spin to reduce or deny benefits. Their #1 technique for doing this is the recorded statement.
This is why it is important to hire an attorney BEFORE giving a recorded statement.
A recorded statement is simply a series of questions (all from the adjuster) to you about your past medical, employment, and personal history, the circumstances surrounding the injury, and the medical problems you have had since the injury. There may be other subjects covered, but that will be most of it. This can be taken in person (rarely) by an investigator, but is most often taken over the phone. It is recorded, and while it is not under oath (typically), they ask you if your answers were true and correct. Once you have given a statement, it is hard to go back and set the record straight when the recorded statement questions were designed to create confusion and a false impression with the answers the adjuster drew out of you.
It's not impossible to beat a denial based on incomplete, misleading, or erroneous answers to confusing questions in a recorded statement (that's what lawyers do), but it is hard-- a lot harder than just getting it right in the first place.
So a lawyer can advise, whether, when, and how to give a recorded statement. A few examples of how the adjusters can manipulate recorded statements:
In workers' compensation cases, the law requires that you report the injury within 30 days. Sometimes the injury or accident may have seemed minor and didn't require immediate hospitalization or treatment, and may not have been reported right away according to protocols. The law doesn't require that you report it immediately. You have 30 days. Most employees would rather keep working than be made a big deal of and have to go to a doctor. They figure if they work through it they'll be fine in a day or two. Often what appeared to have been just a pulled muscle may be something more serious, like a herniated disc, rotator cuff tear, or torn ligaments in the knee. It may take a few weeks to realize this. The insurance adjuster may try to frame the questions in such a way as to create the impression in someone who reads the statement that you didn't report the injury within 30 days, or that your waiting so long to report it after the event is proof that it didn't happen the way you say it did. Either way, they may deny your claim.
With an injury like a repetitive trauma claim, where there wasn't a specific event, just the slow development of symptoms over time due to the work activities, the adjuster will try to push you to think as far back in the past that you had any symptoms to that body part in order to set up a claim that you didn't report the injury within 30 days. The law doesn't require that you report such an injury within 30 days of your first symptoms-- only from when you knew or should have known that you had an injury related to work.
Insurance adjusters will ask about all the body parts injured in the accident. If you fail to mention body parts, they will conclude that those body parts weren't injured in the accident. You won't realize that this is a "speak now or forever hold your peace" moment in your case. But it is. You may have been in an auto accident and your shoulder was dislocated and your forearm broken. You were in the hospital. You haven't had to walk hardly at all. Of course you know your knee hurts-- but your whole body hurts. So when asked about what parts of your body are injured, you don't mention your sore right knee.
Then three weeks later you are out of the hospital and trying to get around again-- all of the sudden you realize your right knee is locking up, giving way, and unstable. Your orthopedic surgeon takes a look at it, and says yes, clearly you have a torn ACL. The insurance adjuster says no way-- you didn't talk about that in the recorded statement. I won't cover those bills.
Insurance adjusters will also probe deeply about past medical history.
Sometimes they will ask about past medical history, but they are asking about it for the first time, right on the spot. And you are on medication. It's hard to remember all your past medical history. So one of two major pitfalls can occur.
One, you may mention all your past medical history, and the insurance adjuster may blow it out of proportion and act like the fender bender you had five years ago is the real reason your back hurts, not falling off a ten foot ladder onto concrete yesterday. A lawyer can help you with how to talk about the past medical history in context to make this exaggeration difficult for the adjuster.
Or two, you may forget that you had the fender bender a year and a half ago, and the adjuster knows about it from an insurance claims database, and they deny your claim because (in their mind) you lied and concealed a pre-existing condition. A lawyer can talk to you about your past medical history to help refresh your memory before the statement so important facts about your past can come to light on your terms.
And the medication thing- sometimes it's wise just not to give a recorded statement when you are on narcotic medication. Your memory may be faulty. You may not process things well. You may not be able to feel all of your injuries. You can talk with your lawyer and confidentially give the lawyer your best memory of what happened. A lawyer talking to you confidentially can allow you to work through your memory of what happened, fill in gaps based on what is known from other sources, and piece together the event from multiple angles over time. Then you can give a recorded statement, if appropriate, to the other side when you've had a chance to really think through things and get your mind clear.
Comments