In the Pennsylvania workers’ compensation system, judges rarely allow claimants’ attorneys to take the depositions of claims adjusters. In my experience and that of my colleagues, approximately 90% of requests for depositions of adjusters are denied.
In most lawsuits where insurance is involved, a plaintiffs lawyer can take the deposition of a claims adjuster without much fanfare. It is expected by the parties when discovery ramps up.
But in the Pennsylvania workers’ compensation system, judges rarely allow claimants’ attorneys to take the depositions of claims adjusters. In my experience and that of my colleagues, approximately 90% of requests for depositions of adjusters are denied.
Yes, these denials run afoul of Pennsylvania Rule of Civil Procedure 4003.1, which allows parties to “obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action … .” The denials likely run afoul of Pennsylvania Rule of Evidence 611(b) as well, which states “a party witness in a civil case may be cross-examined by an adverse party on any matter relevant to any issue in the case … .” But these denials also run afoul of our fundamental notions of procedural due process.
Denying depositions would be problematic in most areas of the law. But they are egregious in the world of workers’ compensation law, where insurance carriers are known to act in bad faith by denying meritorious claims by injured workers—and may engage in fraudulent behavior to get to that result.
Depriving injured workers and their counsel an opportunity to depose claims adjusters allows insurers to operate unchecked to the detriment of those injured workers and all members of society who benefit from those workers’ labor.
It is time for claims adjusters to sit more frequently for depositions in workers’ compensation cases.
Claims adjusters run the show for workers’ compensation claims.
In the workers’ compensation system, claims adjusters are single handedly responsible for determining whether or not their insurance companies will pay a workers’ compensation claim. They quarterback their insurance company’s investigation of a worker’s injuries after having been notified of them by an insured employer.
Under the Pennsylvania Workers’ Compensation Act, insurers have 21 days to perform a reasonable investigation into a worker’s injuries to determine if the injuries are covered by an employer’s workers’ compensation insurance. This investigation should include interviewing the injured worker, the worker’s employer, and the treating physicians or nurses. After completing the investigation, a claims adjuster will decide whether their employer should accept or deny the claim.
The majority of workers’ compensation claims are denied by claims adjusters. When doing so, adjusters are legally required to have a reasonable basis. When a claim is denied, an adjuster must complete a Notice of Workers’ Compensation Denial form (Form LIBC-496) and submit it to the Pennsylvania Department of Labor & Industry’s Bureau of Workers’ Compensation. The form has five reasons for a denial an adjuster can choose from, including that the injury was not a work-related injury, the injury was not within the scope of the injured worker’s employment, or for other good cause. With the exception of the latter reason, all an adjuster has to do is simply check the box corresponding to the reason for the denial. No other explanation is required.
Without depositions, claims adjusters can make bad faith or otherwise unlawful decisions with no consequences.
Despite their outsized influence on the outcome of a workers’ compensation claim, claims adjusters have no burden to voluntarily provide the reasoning for a denial. As I just mentioned, they almost always need only to check a box and be done with it.
Sure, some workers’ compensation claims will be denied by a claims adjuster after an objectively reasonable investigation has provided the adjuster with a good faith, reasonable basis for doing so. But in our experience, the majority of denied claims are denied without a reasonable basis. We know this even when I or my colleagues are unable to question claims adjusters under oath or obtain their notes. How do we know this? Because we have access to the same medical records adjusters do, and we can interview the same people adjusters can.
We can see where claims adjusters seemingly ignored the observations from doctors and nurses regarding the severity of a worker’s injury. We have seen medical records for denied claims where doctors or nurses express certainty that a debilitating injury suffered by a worker occurred while the worker was on the clock at their workplace.
But claims adjusters are not currently required by the commonwealth’s Workers’ Compensation Act or regulations to provide their reasoning for a denial beyond a checkbox. Nor do workers or their attorneys have, as a matter of right, access to this reasoning.
Thus, the only way for workers and their attorneys to compel claims adjusters to provide an explanation for why they denied a claim, and provide a court an opportunity to decide whether an adjuster had a good faith, reasonable basis for that denial, is for an adjuster to sit for a deposition and testify under oath about their decision to deny a claim.
Claims adjuster depositions also bring with them judicial efficiency. Having an adjuster provide the basis for their denial of a claim while under oath can save weeks, if not months, of back and forth between parties as they litigate the denial, and the accompanying judicial intervention required to move the proceeding along.
Unfortunately, my colleagues and I have found that judges rarely allow us to take claims adjusters’ depositions when challenging a denial under a typical claim petition. As I mentioned earlier, we estimate about 90% of requests for adjuster depositions are denied. Judges have told us they’ve denied our requests because the burden is on the claimant to show an adjuster acted unlawfully—and not on an adjuster to show they acted lawfully.
How to potentially pierce claims adjusters’ anti-deposition armor.
My colleagues and I are not ones to shy away from a fight when our clients are wronged. We have tested a number of approaches for securing depositions of claims adjusters. We’ve done so because when adjusters avoid accountability for unlawful denials of workers’ compensation claims by evading depositions, they undermine the public policy considerations upon which the commonwealth’s workers’ compensation system was built. Additionally, adjusters are able to sidestep the same rules of civil procedure and evidence that virtually every other party in a judicial or quasi-judicial proceeding must follow.
I noted above that conventional, straightforward requests for depositions of claims adjusters are rarely fruitful. We have also found it difficult to secure depositions when claiming an employer presented an unreasonable contest—even though the burden is on the employer to show they reasonably contested an injured worker’s claim. We also haven’t had much luck securing adjuster depositions in connection with penalty petitions alleging insurance carriers were not performing good faith, reasonable investigations. In both instances, judges have echoed our adversaries’ specious concerns that these depositions are fishing expeditions or attempts to harass adjusters. They are, of course, no such things.
We have, however, been employing a strategy for securing claims adjusters’ depositions that shows promise and has provided a better success rate than other strategies.
While we may suggest to a judge in the early days of challenging a denial of claim that we want to take a claims adjuster’s deposition, we do not formally request one until late in discovery. That’s because we use discovery to create a prima facie case that the adjuster did not conduct a reasonable investigation or have a good faith, reasonable basis for their denial. Throughout discovery, we’ll take our client’s deposition and those of key medical professionals who treated our client.
After establishing through documents and testimony that there was likely bad faith on the part of a claims adjuster, we then ask to take the adjuster’s deposition. This method allows us to present a judge with what we see as a persuasive basis for granting the deposition: discovery independent of an adjuster’s testimony that strongly suggests their denial ran afoul of the law. If deposed, the adjuster is then required to testify under oath that they either followed the law or they did not. There’s no middle ground.
A call to arms.
Claims adjusters carry far too much influence over the lives of the commonwealth’s injured workers to be able to avoid depositions in a way that few other parties to litigation can. The time has come for them to sit more frequently for depositions.
I call on my fellow Pennsylvania workers’ compensation lawyers to more frequently and forcefully compel claims adjusters to sit for depositions when they have a good faith belief that the adjusters violated Pennsylvania law when denying a worker’s claim.
And I call on the commonwealth’s judges to be more open to compelling claims adjusters’ depositions, even if the depositions are narrowly tailored to only cover certain findings or decisions by an adjuster.
Claims adjusters’ continued avoidance of depositions should be anathema to anyone who believes injured workers—and not adjusters—are the ones whose interests the Workers’ Compensation Act was built to protect. It’s time for adjusters to more frequently sit for depositions and be forced to testify under oath about why they denied particular claims.
Samuel H. Pond is the managing partner of Pond Lehocky Giordano LLP, the largest workers’ compensation and Social Security disability law firm in Pennsylvania.
Andrew F. Ruder and Keld R. Wenge are partners in the firm’s workers’ compensation practice group. Contact them at spond@pondlehocky.com, aruder@pondlehocky.com and kwenge@pondlehocky.com.
Reprinted with permission from the October 12, 2021 edition of The Legal Intelligencer © 2021 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or reprints@alm.com.
