While most of our cases in the workers’ compensation system have the standard defense attorney vs. applicant’s attorney dichotomy, we have all come to expect, there are those applicants who still wish to keep things more informal and seek to represent their own interests. In those unique situations, we need to keep perspective on how to deal with these individuals. The rapport between the applicant and defense will be different in these situations. Thus, it is important to ensure we on the defense side of things know how best to work with them.
There Are Four Basic Pro Per Types
- Pro Per #1: The Willing Advocate of Settlement (Goes with the flow)
- Pro Per #2: The Learned Applicant (But truly wants to settle)
- Pro Per #3: The Confused Applicant (Lack of knowledge and requires much aid)
- Pro Per #4: The Inquisitor (May or may not know the workers’ compensation system, but desires to fight/investigate process in detail)
While you most certainly know each pro per is different, and each will absolutely have their own set of issues to bring to the table, we also know most pro pers have at least three things in common:
- They desire medical treatment and/or monetary compensation.
- A pro per either does not know they are entitled to an attorney, or they desire monetary compensation and do not want to share any of it with an applicant’s attorney (automatic 15% reduction in their recovery).
- No pro per has working knowledge of the workers’ compensation process as do you and your defense attorney. (It is just not possible since they do not work in it every day).
As adjusters and attorneys, we want to be sure to use those commonalities to our advantage. How do we do that? We simply appeal to the pro pers’ nature. Knowing as well that no one likes a “suck up.” However, like most humans on earth, pro pers also like feeling important, listened to, and as though they possess power over a situation (their case. Which to a good extent, you know they actually do).
Considering these principles, adjusters such as yourself have the awesome opportunity to keep things simple and use only one approach with all pro pers. We want to make them feel: A) Heard; B) Important; and C) Powerful over the situation at hand. That said, we want to be cautious about being disingenuous. Like us, pro pers can see disingenuous nature a mile away. So, as adjusters are specialists at, we want to strike a happy medium between “schmoozing over” and “genuine attitude.”
This will include being up front with the pro per. Making sure the pro per knows whom you represent and whose interests you are advocating, is of paramount concern. They need to understand you are not their attorney and/or are not their advocate. This, to avoid any potential ethical issues in law, and at the same time jointly and vehemently express that our insurance company’s number one interest is working with the pro per to ensure proper treatment and to reach reasonable, amicable, and advantageous settlement to all parties involved.
As adjusters, you also know the value of taking time to answer all questions pro pers have, within reason. Walking the pro per through the process of the case (Medical treatment/UR process/benefits paid and owing/QME process/possible settlement options) is invaluable. Having the pro per see you as a positive theme of knowledge, resources, aid, and reliability is essential to facilitating settlement. This will help disarm the pro per and make them more workable towards settlement. The more a pro per subconsciously feels you are there for their benefit (even though you are technically not) the more they will work with you come settlement time.
Do I Have To Give The Pro Per A Chance To Speak With the Information & Assistance Officer?
What some adjusters may not know is, the answer here is yes, but you can absolutely inform the applicant of their ability to waive said right, and how doing so may benefit them. Recall, just as tax “evasion” is illegal, but tax “avoidance” is not; I&A Officer “evasion” is illegal, but I&A Officer “avoidance” is also not.
The Labor Code provides the pro per with a set of rights. However, the pro per may voluntarily waive said rights at their will in order to expedite settlement. Three of the rights pro pers can absolutely waive are:
- Right to an attorney.
- Right to a QME evaluation.
- Right to speak to the I&A Officer.
A Judge can balk at this, and give you or us some issues, but ultimately, a judge cannot force any of the above three on an applicant. So, if you can get an applicant to voluntarily waive these, then that is three less factors that could complicate a case. Simply ask your attorney for said waiver forms if you so wish.
After you have informed the pro per of their right to speak to the I&A Officer about anything they desire in relation to the case, and you have explained exactly what an I&A Officer does, you can then provide the applicant your opinion on why they might want to waive that right. These include: a) I&A Officers have their own motives that could be different than that of both the pro per and the defense; b) Use of I&A Officer can slow down the process of settlement; c) Thus, could cause delays in how fast applicant gets their money; d) I&A Officers are not as up-to-date and in tune with cases as the pro per and defense currently are; e) I&A Officer could raise disputes between pro per and defense that do not currently exist, thus also causing further delays; and f) Catch all (Anything you can think of that may paint use of the I&A Officer in a negative light, without lying, of course.
This is not against the rules. It is perfectly legal. You are not being deceptive or deceitful. You are just playing within the limits provided to us by law.
At the end of the day, as adjusters and defense attorneys, it all comes down to open lines of communications with our pro pers. Keep things simple, honest, and helpful. Doing so will disarm the applicant nine out of ten times and will make them easier to work with and aid in amicable, expeditious, and reasonable settlements across the board.
At Yrulegui & Roberts, we are standing by ready to advocate for you. If you have any questions about defending a case with pro pers, we are more than ready to help. Contact us right away for a completely confidential consultation. With legal offices in Bakersfield, Sacramento, and Fresno, we provide workers’ compensation defense services throughout Central California, including in Stockton, Santa Barbara, San Luis Obispo, Oxnard, and Van Nuys.