A Story of Tom and the Rattlesnake
Let’s talk Defense Base Act Nurse Case Managers. I'll start out with a quick story about one of our clients - *Tom.
*Any resemblance to any actual client, case or situation is purely coincidental. Names have been changed and the names of the DBA insurance company and Defense Base Act Nurse Case Manager have been withheld.
What Happened At The Mediation
At some point in your case, your case will probably (but not always) end up in a Defense Base Act mediation. This is an informal proceeding where your DBA lawyer and the DBA insurance adjuster and/or lawyer will meet with a mediator in an attempt to settle your claim.
There are a handful of mediators around the country that mediate these cases. Since our firm is one of the top three firms with Defense Base Act cases, we pretty much see them all. This is a fairly regular occurrence at our office. Sooner or later, your case will probably be mediated. Of course, there is no guarantee that your case will be settled at mediation, but it is usually a worthwhile effort.
Even if your case isn’t settled at the mediation, it is usually a benefit because you get a peek at the evidence that will be used against you at your trial. So if the case doesn’t settle we get more time to “fix” the problems than you would normally get. Oftentimes you don’t see the insurance company’s evidence until 30 days before trial. Which makes it hard to fix or cure the problem because of the short time frame. Thus, this is one of the advantages of going to an early informal mediation.
Usually, we don’t get to talk to the adjustor or defense attorney directly at a mediation. Instead, each side tells their side of the case to the mediator and the mediator then, in turn, talks to the other side. Thus, everything is being told second-hand, so to speak.
Now getting back to the story about the Defense Base Act Nurse Case Manager. At a recent mediation our client, Tom, has a serious injury. Even the insurance company’s doctor agrees that Tom’s injury was caused due to being overseas and prevents Tom from returning to work as a civilian contractor. All good so far.
Further the Labor Market Survey demonstrates a substantial wage loss. Thus, we felt fully justified in the substantial settlement demand in Tom’s case.
I tell clients that it isn’t the first settlement offer that matters, it is the last settlement offer that really counts. Thus, we were not too surprised by the low initial settlement offer at the mediation. This happens all the time, even with cases that settle for significant money.
However, after a few demands and offers being exchanged, it appeared that we both significantly differed in the value of Tom’s case.
Thus, we asked the mediator about why the settlement offers were so low in a case that appeared, to us, to be strong. The mediator said he would ask the “other room” if he could tell us what that was.
The mediator returned and said that he was told that he could tell us what the insurance company was relying on in order to value the claim so low. The adjuster had revealed to the mediator that Tom had allegedly told the Defense Base Act Nurse Case Manager, “I am looking for overseas work.”
What The Heck?
We usually don’t allow Defense Base Act Nurse Case Managers (NCM) to speak to our clients. Because of the very situation we were dealing with here. I compare NCM's to rattlesnakes. Read on to see why.
So, we immediately called Tom and asked him if he had spoken to a Nurse Case Manager and if he had said this.
Tom said that the last time that he had gone to see his doctor - when he arrived at the appointment, a Nurse Case Manager was in the lobby and had not only spoken to him, but the NCM had actually gone into the exam room when he saw the doctor.
Of course, if Tom had read (or remembered what he read) in my book - Win Your Defense Base Act Case - that we had given him; Tom would have known not to speak to the Nurse Case Manager. And he definitely would not have allowed the Nurse Case Manager to go into the doctor's examination room with him.
But nevertheless, here we were.
Tom said that the Nurse Case Manager had asked him if he wanted to return to work overseas. Tom replied, “Yes, but I don’t know if I can.” The Nurse Case Manager probed further by asking, “If you could get a job overseas paying the kind of money that you were making before that is within your restrictions, would you take it?” Tom replied, “That sounds great, but I don’t see how that is possible due to my injuries.”
Of course, none of this was recorded. So the Nurse Case Manager reports to the DBA insurance company that Tom wants to go back to work overseas. Which gets told second hand to our mediator that, “Tom is looking to go back to work overseas making the same money that he was before.”
Now, what Tom can expect is for the Nurse Case Manager to be called to trial as a witness and she is going to say that based upon her “contemporaneous notes” (read: notes she took at the time of the conversation); that, “Tom had said that he ‘wanted to go back to work overseas and he was looking for work overseas.’”
Frankly, I believe Tom. But that doesn’t matter now. Now Tom is placed in a literal “he said, she said” situation. Who is the Judge going to believe - Tom or the polished, charming and sugary sweet Nurse Case Manager? Not a good spot for Tom to be in.
What I Tell Folks About Arguments
You can lose or win an argument. Neither is guaranteed. No matter your credibility, no matter the evidence, no matter how good of a person you are. Arguments are won and loss by good and bad people every day.
DBA cases are no exception. Tom may win the argument with the DBA Nurse Case Manager. But, he may also lose it. And if the Judge believes the Nurse Case Manager instead of Tom, then that puts both Tom and me, as his lawyer, in a an awkward and uncomfortable position.
The Point of This Story:
So what is the point of this story? Don’t talk to Nurse Case Mangers and never allow them to be in the examination room with you and your doctor and/or the insurance company doctor. If this happens to you - politely refuse. Call your attorneys office on the spot. Usually you can reach the attorney’s paralegal or assistant who can give you advice on how to proceed. If you can’t reach them, I would continue to politely refuse.
Don’t be rude or mean. But still politely refuse. You don’t want to be in a “he-said, she said” situation like Tom is facing.
Disclaimer: I am not saying the every Nurse Case Manager is a liar. I am not saying that every Defense Base Act Nurse Case Manager is a bad apple. But what I am saying is that when looking at them you really can’t tell the honest ones, from the dishonest ones. So be on your guard and be careful when dealing with them if you are forced to do so.