Letter to State Insurance Commissioner Requesting Clarification of Laws and Rules Requiring Adjuster to Value ALL Clinical Diagnoses, Whether Based Upon Objective Symptoms or SUBJECTIVE COMPLAINTS

 
Your name
Your address
 
February 3, 2005
 
Name of insurance commissioner
Insurance Commissioner
Her address
 
Request for Clarification of Rules re: adjuster to value ALL clinical diagnoses in PIP failure-to-pay case.
 
 
Dear Commissioner (insert her/his name),
 
I am writing to request information regarding the rules in our state regulating what medical evidence the insurance adjuster in a motor vehicle PIP bodily injury claim can choose to ignore. I am dealing with a PIP adjuster who has elected to ignore the considered opinion of my doctor (a chiropractor) simply because it is based upon subjective evidence and not objective observations.
 
Based upon his stated position, this adjuster will only pay five months of twice-weekly chiropractic. He stated that a "peer review" concluded that an accident such as I was involved in should result in injuries that could be treated with chiropractic care in the time frame he specified, and thus any further care was neither reasonable nor necessary.
 
When I asked who did the so-called "peer review", he declined to say. When I asked about the fact my doctor's more frequent schedule of treatments had been essential to my ability to return to work and to live a more normal life, the adjuster just said that his hands were tied because he could only pay what was "expected" since I had no objective symptoms of injury.
 
Thus, he is refusing to pay for the bills I have incurred to date, plus he is denying me any further chiropractic care because he says there were only my subjective complaints of pain to substantiate the degree of injury and that any serious injury would show itself with objective symptoms.
 
At this stage, I am not ready to make a formal complaint because I believe that with some written favorable response from your office, the adjuster will reconsider and pay the PIP bills according to the terms of the policy.
 
Basically, I suffered significant soft tissue injuries in an automobile accident. My doctor diagnosed soft tissue injuries to my neck and lower back as a direct result of the accident. She has formally documented my entire treatment with her, from clinical diagnosis to treatment plan, including subjective complaints.
 
I have been treated with chiropractic care for eight months; it was successful and thus I am improved and able to resume all of my work requirements and most of my personal activities. However, the doctor stated that I am not yet ready to be released from care. I am enclosing a letter from my doctor to the insurance adjuster for you additional information. Please note that I did cover up any identifying information on his letter since I do not yet want to make this a formal complaint issue.
 
The insurance adjuster handling my PIP claim stated that there is no objective sign of injuries in my medical record, only my subjective complaints. Therefore, he stated he has to discount the conclusions of my doctor and will offer to pay based upon the expected trauma from my accident.
 
I disagree with this, and believe that he is trying to add additional terms to my policy. He is trying to insert his desire to limit medical exposure in PIP claims to what an average person might experience in any given accident, as opposed to what medical care an insured actually did require to heal. That is the first issue that I would like for you to address: doesn't my PIP have to pay what is actually incurred so long as the treatment is reasonable and necessary?
 
The second issue is how the adjuster came to his conclusion, which is by stating that he was going to ignore my doctor's diagnosis because it was based mainly upon subjective complaints, not objective observations. I am asking you to comment on that as well, because it seems as if a lot of good medical procedures are done based upon a clinical diagnosis that starts with subjective complaints.
 
My doctor performed examinations at the start of my treatments. The course of treatment is well-documented. It is my understanding that subjective complaints are a valuable tool of doctors in making a clinical diagnosis. In fact, "subjective" is the first step of SOAP, the acronym for a plan for diagnosis and treatment of medical conditions (Subjective, Objective, Assessment, and Plan).
 
Thus, the clinician uses his skill and experience to assess the truthfulness of the patient, and marries his clinical observations and background into a coherent assessment to form his diagnosis. Since our medical care depends so heavily on the subjective as part of nearly all clinical work, even when there is no objective test or measurement of pain, it seems reasonable to require that adjusters should give credence to the conclusions of an experienced doctor, even if they are based upon subjective information. An example of this is the diagnosis of fibromyalgia, which does not manifest in any objective manner, but is diagnosed by subjective complaints exclusively.
 
It seems to me that the insurance industry either is (or should be) required to exercise good faith and fair dealing in settling PIP personal injury claims. Thus, when an adjuster knows that a doctor's testimony regarding his diagnosis (based upon subjective complaints) is admissible at trial, then that adjuster is under a good faith requirement to give due consideration to that diagnosis. He cannot just go off and invent a theory of payment based upon what some mystery "peer review" says should have been proper.
 
It is not fair dealing or acting in good faith to assert that such medical testimony is of no value in settling a claim for injury damages, and so it should also be considered when paying out on reasonable and necessary PIP medical costs. As a state, we ought to insist upon those practices that demonstrate good faith and fair dealing, and that encourage the settlement of insurance claims instead of litigating them. Thus, it would seem to me that you, as Insurance Commissioner, should speak out in disagreement when presented with actions of an adjuster as we have here. It seems as if he wants to ignore the actual admissible medical testimony, and instead focus upon what he wishes the facts to be. That kind of deviation from procedure should not be allowed: it works against the chances of resolving a claim, and will instead encourage more arbitration and litigation.
 
I would appreciate your kind comments in support of my observations.
 
Sincerely Yours,
 
 
(insert your name)