Somewhere around 98 percent of all Kentucky car accident cases eventually settle. That is what our clients want. They want to receive their money right now. That is what we want for the most part if the settlement offer fairly compensates our client and it is not a crappy lowball offer. Preparing a settlement brochure is different than preparing a case for trial, especially if you speak to that mythical figure called Colossus.

For context, according to medical research, roughly half of folks involved in car wrecks suffer some degree of permanent spinal injury. These people will likely require some type of ongoing treatment to deal with the symptoms resulting from those injuries, ranging from over-the-counter and prescription medicines to regular massage, chiropractic, and/or physical therapy treatments, up to spinal surgery. Permanent injuries require life-long treatments, by definition, which means life-long costs. Below, I am going to discuss how we can best present these clients to the insurance companies and the algorithms they use to determine how much to offer them.

If you walk away from this article with nothing else, please know this: the algorithms used by insurance companies to value your client’s car wreck case are based on accepted medical literature and guidelines. The primary set of guidelines is the AMA Guide to the Evaluation of Permanent Impairment, the same one mandated by most states’ Worker Comp systems as well as the federal government’s Disability system. The insurance companies have a set of rules they play by, they just aren’t eager to share with us what those rules are.

Back in the good old days, before around 2000, which I must admit I remember, a typical car wreck case settled for three to five times the specials. This amount was adjusted based on the claim adjuster’s experience, training, and common sense in the evaluation of the injuries suffered. The adjuster was not a data entry clerk that merely entered numbers into a computer program. They were allowed to think on their own.

Since 2000, the claims’ adjusting process changed dramatically. The insurance industry now uses computer programs to evaluate claims. Colossus, TEACH, MYND, Decision Point, Injury IQ, COA, ICE, IMS, MBRS, ADP, AIM, Mitchell Medical and Med-Data are just some of the many names.

Over the course of my career, I have been fortunate to have several former insurance adjusters work for me. I have also been able to verify the process through many discussions with those employees and my friend Jim Mathis who is in Reno, Nevada.

Colossus Insurance Software Explained The Schafer Law Office

What is Colossus?

Colossus is a computer program that rates claims on a severity scale by assigning severity points to various factors about the case. Each individual insurance company defines how these severity points should be converted into dollars for various geographic locations or economic regions. This conversion is based on the best claim experts in the company determining the market values for various types of claims, which relies heavily on the history of judgments. Knowing how this program works can make a dramatic difference in the settlement offers you can get for your client in a car wreck case.

It is important to remember that this program is used for car wreck cases only. Colossus-type programs are not used to evaluate Dog Bites, Quadriplegic/Paraplegic, Death, Dental Trauma, Scarring/Disfigurement, Loss of Consortium Claims, or Brain Injury cases.

Why Did the Change of Claim Evaluation Occur in the Insurance Industry?

The insurance industry has always searched for ways to add additional profits. They cut salaries, increased premiums, and finally, they lowered the amount paid out on claims. The real question was how to do it? The search for additional profits led the industry to McKinsey Consulting (Now Arthur Anderson). In 1992, Allstate hired the previously mentioned consultant, McKinsey, to increase insurer profits mainly by reducing the settlement valuation of car wreck claims. McKinsey brought in Computer Science Corporation (CSC), which had rights to Colossus. CSC had purchased those rights from the creator, an Australian company named Continuum.

Colossus was the first of 80 software designed to lower settlement value. This was referred to as “Business Process Improvement” (BPI). The claims department was recognized as an area of opportunity to reduce costs and increase profits by paying out less money for each claim. This new philosophy, procedures, processes, and training was implemented and over time has reduced all claim costs by 78 percent.

McKinsey was previously calibrated. Accenture (previously known as Arthur Anderson) now does the calibration for the Colossus database. All medical billings entered into the Colossus program must first have been reviewed by MBRS, ADP, AIM, Mitchell Medical or Med-Data. Interestingly, CSC owns the copyright for HCFA (now CMA–1500) billing forms.

How Did This Change Affect the Claims Adjuster?

Accountability has been changed by the instigation of Colossus. It was no longer the adjuster who was held responsible for a claim. The individual adjuster knows that if a claim doesn’t go well, they will not be held accountable as long as the company’s processes and procedures were followed! They use the computer program as it is given to them and enter the data or value drivers as they are directed. They do this because that is how the insurance company evaluates the adjuster’s job performance. This makes it easier on adjusters because there is no decision required by the adjuster; therefore, there is no responsibility.

The adjuster is protected from management criticism, there is no ownership of the outcome of a particular claim, the claims are handled as a group, and there are specific procedures to follow. All this is protection from making decisions that could adversely affect their careers. Since there is no ownership of claim and no responsibility for value, the adjuster has developed a “take it or leave it” attitude (frustration). If the claim does not settle, they ship it off to house counsel. The claim is now dead until the jury comes in.

The insurance company approach has changed from finding a way to pay a claim to one of finding a way to deny the claim.

How Does the Insurance Adjuster Build the Claim?

Unbelievably, there are only one to two days of formal training for the claims adjuster. Even less on the claim’s evaluation process and on the computer program that makes the final decision. This is on purpose because it results in less experienced adjusters and over worked adjusters. No questions are asked, and procedures are followed. The adjuster has no choice but to accept the program as fair. This is all they know, and the insurance company is brainwashing them, so to speak, into believing it. You have heard it when you speak to an adjuster, they believe that lowball offer is fair and rights the wrong their insured created.

Colossus has more than 10,600 value drivers, so this lack of training keeps the adjuster ignorant of all the specific manipulations of the program. If the attorney does not give the adjuster the information to enter into the program, it is not entered. This means lower settlement offers for your client.

The average adjuster has 200 claim files, which is about 300 injured parties. The adjuster must review each one of these claims. They look at the medical records and complete a “Dissection Sheet” they then use to make entries into Colossus. This sheet is intentionally vague and has few value drivers listed. Fewer value drivers entered means lower settlement offers.

A different dissection sheet is used for neck and back soft tissue injuries versus demonstrable injuries, such as broken bones and herniated discs. These changes lead to the obvious results of claim payouts being reduced, claim costs reduced, profits increased, senior personnel replaced with novice claims employees, and case inventories increased for each adjuster, who are now extremely over worked.

In response to the information contained in the medical charts and the demand, Colossus will bring up “dropdown” screens that ask for additional medical information. Remember, the information must be in both the medical records and the demand letter for the adjuster to be required to enter in into the Colossus program. Additional screens can only be opened by the entry of “Triggering Factors,” which are derived from the doctor’s medical chart. Narrative reports are not considered as a source of data for input and are not reviewed by adjusters for this purpose. Medical charts and the HCFA or CMS 1500 forms are the only information considered by Colossus.

In addition, the doctor’s chart must be “mirrored” in the attorney demand letter using the correct language, format, and sequence. Unless the doctor provides adequate medical notes detailing those items considered by Colossus, your client cannot get a full settlement evaluation. Therefore, it is important that the doctors evaluating and treating injuries understand the claims evaluation process. You must educate your doctors on what the medical records should say to be valued by Colossus. You are speaking legalese, the doctor is speaking medicalese, but the insurance program is speaking “Colossese.” If you don’t speak the correct language, you are devaluing your client’s claim.

Those injured and unrepresented by attorneys are forced to accept lower settlements. They know no better. Despite all the advertising by personal injury attorneys, only 20 to 30 percent of those injured in car wrecks retain a lawyer. When a lawyer is involved, the results do not get much better. Attorneys settle 80 percent of the claims for the Colossus settlement figure. Historically, Louisville personal injury attorneys have been their own worst enemy in caving into the new Colossus system and accepting these lower offers.

Why Has This Strategy Worked for the Insurance Industry?

Lawyers do not understand the Colossus style programs and how to communicate with the adjuster.

The medical community doesn’t understand them either. The insurance industry is counting on this and saving huge amounts of money because of this. The result is medical records are missing the documented value drivers necessary to participate in the Colossus value range. Doctors are speaking one language. Lawyers are speaking another. The insurance adjuster yet another. The injuries are there, but they are not being documented correctly.

The Insurance Industry Application of Colossus

How does the insurance industry define Colossus? It is a computer system for assessing general damages for bodily injury claims. The adjuster cannot deviate from the claim values arrived at by entry of the data into the program. If they do, they lose bonus, promotion opportunities, and maybe their job.

What happens when an attorney mails a settlement brochure with all the supporting documentation including medical records and billing? The following is a step-by-step outline of the general process that occurs:

A processer separates documents.
A second processor inputs medical billing into the Medical Billing Review System (MBRS). A bill must have the date of service, amount charged for each modality, ICD-10 coding, and CPT coding for each modality to be considered.
The settlement brochure and records are given to adjuster for input into Colossus. The adjuster then compares the bills to the medical records.
The adjuster reviews records and decides what records to input into Colossus.
1. What is entered increases or decreases the value ultimately arrived at by Colossus.
2. Any questions about billing input are decided by the adjuster whether to accept or deny.
3. The adjuster independently opines which treatment dates and modalities may be reasonable or excessive.
4. The adjuster cannot override the program too often because there may be performance issues for the adjuster.
5. Colossus requires the adjuster to identify specific factors that are documented in the medical records. This is done by a series of Yes/No responses or selection from a multiple-choice listing.
A value is given and then reviewed by the manager.

Codes of Ethics of an Adjuster

Believe it or not, a certain binding “Codes of Ethics of an Adjuster” states that: The work of adjusting insurance claims engages the public trust whereby an adjuster must put the duty for fair and honest treatment of the claimant above the adjuster’s own interest, in every instance. An adjuster shall approach investigations, adjustments, and settlements with an unprejudiced and open mind.

FEEDING COLOSSUS

How Can the Attorney Prepare a Settlement Brochure That Will Maximize the Value Placed on the Claim by Colossus?

Your client’s claim must be managed from the first meeting, including educating the doctors. Lawyers and doctors are unaware of the factors that Colossus, as well as the other 79 claims settlement programs, uses to determine settlement value. Missing “Decision Points” and missing “Value Drivers” in the demand results in missing settlement value.

Attorney Aaron DeShaw, Colossus expert and author of Colossus, What Every Trial Attorney Needs to Know, states: “While the legal profession has historically used narrative-style demand letters to convey claims, much of the information provided in such a demand letter has no value in Colossus. Attorneys need to convey data about the claim using TABLE format.” This runs contrary to our training and education, but we must think differently to do the best we can do for our clients.

It is important to remember that the only way a code can be accepted and entered into Colossus is if the code is documented in the doctor’s daily Subjective, Objective, Assessment and Plan (S.O.A.P. ) notes, included in the legal demand letter AND presented to the insurance adjuster in the correct terminology.

If the doctor or attorney does not incorporate these codes, the dropdown windows do not open. This means you lose the compensation for the codes and factors associated with them. If you do not include them in your demand letter and do not use the proper Colossus approved terminology, the dropdown windows do not open. All three must be present.

How Does Colossus Work?

The Colossus program has 10,720 value drivers in! You must prepare for the demand, as well as trial, beginning with the first client interview. However, preparation for each is different. Colossus arrives at an evaluation by assigning points to value drivers associated with each injury. If each of these injuries are not documented, your client’s case loses value. The actual assignment of points is determined by each individual insurance company. Each insurance company could manipulate this point assignment and database any time it wishes.

The points are represented by “value drivers” in a mathematical equation. Some of the “value drivers” have multipliers as well. These multipliers add significant points to each “value driver.” The mathematical equation consists of the following components, which must be indicated in the medical records and be specifically stated in the demand from the attorney.

Injuries (Number and Type)
- It is imperative that each injury is input separately to get maximum value, i.e., not back injury—instead cervical, thoracic, and lumbar.
Treatment Modalities
Symptoms
Physician Type
Complications
Impairment
Duties Under Duress
Loss of Enjoyment
Final Prognosis
Add-ons

The equation is made of variables which are weighted depending on the injury, treatment, duration of complaints, disability, and impairment. Weighted values are determined by the insurance industry and the individual. Each injury has its own equation consisting of “value drivers” and multipliers. The adjuster is allowed to input those which are documented in the treating records. The program cannot be manipulated by the adjuster without the support of medical documentation.

Each of the “value drivers” with their corresponding multipliers interacts inside the equations to create a total sum of points. The sum of points for each equation is added together. In some instances, they also interact with other injury equations resulting in an even higher sum of total points. After all the equations have been added, additional amounts are then added on to arrive at the total evaluation of the claim.

The additional amounts allowed as direct add-ons are:

Current medical expenses
- Has no effect on the program other than as the add-on to the final authority
Current income loss
Future medical expenses
Future income loss
An amount for disfigurement
An amount for any aggravating issues
An amount of loss of consortium
An amount of emotional distress

The following is an example of an equation for a single injury:

Injury x {(value driver x multiplier)

+ (value driver x multiplier)

….etc.}

Medical expense
Income loss
Future costs
Other considerations

= Total number of Points

Points x assigned weight = Value

You must confirm all symptoms are relayed and documented in the medical records. They must be in both the medical records and your demand letter. Remember, Colossus is an equation that has no human intuitive abilities. All information not included in the equation essentially has no value. Each variable entered by the adjuster causes a reaction by Colossus and sets in motion the opportunity for additional variables the adjuster can respond to. This is in the form of drop-down menus that open. Just one additional body part diagnosed creates additional variables and additional value.

Colossus assigns general damage values within four categories (and nothing else):

Trauma (Pain and Suffering)
Permanent Impairment
Disability (Performing Duties under Duress)
Loss of Enjoyment of Life

Without an impairment rating, the Colossus dropdown menu does not open for sections 2, 3, and 4. Basically, an impairment rating opens an additional 75 percent of the Colossus program. You are leaving settlement value on the table if there is no impairment rating.

What is Seen in the Average Demand?

Historically, and what I did when I started out as a young lawyer, was to send a narrative style demand. It consisted of: (1) Summary of Claim, (2) Background, (3) Past Medical History, (4) Facts and faults of Accident –Liability, (5) Mechanism of Injury, (6) Injuries and Treatment including all records, testing and bills, (7) Economic factors (property damage, lost wages, etc.), (8) Medical Expenses—current and future, and (9) Evaluation, Summary, settlement demand, and supporting documents. This is the way we were all taught. It worked well in the good old days, but not today on your car wreck demand letters.

What Should be in Every Demand Based on the Dropdown Questions in Colossus?

I no longer send the traditional demand outlined above. Since being exposed to Jim Mathis and his Sequoia Vision software called Demand Expert/Demand Online, I changed the way I submit demands. My demands now include the following and can sometimes be more than 100 pages:

Injury types [according to body parts, functions, systems, organs]
Physical examination findings (type of doctor seen, hospitalization/surgeries)
Clinical evaluation objective tools
Evaluation of injury mechanisms resulting in injury types
Evaluation of loss of function (International Classification of Functioning—ICF)
Diagnoses— (Double Digit) International Classification of Diagnoses Codes (ICD-9/10)
Symptoms and complaints [intensity, frequency, duration, type, radiation, effects]
Duties under duress
Loss of enjoyment
Documentation of treatment with respect to diagnoses and costs
Prescriptions with respect to treatment, diagnoses, and costs
Referrals with respect to injury types
Diagnostics, labs, and specialty evaluations with respect to injury types
Immobility devices with respect to injury types
Stability of the medical condition(s)
Static vs. stable injured body parts
Medical determinations overall
Prognosis of each individual body part involved
Prognosis overall
Prognosis for each body area
Future treatment plan
Number of future visits (if not stable)
Future treatment duration, timeline, and cost
Maximum Medical Improvement (MMI) for each body part
Percent whole person impairment [25 percent value assigned to medical claim]. To be provided by independent 3rd party MD using medical validation letter]
Evidentiary burdens of proof that soft tissue injuries meet “Serious Injury Thresholds”
Diagnostic Related Estimates (DRE)
Diagnosis Based Impairments (DBI)
Spine impairment summary
Specific disorders of the spine
Whole person Impairment
Explain delay in seeking care
Explain gaps in treatment
Symptoms (documented)
Complaints are documented according to intensity, frequency, type, radiation, and further effects
Mileage driven calculated

Injuries Considered by Colossus

Every injury is basically considered a separate claim by Colossus. In other words, the following are the types of injuries, or the injury categories Colossus recognizes:

Amputation
Concussion
Disc injury – herniation, bulge, prolapse, protrusion
Crush, extensive soft tissue, degloving
Contusion, soft tissue, whiplash, bruising hematoma
Dislocation – displaced bones at a joint
Fracture
Fracture/dislocation – fracture at or near a dislocated joint
Laceration, penetrating injury – requires sutures
Ligament, tendon damage, cartilage – usually involves surgery
Superficial – cuts, abrasions, scratches
Subluxation – spine only, confirmed by X-Ray
Sprain/Strain
- Colossus does not accept the term disc protrusion. The correct terminology appears to be either bulge/disorder or herniated/derangement.
- In order to accept a sprain, other prior injuries necessary for a sprain to exist should be listed as they occur to the other soft tissues, such as injuries to skin, contusions, muscles, ligaments, nerve and Alteration of Motion Segment Integrity (AOMSI).

Any injury your client has should be included but should fall within one of the above categories. After the injuries are inputted, Colossus asks a series of questions associated with each injury which adds individual value amounts to the claims general damage range.

Common medical terms used when describing symptoms allowed for input are:

Range of motion
Headaches
Spasms
Dizziness*
Visual disturbance*
Sleep disturbance
Radiating pain
Anxiety/Depression*
- Possible symptom of neck and back injuries.
- Allows for additional questions.
- If doctor treated injury, this adds general damage value of claim (can be as simple as ordering exercise or meds).
Temporomandibular Joint (TMJ)*
- Possible symptom of neck and back injuries.
- Allows for additional questions.
- If doctor treated injury, this adds general damage value of claim.

*Allow for additional input based on length or severity of symptom

All symptoms should be listed along with the last date the symptom was noted in the medical records. This list may seem exhaustive, but it is important to include all symptoms.

There are some additional factors you should look at when reviewing symptoms. First, was an injury mistakenly documented as a symptom of another injury? You may have a neck strain that has radiating pain to the arm. This is actually two injuries with a symptom of radiation.

Second, are there treatment records to support anxiety/depression? Anxiety/Depression is often missed or not included in the settlement brochure. This is a very important injury and may often be listed as a symptom. If it is noted by your doctor, it should be included.

Third, are there records to support complaints which reflect a TMJ issue? Headaches and jaw pain are reflective of this. Once again, this is a huge value driver and opens additional drop-down menus. As with anxiety/depression, this can add value to your clients claim.

Finally, each symptom must be documented in the treating records. Your doctor must include the symptom or it will not be included in the evaluation, no matter how much you talk about it.

Each body part (other than neck and back) must have a stabilization period and final prognosis. The Range of Stabilization periods are:

0 – Unknown period
1 – Up to one month
2 – one to three months
3 – three to six months
4 – six to 12 months
5 – 12 to 18 months
6 – 18 to 24 months
7 – 24 to 36 months
8 – more than 36 months

If the records clearly reflect the ongoing complaint and treatment with progressive improvement, the input into the Colossus program is accepted. Often, if there is no improvement or the complaint worsens, this is considered a plateau or MMI do not use the proper Colossus approved terminology and will not be accepted into the Colossus program. The neck and back require specific treatment dates, treatment numbers, treating physician and prognosis. The duration of treatment is determined by the first and last visit as well as the number of visits.

The prognosis is a required input. Only five different prognosis indicators are allowed by Colossus. These are different then what we normally think of as prognosis. Colossus does not recognize the magic language we normally use in litigating a case and deposing a doctor. If you use the “based on reasonable medical certainty” language that we are used to it will not be entered into Colossus. You must list the prognosis as one of the following:

A – Undetermined
B – No treatment recommended/No complaints
C – Complaints/ No treatment recommended
D – Complaints/Treatment Recommended
E – Guarded

It is important to note that Undetermined has the least value of any prognosis. Complaints/Treatment Recommended has the highest value. Interestingly chiropractors can only use Undetermined, No Treatment recommended/No Complaints or Complaints/No Treatment recommended. Only a Medical Doctor (M.D.) can give the prognosis of Complaints/Treatment Recommended. This prognosis occurs when the client is a patient of the M.D., an Independent Medical Exam (IME) has been performed by the M.D., or there is a paper records review.

The prognosis for each body area involved should be listed to identify those individual body parts that will have different long-term effects or require longer healing times or further care, either for pain relief or to minimize worsening. The prognosis for each body part should also match the medical determinations of the need for future care of the involved parts and whether they are static or stable as:

Uncertain, with a 0 – 25% medical certainty of occurring
Possible, with a 31 – 50% medical certainty of occurring
Probable, with a 51 – 75% medical certainty of occurring
Definite, with a 76 – 100% medical certainty of occurring.

MMI should never be designated for the body as a whole, as this devalues the claim value for prognosis. Each body part should have its own prognosis and time frame for reaching MMI. Prognosis is a large value factor and should be assigned by the doctor for each body part injured.

Typical medical prognoses such as Excellent, Good, Fair, Guarded, Poor, and Clinically Unstable, are not used in a Colossus claim. Colossus is interested in other prognosis determination factors as which injuries present symptoms, require ongoing care and treatment, are static or stable, and a likelihood of recurrence of each injury in the future.

Chiropractors v. Medical Doctors

As you have probably already gathered, Chiropractors and Medical Doctors are treated differently by Colossus. The weight assigned to the duration and number of chiropractic treatments decreases the longer it occurs. More visits can actually hurt the claim. It depends on the insurance company and how they have adjusted the program as to how many visits this is, but it is usually around 20.

Now, this devaluation of chiropractic visits can be remedied. One way is if the chiropractic treatment period is sandwiched between medical doctor visits. That process increases the weight. So, if your client is seen at the emergency room the day of the wreck and is then seen by his or her family doctor after being released by the chiropractor, it increases the value given to those chiropractic visits.

The same effect occurs if chiropractic treatment is punctuated by a visit to a specialist. In other words, after your client is released by the chiropractor he or she is seen by a specialist, such as an orthopedic surgeon. Knowing the nuances of the Colossus program makes a huge difference on the settlement offers you receive for your client.

Delays in Seeking Treatment or Gap in Treatment

It is not uncommon that an injured person tries to work through the pain and delay going to get treatment. Life gets in the way and there may be a month where he or she is unable to get to their doctor. The insurance adjuster beats us over the head with these facts. They are only bad if you do not know how Colossus handles them. A delay or gap in treatment must be substantially explained in the records or the weight of treatment is decreased. The doctor must put an explanation in the medical records. This means the doctor must ask the question, or your client needs to offer the explanation. It can be as simple as “the patient attempted to wait out complaints for a short period hoping they would go away.” Educating your client and your doctors is the key so you can avoid this land mine.

Permanent Impairment (The second most valuable factor after injury type)

Permanent Impairment is one of the two most powerful factors driving value of a claim. So, what is a permanent impairment? It is a permanent medical condition resulting from trauma. A permanent impairment is a deviation from the normal function of a body part or organ system. In other words, it is something the body or body part can no longer perform normally.

Permanent impairment is different from disability. Impairment is a medical assessment whereas disability is a non-medical assessment. A disability is how the impairment affects and changes the person’s ability to perform personal, social, or employment demands.

There are some exceptions that apply to assessing brain damage, spinal cord injuries, or skin impairments. (Disfigurement is entered in an area on Colossus separate from impairment.) None of these can be entered as an impairment in the Colossus program. The only head injury impairments that may be entered to Colossus are related to sight, hearing, equilibrium, air passage, or mastication. Value on brain damage, spinal cord injuries, or skin impairments is placed like in the old days. This should be a separate section in your settlement brochure.

Impairment Ratings

Colossus applies general damage compensation based on the body part impaired and the amount of impairment assigned. Impairment ratings are important in understanding Colossus and getting the best settlement offer possible. An impairment rating opens 75 percent of the Colossus drop-down menus!

An impairment rating must be American Medical Association (AMA) derived. Currently, it is based on the AMA Guide to the Evaluation of Permanent Impairment, 5^th Edition. The medical records and findings are applied to the analysis in this book. Everything must be medically documented. It must be in the medical records. This may go without saying, but the patient’s condition must be permanent and stationary before making a permanent impairment assessment. Finally, only qualified physicians can assess impairment ratings. Colossus is not capable of determining the figure. It must be a M.D.— Colossus does not accept a chiropractor’s assessment of an impairment rating.

Static MMI is when the MMI of a body part is determined as static. This indicates the patient has stopped receiving care for the injury. It also indicates that a period of time passed since treatment was stopped. Since that time, no change or improvement in the condition of the body part, organ, function, or system involved occurred. The degree of capacity is static and not likely to increase despite continuing medical measures. No further care is prescribed.

Stable MMI is when the MMI of a body part has been determined as stable. This indicates that the patient has stopped receiving active treatment for the injury. Continued care may be prescribed for a body part that is at stable MMI if it is medically determined further care will reduce future pain or prevent future worsening.

With respect to MMI, your doctor should make the determination as to whether it is static, stable, or MMI for each body part involved. A generic MMI that applies to the whole body is inadequate and has no value! One body part may reach MMI while other body parts are still active and in need of treatment. The patient may stop receiving treatment for the body part at MMI. However, other body parts involved as a direct result of the accident or injury may not be at MMI. They may be at stable MMI with incidence of future occurrence medically determined and warranting future treatment of that involved part to reduce future pain or prevent future incidence of worsening.

Adjusters trained on Colossus are advised to enter permanent impairment to the evaluation only when the documentation supports that it is related to the accident, the physician and the claimant are credible, and the nature and severity of the impact and other factors provided supports its inclusion.

The objective rating system of the American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment, 5^th Edition appears to be the guideline used in Colossus. There are five methods of AMA Impairment Colossus Accepts:

Amputation
Ankylosis (stiffness of joint)
Diagnosed Based Estimates (DBE)
- Mainly lower extremity impairments
Diagnosed Related Estimates
- Patient is assigned to an impairment category based on either the injury suffered or objective findings, which include:
  - Muscle spasm
  - Neurological changes (motor loss/anatomic sensory loss)
  - Observed asymmetric loss of motion
  - Observed changed on imaging studies that correlate to clinical findings
  - Observed evidence of loss of structural integrity on lateral flexion/extension x-rays
  - Loss of bladder and bowel functions

Range of Motion (ROM)
- Restriction or impairment of movement

The AMA Guides provide a system to translate impairment of a portion of a limb into impairment for the entire limb into a resulting whole-body impairment. For example, a 40 percent impairment of a thumb equals a 16 percent impairment of the hand. This, in turn, leads to a 14 percent impairment of the arm, which finally equals an 8 percent whole person impairment.

If you have a pre-existing impairment, Colossus evaluates the difference between the pre-existing impairment percent and the current impairment.

Colossus automatically includes ONLY probable and definite future treatments into its calculations.

There is an exception in the Guides if no physician has provided an impairment. They state: In regard to permanent impairment assessment, it must be performed in accordance with the AMA Guides to the Evaluation of Permanent Impairment, Fifth Edition. Adequate information is provided in the medical records to analyze this case and provides the needed data for the rating criteria in the Fifth Edition. The Guides state, “If the clinical findings are fully described, any knowledgeable observer may check the findings with the Guides criteria.” I do not personally do this, as I like to have a doctor review any finding and have him or her as a witness if the case cannot be settled.

One area I have had success in reference to excessive motion is a condition called Alteration of Motion Segment Integrity (AOMSI). Basically, torn or stretched ligaments in the cervical region cause excessive movement of a motion segment, which is two vertebrae. This excessive motion is measured by the analysis of flexion/extension x-rays, or motion x-rays. This analysis can show a slippage that can be measured in millimeters and may qualify the individual for an impairment rating under the AMA Guides. Obviously, you need an expert to read and make this analysis. I use Precision Spinal Diagnostics. Jack Sells, D.C. is the owner of the company and is a wealth of knowledge on the subject. I urge you to contact him if you have any questions about AOMSI.

Loss of Enjoyment of Life and DUD

Colossus recognizes disability in different terms than the medical community. Colossus uses a different analysis called Loss of Enjoyment and Duties Under Duress. Both areas are only considered in Colossus if there is an impairment rating as little as 2 percent.

Loss of Enjoyment of Life

The loss of enjoyment of life is considered a permanent loss. The Loss of Enjoyment of Life valuation screens appears in a Colossus consultation only in cases of impairment and only after a certain threshold is passed, which is determined by the Colossus program. Generally, Loss of Enjoyment value screens can only be accessed in Colossus if a “whole person impairment of 2 percent” or more is input in the evaluation.

There must be a claim of Loss of Enjoyment of Life by the attorney for it to be considered. Once again, it must also be in the medical records. Specification must be made as to the phase of life for which this claim is made. The choices are:

Work/studies
Hobbies, domestic duties (inside the house)

- This refers to a claim by someone who enjoys maintaining the home and is unable to do so because of the impairment. It does not pertain to the claimant being unable to perform the domestic duty to maintain the home.

Household duties (outside the house)

- Similar to domestic duties above but pertaining to duties outside of the home (gardening, mowing, house painting, etc.).

Medical records must include explicit statements about the Loss of Enjoyment. There are some points to consider in making these claims. If you claim Loss of Enjoyment of Work, you must identify the reason for the loss. Reasons could be Loss of Status within the organization, Loss of Job Security, Loss of Promotional Prospects, Difficulty in performing duties, or Reduced quality of work.

Loss of Enjoyment of Hobbies

If making a claim for loss of income from a hobby (sewing, crafts, etc.), be sure to include a claim for the person’s loss of enjoyment of that hobby. These are two separate claims and must be listed separately to be fully evaluated.

Loss of Enjoyment of Sport

Claims for loss of enjoyment of a sport are more complex. You must consider the activity level pre-accident compared to post-accident restrictions. Also, what was the pre-accident vs. post-accident levels of competition? You should ask whether pre-accident—did the claimant participate in sports on a social level, competitive level, or regionally recognized level? Then when post-accident is reached—is the level of sport the claimant now plays best described as regionally playing, competitive, social, cannot play original sport, or cannot play any sport?

If the individual played multiple sports, for Colossus valuation purposes, consider only the sport that suffered the greatest impact. Also, make sure you can document the claim with gym records, awards, witness statements, etc.

Duties Under Duress

Duties Under Duress (DUD) is last of the most significant drivers of value on an injury claim. It derives 25 percent of the claim. Three things must occur to enter Duties Under Duress in Colossus. These are:

The injured party must actually do one of the accepted activities while in pain.
The physician must appropriately chart the injured party’s performance while in pain.
The lawyer must specifically claim the Duties Under Duress.

30 recognized activities qualify for DUD. A claim for DUD can be made for work, studies, domestic duties and/or household duties. Duties Under Duress involve loss of status within the organization, loss of job security, loss of promotional prospects, difficulty in performing duties, reduced quality of work, and domestic duties such as vacuuming, taking care of children, doing dishes, dusting, doing laundry, preparing meals, difficulty with stability/mobility, difficulty with postural requirements, difficulty with dexterity, anxiety/depression, reduced concentration, and pain that interferes with domestic duties.

You can have a DUD claim in more than one category, which include Stability/Mobility, Postural Difficulties, Dexterity, Fatigue, Anxiety/Depression, Reduced Concentration, or Pain (must interfere with work capacity).

Colossus will consider if claimant is single or married, as well as the number and ages of children at home. The duties affected on a single parent represent a greater hardship, as is the case with young children. These include lawn mowing, gardening, painting, and maintaining the home (the physical structure as well as the grounds).

Under both household and domestic duties, DUD claim period ends when the individual is no longer performing any of the duties under duress. This includes no longer receiving outside assistance. The period of time must be documented. It must state whether it is for a closed or permanent period. As I have stated, your client must communicate these issues to medical providers and those medical providers must provide the proper documentation.

Future Treatment Plan

The future treatment plan should be medically determined and included in the medical documented notes, as well as contained in the demand letter. Future treatment is based upon the overall prognosis, the prognosis of individual body parts, the status of MMI, the degree of impairment, and the determination of whether the involved body parts are static or stable. Future treatment may be prescribed to stable body parts if it is believed.

Future Total Costs

Future cost estimates should be included in the demand letter and represent the total number of visits, charges for primary treatment, therapies, modalities, or the need for future medical expenses related to labs, diagnostics, radiographs, MRIs, CRMAs, specialty evaluations, second opinions or medical validations. They need to be stated in an exact dollar figure to be included.

Loss of Income

This is an add-on like medical bills and must be completely documented. You must include all supporting documentation.

Your Own Individual Attorney Rating

You are rated on how you submit a settlement brochure. Insurance companies play big brother by tracking all past claims and monitoring doctors and attorneys for the average number of “Value Drivers” submitted in each case. The more “Value Drivers” submitted, the higher your rating, which results in higher settlement valuation.

Additional Add On Items

Some other information to gather before submitting a demand include the mileage to and from the doctor’s office for each visit, items lost or damaged in accident, vehicle diminution, childcare, walkers/wheelchairs/mobility aids, house/garden help, prescriptions, new mattress, cost of Gym program, tuition or vacation costs lost.

Conclusion

The Colossus program is complicated and is set up to make us fail as attorneys. If you do not know what value drivers are and which ones exist in your client’s claim, you will not receive top value for your client’s claim. If the treating physician does not know what value drivers are and does not document them, you will not receive top value for your client’s claim. If your client is not aware of what value drivers are and does not relay them to the physician, you will not receive top value for your client’s claim. You must educate everyone on the elements of Colossus.

If the treating physician does not document them correctly, you will not receive top value for your client’s claim. The impact medical records have on the final authority of a claim is of more importance than any demand package put together by an attorney. If you do not put your demand into the format needed by the adjuster to put all the correct information properly into Colossus, you lose time and value. If you do not identify the value drivers in your demand, the adjuster will not enter them into Colossus.

Remember half of our clients are permanently injured, which means half of them should have impairment ratings (educate the doctors you use on this). As you have learned half of clients should have access to the extra 75% of case value which is set aside for those that will require permanent ongoing treatment. And again, the rules the algorithms follow are consistent…. if you know what they are.

If you leave it up to the adjuster to find the value drivers and maximize them, you will not receive full value for your client’s claim. Take control! If I can be of help give me a call.

I want to send a thank you to Jim Mathis, from whom I have learned most of my knowledge about Colossus and the claims process. Without his guidance and expertise, I would not have had the successes I have had. Jim has extensive professional experience in the insurance industry. He has held management positions with Allstate and Farmers Insurance in his past experience.

As owner of Sequoia Visions, Inc., he designed and created innovative software for the legal and medical communities to address the ongoing changes and compliance demands of the insurance industry— a program I use and swear by. Many of you may have met him and seen him speak at a KJA seminar. I strongly urge you to contact him and check out his demand expert program at sequoiavisions.com.

For more information contact the Louisville personal injury lawyers at The Shafer Law Office today!

Colossus – The Myth Explained