Incident Report vs. Pre-Claim Assistance?

July 09, 2020
By Ivy Dickinson, TAC Litigation Examiner
Risk Management News

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Oftentimes I receive calls from members questioning whether an "incident" is reportable or not, and whether it's worth it to actually make a claim vs. letting an incident blow over with time, and spare a deductible expense.

Here is an example of an incident — ask yourself, is this something the TAC Risk Management Pool (TAC RMP) needs to be aware of or is this something an internal county human resources department can take care of? Or both?

Example incident

Two female county employees, Sally and Jane, have not gotten along for years. They are constantly complaining about each other and have completely different political views. Their superior is Beth. Sally and Jane work on the same floor but have different job duties. Their direct interaction is pretty minimal. However, their HR department has kept a good log about their complaints against each other over the past 10 years. One day both employees were in the restroom at the same time. There was a confrontation. Other employees outside the restroom could hear yelling from both of them. After the altercation, Sally went to Beth to report the incident, and Jane went directly to their HR department. When Beth compared Sally's complaint against Jane's HR complaint, the allegations were completely opposite. Each blamed the other for starting a physical confrontation.

Sally's complaint stated: "I was coming out of the restroom as Jane came in. She bumped me at the sink and called me a bad name. I advised her this was inappropriate and that I was reporting this incident. She then pushed me into the door as she stormed out."

Jane's complaint stated: "I entered the restroom and Sally was washing her hands. As I started to walk into the stall, Sally started yelling at me and pushed me down. I tried to get away from her, but she blocked the door. I had to push my way through, and I am now injured. If you don’t fire her immediately, I am getting an attorney."

The HR department conducted an investigation, noted that Jane had red marks on her arms and knees, and took photos of the injuries. Sally was written up (not fired), and Jane was given a verbal warning. Jane quit the next day.

What to consider

With this information, should you report this incident to TAC RMP? Jane did threaten to get an attorney. Was she bluffing? Should county officials wait until they hear from Jane again? Is it worth hiring an attorney to do an investigation when your HR department has already done one? Is it worth paying the county deductible to gather the same information? All of these are great questions!

One of the things I like to tell members is, "When in doubt, call it out." Call your claims litigation examiner at TAC and give them the scenario. This costs nothing, and we are always here to assist you with questions. Your claims litigation examiner has probably already dealt with a similar situation and can help you determine your next best step(s).

In this situation, the county did call TAC and, after discussion, determined that since Jane "threatened" an attorney early on, that this should be set up as a pre-claim even though HR kept good records and conducted a good investigation. Defense counsel was able to get direct statements from all witnesses and gather all needed documentation early on while witness memories were fresh. We discovered "other" incidents between Sally and Jane that were never reported to HR or Beth. Getting statements early from witnesses helped support the county's defense. Had the county waited until a suit was filed up to two years later, those witnesses' testimonies could have been lost.

One month after this incident, the county received an "intent to sue" letter from an attorney claiming that Beth and Sally are friends outside the workplace and that they racially discriminated against Jane because she is Hispanic. Additionally, the attorney alleges Beth retaliated against Jane for reporting the incident to HR instead of following the proper chain of command. The attorney further stated that by not firing Sally for pushing Jane down — even after seeing bruising on her body — the county was prejudiced against Jane's protected race.

The attorney for Jane filed suit almost a year after the incident.

The lessons of this story

  1. Gather witness statements.
  2. Take pictures of physical injuries or property damage, if any.
  3. Document all personnel incidents, including all disciplinary actions.  
  4. "When in doubt, call it out!" TAC Risk Management Services staff are always here to assist you!

Disclaimer: This sample claim is a work of fiction. Any names or characters, businesses or places, events or incidents, are fictitious. Any resemblance to actual persons, living or dead, or actual events is purely coincidental.