ANTICIPATION IS YOUR BEST OFFENSE: A BASIC GUIDE TO KEEPING YOUR ERISA LONG-TERM DISABILITY CLAIM APPROVED
Insurance companies can make the processing of a long-term disability claim unimaginably difficult. When a disability insurance company issues a written denial, its reasoning can seem insulting, insensitive, and even callous. Litigation is always available as a means of holding difficult disability insurance companies accountable. However, it is often more effective to take active measures in order to preserve a disability claim that has already been approved. Here are a few suggestions for keeping your ERISA disability insurance claim in ‘approved’ status:
1. ‘Name’ Your Disability. A disability claimant, particularly someone who has struggled with several medical conditions, may want to claim all medical conditions as the cause of an inability to work. Sometimes, this is true. Still, listing multiple medical conditions provides an insurer with a unique opportunity to deny or terminate a disability claim. An insurer may question whether the medical evidence on each individual medical condition is, itself, disabling. When an insurance company employs such an approach, its denial letter will be lengthy and cite multiple reasons why each specific condition is not disabling. The insurance company may view each medical condition separately, rather than as contributing to the overall medical condition.
In the ERISA disability claims process, a claimant’s medical condition is properly viewed in terms of primary and secondary causes of medical disability. Such an approach focuses a disability claim. This approach allows an employee to explain the precise cause of an inability to work. If a claimant lists ten (10) different medical conditions as the primary cause of disability, the claim becomes unfocused. This does not mean that medical conditions should be omitted from claims forms and requests for medical records. Not at all. All medical conditions are relevant and should be listed. It does mean, however, that the claimant should be able to succinctly articulate the medical condition or conditions which primarily cause an inability to work on either a full or part-time basis.
2. Know and Understand the Definition of ‘Disability’ or ‘Disabled.’ ERISA group disability insurance contracts tend to be form documents with similar definitions and coverage structures. A typical group disability contract promises to provide income replacement benefits to an insured participant who is unable to work because if illness or injury. Additionally, whenever a claim is reviewed, a claimant should know the applicable standard for the continued receipt of disability benefits. A disability contract may provide insurance for a claimant’s inability to perform his or her “own occupation” or “regular occupation.” A contract may also provide insurance coverage for the inability to perform “any occupation.” A contract may provide some combination of both coverage standards.
For example, a contract may insure a participant for up to 24 months for the inability to perform his or her own occupation, after which the participant may be required to provide proof that a sickness or injury precludes that participant from performing any occupation for which he or she has the necessary skill set. When responding to a review, it is important to know which definition or standard the insurance company will be using to evaluate the claim. Usually, the insurer will advise a claimant of the standard they will be applying when the claim is placed into review. A claimant should be familiar with the applicable definition of disability and be evaluated by treating medical providers in light of what is required by that definition.
3. Correctly Complete the Attending Physician Statement. Long-term disability claims are based in large measure on the submission of record evidence and the preparation of claims forms. The typical forms used in ERISA claims include (1) an employee statement of disability, (2) an employer work history statement, (3) an authorization for the release of medical records, and (4) an attending physician statement.
Sometimes referred to as an “APS,” the attending physician statement is a key document in a disability claim. In it, a physician (or sometimes multiple physicians or healthcare providers) identifies the claimant, the claimant’s medical condition, dates of treatment, and dates of claimed disability. The “APS” inquires about restrictions or limitations and asks the medical provider to evaluate the physical abilities of the claimant to perform functions such as sitting, standing, walking, and the like on an hourly basis.
Standardized “APS” forms are notoriously ambiguous. For example, a standardized “APS” form may inquire whether the claimant is mentally able to work. A treating physician in the area of internal medicine may not be familiar with a claimant’s mental status and may fail to complete the section or, worse, inadvertently state that the claimant is not disabled. Another common mistake is failing to read the forms correctly. All physical tasks should be viewed in the context of full workweek abilities unless otherwise stated. Sometimes, the forms inquire about the ability to perform certain functions over a 24-hour period. “APS” forms should be read and completed with great care and attention to detail.
4. Treat Regularly With Doctors Who Regularly Treat Disabled Patients. A strong corollary of submitting a properly completed “APS” form is to treat regularly with physicians and providers who understand occupational disabilities. “APS” forms take time to complete. Some busy physicians refuse to properly complete them. Since a disability claim may span years or even decades, it is important to treat regularly with a physician or health provider that is experienced in treating patients with chronic conditions and who understands that paperwork might be required. A claimant should recognize that medical insurers will typically not cover the cost of preparing any administrative forms and should inquire about and be willing to pay for the administrative cost of completing these crucial forms. Physicians should not be expected to work for free when using their expertise to assess disability.
Regular and continuous medical treatment is equally important. When a disability claimant is notified that a claim is being placed in internal review, the claimant will often immediately schedule a doctor’s appointment. Although innocent enough, if there is a lengthy treatment gap, the insurer may take the position that the medical appointment was merely to secure a supportive statement, instead of actual medical care. A claimant does not need to over-treat, but regular appointments, follow-up appointments, and documented medical care are critical to establish long-term, chronic conditions.
5. Document All Limitations and Restrictions. The medical basis for disability claims is based on proof of functional limitations and medically necessary physical and mental work restrictions. Over time, a chronic condition may result in the discovery of new and different physical limitations. A claimant should bring these to the attention of a physician as soon as they are discovered. This is important for three reasons. One, the medical care may need to be changed based on a newly discovered physical limitation. Two, the reporting and verifying of new limitations may indicate the worsening, rather than the improvement of one’s overall health. Third, a medical record reported in “real-time” is less likely to be challenged as opposed to a claimant disclosing new limitations after the claim is placed into administrative review.
6. Seek Objective Testing Where Possible. Insurance companies are increasingly demanding “objective” proof or evidence of limitations or disability, even in cases involving mental health. Some ERISA disability plans now require “objective proof” of disability as a precursor for being approved. Objective proof is ordinarily considered MRI, CT-Scans, EEG, EKG, blood chemistry panels, and other methods of objectively verifiable diagnostic testing. In cases involving physical disabilities, a functional capacities evaluation (“FCE”) should be considered. In cases involving cognitive disabilities, a comprehensive neuropsychological examination should be considered. Even if the particular tests are not covered by insurance, a claimant may want to schedule them anyway and pay for them directly as they will greatly assist in proving continued disability during a claim review.
7. Document Activities of Daily Living and How Those Activities Have Changed. A disability claim usually follows a similar path. There is a “before and after” quality to the claimant’s lifestyle. A busy lifestyle and robust social life can be replaced with a quieter and less active life coping with the loss of functionality and pain. Sports activities, community activities, and travel can all be reduced dramatically. This does not mean it will always be so. Individuals coping with chronic illness do find ways to be productive, see relatives and friends, and participate in some outside activities. Initially, and usually, for some prolonged period of time, a claimant’s former lifestyle is altered considerably as a result of medical disability. It is important to document all such non-occupational changes.
8. Do Not Believe That Once Approved, Always Approved. When an insurance company approves a claim, it typically does so only for a fixed period of time, 90 days, six months, or one year at a time. An insurance company conducting a review will almost always request updated medical records. A claimant should keep a running folder or binder of all medical records for all treatments even after a claim is approved and should review them for accuracy. The records, themselves, will provide a useful medical history when a claim is reviewed. Up-to-date, accurate, and complete medical records will increase the odds of a claim remaining approved. Additionally, if an insurer requests an in-person visit or interview or requires that a claimant undergo an in-person examination, it may be time to consider hiring an attorney experienced in disability claims. These actions signify that an ERISA disability claim may be on a litigation footing.
9. Be Cautious About Online Postings and Public Appearances. A disability claimant’s most frequent contact with the larger world is, like most others, through the use of the computer. Online accounts and social media have become ubiquitous and inexpensive. Anything a person does can be publicized to the world right as it happens from a phone, tablet, or portable computer. The risk inherent with social media postings for a disability claimant should be apparent. A posting, even an innocent posting, which is at odds with claims of total disability can and will be used against a claimant. Therefore, the public broadcasting of one’s activities through social media, particularly the posting of attendance at personal outings and events is discouraged. (For more on this subject, please see An Online ‘Friend’ You May Not ‘Like’).
10. Watch Out for Surveillance. Few things in an ERISA long-term disability claim are as unsettling as a claimant realizing that the insurance company has ordered surveillance. Worse, in ERISA disability cases, the films tend to be heavily and selectively edited since the surveillance videographers cannot be subpoenaed. Disability claimants cannot prevent intrusive surveillance but can protect themselves with a few pointers. First, determine whether your insurance company relies on surveillance filming. Liberty Mutual and Sedgwick CMS are currently disability companies which rely heavily on the use of surveillance in disability claims. Second, note that surveillance is not (typically) conducted as a 365-days-a-year program. It is expensive. Insurance companies tend to use surveillance around the time they request updated medical claims forms and new medical record authorizations. Third, be vigilant. Take notice if a strange vehicle begins appearing on the street, or a vehicle is occupied. Surveillance companies tend to conduct full-day observations. Most start as early as 7 a.m. or watch a person over multiple days or over a weekend. The good news is that there is usually an end date.