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With such intense focus on a single communicable illness, it is easy to forget that we, as human beings, suffer from other illnesses.  Some medical journals are concerned that rates of serious medical conditions may rise as many would-be patients did not seek preventative care during much of 2020. And the trend continues.(https://healthcostinstitute.org/hcci-research/the-impact-of-covid-19-on-the-use-of-preventive-health-care.)

“Work from Home” will not affect occupational disability situations.  Obviously, people will still have to confront illness or injury even if they are working from home.  The risk for injury may be reduced somewhat since there is less travel, driving, and going in and out of public places, but illness still shows up.  Just think of how many people you may know who have passed away or become sick from something other than Covid-19 over these past months.

“Work from Home” may affect the manner in which insurers evaluate “Essential Duties” or “Main Duties” but not right now. Group disability plans and insurance contracts are often provided without comprehensive underwriting as in the case of individual disability insurance policies.  When an individual applies for disability insurance coverage, the insuring company typically requires blood tests, electrocardiograms, and body-mass index (BMI) measurements. The company reviews medical records, tax returns, and then issues the contract for a premium.  Group disability contracts, by contrast, typically insure occupational titles, not specific people.

The question arises now that people can work from home, will insurers claim that ill or injured workers are able to perform their jobs more easily with at-home accommodations. For the immediate future, insurers may be on the wrong end of this one. Since group insurance contracts often insist that a job must be evaluated on how it is performed – nationally as opposed to specifically – the impact of WFH may not be available as a defense to denying or terminating a disability claim.

The “Essential Duties” or “Substantial Duties” clauses of those contracts have not yet been updated to look at those jobs as they are being performed at home versus a standard work environment.  Furthermore, the guides for those jobs – like the Dictionary of Occupational Titles or ONET – have not yet been updated to account for this WFH period in our work history.  For a while, the insured stands to benefit.

Bottom Line: Work from Home (WFH) should not aid insurers in the short-term.  Group contracts may be re-thought if WFH is a trend that continues and as the work requirements for occupational titles is updated.

For those who have successfully fought to have a disability claim approved, they want it to stay that way. When the letter arrives from an insurance company seeking an update in status, most claimants begin to worry – and rightly so. As the Western District of Michigan federal court wisely observed fifteen years ago:

The plan and insurance language did not say, but the world should take notice, that when you buy insurance like this you are purchasing an invitation to a legal ritual in which you will be perfunctorily examined by expert physicians whose objective it is to find you not disabled, you will be determined not disabled by the insurance company principally because of the opinions of the unfriendly experts, and you will be denied benefits.

Loucks v. Liberty Life Assurance Co. of Boston, 337 F. Supp. 2d 990, 991 (W.D. Mich. 2004) (vacated following settlement).

Under the terms of their contracts, disability insurers are entitled to request continuing proof of loss.  So, it is also reasonable to expect that that a disability claimant will be called upon to provide updated medical proof of their condition and disability. This does not mean that an insurer may act unreasonably in requesting continuing proof of disability, only that an insurer may reasonably request updates on a claimant’s medical status.  For a disability claimant receiving a monthly payment, it should be acknowledged that once the payments begin the claim is not over.  The only way to effectively deal with this climate is get out in front of it.

Here are our suggestions:

  1. Go to every doctor’s appointment with a list of continuing physical (or if applicable psychological) limitations. Don’t leave a single thing out.
  2. Document and report every single side effect of your treatment or medication.
  3. Document and report every unique episode (a fall, a forgetful spell, or a day spent in bed) and timely make your doctor aware.
  4. Do not miss doctor’s appointments. If you anticipate a problem, reschedule right away. Under no circumstances should it ever be listed that the claimant was a “no show.”
  5. Make sure the doctor has documented everything before you leave.
  6. Routinely request copies of your records and make sure they are complete and correct – before they are requested from an insurance company.  Best practice would be to request a report be sent to you after every visit.

Successfully securing a disability claim approval is a victory to be sure – yet take care to follow the steps set forth above, or it can be short lived.

A federal district judge in Mississippi undertook the painstaking steps of collecting and documenting Reliance Standard’s long history of abusive claims practices in disability claims.   The expansive decision of Nichols v. Reliance Standard Life Ins. Co., No. 3:17-CV-42-CWR-FKB, 2018 WL 3213618 (S.D. Miss., June 29, 2018), contains hundreds of citations of cases where reviewing courts have found a long history of improper practices on the part of Reliance Standard in the ERISA benefits context.

With respect to relief, the district court ordered Reliance Standard to pay full past due benefits to the disabled claimant and instated the payment of future benefits.

The district court identified common themes and patterns known to lawyers who litigate against Reliance Standard – biased experts, disingenuous denials, inconsistencies, and reckless indifference in evaluating the medical claims of its insured.

The district court, realizing the limits of ERISA, did point out that perhaps further case law will expand the remedies available to disability claimants against insurance companies like Reliance. The district court explained:

Many courts have, after recounting Reliance’s abuses, ordered the insurer to pay benefits and attorney’s fees. Apparently, these costs have not caused Reliance to change course, as it has spent decades ignoring them with impunity—perhaps treating them as the price of doing business. In future cases, courts may be asked to order further relief to curb Reliance’s perceived abuses. That relief can be quite broad. (Id. at *10).

The district court in Nichols appeared to give serious consideration to the Supreme Court’s observations in Metro. Life Ins. Co. v. Glenn, 554 U.S. 105 (2008), that an insurer’s history of claims abuses should be given greater weight when evaluating a determination under the abuse of discretion standard. Id. at 117.  (“The conflict of interest at issue here, for example, should prove more important (perhaps of great importance) where circumstances suggest a higher likelihood that it affected the benefits decision, including, but not limited to, cases where an insurance company administrator has a history of biased claims administration.”)