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We have all been there at some point in our lives.  A promise is made.  A promise is broken.  We feel cheated, and maybe even a little hurt.  When you feel that you operate from a place of honesty, and others do not, the entire experience can be disillusioning.  In their simplest form, disability insurance contracts are promises.

In several years of assisting clients with their disability insurance claims, we have made a few observations.  Our clients are responsible. Our clients work hard.  They made choices about their financial future they believed were correct. They played by the rules.

It is not you. It is the insurers. Insurers change the rules.  It has almost become part of the insurance industry’s normal operating procedures. Often times, that is why an insurance company’s sales department is separated from its claims department. Promises made by one part of the organization may be more easily broken by another part of the company. Here, the law serves a purpose.  The law is here to hold insurers accountable.   Nothing more.   Nothing less, either.

Disability insurance cases involve two of the most emotional issues that many of us will ever face. Disability insurance cases involve the intersection of health and finances. Our firm understands this, and we approach these cases with this firmly in mind.

Below are a list of our firm’s guiding principles:

Total Investment.  Our approach is spend considerable time at the outset, getting to know our clients and the individual facts of their case.  While we are selective in the number and types of cases that we litigate at any one time, this is because once we sign on, we are fully invested.

Winning Your Case.  We strive win cases. We cannot guarantee legal outcomes, of course, because a host of different factors may affect a case’s outcome.  That fact does not change our focus.   We want to win on the quality of our written and public presentations.  We routinely face major corporate law firms with plenty of resources and armies of lawyers.  We want our presentations to win because we are on the right side of the issues and the law.  We are committed to submit quality presentations on behalf of our clients.  Every time.  No exceptions.

Individualized Service.  We strive to provide the individual level of client service that our clients have come to expect of us through the years. We are in constant communication with our clients.   We return all phone calls and email messages within one day. We are proud of our courtroom record, and we regularly review the hundreds of letters that we’ve received from satisfied clients to keep us focused on our commitment.  Most of these inspiring letters say the same thing — what was promised in the beginning is what was delivered at the end.  You should know, as our clients have attested, that once we sign on, there is no hand-wringing.  We are with you.  That is our commitment to you.

We look forward to serving you.

The Sixth Circuit Court of Appeals has cited the “spirit of ERISA” in reversing a district court decision granting summary judgment against an employee pursuing a disability claim.  In Waskiewicz v. Unicare Life & Health Ins. Co., 802 F.3d 851 (6th Cir. 2015) the plaintiff-employee was suffering from mental illness when she was discharged by her employer.  At the time of the discharge, Ms. Waskiewicz was insured through a long-term disability insurance plan established by her employer.   Ms. Waskiewicz did not timely file her claim, in part owing to her medical condition. The district court dismissed her claim, finding that she had failed to comply with her disability plan’s notice of claim requirements.

The Sixth Circuit reversed the district court finding that, given the claimant’s mental condition, the court’s reading of the language appearing in her disability contract was too strict.  The Court held:

While she did not comply with the notification deadlines outlined in Section 4.02 of the Plan, that failure is not surprising given that she was suffering from severe mental illness and was unable to comply due to the very disability for which she sought coverage.

An insurance policy can hardly be said to provide employee disability “insurance” at all if it protects against sudden disability but not if the employer immediately discharges the employee because of the disability before she gets a chance to apply for the benefits.  Waskiewicz, 802 F. 3d at 855-866 (emphasis in the original).

Notably, the Court held:

Common sense convinces us that the denial of benefits in this case runs contrary to the spirit of ERISA, which is designed to protect employee benefits, not subject them to arbitrary termination—in this case retroactive termination—after the benefit has otherwise accrued.  Id., 856.

The Court’s holding recognizes the unique role that an ERISA plan plays in the financial planning of employees. The Court’s recognition of the “spirit” of the ERISA law may require a court to consider the law’s intended purpose – the financial protection of employees through their employee benefits.  Occasionally, this may require a court to look past strict contractual interpretation and focus on the aims of ERISA.

J.J. Conway has been named a 2016 SuperLawyer by Thomson Reuters.  J.J. has been listed as SuperLawyer or SuperLawyer Rising Star on nine occasions. SuperLawyers is a “rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer-recognition and professional achievement.” The selection process “includes independent research, peer nominations, and peer evaluations.” www.superlawyers.com.

For more information and to view J.J.’s Superlawyer profile, please visit:
J.J. Conway’s SuperLawyer Profile.

J.J. Conway Law is an employee benefits law firm representing clients in the matters involving ERISA, pension, long-term disability insurance, healthcare, life insurance, as well as other benefits matters. Based on Royal Oak, Michigan, the firm represents clients throughout the United States in ERISA and employee benefits matters, including complex benefit class action cases.

10 Practical Considerations for the Long Term Disability Claimant Considering a Lump Sum Settlement of an Insurance or ERISA Claim

A beloved client who suffered from a serious and debilitating illness finally seemed to get a break. After years of pursuing his claim, including time spent in active and aggressive opposition in a federal court, the defense offered to settle. The insurer agreed to pay the client a lump sum settlement in order to resolve the matter in exchange for a release of further liability. The client was relieved. The battle was ending, and there was financial relief on the way.

As with most settlements, there is a delay between an agreement to resolve a dispute and funds being received. Typically, the lag is a month, perhaps a bit longer. During this time, the client seemed anxious, but patient. He inquired frequently about the status of his check, but he was always patient, courteous, and appreciative. Finally, the big day arrived. The check was in. He let us know he would leave his house and be coming to the office right away. Driving was extremely difficult for him, if not inadvisable, but he was undeterred.

We met in the office, went over the formalities, and he collected a sizable check representing the entire settled value of his claim. We asked if he needed any assistance getting back home, or whether he was sure he could drive himself. He said we had nothing to worry about. He would not be going too far.

The next morning, there were several messages in my voicemail box. They were from a family member of the client, each with increasing urgency and anxiousness. I had a slightly sinking feeling. Before I could call back, the family member called again. He was exasperated. He told me that the client had taken the funds to a newly opened casino in Canada and spent every last penny of his settlement gambling. He revealed the client did not have the $2 dollar toll for the bridge to return to the U.S.  Now, the client was calling family and friends to pick him up and bring him back over the border. We never knew the client had a gambling problem.

Three words come to mind: shocking, true, and preventable. While admittedly this is an extreme example, it is instructive for our clients and for us when dealing with large sums of money that come from large disability settlements.  Here are ten practical considerations when thinking about whether to take a lump sum:

1.  Consideration hiring a legal expert to understand the release agreement.

A lump sum payment in a long term disability case will involve settlement paperwork. Settlement documents fully resolving a disability claim are critically important documents and must be carefully reviewed to insure that their terms are not overly broad or release other types of benefits not covered by the release. Often times, the settlement documents are prepared as general releases, meaning they extend to claims beyond the specific insurance contract.  These documents must be revised in order to ensure that the release is properly limited.

2.  Consider the income tax consequences of a large settlement.

Sometimes, a lump sum long term disability settlement will have no adverse income tax consequences.   Other times, there are potentially significant income tax consequences.  In such cases, there are steps that may be taken to lessen the tax burden. Consult an experienced professional to see exactly which steps may be taken to minimize the income tax implications of a large settlement. There are strict rules that must be followed to insure that a claimant may be able pay income taxes over time, rather than at the time of the lump sum.  Even a large tax liability may be made more manageable with proper settlement drafting and financial planning.

3.  Consider the hardship in the claims administration process.

Long term disability insurance companies have contracts or benefit plan provisions requiring a claimant to submit “continuing proof of loss” or “proof of continuing disability.” These “proofs” are likely standardized forms requiring a claimant to set forth the activities of daily living and also forms for completion by attending physicians. One of the advantages of a lump sum settlement of a large long term disability claim is that this process will come to an end.

4.   Consider your own financial tendencies and habits.

Prior to being placed on long term disability, consider whether you were  a spender, a saver, or somewhere in between.  The challenge with a large settlement or a lump sum buyout is that there is a significant amount of money which is easily accessible. Disability claimants who receive buyouts typically do not purchase new cars or homes. Their behavior may change in more subtle, yet expensive ways. For example, if a refrigerator breaks, rather than paying for a service call, a claimant may opt to purchase a brand new appliance. Over time, these changes in behavior can eat away at the proceeds. The key inquiry is whether a claimant can responsibly handle large funds in a disciplined way.

5.   Consider what would happen if somehow you lost it all.

A long term disability claimant receiving a monthly disability income replacement check has likely figured out a way to live off of that sum. A claimant has been living on a fixed income. The monthly disability checks are used to pay housing expenses, clothing, groceries, prescription and physician copays, and the like. With a lump sum settlement, those costs do not cease.  Instead, they must be paid from some other source such as the settlement funds, an annuity, divided income, or even some form of new employment.  Consider how you would live if the proceeds of the lump sum were used up entirely.  How would you pay your bills? Some claimants may be able to answer that they would attempt to work in a very sedentary capacity. Others might not be able to answer the question at all.  It is well worth considering.

6.   Consider how you will handle the settlement funds when they are received.

Before ever receiving a settlement check, a long term disability claimant should know how the settlement funds will be handled.  Will the settlement funds be immediately placed into a structured settlement like an annuity, or will they be invested with an investment firm, or will they simply be placed into a savings account of some type? These considerations should be made well before any large settlement is ever reached.

7.   Consider your response to “loan” requests from family members and friends.

A long term disability insurance claimant should be aware that even though they are addressing their own serious health issues and financial challenges, upon learning of a large settlement, others may actually approach the claimant seeking personal loans. This, too, can eat away at a large settlement. A good way to avoid this situation is to tell others that the resolution of the matter cannot be disclosed owing to confidentiality.

8.   Consider how your life would be different if the disability claim were resolved.

Long term disability is one of the most stressful events in all of life. It is the intersection of health and finance, and neither are working out well. Adding to the stress is the regular interactions with claims adjusters, insurers, and examiners.  One of the great advantages of a settlement is that this process will be removed from your life and you may be better able to focus on the future.

9.   Consider your current state of health.

A long term disability claimant should give consideration as to the cause of the disability. If claimant’s state of health is precarious, and there is a possibility that full amount of benefits may not be collected, this should be given due consideration. Conversely, if the disability claimant’s condition is chronic, but unlikely to be life-threatening, the issue of how many years of disability remain is an important consideration. A lump sum settlement may not be in the claimant’s best interests.

10.  Consider how the funds will be invested.

A claimant should give proper consideration how the a large settlement will be invested and by whom. A claimant’s receipt of a substantial sum of money tends to be followed by offers from financial advisors. A large settlement must last for several years, if not decades. A large settlement can appear much smaller when the number of years it covers is actually considered. Proper financial planning is key to having a successful resolution of a long term disability claim on a lump sum basis.

What is ERISA?

“ERISA” is an acronym standing for the Employee Retirement Income Security Act of 1974 which went into effect on January 1, 1975. The statute was designed to protect employee pensions and other employee benefits. 29 U.S.C. §1001 et seq.

The statute changed the landscape of employee benefits law by requiring that all benefit plans be regulated by the federal statute instead the laws of the 50 states. ERISA is comprised of four titles: Title I regulates the dissemination of information to the plan participants. Title II covers the tax laws related to employee benefits. Title III covers the administrative and legal enforcement provision of ERISA. Title IV created the Pension Benefit Guaranty Company (PBGC), an insurance program that provides insurance coverage for certain types of pension plans acts somewhat like the FDIC, or Federal Deposit Insurance Corporation.

Download the ERISA Guide

J.J. Conway has been named a 2015 SuperLawyer by Thomson Reuters.  J.J. has been listed as SuperLawyer or SuperLawyer Rising Star on eight occasions. SuperLawyers is a “rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer-recognition and professional achievement.” The selection process “includes independent research, peer nominations, and peer evaluations.” www.superlawyers.com.

For more information and to view J.J.’s Superlawyer profile, please visit:
J.J. Conway’s SuperLawyer Profile.

J.J. Conway Law is an employee benefits law firm representing clients in the matters involving ERISA, pension, long-term disability insurance, healthcare, life insurance, as well as other benefits matters. Based on Royal Oak, Michigan, the firm represents clients throughout the United States in ERISA and employee benefits matters.

Years ago when our firm was in need of the services in a business transaction, we met in an office with a professional, and he outlined everything that needed to be done. He was thorough, and the process seemed like it would take a considerable amount of time.  At the end, I asked him what the entire project would likely cost.  Since he was going to be compensated on an hourly basis and was not sure of the actual amount of time required, he replied, ‘They are professional services.  No one wants to pay for them.  But, we will be fair.’

Implicit in his words was the acknowledgment that for most people, professional services are an unbudgeted expense.  Naturally, that worries people.  This is especially true for persons who are experiencing a legal problem with their disability insurer.  At the same time they are addressing a health issue, they are now required to seek out legal services.

After two decades of law practice, we have come to understand the costs inherent in pursuing an ERISA disability case.  Although, litigation can always lead to unexpected detours, the costs of an ERISA disability case can often times be estimated. Typically, a rough estimate of legal services from the filing of the claim to the completion of a case can be provided to a client.

From there, three different financing options are available to clients.  First, legal fees may be paid hourly and invoiced on a regular basis explaining the work that has occurred to advance the case.  Second, legal fees can be “contingent.” This means that rather than paying an hourly fee, a percentage of the benefit may be paid to compensate for the legal work performed.  A contingent-fee has the advantage of protecting a claimant against further losses, since a fee is only charged if the case is won or settled.  Third, a fee may be financed over time with various options available to the client.  Each case is different.  Each need is different.  Customized fee arrangements are available to address the individual needs of each client.

It should come as no surprise that doctors want to practice medicine. Doctors do not want to complete claims forms or be dragged into litigation. No one knows this better than ERISA disability insurance companies.  In fact, among the many strategies used to stack the odds in their favor, ERISA disability insurers will often send multipage, complex, and time-consuming forms to claimants.  Then, the insurers will demand that they be promptly returned under penalty of a claim being denied or terminated. There is one bright spot in all of this.  In the typical ERISA disability case, a physician can be a full, helpful, and significant participant while being only minimally inconvenienced. Below is A Basic Guide to ERISA Disability Claims for Physicians and Healthcare Professionals:

1. No Depositions: A Physician Will Not Be Deposed. Typically, in an ERISA disability insurance case, a physician will not be called upon to provide a deposition. An ERISA disability claim involves a review of the paper medical file, treatment notes, opinion statements, test results, medical narratives, and other medical and occupational documentation.  Generally, all federal courts in the United States restrict pretrial discovery in an ERISA case, and strictly limit the court’s review to the paper record.  As such, a physician should know that he or she will not be asked to provide either a discovery of de bene esse deposition (i.e., a trial testimony deposition), become a subpoenaed witness, or testify at trial.

2. No Phone Interviews: A Physician Does Not Have to Speak With Your Insurance Company.  A physician is under no legal obligation to speak with the insurance company’s representative, peer reviewers, or in-house physicians, particularly if the claimant is not permitted to be present or on the call. A physician will not be subject to a subpoena issued by an insurance company or an insurers’ lawyers in the course of an ERISA disability insurance case.

3. Reasonable Payment: A Physician Should Be Compensated for Administrative Time.  A physician is often not paid for completing forms, providing medical narratives, or providing sworn affidavits as a covered health insurance claim. Many physicians will waive these charges since they realize their clients are unable to work given the condition for which they are treating and have no income.  If not waived, a physician should be able to charge and expect reasonable compensation from a patient for providing their expertise and medical documentation in support of disability claim.  A corollary of this principle is that a physician’s office should also be able to charge a patient for the costs in copying a medical record or medical file.

4. Help Is Truly Needed: A Physician’s Assistance is Key to Supporting a Valid Disability Claim. Physicians help patients. Physicians and healthcare workers are professionals whose vocation is to serve others. Their profession is devoted to helping people. Consistent with this ethic, a physician’s assistance is truly required in the processing of every ERISA disability claim. An insurer (even a good insurer) will not accept a disability claimant’s word that he or she is unable to work. An ERISA disability claim must be supported by a physician’s professional medical opinion, often through a required Attending Physician (APS) Form.  Without the physician’s support, the claim will experience difficulty once processed by the insurer.

5. Objective Medical Tests Are Required: A Physician Should Be Aware That Insurers Look to Test Results. ERISA disability insurance companies are forever increasing the proof requirements necessary to approve disability claims.  Frequently, an insurer will demand objective proof of a medical condition or objective proof of an inability to work on a full or part-time basis. Where appropriate, a course of treatment which includes blood chemistry panels, imaging studies, functional capacities evaluations, comprehensive exams, neuropsychological or cognitive assessments, or other objective measures of illness or injury is extremely helpful for supporting an ERISA disability insurance claim.

6. Deadlines Are Set By The Insurance Company: A Physician Should Be Aware That the Insurer Sets The Deadlines, Not the Patient.   A physician should know that the guidelines in an ERISA case are set by the United States Department of Labor and that an insurer is under certain federal requirements for the timely processing of claims.  Most insurers will seek the return of requested information in one of the following time periods, 21 days, 30 days, 45 days, or 180 days. All requests for information are accompanied by a due date.  A physician should know that the patient has almost zero control over these due dates, and certain insurers are loath to ever grant extensions.

7. What Can The Patient Do For You? A Physician Should Be Able to Communicate the Physician’s Own Needs.   A physician should have the freedom to explain to the patient that he or she needs extra time to complete the paperwork or that a patient must schedule an appointment in order to complete forms.  This is not a one-sided relationship.  A physician can reasonably be expected to have certain procedures in place and that the patient will follow them.  A patient should always inquire about the physician’s needs.

8. Please Read the Disability Forms Carefully: A Physician Is the Best Person Able to Opine on Disability.  ERISA disability claims forms are notoriously ambiguous.  Often these forms will request that a physician treating a physical condition opine on a patient’s psychological status and vice-versa.  Please take a moment to carefully review what the question is asking.   If there a no specific directives, then answer each question that is appropriate as if the insurer is inquiring about the availability for work on a full-time basis.  In otherwords, the question becomes is your patient able to perform the task described 5 days in a row, 40 hours per week, 50 weeks per year without interruption or time off to tend to the medical condition.

Copyright © 2015 by J.J. Conway, Esq.

A printable version of this list of physician guidelines is available for download here, A Basic Guide to ERISA Disability Claims for Physicians and Healthcare Professionals, Do You Have An ERISA Disability Claim? Print This Article, and Take It To Your Doctor

On March 5, 2015, an en banc panel of the United States Court of Appeals for the Sixth Circuit issued its decision in Rochow v. Life Insurance Company of North America, Inc., 780 F.3rd 364 (2015).  (A copy of the decision is available here, Rochow v. LINA En Banc.) Previously, the Sixth Circuit affirmed a district court decision which ordered a disability insurer to disgorge profits totaling $3.8 million dollars for wrongfully withholding disability insurance payments for more than seven years. A United States District Court found that the insurance company had wrongfully denied ERISA disability benefits and permitted disgorgement relief in addition to the payment of past due benefits for breaching its fiduciary duties to the insured.

Originally, on December 6, 2013, in a 2-1 decision, the Sixth Circuit affirmed the disgorgement award.  On February 19, 2014, the Court vacated its decision and granted the insurer’s en banc petition.  On rehearing, after dispensing with a number of procedural arguments, the Court reversed the district court.  In its decision, the Court held that an award of disgorging the profits earned on the withheld funds was not allowed where payment of full benefits had been ordered under another provision of ERISA. The Court determined that an award of benefits along with a potential award of prejudgement interest provided the insured complete relief under ERISA.

Notably, and over a sharp dissent, the Rochow Court emphasized that ERISA §502(a)(3), 29 U.S.C. § 1132(a)(3) provides for a number of distinct causes of action which may be deployed when an ERISA participant is left without a remedy under ERISA §502(a)(1)(B), 29 U.S.C. §1132(a)(1)(B). That provision of the ERISA statute is used most often to enforce a participant’s right to benefits. The Court found that since the plaintiff  could be afforded full relief under ERISA Section 502(a)(1)(B), claims for additional relief under other provisions of the statute would not be allowed.  The Court held the two causes are distinct and do not overlap to provide relief beyond the payment of benefits if such relief is available to a participant.

about_pic1@1xInsurance 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, 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 understand 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 in 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 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, seeing 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 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 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 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.

(c) 2015 by JJ Conway. All rights reserved.