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The typical scenario in a benefits claim works something like this:  An employee becomes ill or injured.  An employee takes a medical leave of absence.  If the employer has sponsored a disability program, a claim for benefits is filed.  If there is a short-term disability plan, that benefit program may or may not be ERISA-qualified.  If the condition continues past the short-term period, then a claim would normally be expected to transition into a long-term disability claim. Often, the short-term disability claims administrator is also the administrator (and perhaps the insurer) for the long-term program.

In practice however, the rules and regulations applicable to disability claims tend to complicate matters.   If, for example, the short-term disability claim is denied or prematurely terminated, an appeal period is triggered. The appeal period runs 180 days, which can overlap with the commencement of the long-term disability coverage.

This is where trouble can start.

Sometimes a plan is written so there is a seamless transition from short-term to long-term disability.  The long-term disability benefit period will not start until the short-term benefit claim has been exhausted or paid out in full.   In other words, the filing of the short-term application will preserve an employee’s right to long-term disability benefits.  Sometimes, an application must be filed, regardless.

That is what the disability claimant in Kennedy v. Life Ins. Co. of North America, 718 Fed. Appx. 409, 410 (6th Cir. 2018) found out, the hard way, in a recent Sixth Circuit Court of Appeals decision.  In Kennedy, the claimant was receiving short-term disability benefits but had yet to file a claim for long-term disability benefits.  According to the Court, the “the first time” long-term disability was ever mentioned was in a demand letter, not an application. As a consequence, in a terse opinion, the Court affirmed the claim’s dismissal.  Writing for the majority, Judge Thapar wrote:

The district court was right: Kennedy never applied for long-term benefits. The first time he even mentioned long-term benefits was in his attorney’s letters—both of which came long after any such claim was due under the plan’s terms. Kennedy therefore failed to exhaust LINA’s administrative process.”  Id. (citing Garst v. Wal-Mart Stores, Inc., 30 Fed. Appx. 585, 593 (6th Cir. 2002)).

Bottom line: always file the long-term disability application or secure a written confirmation from the plan that the long-term disability claim is preserved while the short-term claim is being evaluated or appealed.

Insurance companies administering ERISA long-term disability claims may be facing new rules.  In 2012 the U.S. Department of Labor’s ERISA Advisory Council undertook a study on issues relating to managing disability claims in the ERISA administrative review context. The Advisory Council recommended that the USDOL review the current claims regulation and recommend specific updates and modifications.

After taking comments, the final rule was published on December 19, 2016, and is set to take effect January 1, 2018.[1]  One of the main aims of the final rule is to “alleviate the financial and emotional hardship suffered by many individuals when they are unable to work after becoming disabled and their claims are denied.”[2]

The main “Claims Regulation” under which ERISA disability claims have been administered and adjudicated since 2002 – 29 C.F.R. § 2560.503-1 – will be revised and updated to include the following:

1. Conflicts of Interest are to be Avoided.

Claims and appeals are to be adjudicated in a manner designed to ensure the independence and impartiality of the persons involved in making the benefit determination. Decisions regarding hiring, compensation, termination, promotion, or other similar matters are not be based upon the likelihood that the individual will support the denial of benefits.

2. The Disclosure Requirements are Expanded.

Under the final rule, benefit denial notices must contain a complete discussion of why the plan denied the claim and the standards applied in reaching the decision.  This includes the basis for disagreeing with the views of the claimant’s health care professionals, vocational professionals or with disability determinations made by the Social Security Administration.

Plans can no longer disagree with a treating health care professional “merely by stating that the plan or a reviewing physician disagrees with the treating physician….”[3]  The final rule requires that the adverse benefit determination include a discussion of the basis for disagreeing with the health care professional’s views.

The same standard also applies to a denial which disagrees with a Social Security Administration finding of disability. Disagreement with the determination must be accompanied by “more detailed justification….”[4]  The final rule also requires an administrator to notify a claimant of an alleged deficiency in the record and provide an opportunity to supplement the record, particularly if the administrator is not in possession of an applicable Social Security Administration ruling.

3. Timely Disclosure of New Evidence and Rationale Supporting a Denial Must Be Produced

Under the final rule, claimants must be given timely notice of their right to access their entire claim file, as well as other relevant documents, and be guaranteed the right to present evidence and testimony in support of their claim during the review process.  The Department took the position that claimants

have a right to review and respond to new evidence or rationales developed by the plan during the pendency of the appeal and to fully and fairly present their case at the administrative appeal level, as opposed to merely having a right to review such information on request only after the claim has already been denied on appeal.[5]

Any evidence or rationale provided must be turned over as soon as possible, and sufficiently in advance of the date on which the notice of adverse benefit determination on review is required to be provided, to allow the claimant a reasonable opportunity to respond to the new evidence.  Rather than viewing this as a ‘new’ requirement, the DOL took the position that it simply hones the prior requirements under 29 C.F.R. § 2560.503-1 to clarify exactly what, and when, information should be provided to claimants.

4. Deemed Exhaustion of Claims and Appeals Processes

Under the final rule, plans cannot prohibit a claimant from seeking judicial review of a claim denial based on a failure to exhaust administrative remedies under the plan if the plan failed to comply with the claims procedure requirements.  A “minor error” is the only exception to this new provision, although the DOL noted that this standard is “stricter than a mere ‘substantial compliance’ requirement.”[6]

5. Amending the Definition of “Adverse Benefit Determination”

Under the final rule, certain rescissions of coverage are to be treated as “adverse benefit determinations” triggering the plan’s appeals procedures. For plans providing disability benefits, a rescission of coverage that has a retroactive effect now constitutes an adverse benefit determination.  Under the USDOL’s analysis, if a plan provides for the payment of disability benefits for a pre-determined, fixed period, the termination of benefits at the end of the specified period would not constitute an adverse benefit determination under the regulation, but rather a new claim.

6. The Applicable Statute of Limitations Must Be Disclosed

Under the final rule, the USDOL specified that it:

does not believe that a claims procedure would satisfy the statutory requirement if the plan included a contractual limitations period that expired before the review was concluded… A limitations period that expires before the conclusion of the plan’s internal appeals process on its face violates ERISA section 503’s requirement of a full and fair review process.  A process that effectively requires the claimant to forego the right to judicial review and thereby insulates the administrator from impartial judicial review falls far short of the statutory fairness standard and undermines the claims administrator’s incentives to decide claims correctly.[7]

The USDOL seems to suggest that any limitation time-period shorter than a year after the final claims decision does not allow a reasonable period after the conclusion of the appeal in which to bring a lawsuit and is accordingly unenforceable.  Additionally, “in addition to such traditional remedies, plans that offer appeals or dispute resolution beyond what is contemplated in the claims procedure regulations must agree to toll the limitations provision during that time.”[8]

 

[1] See Claims Procedure for Plans Providing Disability Benefits, 81 Fed. Reg. 92316 (December 19, 2016).

[2] Id. at 92317.

[3] Id. at 92321.

[4] Id. at 92322.

[5] Id. at 92324.

[6] Failure to comply constitutes a “minor error” if the violation was (1) de minimis, (2) non-prejudicial, (3) attributable to good cause or matters beyond the plan’s control, (4) in the context of an ongoing good-faith exchange of information, or (5) not reflective of a pattern or practice of non-compliance.  Id. at 92327.

[7] Id. at 92330.

[8] Id. at 92331.

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.

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.

 

Disability insurance claimants are attracting online ‘friends’ they could do without. There has been an increase in the number of cases involving the premature termination or denial of long-term disability insurance benefits owing to a claimant’s imprudent use of social media. Now, the administrative service contracts of many disability insurance plans include, as a performance of these services, the actual monitoring of the Facebook, Twitter, and other online accounts of disabled claimants. In other words, plans are now paying investigators to watch everything a claimant posts online.

 

Cases involving ERISA disability insurance claims reflect this reality. For example, in Wicks v. Sun Life Assurance Co. of Canada, U.S.D.C. Case No. 2011-cv-01086 (W.D. Mich. 2013), the insurer hired a paid private investigator to closely monitor postings on the plaintiff’s Facebook page. The private investigator, while monitoring the plaintiff’s online Facebook postings, apparently captured images where she had boasted about building a loft in her child’s college dormitory and taking extended vacations. Because the plaintiff’s disability claim was based largely on subjective complaints of her physical limitations, the complaints were deemed inconsistent with her Facebook postings. The Court upheld the denial of the disability claim.

 

This is a tough situation. Losing the ability to work is, itself, a hardship, particularly in our society where so much of our identity is derived from our employment. For a person receiving disability insurance payments to replace lost income, the question ‘what do you do for a living?’ may cause feelings of pain, embarrassment, and even anxiety. Disability claimants do not want to be ‘disabled.’ Most work well beyond a time when they should, out of the social stigma attached to no longer working. The idea that a mother of a college age child, who is occupationally disabled, would boast on Facebook that she somehow contributed to building a loft for her child makes a certain sense when you understand the world of disability. For her network of social contacts, she may have been simply announcing, ‘I still count,’ or ‘I matter.’

 

Still, the post cost her dearly. The plaintiff in Wicks lost her benefits, and from the facts, it appears she had several years until retirement. Despite the fact there might be different motivations as to why a claimant posts certain comments online, the minimal or discontinued use of social media during a claim of disability is highly recommended.