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“My doctor will support me.”

This is one of the most common expressions heard from clients dealing with an ERISA long-term disability insurance claim. Disability claimants know, perhaps without formal recognition, that their disability insurance claim requires a solid evidentiary foundation. Most claimants realize they carry the burden to prove their claim and recognize that a claim requires medical proof – not merely a statement of one’s inability to work. In fact, most of our clients recognize this immediately, even before meeting with us. A disability claimant’s treating physician will likely play the most important evidentiary role in a disability claim, as they are the one providing at least the baseline medical foundation to support a claimant’s contention that they are occupationally disabled.

While disability plan insurers are not bound to accept a treating physician’s opinions without scrutiny, “plan administrators, of course, may not arbitrarily refuse to credit a claimant’s reliable evidence, including the opinions of a treating physician.”  Black & Decker Disability Plan v. Nord, 538 U.S. 822, 834 (2003).

What is important for not just disability claimants but also their physicians to understand is the integral role treating physicians play in a disability claim, and how to successfully navigate that interdependent relationship as it moves from providing treatment to providing evidence.  Below are a few suggestions for consideration toward understanding and enhancing these critical relationships.

1)            Establish a Trusted Relationship.   First, it is important to let your doctor know about your disability claim and keep them updated on its status. Most treating physicians are familiar with disability claims and are willing to help their patients through the process. It is best to tell your physician, up front, that you are filing a claim and are likely to need some help with the claim forms. You may also want to use this as an opportunity to thank your physician for his or her anticipated cooperation and to communicate that you will try not to impose too much.

Some physicians do refuse to be a part of the disability application or appeal process. If your physician is unwilling to assist, do not be upset – it is better to know, preferably as early as possible. Nothing is worse than sending Attending Physician forms to a doctor whose office says they refuse to deal with insurance companies. While unhelpful, this position is somewhat understandable since paperwork is time-consuming and often uncompensated. In our experience, physicians work extremely hard and their compensation, often dictated by insurance companies, is below their fair value. They simply may not be able to financially perform this extra work.  (Note: your disability insurer knows this).

2)            Consider A Referral to A Specialist.  Depending on your condition, you may need to consult a specialist.  Again, timing is critical.  Specialists can book appointments three to four months out.  You need to consult, begin treatment with, and then, once the relationship is established, enlist their assistance. When it comes to the requirement for submitting “proof of disability” or “proof of claim,” sometimes more is required than the findings of a family doctor or internist. Here, the medical examination is centered on establishing one’s functional abilities. A treating physician may be fully capable of assessing the patient’s condition. For others, a specialist such as a Physical Medicine and Rehabilitation (PM&R) doctor may be appropriate.

3)            Allow the Physician Plenty of Time to Respond.  All claims forms have a due date, so don’t delay.  These forms are sometimes ambiguous and confusing – if there is any confusion over what is being requested, you may want to consider hiring counsel since even a minor mistake on a form can exponentially complicate the claims process or even lead to a denial.  That said, the forms should be in the hands of the doctors as soon as reasonably possible. The forms should also be reviewed after completion by a physician but before return to the insurance company.  A mistake or misunderstanding can add as much as one year of delay in resolving a valid claim.

Given the importance of these forms, a claimant should be considerate of a physician’s time and understand that a physician is typically not compensated for efforts toward supporting a disability claim.  Most physicians will help with a claim as an act of professional courtesy.  We have written about this previously.  See, Do You Have An ERISA Disability Claim? Print This Article, And Take It To Your Doctor.

4)            Be Willing to Compensate the Physician for Administrative Time. This is self-explanatory.  Politely inquire whether the physician is typically compensated for filling out forms and be willing to pay all reasonable charges.

5)            Explain that the Physician’s Involvement Will Be Minimal – No Depositions or Trial.

This is perhaps the most important and often overlooked part of an ERISA disability claim.  Most physicians are familiar with accident cases and workers compensation cases, yet lack familiarity with ERISA disability case. This presents a slight problem when physicians mistakenly believe they may be “called to testify” if they provide a professional opinion on a claimant’s medical and/or functional status. In practice, however, ERISA does not provide for trials, depositions, or live testimony.  At most, the physician will be asked (usually by the claimant’s lawyer) to supply a sworn statement or medical narrative.  This is part of a written submission or appeal for the claimant.  A physician will not be called to testify in a deposition or trial in an ERISA case.

In the Sixth Circuit (Michigan, Ohio, Kentucky, and Tennessee), there is a special “framework” for resolving disability cases, allowing federal courts to conduct a “review based solely upon the administrative record and render findings of fact and conclusions of law accordingly.”  Wilkins v. Baptist Healthcare System, Inc., 150 F.3d 609, 619 (6th Cir. 1998).  This means that cases are decided on written submissions such as motions. While Wilkins did recognize that there are times when discovery is appropriate against an insurer or plan administrator, this does not include depositions of the treating physician.[1]

Bottom Line:      Establish a strong and courteous relationship with all treating physicians.

Explain to your physicians your need for their assistance with your claim.

Be willing to pay all reasonable charges for any administrative work, including completion of forms and preparation of medical narratives.

Don’t Delay!

[1] For more information about the Wilkins review process, see, see, John J. Conway & Trever M. Sims, Refining Wilkins: A 20-Year Look at the Recurring Factors Used in the Sixth Circuit’s Resolution of Disability Claims Under ERISA Section 502(a)(1)(B), Sec. II.B, WMU-Cooley Law (2018), available at: https://issuu.com/cooleylawschool/docs/wmu-cooleylawreview-34-2/94.

It is one of the most commonly asked questions by disability claimants who have successfully battled their disability insurance companies to overturn a denied or terminated disability claim. They have won, but there is one lingering question:

Can my insurance company cut me off again?

Technically, the answer is “yes.” Most disability law practitioners have tried to couch the answer to that question based on their experience with the nation’s major insurance companies.  For some insurers, once you have beaten them, they are reluctant to put you through it again.  For others, it is one successive battle after another until they skate dangerously close to violating ERISA Section 510 (the statute’s prohibition on the intentional interference with one’s benefits).

Now, some federal courts are providing claimants a little more optimism about the future.  There is an oft cited, little used provision, tucked away in ERISA Section 502(a)(1)(B) which empowers a participant “to clarify his rights to future benefits under the terms of the plan.” (Emphasis added).

That portion of the (a)(1)(B) provision is gaining new potency after a series of decisions where federal courts in the Pacific Northwest have weighed in on its meaning.

In Gorena v. Aetna Life Ins. Co., No. 17-532, 2018 WL 3008873 (W.D. Wash., Jun. 15, 2018), while reviewing that provision, the district court ordered the payment of past due disability benefits to the claimant and placed real, substantive limits on an insurer’s ability to terminate a claimant’s monthly payments.  The district court held that the defendant was

directed to pay [the plaintiff’s] LTD claim to the policy’s maximum benefit duration absent a showing of improvement in her medical condition such that a reasonable physician would conclude that she could work in “any gainful activity for which [she is], or may reasonably become, fitted by education, training, or experience and which results in, or can be expected to result in, an income of more than 60% of [her] adjusted predisability earnings.” Unless Defendant can establish that Plaintiff is capable of performing such work productively, full-time, and without undue disruptions and/or absences due to her MS and its related symptoms, she is to continue to receive LTD benefits to the Plan’s maximum duration.

(Internal citations omitted). A similar resolution was reached in Bethany Coleman-Fire v. Standard Ins. Co., No. 18-cv-00180, 2019 WL 2011039, at *13 (D. Or., May 7, 2019), where the district court cited to a previous version of the Gorena ruling and held:

Accordingly, and in accordance with 1132(a)(1)(B), the Court offers the following clarification regarding Plaintiff’s right to future benefits: Subject to the terms and conditions of the Plan, Defendant shall pay Plaintiff’s LTD claim to the Plan’s maximum benefit duration absent a showing of improvement in her TBI/PCS symptoms such that a reasonable physician would conclude that Plaintiff could work more than forty hours per week in her Own Occupation.

With federal courts now appearing more apt to tackle the meaning of ERISA’s clarification provision, hopefully practitioners will be able to provide more resolute answers when a client asks the question, “will my insurance company cut me off again?”

Recently, we participated in a mediation with a large national insurer who is showing up more and more in our litigation files. Our client is a thirty-year employee who suffered from a terrible spinal condition and failed back surgery. Three medical treating physicians and an independent medical examiner found her totally disabled. One opined she was incapable of ever working again. She drained her 401(k) to pay her living expenses. She has applied for Social Security and is awaiting a decision.

The insurer denied the claim and has paid nothing for two and a half years while this financial wreckage has ensued.

The insurer’s claim denial was based upon a file review performed by a single East Coast doctor who never examined the insured and was contracted through a national vendor. The national vendor has a contractual relationship with the insurer.

The file reviewer’s report lists the medical evidence she claimed to have reviewed which includes MRIs (both actual images and reports). The file reviewer then opines that the restrictions could not be “substantiated” because there were “no MRI reports” in the file. This is not a misprint – the insurance company doctor lists the MRIs in the reviewed materials portion of the report and then somehow writes that those images do not exist.

Obviously, the denial is made in bad faith and is particularly sloppy.

At mediation, the insurer who has paid nothing now argues that the insured should get a mere stipend of because her “estimated” disability income is really the responsibility of the Social Security Administration, and the insurer merely provides a secondary benefit. We told the insurer to take a hike, and we will fight to get the decision and try to set precedent.

Unfortunately, this is the typical scenario in an ERISA group long-term disability case today.

More and more, private disability insurers who collect hundreds of millions in premiums are basically turning over the financial responsibility to the federal government to re-insure these private insurance contracts. Disability insurance companies argue this other income “offsetting” is keeping insurance rates low, but what they omit mention of is that this same “low-rate insurance” is not really insurance at all. All the insured has purchased is the right to apply for Social Security and maybe get a small stipend from the insurer.

The insurers have figured this out. The long-term disability contracts require an application to Social Security to get benefits flowing from the federal government, regardless of whether the insured even qualifies. Long-term disability contracts typically contain a 180-day waiting period (the same as Social Security). These same long-term disability contracts contain a “minimum” benefit usually of $100 per month.

Why do the insurance companies pay a $100 per month? Disability insurers know that an employee earning $40,000.00 a year with one or more dependents is really is never going to collect much private disability insurance, and if they don’t pay just a little something to the insured, the contract will fail for want of consideration. In other words, the contract will fail because the insured is getting nothing in return.

So, you have a long-term disability insurance contract, but do you really have any insurance coverage?

Western Michigan University-Cooley Law Review has published an article authored by J.J. Conway, Esq. and Trever M. Sims analyzing the Wilkins v. Baptist Healthcare Systems decision and its impact on ERISA benefits dispute resolution within the Sixth Circuit. The article, published in WMU-Cooley Law Review’s Summer 2018 issue, serves in part as a 20-year retrospective of what was, at the time, a concurring opinion in a seemingly routine disability benefits dispute. The article is entitled “Refining Wilkins: A 20-Year Look at the Recurring Factors Used in the Sixth Circuit’s Resolution of Disability Claims Under ERISA Section 502(a)(1)(B).”