Quiat on Claims : New York Disability Insurance Lawyer & Attorney : Michael Quiat : Uscher Quiat Uscher & Russo Law Firm : ERISA, Denied Claims

Speed and efficiency are great goals in medical practice, but they can’t be at the expense of accuracy, especially when it comes to documenting ERISA disability claims.

We had an experience recently which brought this problem to the fore in a way that was disheartening for disability claimants.   Streamlining medical procedures and reporting is OK, but not when that streamlining leads to pertinent and relevant medical data being omitted from a medical record or to inaccurate and misleading information being included. 

The case involved a leukemia patient who required a heavy drug regimen for treatment.  Such drug use invariably leads to severe fatigue and listlessness.  Yet, when the doctor produced his medical chart for our client’s insurance company, the record reflected an affirmative finding of “no complaint” of fatigue although the patient had complained of fatigue at every visit.

The doctor agreed that fatigue had been an ongoing complaint but that he had not noted it because “it was listed in a pre-established laundry list of possible symptoms which he was required to check off in his computer program for each patient visit.   He didn’t consider this “laundry list” important enough to spend the required time on for each patient.  So, he ignored it.

What the physician didn’t realize is that when the computer program produced a report for his patient’s ERISA insurance company, it reviewed all of the input boxes for the patient and then produced a summary report in which, because no “fatigue” boxes had been checked, stated there had been “no complaints of fatigue” from the client.

Of course this was red meat for the insurer since the claimant was claiming a long term inability to work because of fatigue, among other things. 

We’ve all heard the phrase, much used since computers came into vogue:  “Garbage in, garbage out.”  A computer can only evaluate the data it gets.  Data can be turned into “garbage” several ways:

* The original data can be in error
* A mistake can be made in entering the data.
* A failure to enter complete data.

If the “garbage” record errs in favors  of the insurance company, you can bet the insurer will rely on it.  And that leaves the doctor’s patient with a tough row to hoe, indeed.

In our case, the doctor, when advised of his erroneous report would not change it.  When asked how this report was released, he said his computer program produced the report  “by default” and he was unaware that if the fatigue box was not checked by him the report would automatically print “No complaint of fatigue”.

So, we have a situation in which doctors use technology without being fully trained or understanding it, creating medical records which say things they never intended to say.  A physician who knew his patient constantly complained of fatigue would never write a report saying the patient never had complained of fatigue.  A computer, being a machine, might very well do so.  In this case, it did.

The importance of this occurrence is to teach doctors they should not rely on computers unless they carefully review what the computer reports.  A physician with a computer system must know the system thoroughly.

The doctor must know what the equipment does, how it handles data omissions and what conclusions it draws by default from those omissions.  He or she must also make sure the system works properly and in no way misrepresents the patient’s condition.

Whether a doctor has a computer system to record exam data or still relies on the pen and pencil method, the doctor must remember the Hippocratic oath: “Do no harm”.

Using a computer system to try to speed up delivery of medical services in no way relieves the physician of that obligation.

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Unbeknownst to some insureds and their attorneys, ERISA can thwart the most obvious intentions of insureds if they are negligent in following up on changes in beneficiary status.  Most of the time this issue is involved in matrimonial and estate cases.

Except in the most unusual cases, a spouse who divorces his or her mate, does not want the proceeds of his or her estate (ERISA andotherwise) to go to the divorced mate.

Yet, should the participant in an ERISA plan fail to properly change the plan beneficiary to reflect the changed circumstances of his or her life, the ERISA plan administrator is forced to pay benefits to the beneficiary listed in the plan, Kennedy v. Plan Administrator for DuPontSavings & Investment Plan, 555 U.S. 285 (2009). 

Because ERISA preempts all other law which might affect this outcome, the beneficiary shown in the policyholders’ plan documents is the one who to whom the plan administrator has to deliver the benefits.

The Kennedy court based its decision on three main points:

* ERISA requires simple plan administration.
* Avoiding the danger of the administrator having to pay double benefit payments.
* Encouraging speedy benefits payments.

It is essential for a plan participant to get to the administrator as quickly as possible with any change in circumstances.  To delay may mean

that ERISA may cause benefits to go to the wrong person or require extensive litigation and legal costs for the benefits to go to the personactually intended by the plan participant.

Although Kennedy supported the law of ERISA preemption strongly, it specifically left open the issue of whether preemption applied once the benefits had been paid as required by ERISA.

The United States Court of Appeals for the Fourth Circuit recognized that this “straitjacket” approach can lead to obviously inequitable results as shown in Andochick v. Byrd, 2013 WL 781978 (CA4 (Va.)) .

In that case, Mrs. Andochick married Mr. Andochick in February, 2005, and separated in July, 2006, at which time Mr. Andochick agreed to and signed a marital settlement agreement in which he gave up any rights to Mrs. Andochick’s survivor benefits and life insurance policies in both of which he had been made beneficiary by his wife at the time they were married.

Following Kennedy and a long line of cases, the Fourth Circuit Court of Appeals agreed with the District Court that  Mr. Andochick, as the named beneficiary in her ERISA plan, had to receive the benefits of the plan and the proceeds of his ex-wife’s life policy.

But, the Court also agreed that once proceeds were allocated to the ex-husband, state or Federal courts were not preempted from dealing with the proceeds in line with his waivers and free of ERISA preemption.

The opinion makes it clear that ERISA’s strict interpretation of which party gets ERISA 
benefits proceeds, is meant to facilitate the swift and smooth operation of ERISA plans.

Preemption is not meant as a back door through which a party can grab benefits to which, by all reasonable and equitable measures, he isnot entitled.

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A new Federal rule which would require prescription drug and medical device manufacturers to report what they pay doctors for consultations and speeches is just what the doctor ordered for ERISA insurance claims.

The Centers for Medicare and Medicaid Services proposed the rule which will require the gathering of such data on August1, 2013, with the CMS scheduled to release the data on a public web site at the end of September, 2014.

What has this to do with ERISA claims?  Lots!

The purpose of the new rule is so that the public should know what financial relationship the doctor who recommends a drug or treatment has with companies which supply the pharmaceuticals or medical treatment a patient may need.  This transparency allows the patient to have a meaningful discussion with the doctor about what the doctor is prescribing

The whole point, according to CMS, is to reduce the potential for conflict of interest in the doctor- patient relationship. 
 

Why don’t courts require the same openness in ERISA litigation?  Federal judges are becoming more and more aware of the potential conflict of interest when a physician makes a substantial portion of his or her income from insurance company exams to determine the validity and extent of claimed injuries or illnesses for which his or her insurer would have to pay benefits.

Why not make insurance companies provide a breakdown of all of the monies paid to a doctor to perform so-called “independent medical exams” along with the doctor’s report?  That would give the court, considering whether benefits should be paid to a disabled employee an insight into the credibility of the physician’s report.

Attorneys representing ERISA claimants have been complaining for years that many of the doctors called upon by insurance companies to examine claimants are more interested in continuing to be paid for reports, than they are in giving honest opinions.  If a doctor’s opinions are not heavily in favor of insurers, how long do you think that doctor would continue to get paid for opinions by insurance companies?

The beginning of the end for secrecy about physician track records began with the U. S. Supreme Court decision in Metropolitan Insurance v Glenn, 128 S.Ct.2342 (2008),when the court seemed to wake up to the fact that there is an innate conflict of interest when medical experts are paid by insurance companies to “independently”  evaluate disability claimants.

Why it took so long for the Court to reach this obvious conclusion is anybody’s guess.  Arguably, Glenn opened the door to allow discovery in this area.  But, to be fair to claimants who are suffering not only from their illness or injury, but also from total loss of income when unable to work, much more light should be shone on the insurance company-“independent” medical examiner relationship so Federal District  Courts can properly value the worth of medical reports in ERISA cases.

What better way than to follow the CMS rule and have each doctor whose report is being considered by the court present the details of the financial relationship that doctor has with the insurance company the doctor examined for?

The details should include:

* How many medical exams the doctor performed for insurance companies during the last two years.
* How much money insurance companies paid the doctor for these examinations during the last two years.
* The percentage of these exams in which the doctor found the insured too disabled to work.
* Any other financial arrangement in which the doctor receives any remuneration from the insurance company.

We can’t see the difference between the conflict of interest which may be generated by a physician being paid for “consulting” or “speeches” and being paid for examining claimants.

Both activities affect the insurance company’s bottom line and are therefore suspect.
 

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Many people don’t realize that you actually don’t have to be flat on your back to get financial help from a disability insurance policy.  Many policies provide for partial disability which can provide substantial disability benefits even after your medical crisis or injury have improved.

This fact was pointed out in a recent Wall Street Journal article by financial planner Michael Relvas, Rockville, Md., who noted that it is sometimes very hard to know about this benefit because many times you need a code breaker to decipher disability insurance contract language.  However, it is definitely worth the time and effort to find out if you have this benefit.

From an actuarial perspective it has been shown repeatedly that the risk of  suffering a partial disability is substantially greater than the risk of suffering total disability.  Yet, many disability policies do not provide benefits for only partial disability.

Residual benefits are the key words in determining if you have such coverage in your disability policy.  If you are fortunate enough to have it, then you may receive benefits even if you are able to return to work, provided, in most cases, that your income is at least 20% less than you were making before your disability struck. 

You may be entitled to residual benefits which will bring your post-disability income up to  80% of your pre-disability income. 

Mr. Relvan also points out that residual clauses in older policies may be more valuable.  Many older policies will pay benefits till age 65.  Newer policies typically pay residual benefits for only 2 years.

Not all disability income policies have residual benefit coverage.  Particularly if you are the owner of a small business or in a profession, such as medicine or accounting, this type of coverage can be vital in the event of a disability.

As we have said before, it is vital to read your insurance policy before a triggering event rather that after one.  Before, you can do something about a gap in your coverage.  After, you are out of luck.

When it comes to protecting income, you have to be thoughtful.  Medical disabilities often come with longer, drawn out recoveries which may permit a return to an occupation, but at a less remunerative level.

You have to decide:

Do I need insurance coverage for this eventuality?
 

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An insurance law professor recently pointed out that “Insurance is the one product where you can’t find out what you’re buying until you’ve bought it.”

He came up with the suggestion that all state insurance regulators follow an initiative of the Nevada Department of Insurance, according to a recent article in the Newark Star Ledger.

Rutgers University professor Jay Feinman pointed out that you can choose coverages and deductibles, but you can’t read the fine print in your insurance policy until after you have bought it.

Those who have been exposed to insurance law (and readers of this blog) know full well that, with insurance policies, the “the devil is in the details”.

Why not put policy forms online so that people can read them and understand what they are going to get before they buy a policy?

The professor suggests that a Nevada initiative should be adopted by all states to give people better understanding of their coverage.

According to him, the state of Nevada began publishing online the policy forms of 10 of the state’s largest home and auto insurance carriers.  These carriers do about 80% of the  home and auto business in Nevada.

We agree with Professor Feinman that making this material available to the public online is not likely to help too much in educating the public because policyholders are notorious for not reading their policies even after a triggering event occurs.

But, there are many consumer advocacy groups can and will provide consumers with easy-to-understand guides to compare rates and the coverages offered.

Although this present situation covers only auto and home policies, there is no reason why it can’t be expanded to cover ERISA disability, life, health and other types of insurance which are based upon standard types of insurance policy forms. 

As well as helping employees to understand what insurance protection they have, the employer could also benefit by having an easy-to-understand comparative guide covering both benefits and cost.

These guides can be formulated by large employer associations as a service to their members.

Greater transparency – What a concept!

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As if people with mental problems didn’t have enough headaches, a recent change in psychotherapy treatment codes has dumped a whole new layer of complexity on the plates of those needing treatment.

According to a recent story in the Wall Street Journal, mental health professionals providing treatment are not being paid since the change because insurance companies claim that the changes are bigger and more complicated than was expected and companies are having difficulty setting up their systems to accommodate the code changes . 

And all of this is happening when there is a growing public demand for better mental health intervention.

Millions of mentally ill people are facing diminished care because their mental health providers are not being paid for their services.

The American Medical Association updates the codes annually.  Only 30 codes out of 8,000 or 9,000 were changed this time.  But those 30 changes, which had to do with mental health services and hadn’t been modified since1998, threw a monkey wrench into the system.

Worst of all, many of those who are hurt can ill-afford the stress and uncertainty of having their treatment affected.

With about 11.5 million Americans suffering from serious mental conditions, according to the WSJ article, and public demand growing for more and better interventions with the mentally ill since the recent spate of shooting massacres, these coding problems could not have come at a worse time.

The biggest worry of mental disability providers is that this coding chaos will affect care for their vulnerable patients.  With many insurance companies being unable to estimate when the coding problems will be fixed, it is anybody’s guess when some order will be restored to the mental health system.

In a field of treatment where one missed appointment may undo months of intense work, it is hard to foresee how far this glitch will set things back.

With a so much hanging in the balance, we urge everyone involved to get the lead out and get the mental health system working again.
 

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Would you believe that insurance companies withheld $1 billion in death benefits from beneficiaries of life insurance policies? If your answer is “No”, think again, according to an advanced story in TODAY about a Consumer Reports article to be published this month.

This finding of insurance company cheating doesn’t surprise us, but the amount is staggering.

Life insurance companies had their own version of “Don’t Ask, Don’t Tell” when it came to informing beneficiaries of policy benefits when an insured died. If a beneficiary didn’t know about the policy or about the insured’s death, the insurance company wouldn’t tell.

More than that, some companies, even knowing that their insured had died, not only didn’t inform the policy beneficiaries, they continued to charge the policy with premiums they knew couldn’t be paid until the policy ‘s cash reserves were drawn down before canceling the policy.

Now that practice has stopped in those states that called the insurance companies on it. Not only did the companies have to pay a fine, they also had to install systems which would be likely to see to it that beneficiaries were informed and paid when an insured died.

It’s not that insurance companies did not have a resource for learning when a policyholder died. The Master Death List of the Social Security Administration is open to them and they used it willingly to locate annuitants that had died so that they coukld stop paying annuities. But, they didn’t use the same information to notify beneficiaries of policyholder’s death. SHAME ON THEM!

To avoid any of these insurance industry shenanigans, everyone who takes out a life insurance policy should let the beneficiaries know about it. It is not necessary to know the amount, but beneficiaries should know there is a policy, the name of the insurance company and how to reach the company in the event of death.

If you can do it tactfully enough, you might want to mention this life insurance dirty trick to an older friend or relative who might have a policy. This will suggest that they give the necessary policy information to their beneficiaries if they haven’t already done so.

Insurance companies fight tooth and nail to keep from paying benefits.

Let’s not make it easier for them.
 

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You may not always need a lawyer when making a legal claim, but when you do, you really, really do need one. This is particularly true in ERISA and disability claims against insurance companies. Why?

Because they employ armies of experienced and knowledgeable lawyers and claims adjusters who all have one purpose in mind – to destroy your claim ASAP so they can keep the money your claim represents. It is in the very nature of insurance claims because insurance is a business and all businesses are after profits.

Insurance companies fight claims like yours a thousand times a day.
                      You get only one shot to get it right.

Because fighting claims such as yours is all they do day in and day out, these insurance company minions know ERISA and disability insurance law and how to use this knowledge to try to sink your claim.

That’s why you need an attorney who handles ERISA and insurance law day in and day out. Why should you, as a claimant, use an attorney who is unfamiliar with the law and the procedures necessary to successfully file and prosecute a claim, while your enemy, the insurer, has knowledgeable experts defending it?

Insurance claims, by their nature, are usually hotly contested because insurance companies make money by not paying. Being profit oriented, they have many ways to get around a claim. They study these methods and use them without compunction whenever the opportunity arises.

Some of their common methods are:

• Getting you to “wimp” out.
  
• Subjecting you to a “no see’em” IME.
  
• Losing your paperwork.
  
• Asking for more and more paperwork.

• Secret video and social media checks.

This is only part of the arsenal insurers use to fight claims like yours each and every day. And, you can be sure that if you make a claim, the insurance company’s natural instinct it to deny it by using any or all of the methods listed above.

Know this for sure: When you make claim, be prepared for a battle to the bitter end.

That way you’ll be neither surprised nor disappointed.
 

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The danger of relapse in some cases can be as much a disability as the actual disability itself, the 1st Circuit Court of Appeals has ruled in Colby v. Union Security Insurance Company, et als, 2013 WL 174419, C.A. 1 (Mass.).

Dr. Colby was an anesthesiologist who became addicted to opioids and, because of this condition, was unable to continue working. But, the insurance company stopped her benefit payments immediately upon her release from the treating facility, claiming that the threat of relapse was not a condition covered by her employer’s ERISA disability policy.

The Court itself framed the basic central question: In an addiction context, can the risk of relapse be so significant as to constitute a current disability requiring the payment of disability benefits? The Court found that under the facts in this case the answer was yes.

Dr. Colby was admitted to a treatment facility for her addiction.. She was released from the facility after having received benefits for just a few weeks because there was a 90-day waiting period before benefits began. Following her release, the insurer refused to make any more benefit payments to her, taking the position that the risk of relapse is not the same as a current disability and she was not entitled to any more benefit payments under the ERISA plan.

It is common knowledge in the medical and disability insurance fields that doctors and, particularly anesthesiologists, are more likely to become addicted to drugs than is the ordinary person. This is because in their line of work they have easy access to drugs.

Although the Court recognized it had to pay deference to the decision of the plan administrator, it said that giving deference in the review doesn’t mean the Court is not to review at all.

Throughout the proceedings, Union Security, in defense of the claim, maintained that the risk of relapse, no matter how serious, could not be a disability under the ERISA plan.

The Court held otherwise. There was no reference to “risk of relapse” in the plan. The administrator’s denial of benefits, the Court said, has to be based on the text of the plan and the meaning of the words used. Here nothing was said about “relapse”.

Finally, claimant’s doctors all were of the opinion that because of the particular stress factors in her life and various other mental health disorders she suffered from, putting Dr. Colby in a situation where she would have access to opioids, would make her relapse just about inevitable.

With no “relapse” language in her ERISA plan, these factors amounted to a disability entitling her to benefits, the Circuit Court ruled.

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If you don’t put all of your eggs in one basket when filing an ERISA claim, you’ll most likely to wind up with “scrambled” rather than with your “sunny” side up.

Knowing that the insurance company is likely to deny your claim no matter how good you think it is, it is imperative that you present a full and complete story of your claim from the very beginning, leaving nothing to the imagination. There is little to no chance that you will be able to add to the record after a claim denial.

Why? Because the basic foundation of an ERISA claim is what is called the administrative record. This record is ordinarily composed of witness reports, medical and hospital reports, and medical and occupational evaluations and other written or pictorial evidence which is presented to the insurance company, and what the insurance company relies on in making its claim decision.

If you fail to provide a necessary piece of the case, the insurance company can’t and won’t consider it and it is likely a denial of claim will be upheld even if appealed to a Federal Court.

Obviously, an insurance examiner can’t weigh evidence you don’t provide. And the examiner’s decision can’t be faulted by a court if you didn’t provide the necessary data. If you have evidence that will support your claim – use it or lose it!

Despite omitting crucial evidence, a claimant caught a break in Acree v. Hartford, 2013 U.S. Dist. LEXIS 3687, because the Hartford so overreached in denying an ERISA accidental death and dismemberment claim, that the Court felt compelled to send it back and to allow the claimant to add evidence for that new review.

The issue was whether an insured died as a result of suicide or was accidentally killed while cleaning his gun. The final autopsy report listed the cause of death as “undetermined” although there was mention of suicide in the preliminary autopsy report and in the police incident report.

Naturally, Hartford grabbed on to the “suicide” reference and denied the claim, ignoring the final “undetermined” finding of the coroner. Death by suicide was not covered by the policy and Hartford could pay nothing to the unfortunate victim’s family.

There were pictures of the scene of death which showed that the deceased had beside him gun cleaning paraphernalia which would seem to clinch the theory that the shooting was an accident which happened while the gun was being cleaned.

However, the claimant failed to provide the photos when filing the claim. Therefore, even though the insurer was aware that there had been pictures taken, the picturtes were not provided for the record by claimant and were not considered.

Luckily for claimant, there is a negative presumption in Federal common law against suicide. Unless the evidence shows that the deceased likely committed suicide there is an affirmative presumption of accidental death. Ignoring this presumption weighed heavily in causing the Court to send the matter back for a de novo review and reopening the record thereby allowing the claimant to put the pictures of the scene of the accident into the record.

The importance of having a full and complete record before filing suit on an ERISA claim denial is clearly set forth by the Court at Page 5 of the opinion, when Judge Treadwell says:

 “In the Court’s experience, lawyers for ERISA claimants all too often do not appreciate the importance of getting all of their evidence in the administrative record,  Thus, it is not uncommon for ERISA claimants, when they get to court, to discover  they cannot use what they think is critical evidence.”

Your first step (the administrative appeal) in appealing an ERISA insurance denial is likely your last word. Make sure you’ve got it all and you’ve got it right!

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One little-known benefit for the public in Obamacare has nothing to do with treatment or medication. In plain English, it’s plain English.

Thanks to the policyholder’s friend, Wendell Potter, who used to work for an insurance company, we now know that it’s the law that insurance policies will have to be written in words that the average person can understand.

Whoa! You mean somebody buying a policy doesn’t have to rely on the insurance company’s statements anymore? An ordinary person can read for him or herself and understand what he or she is buying? What a breakthrough!

Not only will you understand what the insurance company is required to do for you, you will also have a very good idea what monies you will be required to pay for various medical and hospital services. Just as importantly, insurance companies will have to deliver these plain English summaries in a standard format. This will make it easier for those needing insurance to compare the benefits of competing companies.

During earlier hearings before the U.S. Senate on the Affordable Care Act, Professor Karen Pollitz of Georgetown University testified that the average American reads at an 8th grade level but that insurance policies are generally written at a first year college level. It’s no wonder we find in our disability income insurance practice that very few policyholders even try to read their policy until they become disabled. Unfortunately, by then, it may be too late for them.

The standard format summary to be provided by the insurer requires an estimate of the respective costs to the policyholder and insurance company of delivering a baby or treating a disease such as diabetes. This feature also makes it simpler for those seeking policies to evaluate the offerings of various companies so as to choose the best deal.

This year (2013) the estimate of cost will be based on a “best estimate” formula provided by the government since there is no history. After this year, the estimates in the summary will have to be based on the actual experience of the individual insurance company based upon its actual claim experience.

And, if any of our readers are feeling sorry for insurance attorneys because Obamacare will make it easier for claimants to understand their rights – DON’T!

Insurance companies, based on their history, will enhance their old ways and find new ways to try to duck their benefit obligations. With the complexity of disability insurance law and insurers’ ability to frustrate claimants who are fighting not only an illness or injury, but also complete lack of income, there should be plenty of work for claimant’s attorneys.

The policy language may become friendlier under Obamacare, but collecting benefits from an insurance company will be as tough or tougher than ever.

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The above holiday card message from a client reminded us of what our disability insurance practice is all about – “little people”. “Little people” is not a reflection of a claimant’s standing in the world. It describes a claimant’s position when fighting a mammoth insurance company for policy benefits.

No matter how wealthy or well connected you may be, your wealth and power pales in comparison to the resources of an insurance company. They not only have the “bucks”, they have armies of claims adjusters and experienced insurance attorneys and plenty of ways to throw a monkey wrench into a claims procedure.

Luckily there are legal procedures which level the playing field somewhat so long as you know how to use those procedures properly. Those who practice this type of law do know and help to bring an insurance company down to a size which is manageable by a claimant. We have been doing this for more than 30 years and never once worked on the insurance company’s side of the street!

Being able to bring hope to those insurance claimants who are overwhelmed by the thought of what they are up against is an added bonus to the way we make our living as attorneys. It helps us to keep going when things get rough.

The client who wrote the holiday card was fearful of going ahead with her LTD claim when she first came to see us. We encouraged her to move ahead with her claim after reviewing her circumstances. She had a perfectly valid claim under her policy.

There should have been no question that her carpal tunnel condition kept this accountant from working as she couldn’t operate a computer or an adding machine without severe pain and numbness. For an accountant to be unable to operate a computer or an adding machine is almost the same as a carpenter being unable to use a hammer.

But, did this obvious fact dissuade her insurance company from terminating her disability claim? Hardly. One of the biggest moneymakers for insurers is discouraging their policyholders from pursuing valid ERISA and private disability claims. After all, when a policyholder drops a valid claim, the benefits payments go from “Debit” to “Profit” for the insurer.

Although she was discouraged and doubtful about whether to challenge her insurance company’s denial of her claim, this client was resilient enough (See “Wimp”) to be able to take on the challenge after we spoke and take the fight to her insurance company. She recognized the insurance company denials and tactics for what they were: A ploy to make her drop her claim.

With help from us, the insurer reconsidered on appeal and now pays her disability benefits.

What makes this claim stand out is that a claimant was brought back from the abyss of giving up a rightful claim which would have made her life a greater struggle because of her finances. She still can’t work but has the security of the disability insurance benefit to which she is entitled to under the terms of her disability policy.

Her card said, “…thanks for watching out for the little people and keep being defender of the faith!”.

Watching out for “little people” is what we have been doing for more than 30 years, particularly when ordinary folks are matched against insurance Goliaths and their “denial machines”.

We intend to keep doing this until we can be of no further use to “little people”.

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As if people with mental problems didn’t have enough headaches, America’s psychiatrists are changing their mental disorder guidebook, according to a recent article by the Associated Press.

This would be the Fifth Edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-V), published by the American Psychiatric Association. The revision has been in the works for several years.

Many people might not consider this announcement earth-shaking. But the DSM’s definitions define the clinical characterization and treatment of mental problems. Disability insurance companies and school systems usually base their decisions on benefits on how the DSM defines mental conditions and the treatments recommended.

Scheduled for publication next May, the new DSM seeks to capture the current state of knowledge of psychiatric disorders, according to the Association.

Just what effect the new DSM will have on the care and treatment of people with mental disorders will have to await publication of the manual and digestion of its contents by the lay, medical and insurance communities.

One thing we are sure of, insurance people will be all over the manual with a fine tooth comb, looking for new excuses not to pay mental disability claimants, or how to stop payments to some already being paid benefits. How do we know this? Because we fight with these companies every day over claims that are as plain as the nose on your face to everybody, except insurers.

Any attorney involved in a mental disability claim must be familiar with the new DSM and study it. Disability and ERISA lawyers must follow comments on the Guide which are bound to be published shortly after it is published so as to be up on the latest thinking in this field of claims law.

Knowing as much or more about the DSM changes than insurance company’s minions is an absolute must. Disability income insurance attorneys are bound to be bombarded with calls from beneficiaries who are being threatened by insurers with a loss of benefits because of how insurance companies interpret the new DSM.

Like the Boy Scouts, these attorneys must “Be Prepared”.

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The Hippocratic Oath of doctors to “do no harm” takes on new meaning when a physician has a patient with an ERISA or disability income insurance claim.

Unfortunately, medical schools are not known for giving courses in how to complete an Attending Physician Statement (APS) which will satisfy disability insurance companies, particularly as those companies are notorious for not wanting to be “satisfied”.

The APS is a form generally used by disability insurance companies when asking for medical reports on claimants.

In the real world, doctors get many patients who suffer an injury or illness to their body which then leads to an injury to their ability to earn a living. No matter the actual injury to the body, the loss of ability to earn may have a profound effect on a patient’s ability to recover.

Doctors are by definition busy people. They have always worked hard but find their time for patient care even more limited with the trend in recent years toward more government rules and insurance paperwork. It’s likely this trend will continue.

When a disability income client comes to us, one of the first things we try to learn is if the treating doctors understand the importance of complete, accurate records regarding the client’s condition. An APS must not only accurately describe the medical condition, but must also set forth why, in the doctor’s medical opinion, the condition makes it impossible for the patient to perform job duties.

This part of the APS is known as “restrictions and limitations”. Response to this portion of the APS is crucial to any patient’s disability claim even though it does not involve diagnosis and treatment, the usual subjects of medical reports.

Without the doctor’s clear opinion of what the patient can and cannot do vocationally, the patient’s disability claim is almost certain to be denied.

Doctors have to know that insurance companies are not in the business of paying benefits if they can avoid doing so. Insurers and their stable of captive physicians try mightily to find any excuse for not paying benefits. They are experts at it.

One of their favorite ploys is to use a shoddy, ill-considered doctor’s record to shoot holes in a claimant’s case. If a patient loses benefits because of a sloppy report, the doctor is actually “doing harm” to the patient, contrary to the oath.

One example: Physicians should not lightly predict when an illness or injury will be alleviated to the point that the patient will be able to go back to work. People heal at varying rates and an average time for healing includes the fastest and the slowest healers.

If a medical report projects an average healing time, but the patient is a slow healer, you can bet the insurance company will not recognize the difference and the patient will suffer.

Just because an APS asks the physician to provide a “return to work” date doesn’t mean the doctor has to provide one unless he or she is certain of the date. It’s OK for the doctor to say, “I don’t know”, because being some time in the future, the “return to work” date is something they really can’t be sure of.

Insurance companies love to lead doctors to believe they should answer the “return to work” question. Then, if it turns out the doctor was mistaken, the company has an excuse to deny benefits to the doctor’s patient. “Do no harm”. If a doctor is not certain, the doctor should say so.

Physicians are trained to “do no harm” in giving patients the best care and treatment. Doctors should also try their best to “do no harm” when writing an APS about a patient with a disability insurance claim.

If called upon to render a report or APS in a disability case, a doctor must do it carefully after fully considering all of the facts involved. For the patient’s sake, it’s important to take the extra time required to be complete and accurate.

A mistake can cost a patient years of benefits needed to feed the family.

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