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

Chronic fatigue syndrome is not hoax. As long-time disability income insurance attorneys, we have seen too many people devastated by this disease to believe that it is not really a severe illness.

People in our line of work generally develop a knack for spotting falsity in claimants trying to wheedle their way into a long term benefits bonanza while still having plenty of capacity to work. We have always found that people truly suffering from CFS are really ill, although medicine has failed to find a viral or bacterial culprit.

Now, it appears that the causes of this devastating affliction are starting to see the light of day.

In an Op-Ed piece in the New York Times, author Hillary Johnson reports that a researcher has found a human gammaretrovirus, XMRV, was present in tissue samples of a significant number of chronic fatigue syndrome patients, going back as far as 1984. Recently discovered, XMRV is the third human gammaretrovirus, the other two being H.I.V. and human lymphotropic viruses, which cause leukemia and lymphoma.
 

For the full text of the article, see http://www.nytimes.com/2009/10/21/opinion/21johnson.html?_r=1&scp=3&sq=XMRV &st=cse.

Hopefully, this discovery is the key to unlocking the mystery of CFS, which has plagued an expanding number of people down through the years. Finding a cause for this affliction would be the first step in finding a cure.

Having seen firsthand the devastation this malady causes in a person’s quality of life, a cure can’t come too soon.

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We can't help notice the recent striking increase in hospital and health insurer advertising on radio and television. It seems that every hospital and health insurer suddenly feels the need to sing its own praises, in commercials which are elaborately produced, at great expense, by professional spinmeisters, and are designed to inspire a sense of fear and awe in any patient who might even consider going elsewhere.

Indeed, hospitals are now being marketed just like any other commodity. We are told repeatedly, not only of their prowess in medicine and technology, but also of the kindness and caring which makes each one special and superior to the next.

We recently went to visit a friend at a local hospital and were amazed to see, displayed on a mantel behind the main reception desk, (which, by the way, had the look of a 4-star hotel), a series of ornate plaques announcing the ratings given the hospital by a well known private commercial testing agency (heretofore known more for its evaluation of cars than care).

When exactly did we come to this point, and why? Is nothing, including life and death, free of spin anymore?

More importantly, as the hospital and insurer rush to publicly proclaim and "sell" the public about their claimed superiority becomes more pervasive, has there been any corresponding increase in quality of care? Has there been any sign that the cost of health care is going down? Unfortunately, the answer to both questions is a resounding NO. Are the spinmeisters  being hired to distract us from these very sad facts .

As the nation debates the wisdom and cost of national health insurance, and bemoans the outrageous expense of health care in this country, maybe we should start to think about what is really important in the delivery of health care. Why are slick commercials and private ratings accolades becoming so important, and what does that say about the delivery of healthcare in this country?

Perhaps the healthcare and insurance industries, and hospitals in particular, should spend less time and money telling us how good they are, and more time and money actually being good.

What a revolutionary concept!


 

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Some recent case reports made us wonder once again why IMEs are called Independent Medical Examinations. They are hardly “independent”.

These “examinations” are the evidentiary foundation upon which disability insurance companies rely to deny disability income claims so that these denials can withstand subsequent scrutiny from the courts.

How do you “fix” a game so that it favors you? When you are the manager, you pick the players who you think will win the game for you. Medical “experts” who can be counted on to deny a disability are key to getting the outcome the carrier is looking for. That part is obvious. What is not obvious is that Congress and the courts have permitted this corrupt practice to flourish, making this already one-sided affair a knockout blow for disabled claimants.

ERISA, supposedly passed by Congress to make it easier for employees to level the playing field, gives the insurer, which is also an administrator of a plan, discretion to determine whether a disability claim is covered by a disability policy. It doesn’t take a great brain to figure that if a claim is denied, the money that would have been paid to the claimant goes right to the insurance company’s bottom line.

Ever since the Supreme Court ruled in Firestone v. Bruch, 489 US 101 (1989) that courts must give deference under ERISA to the finding of the plan administrator as to whether a claim is covered, insurance companies have been having a field day denying claims that should have been paid and having the courts, with their hands tied by Firestone, back them up.

What does the IME have to do with this? Insurers have gathered to themselves a coterie of doctors who know only one thing – which side of the bread their butter is on. These “experts” make all or most of their income year after year from insurance company examinations (some in excess of $1 million per). They know that if they were actually impartial in their work, their source of income would dry up fast. So, these “independents” lean heavily in favor of their meal ticket. The result? Disabled policyholders, who may have been paying premiums for years, suffer.

On top of this, courts have had their hands tied since 1989, and have to give these slanted medical reports not only credence, but deference. If any of these so-called “independent” medical reports supports the denial of benefits by the administrator, the court has to uphold the denial even if the court may feel, on the basis of the evidence it has heard, that the denial is flat wrong.

So, why are these reports commonly referred to as “independent”. They are anything but.

(This blog is the first in a series of blogs we intend to publish on the misnamed “Independent” Medical Examination).

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 Being invited to speak to a doctor’s organization in the New York Metro Area about how confident they should be in the protection they think they get from their disability income insurance policies, got us thinking specifically about doctors’ insurance problems.

And, doctors have plenty of them, although most physicians don’t know it until they are stricken and it is too late.

First off, doctors have to realize that they will get special attention (of the wrong kind) from a disability carrier if forced to make a long term disability claim. Why? Because a doctor’s long term DI claim, especially if the doctor practices in a specialty, usually involves a heavy potential payout for the insurer and heavy payouts are something insurance companies despise.

Most physicians think they have “Own Occupation” coverage and feel secure. Not so fast. Believe it or not, there is no one definition of “own occupation” in insurance policies. For example, a policy may have a perfectly sound “Own Occupation” clause, but with a time limit. Therefore, it may be described by the company as an “Own Occupation” policy, but the protection of the clause ends in say, 2 years, and after that the definition of disability may become much more general.

So, if you are a surgeon and think you are buying a disability income policy that will cover you and your family in the event you can no longer perform surgery, you may be surprised to learn, after 2 years, that you have to go back to work in a lesser medical field and will no longer be paid your disability benefits by your insurer.

Another major issue doctors should resolve before they can feel secure about income if they should become disabled is to determine if their policy is an individual policy or a group policy which involves ERISA, a Federal statute, which adds a completely new set of problems to the doctor’s woes if the unthinkable happens.

It is difficult enough to pursue a disability income claim when the insurance company is determined to find any way it can not to pay, without having the insurer have the advantages that a group ERISA policy gives it.

The way to tackle this problem before a disaster strikes is for the doctor to read and parse every word of his or her disability income policy before the need for claim arises (hopefully it never will), because the policy language (strictly construed) determines the benefits available. No more and no less.

If the doctor wants help to understand the language of the policy a lawyer with disability income insurance experience should be consulted. Don’t rely on what the insurance company ad or the insurance agent or salesman told you. Read it and understand the policy yourself.

And, most important of all – DO IT NOW – while you think of it and BEFORE you have to make a claim.

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Being good can be very, very bad for disability income insurance claimants in many ways, all locked away in the fine print of the policy. See Mr. Nice Guy.

A recent New York case added a new pitfall for claimants who try working at a lesser job even when they are physically or mentally not up to it. Insurance companies ambush unsuspecting “Good Joes” waiting for them to fall into the trap of trying to continue to work even if they can’t hack it because of their disability.

The issue in McCauley v. First Unum Life Ins. Co., 551 F.3rd 126 (2nd Cir., 2008) , did not involve the warning we issued in Mr. Nice Guy. McCauley dealt with the insurance company tactic of wrongfully withholding benefits and thereby forcing a disabled person to do anything in order to live, and then claiming that the new work cut off the insured’s right to claim the disability under the terms of the policy.

The First Unum policy in this case contained a provision that if the insured was employed for more than 6 months while earning more than 80% of predisability income, the insured would not be entitled to benefits.

After Unum wrongfully denied him benefits, the insured, desperately needing money to live, worked for 8 months at a salary exceeding the 80% limit. He worked at a company which was sympathetic to his disabling condition and employed him anyway, recognizing the limitations of his disability. But, even with this compassionate help and despite his pressing financial needs, the claimant could not continue because his condition was too debilitating.

Even though the policy was governed by the ERISA statute, First Unum jumped on the issue of claimant’s employment for 8 months, citing the policy language, even though First Unum’s wrongful denial of benefits put the claimant in a position where he needed money to live so desperately, that he was forced to try to work, no matter how trying or demeaning it was to work in his condition.

But, the court, in its wisdom, applied the ERISA doctrine of unconscionability, declaring that to wrongfully deny ERISA benefits and force a disabled claimant to try to earn income at peril to his health, and then to claim this employment destroys the claimant’s right to benefits, is unconscionable and First Unum’s denial of benefits would not stand.

It is heartening when a court recognizes that the reality of just trying to go on living trumps the cold, hard, sometimes unrealistic and impractical, language insurance companies use in their policies.

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