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

Don’t expect a disability insurance company to spend a lot of time analyzing a claim which appears to be clearly deniable on its face. We all know insurance companies are not in the business of paying, especially if they find what appears to be a clear exclusion to hang their denial on.

We recently took on an appeal from a Unum denial for an emergency room doctor who had suffered from glaucoma for years.

Having made full disclosure to the insurance carrier of his glaucoma condition when he bought the policy in 1993, Unum issued the policy, but inserted an exclusion to cover the possibility of his glaucoma condition causing him to become disabled. Our client had accepted this reasonable restriction, believing he could rely on treatment and medication to keep his glaucoma in check.
His policy exclusion read:
 

“The insured is not covered for any loss resulting from either or both eyes, except by the following table of benefits on form 809 attached.”

In 2006, the doctor suffered some optic nerve damage from Sarcoidosis, resulting in some minor visual loss, but was able to continue working as an emergency room physician.
In 2008, our client underwent coronary bypass surgery after which he noticed a marked loss of vision. This loss of vision was attributed to postoperative hypotension which diminished the flow of blood to his optic nerve and resulted in ischemic optic nerve damage.

Being no longer able to work because of his vision problem, the doctor filed a long term disability claim. Unum took the position that his loss of vision was caused by his eyes and was therefore clearly excluded under the policy. Unum paid for the 12-month exclusion period and then refused to pay for further long term disability benefits. Unsurprisingly, Unum took the position that the loss “…resulted from either or both eyes…”

Why should Unum or any other insurance company look further under these conditions? Usually when talking about the eyes, we are talking about “seeing” or vision. If the doctor’s claim was based upon loss of vision, end of story as far as an insurer is concerned. Why look further if the exclusion seems to mean the insurer doesn’t have to pay?

When the case came to us, we reviewed carefully the language of the exclusion. Then we carefully examined the doctor’s medical history and found that his loss of vision was not caused by his “eye or eyes”, but was caused by damage to his optic nerve which is not part of the eye. So, if the doctor’s loss of vision was not caused by his “eye or eyes”, it is not excluded and the disability policy should pay in full according to its terms.

So, what at first blush would seem to be a slam dunk for the insurer turns out to be a slam dunk for our client if he can get the insurance company to see it his way. Although the claim had been denied, we appealed to Unum on behalf of the claimant, offering proof that his occupational disability was not caused “by his eyes” but was caused by his optic nerve ischemia, the optic nerve not being part of his eye.
This condition was no different from a vision impairment caused by a blow to the head which damaged the optic nerve and caused a loss of vision.

Before filing the appeal we gathered the appropriate medical reports and set forth our arguments in what we thought was a clear and cogent manner, particularly pointing out that the exclusion had been written into the policy by the insurance company so that under the law, any question about its meaning would be interpreted against the insurer.

After reviewing this appeal, (copy of which is available on request), Unum reversed its earlier rejection of the claim and now has agreed to pay benefits.
It’s tough to lead an insurer to water, let alone make it drink, following denial of a claim which an insurer believes is clearly excluded by its policy language.

Luckily for our client, experience, research and a narrowly focused analysis made it happen.

Sometimes, we love what we do!

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Disability income insurance claimants never expect an easy time with their insurers, but the recession we are going through has toughened insurer attitudes to the point of “Scrooginess”. If you hear money screaming it’s because insurance companies are pinching it so hard it hurts!

Cash and liquid funds are ordinarily “king” in any business, but the recent economic crunch has magnified by many times insurance company resolve to hold on to every dollar for as long as possible, no matter their obligations under the terms of policies with their policyholders.

Lawyers experienced in this field have found in the last year that claims which have been established to a point where they would have been settled in the past are now still being denied by companies who want to hold on to their dollars for as long as possible.

What this means to the disability claimant, at a bad time in his or her life because of being unable to earn income due to illness or injury, is that they now face a steeper hill to climb in dealing with their disability insurers because companies are doing everything they can to delay paying their policyholders for as long as they can.

For policies covered by ERISA, insurers have a built-in delaying mechanism with the discretionary clause which gives the administrator of the ERISA plan the authority to determine whether the claim is covered by the ERISA policy when the claim is first submitted.

It doesn’t take much imagination to conclude that the ERISA administrator, which many times is the insurance company which will have to pay the claim, will tend to protect its cash by denying the claim in the first instance and then to keep denying the claim to protect the insurance company’s cash reserves.

This right to determine a claim’s validity at its inception not only gives the insurer a leg up in the first instance but sets an impediment which the claimant has to overcome throughout the prosecution of the claim. The claimant is always playing second fiddle because the denial sets the tone for the case and must be overcome if the claimant is to prevail.

So, if you are being forced by circumstances to file a disability income claim, be prepared for more flak than insurers usually give such claims (and, believe us, it is usually plenty). But, you can’t wimp out and abandon the claim. That’s exactly what the insurer wants you to do.

If you have a valid claim, pursue it diligently and get the help you need from some one experienced in disability income insurance law and all of its pitfalls. (You can be certain that your insurance company and its cadre of attorneys know all of the pitfalls).

If you have a valid disability claim, be prepared for a longer, harder fight for benefits these days because of the recession. But, also know that you can win this fight!

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It’s time litigants and the courts deal with the biased world of insurance company doctors who make diagnoses and reports about claimant disability conditions without ever seeing a live body.

This is today’s world of insurance company “examinations” with doctors who make their living from an insurance company or from a medical agency which makes its living from the insurer.

The U.S. Supreme Court recognized the problem in Metropolitan Life Insurance Company, et al      v. Glenn, 128 S. Ct. 2343 (2008), but there is a long way to go before there is any fairness in the procedure in disability income claims.

We are happy that the Supreme Court finally found that the way insurers get their medical information requires further scrutiny because of the rampant biases inherent in the process.

But, the system, having recognized the problem, should go to the heart of the matter much more quickly and with fewer road blocks. What the court in Glenn recognized is that there is a world of medicine which plays by self-interest rules rather than by the rules of the Hippocratic Oath, i.e.

Since insurance company MDs do not see the claimant in person, they feel they do not owe the ordinary patient-doctor duty to the claimant. These “no-see-um” physicians believe they can range far and wide with their “opinions”, buttering their bread on the side of the one who pays them – the insurance company.

Feeling thus relieved of the professional duty clearly owed a patient in making an examination and diagnosis which the patient will rely on in seeking treatment, insurance company “Independent Medical Examiners” give their imaginations free rein so as to arrive at a diagnosis of “no disability”, which is exactly what their employers, the insurance companies or the insurance companies’ puppet agencies, want.

There is no mystery about this. For many years, courts have allowed Insurers to rely on the reports and diagnoses of doctors who have never seen the patient. And as this trend became more entrenched, insurance companies went out and found MDs who did not practice medicine but who enjoyed reading other doctor’s work so they could naysay it and make loads of money doing so.

Although some courts have found that Glenn opens the door, via discovery, to claimants’ ability to find out the history of each doctor to determine a leaning or bias which might affect his or her opinion, it does not go far enough. It requires court permission to examine the physician’s expertise and inclination to lean in favor of the insurer.

Why not save the court (and the parties) a load of time by having the doctors who are being relied on in a matter provide a curriculum vitae and answers to a standardized questionnaire which will immediately apprise the court and the litigants of details to consider in arriving at a decision on the expert’s impartiality.

Such a system, with appropriate penalties for certifying falsely, would immediately give the court and the litigants a bird’s-eye view of the innate fairness with which the physician undertook the medical duties in the matter. Insight into the relationship of the MD to the claimant, the basis upon which the physician made the report or diagnosis, the ongoing business relationship of the physician with the insurance industry and company, the fee paid and the amount of fees paid in last few years, etc.

The questions seem fairly obvious and would not be a burden for a doctor to answer, especially if the doctor worked often in the disability field. It would not be difficult to propound such a questionnaire with 6 to 8 questions which would do the trick.

But, what a savings for the court and litigants to have the information up front and not have to go through the hearings on motions for interrogatories and all that that pretrial motion practice entails. Every one would have the important information at the start and could evaluate the balance of the evidence with that information in mind.

And, you know what? It wouldn’t surprise us if this sensible procedure led to a lot of insurers dealing much more reasonably with claims if they know that the “no-see-um” doctor defense was now out in the open for all to see.

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What better way for us to start the New Year than with resolutions that are apropos for disability income insurance claimants, both ERISA and private.
So, here goes:
 

For a potential claimant: I will read my policy carefully and ask some one who knows to clarify what stumps me. And, I will do it now, before I become disabled.
 

For an actual claimant: I will do my best to get myself back on track so that I may go back to work (if I can get a JOB!).
 

For an insurance company: I will do my best to:

Train my claims employees to consider all of the evidence fairly when assessing claims.

 Halt the practice of getting a stable of shill doctors to “examine” claimants and call these exams “independent”.

Spend more money paying claims and less on fighting people who I know are entitled to benefits.
 

For an Independent Medical Examiner: I will call them as I see them, reread my Hippocratic Oath and conduct disability physicals so as to “do no harm” to those I examine.

For a treating physician: I will pay strict attention to my medical reports, knowing that insurance companies are just waiting for me to make a mistake or an omission which will prejudice my patient’s claim.

For myself, as a disability income attorney: I will continue to work hard to get all disability claimants the benefits they have paid for with their premiums.

For all of us: A wish for good health and that you never have to make a claim to any insurer for anything!

                   What a Happy New Year that would be!

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 A recent article on msnbc.com reported that Social Security disability claims are increasing rapidly. The article says that the nation’s economic downturn and arrival of the baby boomer generation at the peak years of disability are the causes of this stark upturn.

To get this benefit (commonly known as SSDI), claimants must prove they are unable to work because of a medical condition that is expected to sideline them for at least one year or is expected to result in death. Almost two-thirds of first SSDI applications are rejected by the Social Security Administration, benefits being provided only in the most obvious cases, such as terminal cancer, etc.

The next step after rejection of a first application is a request for reconsideration which is a review of the initial decision. These requests are dealt with, usually within a few months, and approximately 14% of those requests to overturn the adverse decision on the first application, are granted.

The next step for those who pursue SSDI benefits is to file for an in-person hearing before an administrative law judge. At this hearing new evidence may be introduced and the judge, who will make the decision, actually sees and evaluates the claimant. About 55% of these hearings result in a turnaround with SSDI benefits being granted.

The big problem with these hearings by a judge is that it can take up to 2 years from filing for such a hearing to the date of hearing. And, during that wait, the claimant may not have any income on which to live.

What it all boils down to is that fewer than 35% of claimants ever win entitlement to SSDI payments. Not only is the number cut by the findings in the proceedings, but the number is whittled down further by the “wimp”  factor, a pervasive tendency among claimants to give up because of their personality or their attitude that “you can’t fight City Hall”.

Which leads us to wonder – the number of SSDI applications has soared. Will the number of those who get benefits do likewise?

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Almost 40% of health insurance consumers don’t understand they can appeal an insurance company denial of a claim, according to a recent survey by the National Association of Insurance Commissioners, an organization of State insurance commissioners.

This statistic means a large percentage of policyholders accept insurer denials at face value even though history clearly shows that most of these companies do their best to deny, deny, and deny claims. Add to this group many claimants reluctant to push their claims in the face of what they see as the impenetrable wall of insurance company resistance and one can begin to fathom the rich returns to insurers and their shareholders of insurance company intransigence.

How this works to the benefit of insurance companies may seem to require monumental mathematical machinations. But it is really quite a simple formula. The insurer calculates its underwriting risk by taking a mathematical “worst case” scenario and calculating its premiums based on this scenario. This affords the insurer the highest amount of premium to cover its risk in the event the worst happens. This is good business practice because there is no guarantee that the worst won’t happen.

But, having collected the highest premiums, the insurance company then wages all out war on claimants, denying many perfectly valid claims. These insurers rely on the fact that many claimants don’t know a claim denial can be appealed and also on the natural reluctance of many claimants to undertake an appeal. (See Don’t Be A Wimp).

What a windfall for the insurance companies! They charge the highest prices for their product because they base the premium on the high end of the underwriting spectrum and then they cut their outlay on claims so as to push them to the lowest end of the spectrum. All of the cash saved in between goes to insurance company profits. And, when you are talking health insurance, the cash saved amounts to billions of dollars.

Can anything be done about this system which hits many sick and injured people at the worst time in their lives? Yes, it takes an all out effort by lots of people to get the word out – insurance company denials are not the Gospel. If a claimant has a valid claim, then they must appeal the denial and right the wrong.

Those who can help:

* Friends and family who know that the insurance company turndown is not the last word. They have to let their uninformed relatives and friends also know.
* Doctors who treat claimants and lawyers who pursue claims have to preach to the uninitiated that they have the right to appeal for benefits for which they may have paid premiums for years.
* In the interests of compassion, fairness and morale, Human Resources Departments should inform employees that they have the right to appeal an adverse ruling by an insurance company even though the employer may think its interest lies in paying the fewest claims.
* Web sites and bloggers have to continually get the word out to those seeking information on claims at their sites that there is life after an insurance company claim denial.
* State Insurance Commissioners should mandate that a denial of a claim must be accompanied by a “plain English” and unequivocal outline of the claimant’s right to appeal the decision and the method for filing such an appeal. To be certain of the simplicity and clarity of the information, the State may require the notice to be in a certain form approved by it.

Insurance companies are entitled to deny claims in proper cases. They have to protect the financial stability of their businesses and have a duty to their shareholders.

But, this duty should not include taking advantage of almost 40% of consumers or a policy of denying claims knowing that a substantial percentage of the turned down claimants either don’t know they don’t have to accept the turndown or don’t have the gumption to fight the denial.

This is especially true when many of these claimants are making health claims at a time when they are seriously sick or injured. Denial may be a good way to jack up profits but it’s an awful way for one human being to act toward another.

And, all insurance companies act through the agency of human beings. Or do they?

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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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Obviously, the most important person in the cast of characters involved when you have a disabling injury or illness is your treating doctor. You don’t have to be an Einstein to know that. Your doctor’s skill, or lack of it, can make or break your personal future.

But, if you have disability income insurance and are thinking of making a claim, the physician’s importance doesn’t end with the completion of treatments. In fact, the doctor continues as the star of your claim efforts and one unthinking or careless word from your doctor can send your claim to oblivion.

The importance of the claimant’s ability to get the treating doctor to realize the role he or she plays in your claim cannot be overemphasized. Physicians are busy people and are sometimes not too tolerant of demands on their time other than for treating patients. Yet, their word on your condition and your ability to function in a work setting can torpedo a claim faster than a claimant can “take two aspirin and call me in the morning”.

Your doctor’s value is multiplied by the fact that the first notice of claim you send the disability insurance carrier may carry the seeds of self destruction, thereby sinking your claim before it ever leaves the dock. This warning goes for rock solid claims as well as those which may be debatable.

ASAP Is Not A Priority

Many disability claimants are lulled into a false sense of security by having had previous experience reporting an auto accident claim or a stolen piece of property. In those types of claims the first priority is to get the notice to the insurer ASAP. The details can follow later. In a disability claim you have to get the details determined and in order before filing the claim, because an incomplete and/or inaccurate notice of claim can and will be used against you throughout the claims process.

Disability insurance carriers are fully aware of inexperienced claimants being fooled into thinking that a disability claim is similar to filing an accident claim. They have a full complement of analysts and attorneys waiting to dispute and cast doubt on a claim because of an error or carelessness in the initial notice of claim.

The notice becomes an indelible part of the claims record. It follows wherever the claim goes. If poorly done, it will be a bone in the claimant’s throat forever.

That’s why your doctors’ treatment is not completed until a full and fair assessment of your physical and mental problems in relation to your occupation have been presented with your notice of claim. The physician’s report should contain not only the full details of the illness or injury, but also an analysis of what effect the illness or injury will have on the performance of your occupational duties, and a corresponding assessment of the restrictions and limitations which your illness or injury forces upon you. Only then will the doctor have performed the duties required.

Don't Accept The Short End Of The Stick

Getting a physician to report in a disability claim may be difficult because the physician doesn’t understand what is required or because the doctor believes he or she is not getting paid enough to spend the time necessary to do the reporting job correctly. In either case your claim may be severely disadvantaged.

You should have a “straight talk” with your physician as soon as possible if you are considering filing a disability claim. If the doctor doesn’t get it, you must impress upon him or her that, being unable to work, disability benefits are vital to the well-being of the patient – YOU!

The doctor must be made aware that any medical report must not only describe your condition, but also what effect that condition has on your ability to perform the various job duties you have. Only such a report should be submitted to the carrier for consideration. If you or your doctor need help covering all of the bases in the proposed report, get your disability claims attorney into the picture fast so there will be no delay in getting the notice of claim to your carrier.

There is an old saying about the importance of starting off on the right foot. There is no more important place for following the sense of that saying than in making a disability income insurance claim.

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Do 27 years of legal battle give a foot soldier the right to offer his opinion to the world on how to run a war? I obviously think so, because here I am going out front of the world with my thoughts and ideas on ERISA, other health insurance claims and whatever else occurs to me. 

My hope is that at least one person who reads here will benefit.

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