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

In disability income insurance circles the word “malingering” is always used to paint the claimant black, but the word “malingerer” should be applied to insurance companies far more often than to claimants, for many insurance companies are open and blatant “malingerers” when it comes to paying benefits.
 

This was made very clear in a recent opinion in the 7th Circuit when the court raked MetLife over the coals for using an arsenal of shady denial tactics to thwart an ERISA claim based on subjective complaints, (Holmstrom v. Metropolitan Life, 2010 WL 3024870, 7th Cir., 2010).
 

In this case, the appellate court found a litany of reasons why the denial of benefits to Holmstrom was “arbitrary and capricious”, even though the Federal District Court from which the appeal was taken had found that MetLife’s denial of benefits was sound.
 

Why do courts (and, generally, the public) have no difficulty in believing a claimant is “malingering” when seeking benefits, but never seem to seriously consider whether an insurer is “malingering” when it comes to paying benefits?
 

One might reasonably ask if a corporation which stays alive on profits is any less likely to shave morality to obtain a larger income than is an individual who stays alive on work income and might shave morality to stop working and use benefits to keep the family going?
 

Some claimants do try to malinger by not working and collecting benefits when they are not actually disabled. Insurance companies are right to contest these claims vigorously. But, there also compelling evidence that some disability insurance carriers make it a policy to actively “malinger’ on paying benefits. One only has to go back to 2004 to the Unum settlement with 49 states to see the pattern of no-pay strategies employed by these insurers. Yet, insurance companies are still not labeled “malingerers”. Why not?
 

When individuals are suspected of malingering, there is a battery of tests used by insurers to try to detect the falsity of the claim for benefits. Insurers have used them for years and years and have had many a success in beating down a claimant, some deservedly so, some not.
 

Since it is abundantly clear that insurance companies malinger when it comes time to pay disability benefits, why isn’t there a test for insurance company “malingerers”? Why should claimants be any less entitled to challenge benefit denials in court in a manner supposedly as objective as the one they face when making a claim? More importantly, why shouldn’t there be a real consequence when insurance companies ?
 

As the Holmstrom court pointed out, such a test might include the following questions:
 

* Did the insurer require the claimant to make application for Social Security benefits? If so, did the insurer give appropriate weight to the result of the SSDI application?
* Did the insurer’s doctors actually physically examine the claimant? If not, what appropriate weight should the opinion of these doctors be given in view of the type of disability claimed?
* Did the insurer appropriately evaluate treating doctors’ reports?
* Did the insurer giver appropriate weight to objective test results?
* Was the claimant’s actual medical history appropriately considered by the insurance company?
* Did the insurer appropriately take into account the cognitive impairments which are likely to result from medication required by the claimant’s condition?
* Did the insurer inappropriately ignore overwhelming evidence of disability by treating doctors in favor of the opinions of its doctors who never examined the patient?
* Did the insurer continue to move the goal posts so the claimant could never kick a field goal, i.e., provide the proof necessary to convince the insurer?
 

“Appropriate” is a key word, because it should not be enough for an insurer to say “we deny” without giving reasons appropriate to the level of the claimant’s proof, to support “we deny”. If Congress, in writing ERISA, thought plan administrators, especially insurance companies, would be paragons of virtue when it came to protecting employees, (29 U.S.C. 1001, et seq.) they were horribly mistaken.
 

To even the playing field in light of Firestone v. Bruch, 489 U.S. 101 (1989), reviewing courts should require insurers to provide rebuttals to claimant’s proofs which are on a level with the quality of those proofs.
 

Case law is full of instances where the desire not to pay benefits was so outrageous, that courts, usually restrained in their language, take the defendant insurance companies to task severely.
 

Yet, when it comes to the word “malingering”, courts and the public seem to reserve the term for claimants only.
 

If it looks like a duck, acts like a duck and quacks like a duck, why not call it a duck?
 

Insurance company disability plan administrators are many times “malingerers” of the worst kind when it comes to paying benefits.

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Ever since Firestone v. Bruch, 109 S. Ct. 948 (1989),many disability insurance carriers have been getting a free ride on SSDI. 

LTD insurance companies force claimants to pursue Social Security for disability benefits so they can recoup monies they have laid out in paying the  private insurance claim.  And then insurers totally ignore the SSDI disability finding when evaluating the claim they have to pay under their ERISA policy. 

 However, as courts come to realize the obvious conflict of interest these claims generate, they are beginning to look at this free ride more and more closely.  Why should insurers be permitted to force claimants to go after SSDI benefits and then totally ignore them when deciding its own case with the same claimant?
 

The U. S. Supreme Court itself has recognized the problem.  It succinctly stated in MetLife v. Glenn, 128 S. Ct. 2343 (2008)  at Page 2352:
 

“…MetLife had encouraged Glenn to argue to the Social Security Administration that she could do no work, received the bulk of the benefits of her success in doing so (being entitled to receive an offset from her retroactive Social Security award), and then ignored the agency’s finding in concluding she could do sedentary work…”

Wouldn’t it be more evenhanded to have a successful SSDI claim raise a rebuttable presumption in the private LTD case that the claim is legitimate medically and is totally disabling?  Such a presumption would not be anywhere near a  lock on the issue, but would require the insurance company to come forth with reasonable proof that the SSDI finding was mistaken or that the SSDI decision did not apply to the current LTD claim. 

Proving SSDI claims is not a walk in the park.  SSDI judges have no more inclination to award benefits than do employers and insurance companies.  Only about one-third of SSDI claims result in benefits being initially awarded to claimants.  There is no conflict of interest nagging at an SSDI judge as there is at an insurance administrator, so the SSDI decision would appear more reliable.

While the SSDI judgment should not bind the insurer, it is a considered judicial decision that warrants more than a snub in defense of a claim.

If Federal District Courts were to hold that SSDI judgments raise a rebuttable presumption that a claimant is totally disabled, the insurer would be required to rebut on the merits a judgment by an unconflicted court, instead of paying the judgment lip service, and then ignoring it, to justify denial of a private LTD claim for its own benefit.

There are many reasons why such a presumption could be overcome by an insurance company:

* The terms of the insurance policy does not cover the illness or injury
* Evidence of an error in the SSDI proceeding or findings
* New evidence after the SSDI hearing (the claimant should also then be able to meet this evidence).
* Fraud on the SSDI court which impugns the decision (i.e., evidence that the claimant is working)..

With a rebuttable presumption approach, more weight would be given to an SSDI judgment, but the judgment still would not be binding on the Federal District Court when the insurer could show, with real evidence, that it should not be binding.

Such a judgment should not be ignored by an insurer which has benefited from it, unless there is a legitimate evidentiary reason for not following it.

A rebuttable presumption approach by Federal Courts to SSDI judgments would seem to be a fair way to deal with this crucial issue in ERISA LTD cases.

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A recent 3rd Circuit Court of Appeals ruling got us to thinking about the effect of lengthy litigation on an award in disability income cases.

In Eshelman v. Agere Systems, Inc., 554 F. 3rd 426, the appellate court upheld a District Court decision awarding additional damages to the plaintiff’s jury award of $200,000, to cover the added taxes she would have to pay because she received a lump sum award rather than having been paid her salary over a period of years as she would have if she had not been discriminated against.

Well, we reasoned, shouldn’t the same thinking be applied to disability income insurance cases which many insurers cause to be dragged on for years and years when it is apparent to any disinterested observer that the claim should have been paid early on. The insurance company’s reluctance (almost a reflex action when it comes to paying claims) should not cause the disabled policyholder more grief by adding to his or her tax burden.

The circumstances are very similar. When a person loses a position because of the wrongful action of the employer, the person loses the benefit of being paid weekly or monthly and paying income taxes periodically through withholding and annual tax returns.

When an insurer wrongfully drags out the award of benefits to a disabled person, the claimant loses the benefit of being paid these insurance monies weekly or monthly and paying income taxes (if the benefits are taxable) annually. (Generally, disability income benefits are taxable if an employer pays the policy premium and non-taxable if the insured pays the policy premium).

If a disability income case drags on for awhile (some are known to have gone 10 years or more), and results in a lump sum award to make up for the years during which no monies were paid, that lump sum is taxed in the year it is received by the claimant. Many times this puts the recipient in a much higher tax bracket, meaning that a much larger percentage of the award will have to be paid than the claimant would have paid if benefits were received and taxes paid each year.

As a result, the claimant is not made whole, receiving less money in his or her pocket than he or she would have received if paid monthly for the period

We believe it fair that a District Court judge have the discretion to make an additional financial award to make up for the tax difference so as to make the plaintiff whole when appropriate evidence has been elicited to support such a tax award.

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A box of candy, a pound of cookies, a smiling “Please” or “Thank you”, may be of more help in pursuing a disability income insurance claim than you might think. But, not to the insurance company (though it never hurts to be polite and civil despite the way your claim is treated).

Kathleen, our gal Friday on disability claims, remarked to us the other day that she sometimes notices that our clients who bring a box of candy or some cookies for their doctor’s office staff once in a while, seem to get quicker attention paid to their forms and other insurance claim requests, than those claimants who go empty-handed.

When you think about it, it makes sense. People tend to reciprocate for kindness. Doctors and hospitals and their office staffs are people (even though sometimes their attitude makes one start to doubt it). And, many times these people are inundated by requests from patients and their insurance companies to complete an endless stream of repetitive forms on treatments, diagnosis and costs.

And, as is usually the case, these unglamorous office jobs get little attention from patients because they think they are relatively unimportant. And, they are when it comes to diagnosis and treatment, which is the reason you go to a doctor or hospital in the first place.

But, when your illness or injury becomes a claim for disability, the picture changes. The people who do the billing and the transcribing of reports and the filling out of the endless flow of forms, become the primary focus of your needs because you can bet the insurance company will demand reams of reams of papers from your doctors, before giving your claim serious consideration.

Couple this fact with the usually overworked doctor or hospital business staff, being
hard-pressed with overwhelming demand for information, and it’s easy to see how things can get jammed up.

So, just as in the everyday business world, a kind word or a small gift of appreciation goes a long way toward name recognition and a desire to reciprocate for kindness. In an overwhelmed office, if you are not one of the crowd and you have been pleasant to deal with, your file may just be moved to the head of the list of things to be done.

As in everything else, it never hurts to show appreciation.

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 We finally have the behemoth of the New York State Department of Insurance moving and, in the right direction.

But, don’t start the celebration too early. Once before, we had the New York Department ‘gung ho’ to “level the playing field” only to have it fall asleep while trying to come up with an actual regulation to protect disabled claimants against the hated ‘discretionary clause’ which unfairly sinks so many disability claimants.

The New York Department has proposed a new regulation No. 184 to try to level the playing field between ERISA disability income claimants and their insurance companies. Presently insurance companies decide whether ERISA disability income claims are compensable, then have to pay the claims if they are. So, take a guess at which way the insurers lean in deciding a claim.

In 2005, the New Jersey Law Journal published an op-ed piece by this writer that called on the State of New Jersey to do something about the discretionary clause in policies written in that state. That piece ultimately resulted in regulations NJAC 11:4-58-1-4 that were approved and became the law of New Jersey on January 1, 2008. From that point on, New Jersey citizens received the evenhanded ERISA claim protection they deserved.

About 20 of the 50 states have already banned the use of the discretionary clause as of this date.

In 2006, the New York Department of Insurance also decried the unfairness of the discretionary clause in ERISA disability income insurance policies (Circular Letter 8) and vowed to do something about it. The New York Department, although requesting comments and proposing a regulation (Circular Letter 14), unexpectedly withdrew the proposal without comment in 2006. From that time on, there hasn’t been a peep from the Department about such a regulation until this latest proposal.

Not that there were not calls during this period for a discretionary ban to be enacted. We take great pride in being somewhat of a catalyst in this discretionary clause regulation battle in both states. See my 2009 op-ed in the New York Law Journal.

There was no satisfactory response from the Insurance Department until the proposed latest regulation which, if approved, will become law in the state. Should it become law, no longer will New York residents be at the mercy of insurance company’s holding all of the cards when deciding whether or not to pay a disability income claim.

Without an approved regulation, we had always felt no court could legally recognize the state’s declared antipathy to the discretionary clause, no matter how vehemently the clause was denounced.

And, wouldn’t you know, it happened in one of our cases, Barnes v. American International, 681 F. Supp. 2d (S.D.N.Y. 2010). See excerpt. Fortunately, there were other factors in the case which overcame the disadvantages of the discretionary clause and our client prevailed and received her benefits.

However, if the facts weren’t overwhelmingly in our client’s favor in that case, another New Yorker would have been deprived of equal rights because of the discretionary clause..

We applaud the New York State Department of Insurance for finally getting around to proposing a pertinent regulation which will protect its citizens and do away with the advantage ERISA law gives disability income insurers.

But, based upon recent history, we are going to hold our breath until New York actually formally approves the regulation for its citizens and makes it law.

For too long New York State has been just “talking the talk” on banning the discretionary clause.  It’s high time for New York State to “walk the walk”.

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The noose is slowly tightening around the neck of rough and tumble, insurer-weighted, adversarial tactics in ERISA disability income insurance cases. Courts are, inch by painful inch, insisting that claimants be treated more fairly by insurers and that the tremendous advantages insurers have, be sanded down so that policyholders have a fighting chance when forced to make a claim.

Insurance companies are bound to yell “Foul”, claiming that they and claimants are already on a level playing field. The actualities show that this is not so. Just run through the following short list of advantages for insurers and you can see why:

* Insurance companies have cadres of lawyers who study and
practice in the specialized field of ERISA law. Claimants usually
have no knowledge of law, let alone the complicated ins and outs of ERISA law, and have to find a knowledgeable ERISA lawyer to help them if they think they have a claim.

* Insurance companies rarely hurt for money. Disability income
claimants are almost always under financial overload.

* In many states, insurance companies have the advantage of the
discretionary clause which, when a claim is denied, puts an almost impossible burden of proof on a claimant

* Courts are constrained to give as much weight to the opinion of insurance doctors who never see the claimant as they give to the opinions of treating doctors who diagnose and treat the actual claimant on a continuing basis.

Over the years many courts seemed not to see the inequality favoring insurers when considering ERISA disability income claims.

But, starting in the last decade, after having had a lot of experience with the one-sidedness of some ERISA law decisions, courts began to have a conscience about what they were doing and began to call upon insurance companies to act more fairly toward employees with disability claims.

Even the U.S. Supreme Court opened its eye a little wider in Metropolitan Life Insurance Company, et al v. Glenn, 128 S. Ct. 2343 (2008), when it recognized that there is an inherent conflict of interest when an insurance company decides a claim which it will then have to pay.

Courts are looking more and more closely at opinions by insurance doctors who never see the disabled patient, but are happy, for a hefty fee, to offer opinions that the patient is able to work. Courts are wondering more and more why insurers order and assist their policyholders in seeking SSDI benefits which, when obtained, the insurers take to reimburse themselves for benefits they may have already paid, following which they completely ignore the SSDI judge’s decision when deciding the validity of the same disability claim under their own policy
.

As anyone who has had to file and pursue an SSDI claim knows, it is far from a piece of cake Uncle Sam, despite what a lot of people seem to think, is not a soft touch and only about one-third of those who believe they are permanently disabled and unable to work, have their claims approved. So, why shouldn’t the insurer at least give some weight to the SSDI outcome and explain to a court why the SSDI decision doesn’t apply to the court case on the insurer’s policy?

The sanding away of insurer unfairness in ERISA litigation continued with two recent decisions – Galutza v. Hartford, 2010 WL 1329985 (N.D.Okla.) and Beaver v. Bank of the West, 2010 WL 1030464 (N.D.Cal.) In both of these very recent cases, the courts took the insurers to task for failing to properly communicate the particulars in which the insurer felt the claim documents were lacking so that the claimant could fill in the blanks.

In Galutza, the court agreed that a fiduciary has the duty to protect a plan’s assets against spurious claims.. But it also said that the same fiduciary has a duty to see those entitled to benefits get them.

In Beaver, the court found that the administrator had not engaged in a meaningful dialogue with claimant when advising her of additional records and materials the administrator thought it needed to adjudicate the claim.

It is our opinion that after years of dealing with disability insurance company “no-pay-at-any-cost” tactics, courts are coming to recognize that insurers will go and have gone to extraordinary lengths to avoid paying on disability income policies. Courts have found that the parties to such disputes are not nearly on an equal footing, so they slowly but surely require the decision-making party to justify its decisions by taking a much closer look at the evidence.

If this trend continues, disabled employees may finally get a fair shake from their bosses’ insurance carriers.

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The scales of Justice weigh heavily in favor of insurance companies generally, but even more so in disability income claims. After all, insurers are well funded, have their health, and employ plenty of lawyers who are familiar with the “ins” and “outs of the business.

A typical disabled employee, on the other hand, frequently has little or no funding (being unable to work), has little experience in law, and hasn’t a single friend, relative or neighbor who even knows where a law school is located, let alone having attended one.

The issue of whether a mental or physical impairment truly prevents a claimant from performing the duties of employment can be a complex question, even if it is conscientiously considered by people who have no financial interest in the outcome. When you add the financial interest insurance companies have in the outcome of these questions, the issue becomes more vexing because if they agree that the employee is disabled, they pay – and insurance companies hate that.

This leads to a situation in which insurers make claimants run through hoops in an effort to discourage them because there is very little downside to such conduct. Most states make each litigant pay for his or her own legal fees and costs. So, if an insurer makes a claimant sue and loses, what’s the downside?

In the 2nd Circuit Court of Appeals, which includes New York, Connecticut and Vermont, ERISA claimants get a leg up from a line of cases starting with Birmingham v. SoGen-Swiss International Corporation Retirement Plan, 718 F. 2d 515 (2nd Cir. 1983), which hold that although the award of counsel fees and costs is discretionary with the court, the 2d Circuit favors awarding counsel fees in ERISA cases unless there is a particular justification for not doing so. This judicial attitude in the Circuit makes insurance companies think twice in ERISA matters before saying “No” just because they can with impunity.

A road map for evaluating the merits of the right to attorney’s fees, was set forth in Chambless v. Masters, Mates & Pilots Pension Plan, 815 F. 2d 869 (2nd Cir. 1987) and has generally been followed in the Circuit. The major points of the scorecard are:

• Culpable conduct (i.e., arbitrary and capricious) by the insurer.

• The defendant has the financial resources to satisfy an award.

• The merits of the case favor such an award.

• The award of attorney fees would tend to deter defendant insurer and others from violating ERISA regulations in the future.

• The results in the case confer a common benefit in that the defendant and other insurers will think twice before violating ERISA’s requirements in future.

Nobody wants an illness or injury which eliminates their income or employment. But for those unfortunate enough to face this condition in the 2d Circuit, there is some comfort in knowing that if they are covered by ERISA, arbitrary denials can cause insurers to bleed.

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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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