Insurers - Don't Kill The Gift Horse

Why do insurance companies shoot themselves in the foot by trying to penalize claimants who try to work through their medical problems before applying for disability benefits.

If insurers really succeed in broadcasting the message that if you continue working when you have a disabling condition, that fact will be used against you if you ultimately have to give in to the disability and apply for LTD benefits. Afflicted employees will be forced to make claims much earlier and will never try to “tough” it out.

We know that insurance companies use whatever they can find to oppose disability claims, giving little thought to the consequences for their insureds. But withholding benefits because a claimant tried to work through a disability is just plain shortsighted.

Insurers must realize that every day employees stick to their jobs and continue working while suffering the early stages of disabilities which may plague them the rest of their lives. In doing so, these employees are saving insurance companies millions of dollars in benefits which they would otherwise have had to pay out.

Rather than encouraging those who try to work despite trying medical or psychiatric conditions, insurers instead try to penalize them by throwing this work effort in their faces when they finally have to succumb and apply for LTD benefits. In effect, insurance companies penalize people for trying to avoid applying for benefits.

This attitude on the part of insurers is not only unfair to the claimant (who ever thinks of the word “fair” when discussing an LTD claim), but it actually does harm to the insurer’s position.

If word gets around that insurance companies will use your working through an illness or injury to defeat a legitimate disability claim, no employee in his or her right mind will try to do it. Employees will be more likely to apply for STD as soon as they have a condition which may have long term implications.

Why should someone force themselves to work in pain or severe discomfort, when their efforts will be used against them if they are forced, in the end, to stop working because of their disability?

The problem with insurers is that they consider all disability claimants the same – they think they are all looking for an excuse to stop working and collect benefits.
 

But, people are different. Some have a great work ethic. Some don’t. Some can bear pain much better than others can. There is no “one size fits all” when individuals become disabled. Some will be able to work on – some won’t.

If insurance companies continue to raise as a defense that you worked when you claimed a disability, no matter how difficult it was for you to do so, they will soon find all claimants claiming benefits much earlier that they do now to avoid the defense.

Claimants aren’t stupid. If insurance companies persist, many more claimants will seek benefits earlier to avert this knee-jerk defense raised by insurers.
If they do, companies will be paying out a lot more than they do now.
So, insurers, drop this automatic defense. Use it only where it is warranted.

If you do, you will save a lot of money.

 

A Careless Phone Chat May Be A Claim Killer

We cannot stress too forcefully the dangers of treating doctors talking with disability insurance company physicians about disability claimant patients. It is amazing how many times the discourse of these “peer to peer” communication sgets garbled and ends up being bad for the policyholder, the doctor’s patient,

A treating doctor may think it is collegial courtesy to speak with a disability insurance company doctor. But, the treating doctor should keep in mind that the colleague is actually an employee or, at least hired by an insurance company which is intent on finding a reason to avoid paying a patient’s long term disability benefits.

Attorneys who represent claimants should do their best to advise their client’s doctors of the dangers of dealing with the insurer and the care which must be taken when doing so. We have spoken before about the perils of completing Attending Physician Statements (APS).  But completing these APS forms, with awareness of the pitfalls, is preferable to chatting with a physician, employed by the insurer, about your patient.

Doctors should be warned that the “friendly” chat with a colleague may be manipulated by the colleague into words that spell death for the patient’s claim. There is frequently no written record of the dialogue and the doctor on the insurance company end may very well hear and interpret the conversation in a way the treating doctor never intended.

When such a conversation is reported to the insurer and incorporated into the insurer’s record, it can be devastating to the claimant even though the conversation was misreported, intentionally or not.

It is common knowledge among attorneys who practice mostly in ERISA and private disability claims that disability carriers have stables of doctors who earn a substantial amount of their income by reviewing claims from those carriers. Insurance companies would not be likely to keep feeding these doctors if their opinions didn’t tend toward favoring the insurance company.

The upshot is that all information should be provided in writing. Questions should be asked in writing and answered in writing. When the conversation is written, it speaks for itself. If the insurance doctor needs clarification of a patient’s status, the question should be put in writing to the treating doctor with a copy to the patient’s lawyer. The response from the treating doctor should also be written. Nothing should be left to chance, bad hearing, misunderstanding, misinterpretation or any other possible reason for miscommunication.

A treating doctor’s support is essential to obtaining much needed benefits which will help the disabled patient and the family live while a patient is unable to work. Attorneys should warn doctors at the start of a case not to talk or communicate casually or carelessly with the insurance company or its doctors. Any questions or requests must be in writing. The same for any response.

Disaster for a disability patient may be only a phone call away.

 

 

 

 

 

When You Need An ERISA Lawyer, Get One

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.

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.
 

 

 

 

 

The Cold Comfort Of Insurance

In the normal course of our lives, most of us learn to give people the benefit of the doubt, at least sometimes. Insurance companies never do. The reason – money.

Why this is so devastating to many people is that they learn this fact after they have been stricken with a disease or disability which seriously affects their lives. For all of their existence they have been told that insurance is meant to protect them and make them feel more comfortable should a disaster strike. Then disaster strikes and they learn the awful truth – the insurer won’t pay!

It really is simple arithmetic – every dollar the insurer keeps in unpaid claims is a dollar that goes to insurer profits. And, PROFIT, only PROFIT is the name of the of business today.
Owning an insurance policy used to give a policyholder some sense of comfort knowing that if the worst happened, an insurance company would be standing at their side and lending a hand according to the terms of their policy. Not so in today’s totally profit-centered world.

A perfect case in point is that of John Bray who had the gross misfortune to develop a brain tumor while employed as a division head for a travel company. As happens in many such cases, he didn’t consciously know there was anything wrong with him, but his conduct and behavior began to change on the job, leading to his ultimate dismissal.
Being unaware of his tumor, Mr. Bray tried to work as a consultant, but his behavior continued to deteriorate.

When he was finally diagnosed with a large malignant tumor in the brain, he had been dismissed from his employment for about 8 months. The overwhelming medical evidence was that he had suffered from the tumor which affected his behavior for a long period prior to the time he was dismissed.

Mr. Bray then filed for long term disability benefits under the group LTD policy which covered him as an employee f the travel company. But the insurer denied Mr. Bray’s claim, saying he was no longer covered by the policy once his employment terminated.

Did the insurer offer any medical evidence to refute the claimant’s medical findings? Of course, not. The insurer knew the truth of the matter so it didn’t even ask for a medical exam. Did that stop the insurance company from continuing to deny John Bray’s claim? Of course, not.

The insurer continued to insist that Mr. Bray had left his employment before becoming disabled, despite a clear showing by all examining experts in the field that he was stricken with his ultimately fatal illness before he left his covered employment and therefore was entitled to benefits.

The evidence was that John Bray was an outstanding employee prior to the time he was stricken with the brain tumor which enlarged relatively quickly. The tumor caused his employment behavior to change radically and, as a result, his employment was terminated.

Clinging to the fact that Mr. Bray’s brain tumor was not discovered for several months after he left his employment, the insurance company said he was no longer an employee and therefore not entitled to coverage. Not only that, Mr. Bray’s employer had also afforded him a life insurance policy as part of his employee package of benefits and the company refused to pay on the life policy because it claimed he had left his employment before he died.

The court, on the basis of the clear evidence before it, ordered the company to pay Bray’s estate the disability income benefits and the life insurance benefit.

Two things you can glean from the policyholder’s trials and tribulations in this case:

* If you become afflicted with a disabling disease which stays hidden until after you have terminated your employment, you probably face a long uphill fight with your insurer.
* If you should happen to be so unlucky, don’t give up. Fight for your rights.

“Wimping” out is not an option for you or your family.
 

Legal Fee Law Reins In Insurers

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.


 

 

 

 

 

A Stacked Deck


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).