The Malpractice NONdeterrent

 Some doctors who examine for insurance companies feel free to play fast and loose with the truth when making reports on the condition of out of work employees because they do not have to fear malpractice claims.  Although fear of malpractice claims has been heavily overplayed by doctors and insurers in recent years, the plain fact is that insurance company doctors don’t have to fear malpractice claims since the person being examined is not the doctor’s patient.  There is no duty owing from the physician to the ERISA claimant being examined.  

An ordinary patient’s doctor has a duty to treat a patient in accord with the standards of the medical profession as practiced in the doctor’s geographic area.  Insurance company doctors do not treat the patient and so have no duty to him or her.

Owing no duty to the party being examined, the insurance doctor faces no malpractice threat if doctor’s report omits or misinterprets the patient’s condition.  What an incentive for insurers to hire and remunerate examining physicians who don’t mind playing fast and loose with the medical facts because doing so poses no danger to the doctor.

This major difference in the consequences of overlooking or misinterpreting the patient’s diagnosis or disability has led to insurers playing games with how they obtain medical information with which they contest ERISA claimant’s claims to being unable to perform the duties of their occupation. 

ERISA gives all of the advantage to the employer who in most cases hires an insurer to operate its ERISA plan. Although the employer is a highly interested party, ERISA gives the employer the right to make the “yes or no” decision on a claim.  And once that decision is made it stands as the law in the matter until it is overturned.

Fortunately, courts have just begun to take closer look at the insurers’ system for providing medical evidence in ERISA cases.  Many insurance companies have tried to appear to obtain independent medical opinions by retaining so-called independent medical services to examine and render medical evidence in ERISA matters.

The problem with this system is that it turns out that these so-called “independents” make most if not all of their fees from the same insurers.  How can they be considered “independent”?

Putting a fake third party entity in the mix is just an attempt to obscure the fact that the examining physician is actually working for the insurer.

This system may be good for insurance companies and those doctors who want to make easy money in examining claimants.

But, it’s bad for fairness and truth.

A New "Poster Girl" For Insurers

Meet Terri Truitt, a Texas lawyer who is the new poster girl for the insurance defense bar.
Ms. Truitt was on long term disability with Unum for years while at the same time apparently performing tasks she allegedly wasn’t physically able to perform and acting like a world traveler while she said her disability prevented her from traveling on her job.

She received substantial benefit payments from Unum from 2002 till 2009 when Unum denied her claim based upon new insights into her actual life. These insights were provided by 600 emails and travel itineraries covering several years.

Ms. Truitt’s demise was caused by a former boyfriend who blew the whistle and brought her LTD benefits run to close. Apparently, there is truth in the saying, “Hell hath no fury like a ‘man’ scorned”.

The saga begins in 2003 when she began receiving benefits for leg pain which prevented her from lifting, walking or sitting. The disability made carrying bags and sitting on a plane for long periods impossible, she said, and these tasks were an integral part of her occupation as an attorney required to travel and carry bags and exhibits.

Although surveillance videos and medical evaluations obtained by Unum indicated otherwise, Ms. Truitt was able to defend her receipt of benefits until the “ex-friend” provided emails, photos and travel itineraries showing her doing everything she said she couldn’t do. Her benefits were halted but she managed to get Unum, one of the toughest on claims in the insurance business, to reinstate them

Ultimately, Unum prevailed in court. The Truitt opinion details a high-flying life which would have been impossible with the disability she claimed. The opinion is worth reading, Truitt v. Unum Life, 2013 WL 4777322 C.A. 5 (Tex.) (No. 12-50142), to show the details of how flagrantly Ms. Truitt appears to have flouted the rules of disability.

Even though Unum is suing for the return of $1 million it claims was wrongfully paid to her as benefits, the damage to others caused by Ms. Truitt’s apparent conduct is much worse.

Hurt more are the thousands upon thousands of ERISA and DI claimants who are suffering from disabilities that really prevent them from working and now will have to overcome the Truitt case which is bound to be raised by insurance companies whose first instinct is to believe that all claimants are looking for a free handout.

That’s why we called Ms. Truitt a “poster girl” for the defense bar. Those of us who practice disability claims law for plaintiffs will no doubt have her case thrown up to us time and again in future. Our own experience, however, is that very few people seek disability benefits without legitimately needing them. We find that the vast majority of people want to be productive, accomplish something and earn their own way in life.

Of course, defense counsel will at the same time ignore the Court’s awareness in the Truitt opinion of Unum’s history of misconduct in ERISA matters. We, like Unum, do not in any way condone Miss Truitt’s apparent conduct in this matter. We also point out to Unum that history counts.

Insurance companies try to paint claimants as dishonest malingerers who are looking to avoid work and receive insurance benefits. They tend to paint all claimants with a broad brush. Truitt shows that sometimes they may be right.

In the vast majority of cases, they are wrong!

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.






Don't Get Boxed In On A Medical Form

If you ever needed some proof that disability insurance companies are fully invested in the idea of not paying benefits, no matter what, read Miles v. Principal Life, 2013 WL 3197996, a decision handed down by the 2nd Circuit Court of Appeals in late June.

Among other “missteps”, Principal totally ignored the expertise of its own examining physicians and demanded objective proof of the claimant’s tinnitus, which even their own doctors said was not possible. Principal denied the claim because Mr. Miles couldn’t provide proof of a condition which Principal’s own doctors said was not objectively provable.

The opinion contained additional important points on matters which we have commented in other posts. One was the common sense adoption by the Court that a claimant’s long work history enhances credibility. Statements of this nature are beginning to find their way into opinions as a telling point when proof of the claim is subjective and credibility is a major issue.

Another important point is that claims cannot be rejected just because they are based on subjective complaints of pain. The Court reaffirmed its holding in Connors v. Conn. Gen. Life Ins. Co, 272 F. 3rd 127, 136 (2nd Cir. 2001), that it is arbitrary and capricious to disregard evidence of pain because it is subjective. In such cases, the Court implied, credibility is an issue and the insurer must enunciate why a claimant is not to be believed.

We also cannot stress too forcefully the dangers of treating doctors limiting themselves to reports of their patient’s condition to a form provided by an insurance company. Insurance companies are not in the business of paying claims. Physicians must understand that the forms insurers provide to a claimant’s doctor are designed to limit the report to the barest details so as to make the patient’s claim appear skimpy and suspect.

Many busy physicians conform their answers to the information specifically asked for in the form and do not add information not specifically asked for. This can play right into the disability insurer’s hands. Disability claims not only have to prove their illness or injury, but also why that illness or injury prevents them from doing the work they were insured for.

Even if the doctor is careful and adds notes to amplify the limited space available on the form so as to be more accurate and forthcoming, the insurance company may just ignore this additional information, as it did in the Miles case. Insurers will stick to the form box answers in coming to a decision if it is in their best interest to do so.

Medical answer boxes on disability insurance forms are convenient for physicians but can devastate a patient’s claim if the doctor fails to elucidate when a limiting form box answer is incomplete.


Erase Online History At Your Peril

If you have decided not to worry about how your social media antics might affect a disability claim litigation because you believe you could always delete your online history,  you’d better think again.

The ever-developing law on the meaning and use of social media in disability insurance litigation became more defined in a Federal District Court case which found that if and when the case goes to a jury, the jury would be given a “spoliation” charge by the court.  See Gatto v. United Air Lines, Inc., et als, 10-cv-1090-ES-SCM (U.S.D.C., NJ).

A spoliation charge tells the jury that a document that was destroyed by a party, even online, was evidence.  It further instructs the jury that it can infer that the party who destroys or prevents production of a document does so out of a fear that the contents of the document would harm that party’s case.

We warned readers about the dangers of going overboard on social media to impress friends or to express joy at a momentary easing of a medical condition. To Tweet Or Not To Tweet.  Being seen on the Internet doing something you say you can’t do for work, even if you do it for just a moment, can cause loads of heartache if you are pursuing a claim.

Insurance companies will jump on that moment’s indiscretion and try to build it into a mountain.  They will try to take that moment and build it into a 40-hour week, saying that the moment proves you can work at a job just like everybody else

In this case, plaintiff denied trying to intentionally destroy evidence, saying he deactivated his Facebook account because he had received notice that an unknown IP address had accessed it.  He failed to reactivate the account and after 14 days, Facebook, as was its policy, automatically deleted the contents of the account.  Plaintiff tried to reactivate the account after 14 days, but it was too late to save the data.

What’s to be learned from this is what we expressed in our earlier blog - Don’t create a problem in the first place by kidding around or trying to be macho on a social media page.  If you don’t do something silly that your adversary can use as evidence to hurt you, you won’t have to worry about it.

It is obvious that if you are in a litigation to be decided by a jury, the last thing you would want is an instruction to your jury that the jury may infer that if a document (or a video) was not produced by you at trial that you kept it back because of fear that the contents would harm your case, if produced.

With all the heartache a litigant usually has to go through to make good a claim against a disability carrier, the last thing on the list should be to try to redeem a moment’s fun on the internet which winds up being a trial disaster.





"Little People" Are "Our People"


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

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

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

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

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

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

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

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

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

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

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

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

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

The Disability Claims War

People forced by circumstances to seek income disability benefits should keep one mantra in mind at all times:

                      I am in a war with my insurer and I should always act accordingly.

A little understanding of the mechanics of the disability insurance business will make the above statement abundantly clear:

• An insurance company earns its income from premiums and interest on investments.
• The company has some control over premium income.
• The company has no control over the interest markets.

Interest markets have tanked in the last few years meaning substantially less income for the insurance company. Therefore:

• The company pays out overhead expenses, salaries, and benefits from income.
• What is left over is profit.

So, if overhead and salaries remain the same, the company must reduce benefits to maintain profits. Therefore, it will use every method and excuse it has to discourage and minimize disability benefit claims:

• First and foremost, deny, deny, deny claims to discourage policyholders.
• If that fails, make the filing of a claim difficult with forms that encourage errors.
• If that fails, lose claim material and delay responding to claimants.
• If that fails
, use a stable of captive doctors to denigrate and minimize the disability claim even without the doctors examining or even seeing the claimant.
• If that fails, try to video the claimant in a moment which will throw the claim in doubt.
If that fails, cull the Social Media for a post or two that can be offered as proof that the policyholder is faking the claim.

This list could go on and on. Insurance companies have always been in the business of fighting claims and they have thousands of claims adjusters and attorneys whose job it is to defend against and discourage claimants.

Down through the decades, these minions have come up with endless ways to slow or defeat disability claims. Insurers have an arsenal of ways to say “NO!”

If your disability claim happens to fall under ERISA, the situation becomes worse. In a 1989 case, Firestone v. Bruch, 489 US 101 (1989), the U.S. Supreme Court made the situation more dire by decreeing that courts had to give deference to the ERISA plan administrator. Since the administrator is usually the insurance company which would have to pay the benefit, it is not hard to guess how these decisions go.

This is why a disability claim is likely to become a declaration of war. Insurance companies which fight the war everyday are aware of it and treat it as such. Inexperienced claimants are many times the unwitting victims of this war.

To win this war (and many times they do), claimants must understand what is happening and why it is happening. Above all, they must persevere.

If you have a valid claim, “giving up” is not an option. It is exactly what the insurance company is hoping for.





We're Not Supposed To, But...

We know we are not supposed to blow our own horn in a blog, but we are so proud that we must tell you what recently happened to us:

We have been listed on a lawyer ranking web site for some time now, AVVO, and never paid much attention to it. We just posted our picture and minimal info on our background. 

At the urging of one of our partners, we were prevailed upon to try to get some idea of what past and present clients thought of our legal services.

On 6/29/12, we wrote a simple email to 15 former and /or present clients, asking for their

view of the services they had received:

Hi (Name of Client) —
I hope you are well.
I have a favor to ask.
I wonder if I could ask you to contribute a client evaluation of me to AVVO at the link below:
(Link Omitted)
In the internet age, these things are very important to lawyers, so your input is greatly appreciated.
Thanks!  Mike.

   To our surprise, as of today (7/19/12), AVVO had received 14 responses out of the 15  we had requested.

All we did was send out the above email to some clients and former clients and ask for their evaluation of us and our law firm.  There were no other instructions, follow-up calls or communications of any kind.  The client-respondents were strictly on their own.

In fact, we didn’t know there were any responses until AVVO notified us that 9 client responses had been received within 3 days of our request.  We looked at them on the AVVO web site and saw them for the first time.  We really were overwhelmed by them.

What these responses showed us is that clients do appreciate and understand the time and effort we put into a case on their behalf.  People, even if they are clients, are still people and they appreciate being treated with respect by lawyers and office staff.  Prompt response to questions and concerns helps relieve client stress and makes the lawyer-client relationship a more positive experience for both.

This is particularly true for disabled clients who are typically unable to work and whose lives are dependent on the success or failure of their disability claims. 

Although most lawyers always strive to do their best for clients professionally and in the day-to-day business of legal representation, it does wonders for the morale of the attorney and the staff for clients to show their appreciation as they did for us and our staff when we asked for their feelings about us in an email. 

Thank you, thank you, thank you!

Looking Honestly At Opioids

A recent article in the New York Times pointed out a serious problem for disabled people seeking to alleviate pain – Opioids!

Narcotics, such as Percocet, Vicodin and Oxycontin, are strong and may be addictive.  Yet, they are being prescribed more and more for injuries for which they are not appropriate. In effect, they are “overkill” and pose a danger to the patient.

The NY Times article tackled the difficult challenge of health care these days – cost.  One insurer, Accident Fund Holdings, claims that when medical care and disability payments are combined with the use of a narcotic like Oxycontin, the cost is nine times higher than when the injury is treated with a non-narcotic.

Accident Fund put the average insurance cost of a disability claim at $13,000, but when  Percocet-like drug was prescribed, the average cost of the claim tripled to $39,000.  When a drug, such as Oxycontin, was prescribed, the average cost of the claim shot up to $117,000!

This increase in costs is attributed not only to the higher cost of the drugs, but also to the common side effects, such as drowsiness, lethargy and addiction.  Such side effects do not facilitate a person trying to overcome a disabling illness or injury.

Some of these consequences can be attributed to the drug companies which aggressively market their products while keeping the downsides of taking them under wraps.   Others can be attributed to the public which believes the ads and wants relief NOW and damn the consequences.

Perhaps the most important factor, often overlooked, is that health insurers are much more willing to pay for cheap, generic pain medications than for the costly therapy which is likely to be more effective in helping the patient to recover.

The problem is that such an approach is short sighted and leads to claimants whose symptoms have increased in severity and in length of disability because of opioids.

Some insurers are finally seeing the light and trying to limit the use of these drugs to only cases in which they are appropriate.

 States, such as New York, California and Washington, are proposing rules to curb unrestricted use of these drugs, to cut down on the possibility of addiction or other unwanted effects.

Use of opioids can have serious, unwanted consequences.  It’s time doctors, insurance companies, government and people with disabilities took a good, long serious look at them.

Note:  In response to this problem, Blue Cross Blue Shield of Massachusetts just announced that as of July 1, it will no longer permit physicians to write opioid prescriptions for more than 30 days without a mandatory review by the insurer, except  in cases of chronic conditions, cancer or for the terminally ill.



The Personal Touch

The personal touch.  We hear about it all of the time, but what exactly is it?  The question is particularly pertinent when one practices disability income insurance law.

A recent post by Dr. Len Schwartz on  the Pro2Pro Network, cite, reminded us of the little things we can do as lawyers to make our clients feel better about us and for them to have more confidence in how we handle their matters.

Dr. Schwartz, who has  a wealth of ideas for how small businesses and professional practices can raise their “notice” factor, suggested to his followers that they make a first visit nighttime call to a new patient or client, asking if he could enlarge on or clarify any material they had discussed earlier that day.

He pointed out such calls would have two primary effects:

One effect would be to stimulate word of mouth about you.  (After all, who ever heard of a lawyer taking the time to be certain a new client understands what is going on?)

The second effect would be an opportunity to get the relationship off to a great start.  It would pump up the relationship and give the lawyer an opportunity to greatly improve the connection with this client.

The suggestion by Dr. Schwartz reminded us of the rare experiences we have had with doctors and dentists who had the interest and courtesy to call us the evening after
a painful or long procedure to ask us how we were doing.

Just the thought that this professional, who is very busy, took the time after a long and busy day to inquire about how we were feeling, put that professional head and shoulders above the others.  The doctor took the time to call, ergo, he or she really cares!

This resonated with us on two levels.  The first was that lawyers don’t do this with long-time clients, let alone new ones, even when they have discussed a complicated legal question during the day’s visit.  From our own experience, it struck us, on reflection, that no matter how well we thought we understood the topic of discussion, when given time to think about it, further questions came to mind.

We all have had unpleasant medical or dental experiences.  Sometimes, though rarely, a dentist or doctor will call in the evening of such an experience to ask how we are doing.  When that happens, the rough edges of the day’s experience start to smooth and we have a warmer feeling toward the doctor or dentist who calls. We think- he or she cares and wants to help.

Why shouldn’t the same apply to lawyers?  Our work doesn’t usually deal in physical pain.  But, most of the time there is a load of mental pain and anguish for our clients.  Why wouldn’t our call to a new client or an older one after a conference, with an offer to clarify any questions they might have, have the same value to that client?

Attorneys should develop this personal touch.  When they hear the gratitude of clients for taking the extra time to try to help, it will make them feel better about what they do and how they do it.

 If an attorney needs more reason to make that call, the lawyer can be sure the client will talk to others about the call.  And, that can’t hurt.

However, there is one caveat:  Make certain the client knows you are NOT billing them for your time on the call!


                                                       See  More on Who Mike Is and What He Does





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.