Do Insurers Really Want To Know?

Courts should require any doctor finding or denying a psychological or psychiatric disability to actually examine the claimant in person. This really should be the rule for any medical disability claim, but such a personal hands-on examination should be absolutely required when the disability claim has a psychological or psychiatric basis.

In ERISA cases, to save money and to make it easier for their doctors to file biased medical reports, insurance companies have increasingly taken to offering reports in which their doctor has never even seen the claimant, let alone personally examined him or her. The insurance company physicians merely review the reports of the insured’s treating doctors and try to punch as many holes as possible in the doctors’ claims of disability.

We suspect that M.D.s are similar to lawyers when it comes to evaluating a client, a patient or a case. Face-to-face impressions are important to determining whether a client or patient is telling the truth.

Facial expressions, gestures, vocal volume and cadence, eye blinks, tics, face blushes, hesitations in responding and general demeanor are all evaluated subconsciously by a doctor or lawyer, as a package, in coming to decision about the veracity of the person they are talking with. Years of experience in making such face-to-face evaluations and then checking them against what actually happens, makes these evaluations most valuable in diagnosis.

Reading a report of someone else’s impressions gives no clue as to how trustworthy the patient’s description of his or her condition was. This is a problem even when the disability is based on physical abilities:

• Can you raise your arm higher than here?
• Can you climb a ladder?
• Can you sit for more than 10 minutes?

Only the examiner, personally seeing the effort to try to accomplish the objective, can have a valid opinion. Reviewing a report on paper gives no valid insight.

When a disability is psychiatric, clues are even more nuanced. An examiner has to see the response as well as hear it. The examiner has to observe body language as well as other subconscious conduct, to arrive at a valid evaluation. Only then can the expert form a reliable opinion (still not a certainty) as to whether the claimant is telling the truth.

Interpreting body language is a must in psychiatric diagnosis. Using “paper reviews” instead of actual clinical examinations, leads to only one conclusion:

Insurance companies don’t really want to know!










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.






Insurance Noses And Faces


Insurance companies, with their inflexible “no pay, no way” attitude towards disability income benefits, are cutting off their own nose to spite their face. Insurers have long ago adopted the basic philosophy that claimants are malingerers and cheaters and not really people who are hurting

Support for this view was recently revived by a guy named Rabbat who finally gave up his heroics and applied for long term disability benefits. Naturally, his disability insurance carrier turned him down despite strong evidence that he was telling the truth about his disability. See Rabbat v. Standard Insurance Company, 2012 WL 4504557 (D. Or.).

Mr. Rabbat had been afflicted with Familial Mediterranean Fever since his early teens. This rare affliction attacks the joints making them very, very painful. It is also a condition which worsens over time.

He went to work for the plan employer in 2005 and worked through his pain until October, 2008, when he went on short term disability. In November, 2008, he applied for long term benefits.

Despite Rabbat’s doctors, who had treated him for years, reporting on his battle with his disease, Standard turned him down because its flunky doctors, who had never laid eyes on Mr. Rabbat, said he could work. The court, which had no conflict of interest, found for Mr. Rabbat.

Why we say insurance companies, in fighting cases similar to Mr. Rabbat’s, are cutting off their nose to spite their face is that there are probably tens of thousands of people at work right now who could rightfully claim disability benefits but who choose to work through the day.

Standard’s attitude in the Rabbat case clearly discourages this exemplary type of behavior. Using their commendable behavior against them to deny benefits to employees when they are finally forced to give in, discourages others from trying to work through their disability.
We have written about this before
Stiff Upper Lip.

What insurance companies overlook is that every day a person works, even though disabled, is another day the insurer did not have to pay benefits. When you multiply these days by tens of thousands, it comes to a tidy sum, even for an insurance company.

The 7th Circuit Court of Appeals said it best in another case in which an employee claimed to have fought through a disability for a long time before giving in, Hawkins v. First Union Corp., 326 F.3d 914,(7th Cir,2003):

“…A desperate person might force himself to work despite an illness that everyone agreed was totally disabling... Yet even a desperate person might not be able to maintain the necessary level of effort indefinitely. Hawkins may have forced himself to continue in his job for years despite severe pain and fatigue and finally have found it too much and given it up even though his condition had not worsened. A disabled person should not be punished for heroic efforts to work by being held to have forfeited his entitlement to disability benefits should he stop working…”

Insurance companies should give such hardy souls a medal rather than a hard time!





Disability Insurance Discouragement

Some short term disability insurance carriers seem to have become enamored of a new excuse for stopping disability benefits:

                                       “You were fired so you lose your benefits.”

We had just completed the task of convincing a carrier that their policy gave it no authority to stop benefits because a covered employee was terminated, when we took on another case on behalf of another policyholder against another carrier on the same issue.

Is this the new ploy companies are adopting to discourage disability income claims?

This tactic is patently ridiculous. If this insurance company interpretation of policy language is accepted, what protection would a policy offer?

* You become employed and as part of your employment, you are made a beneficiary of your employer’s ERISA benefits plan.
* You become disabled and can’t work.
* You start receiving short term disability benefits.
* You are terminated by your employer.
* The insurance company stops paying benefits because your employment was terminated.

It would be almost comical if it were not so serious for the disabled employee and his or her family. Most likely they are without income and have few resources to meet their daily living expenses except for the benefits they are receiving. On top of that the breadwinner is injured or ill, making the future uncertain. It is at that point the insurance company piles on by making the ludicrous claim that because the employee was fired while receiving benefits, the employee is no longer covered and benefits are halted.

What a Catch-22 for an employee!

* An employer pays a premium based upon the insurer’s benefits experience with the employer.
* An employee gets sick and can’t work.
* Insurer starts to pay disability benefits.
* Employer, worried about premiums going up, fires employee.
* Insurer says employee no longer works at employer and is no longer eligible for benefits.
This tactic would surprise someone who doesn’t deal with disability insurance carriers all of the time. But, we who deal with them daily, hardly react because we see insurers weaseling on claims all of the time. If there is a chance the company might discourage the claimant, it tries to do so.

Misinterpreting the language of policies is a major weapon in the disability income benefits denial arsenal. Others are:

* Losing claim paperwork.
* Dubious medical reports from highly paid doctors who don’t even examine the claimant they are reporting on.
* Following the claimant with video cameras.
* Overlooking facts supporting the claim.

The list could go on and on. Suffice it to say that a person with an ERISA claim should protect against these disability insurance ploys by talking with an attorney who knows them and deals with them all of the time.
Don’t give up because the insurance company makes it tough for you.
Making it tough is their first line of defense. They will try it every time.












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!


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A Stiff Upper Lip Can Hurt You

As anyone who practices in the area of disability law can attest, employees who become disabled are reluctant to admit they are disabled, and instead try to “suck it up” and carry on, even when their condition gives them very little hope of ever being able to permanently keep working. We’ve written about the “working disabled” before, but not in the context of O’Hara v. National Union Fire Insurance, 2011 WL 405448 (C. A.2 (N.Y.))).

O’Hara clearly illustrates that because a disabled employee continues to try to work, does not mean that employee will automatically be denied disability insurance benefits. This court clearly states that an employee’s continued presence at their place of employment does not preclude a finding of disability, if there is evidence he or she was actually incapable of performing the job.

This important principle needed to be reaffirmed. Disability carriers latch on to the fact that an employee tried to carry on despite the disability, to justify the denial of benefits.

In O’Hara, a company administrative assistant suffered a head injury in a fall. She was treated by several neurologists following the fall on March 15, 2001, but she continued to work.

As with all policies, Ms. O’Hara’s LTD policy had limiting language which defined whether she was eligible for long term disability. As with all policies, the language was not simple. She could recover if as a result of an accidental injury she was totally and permanently disabled and prevented from in engaging in each and every occupation or employment for which she was reasonable qualified by reason of education, training or experience. In addition, the policy required the disability to manifest itself within one year of the accident and to continue for a year.

Ms. O’Hara, while working, told her treating doctors it was necessary for her to make notes at work and at home so she could be able to remember the things she had to do. Also during this period, several of her coworkers complained to her superiors that she was behaving unprofessionally. However, her employer did not terminate her until June 6, 2002.

All during this period, Ms. O’Hara reported continuing headaches and severe memory lapses to her doctors, and was found by her own treating neurologist to be “completely disabled”.

Although the Federal District Court granted summary judgment to the insurer on a motion for summary judgment, the appeals court sent the case back for trial saying that the fact that Ms. O’Hara worked after the injury does not automatically mean that she was not permanently disabled by the accident. The appeals court found much in the record to support her contention that she was actually disabled even though she went to work. The appeals court found that the District Court had erred in granting summary judgment while there were major facts in dispute and that a trial and findings of fact by the trial court were necessary.

Insurance companies and courts should realize, as the 2nd Circuit did in this case, that disabilities are not necessarily fully developed when they first strike. Many illnesses and injuries take time to develop the full extent of their impairments.

Further, many employees are not anxious to go on disability and resist it for as long as they can. As a matter of public policy, employees should not be penalized for doing so – they should be praised.

If insurers jump on every employee who tries to work through their injury and deny benefits because the employee tried to work, insurers will be hurting themselves because they will discourage claimants from trying to work.

The decision in O’Hara sends a clear message to carriers that such conduct will no longer be accepted unless the evidence in the case justifies it.






Ups And Downs

One wonders when in a happy mood writing a blog around a major holiday whether others, not so fortunate, have the same feelings of joy and expectation. Should one write for those who are up or those who are down?

While facing this dilemma this holiday season, we decided to compromise – try to say something that will apply to both sides of the holiday equation – the happy ones, the sad ones and the ones in between.

In fighting with insurance companies for the benefits policies purportedly promise their beneficiaries, we have discovered the secret of being – NEVER GIVE UP! And, this goes for living in general.

Down through the years, we have noticed that we can be on the balls of our bottoms one day and on top of the world the next. Life has a habit of changing one’s status without warning of any kind.
We deal with people who are frequently on the lowest rung of life’s ladder because they are seriously disabled and cannot work and earn a living for themselves and their family.
What could be worse than being ill or disabled (for how long, you are not certain) and not being able to bring in money for food or rent?

On top of that, your salvation is in the hands of a disability insurance company which, in effect, makes its money by not paying people in your circumstances.
We have been in those situations many times with our clients. The present looks bleak and the future looks even bleaker.

And then, without warning, things change. The insurance company, for reasons known only to itself, decides to give your case some priority or launches a new review of your claim and comes up with a positive result for you.

After years of fighting and deep disappointment, your world gets brighter in a split second. How does it happen? No one knows. But, if you aren’t in the game when the change hits, you are out of luck.

The reverse is also true. You may be sitting on top of the world in regards to family, occupation and life in general. Without warning, illness or injury strikes and your world is turned upside down in an instant.

The world is constantly changing and your lot changes with it. There are people who are at the top of the world today who will be in the dumps tomorrow. There are people who seem without hope today who will be at the zenith of their lives tomorrow.

Why and how does this happen? We can’t say. Is there a Supreme Force or is it the luck of the draw? No one knows for sure.

But, what we do know for sure is that in disability insurance claims, the same as in life, if you are not in it, you can’t win it.

So, ring the bells, light the candles, sing the songs, but hang in. Your moment in the sun may be the very next one.

Enjoy the holidays and always look forward to better times.