Some Disability Income Insurance Secrets

  Claimants and some attorneys handling ERISA and private disability income insurance claims may be unaware of some of the idiosyncrasies of ERISA and disability income insurance law.  They should not be lulled into a false sense of security

Because ERISA is a Federal statute with its own strict time constraints, no jury trials, and court deference to an insurance company’s judgment, there is additional special knowledge every claimant and lawyer should know in pursuing ERISA claims.

But, getting back to the idiosyncrasies which affect both ERISA and private disability claims:

* If the claimant is scheduled for an IME (Independent Medical Exam), it’s a photo op for the insurance company and they are almost certain to have a surveillance camera on the claimant on the day of the IME to try to cast doubt on the insured’s disability claim.   (more on this)

* A claimant’s Facebook, etc., posts are meat for the insurance company’s grinder.  These posts are public and insurance companies go hunting through them to try to catch one picture or statement which might suggest (accurately or not) that a claimant is not as disabled as he or she claims.  (more on this)

* Not all psych material is discoverable by the insurance company.  HIPPA clearly exempts psychiatric notes from discovery without the client’s permission, but this doesn’t keep the insurance companies from pressing claimants, their lawyers and mental health providers for them.  Insurers just love to know a mentally impaired claimant’s darkest secrets, because they know this may disturb a psychiatric claimant’s mental equilibrium just at the time when they are most vulnerable.  More importantly, it may provide fodder for the defense argument that the insured is not really impaired at all, but hates his boss or the guy he works next to.  Even some practitioners in the mental health field are not aware of the danger they may put themselves in by disclosing such information without the patient’s permission.  (more on this)

* Claim denials are a very common reaction of insurance companies to any LTD (Long Term Disability) claim.  These claims can turn out to be quite expensive.  Insurers make every effort to try to discourage them.  (more on this)

* If a claimant has any psychological problems in addition to physical problems, most carriers will do whatever they can to make it seem that the psychiatric problem is the cause of the disability, rather than the other way around.  This is because most ERISA and many private disability income insurance policies severely limit the payment of benefits for psychiatric disabilities to no more than 2 years.  Non-psychiatric disability benefits may be payable to age 65, or even longer, depending on the policy terms.  (more on this)

These are some of the more basic “ins” and “outs” we’ve picked up in practicing ERISA and private disability income law for more than 30 years.  They should not be kept a secret, because failure to be aware of some of these things can really hurt an insurance claimant.

The last thing any claimant or their lawyer should want is to see the insurance company knock out a claim for want of insurance claims knowledge or experience.




Last October we warned disability claimants about a favorite ploy of insurance companies – taking surveillance videos of claimants on the day they are scheduled for an IME. Insurers love videos because they find that if they can catch a claimant doing anything he or she says they are unable to do, some courts are impressed enough by such evidence as to uphold an otherwise shaky benefit denial.

This is especially true if the court feels constrained to give discretion to the plan administrator which is very often the same insurance company which would have to pay the claim if it is upheld. For more on this see.

We like to call this the “Gotcha!” ploy. If insurance companies see you make what they think is a wrong move on video tape, your benefits come to a screeching halt.

Don’t misunderstand us. We don’t have any argument with insurance companies gathering evidence against a faker who tries to collect disability claim benefits fraudulently. Insurers should fight these claims tooth and nail.

On the other hand, insurance companies should not, as they seem to, consider everyone who makes a claim a faker.

A recent case illustrates how far insurance companies will go to use a video in an attempt to put the lie to a claim of disability, In Maher v. Massachusetts General Hospital Long Term Disability Plan, 2011 WL 6061347 (C.A.1 (Mass.))) , a registered nurse claimed she had to stop working because of chronic, disabling stomach pain and the side effects caused by the strong amounts of narcotics she had to use to control the pain. Although her doctors were unable to pin down the exact cause of her pain, they all were certain that she actually was suffering the pain.

Nurse Maher said she could perform some activity from time to time, but said she spent most of her time in bed. After paying benefits for 5 years during which the company videotaped her for 6 days in 2002, 3 days in 2005 and 10 days in 2006, the plan administrator, Liberty Life Assurance of Boston, yelled “Gotcha” and stopped her benefits.

On 10 of the 19 days during which she was photographed, she engaged in no activity. On the other 9 days, she was photographed sitting or standing outside of her home. Out of the entire 90 hours she was before the camera, there were about 15 minutes when she was seen carrying a bucket or pot and 30 minutes when she was seen playing with her children.

Surprise, surprise! The insurer’s doctors (who had never examined Nurse Maher although she offered to submit to an exam) all jumped on the video as proof that the claimant wasn’t disabled and that she could reliably perform a full-time sedentary job.

After careful analysis the 3-judge court found for the claimant, but split on the remedy. Two judges ordered the matter sent back to the District Court, which had found for the insurance company, for further consideration of the claim, while the dissenting judge felt the denial of benefits was so wrong that the court should immediately reinstate them.

In supporting the claim, the court approved language in a case involving a Social Security appeal, Carradine v. Barnhart, 360 F. 3d 751(7th Cir. 2004), where the court found there is a sharp difference between a person being able to perform sporadic household and family duties and being able to work 8 hours a day for 5 consecutive days of the week).

Although insurance companies benefit big time when they can cut off a disability income claim midstream, they should realize it is not a game of “Gotcha”. Real people are hurting and their families are suffering.

It is not any kind of game at all.






Hope Springs Eternal...

We come to the end of another year and nothing much has changed for disability income insurance claimants.

* Insurance companies are just as focused on denying claims as they ever were.
* Disabled policyholders are still put through a “meat grinder” when it comes to trying to establish a claim.
* Insurers maintain their “gotcha” attitude, nit picking at every little item they can lay their fingers on to try to build a case for denial.
* None of the big boys – UNUM, Prudential, MetLife, Cigna seem to be improving their claim “approval” scores.
* “Independent” Medical Exam (IME) doctors still mainly feed at the insurance company table, making it extremely unlikely that they are “independent”.
* People who earn a living by working or in the professions still are getting short shrift from insurers at the worst time in their lives – when they become disabled and have no income.

With all of the advances in technology over the past dozen years, one would hope for even a smidgen of an advance in the social outlook of insurance companies vis-a-vis their insureds.
No such luck. The ages old insurance battle is still a battle.

What we can do about it is what we have always done about it – give our clients what we see as the best legal advice and help and as much moral support as we possibly can.

What we can hope for is a realization by the insurance industry that unreasonable reluctance to pay disabled policyholders, who are down and out, what their policies call for, is immoral and not in their long term best interests.

A New Year brings new hope, forlorn as it may be.


An IME Means Camera Time

You might be very happy when an insurance company asks you to undergo an IME. An IME (so-called “Independent” Medical Exam) means that, a live doctor will look at you, examine you and talk to you, before writing a report to the company which usually says you are not disabled.

 However, you should know that on the day you are to present yourself for the examination, Big Brother (your insurance company), will likely be watching you on camera, waiting for you to make a false move they can use to try to scuttle your claim.

How do we know that IME day is likely to bring out the video camera? Because video surveillance of claimants is expensive and insurance companies don’t want to waste money sending a surveillance unit out when they are uncertain about whether you are home and, if you are, whether you emerge or do anything they can photograph during the time they are there.

But, when an IME is scheduled, the insurer knows that you will have to come out of the house to go to their doctor, so if they have a unit at your home, they know they are going to get some video of you in action. And, they hope their camera will catch you doing something they can use to argue that you are fit to work so they can stop paying benefits.
It doesn’t take much for an insurer to claim you can do some kind of work. For example, if they see you lifting anything, they will claim that you are fit to work on a loading dock.

Most courts are smart enough to realize that if a person is caught on film for a minute, doing something he or she was not ordinarily able to do, it doesn’t mean that person can do the task over and over for an hour, a day or a week. This is especially so if the person has presented solid medical evidence of an illness or injury which clearly would prevent him or her from doing so.

Given that an IME may be anything but “independent”, a client should be prepared to meet whatever obstacles are put in the way on examination day. The claimant should assume that the examining doctor, hired by the insurer, is not out to do the claimant any favors. The doctor is out to shoot down the claim if at all possible. And to some doctors “possible” stretches all the way to the stratosphere.

But, it is also true that sometimes a picture can appear to be compelling evidence even it does not truly reflect the reality of an impairment. The point is: Be aware that you are fair game for surveillance, especially when the carrier knows where you will be and when you will be there.

IMEs present the insurer with an ideal opportunity to spy on you and you can assume that they won’t pass up the opportunity.

What claimants can do to level the examination playing field is:

* Bring a witness to the exam and have the witness take notes of the entire procedure.
* Bring a good watch and write an exact time line of the visit, from the time you arrive at the examination site to the time you leave.
* The notes should contain the exact length of time each phase takes, i.e., waiting time, interview time, examination time, discussion, exit time.
* Write out a complete description of the IME as soon after it concludes as possible, when your memory is still fresh.
* Make a note of the name and occupation (medical doctor, physician’s assistant, registered nurse, nurse’s aide, technician) of each person who conducts each part of the examination visit (welcome, history, interview and review of your medical records, testing, and actual examination, detailing what is actually done by the examiner).

Your witness’s and your notes can be used by your attorney to keep the examining doctor’s testimony accurate, if there is a trial. If you don’t keep accurate and timely notes, much of the detail of the visit and the examination will be lost to memory. That situation would leave the courtroom playing field to the IME doctor and you have to know that that person is not inclined to do you any favors.










Impartial Medicine?

Just when you thought insurance companies had reached the ultimate in stacking the deck against insureds, they come up with a new ace in the hole. Now they are buying up groups of treating doctors, which they will own, lock stock and barrel

In other words, a doctor who is treating you for an illness or injury which may be the basis of a disability insurance claim and who has to file medical reports on your behalf, may be filing the reports with his or her boss – the insurance company.

Talk about a conflict of interest!

The reasoning put forth by the companies is that they will be able to control costs better if they control how the medical practice is managed. Sounds good, but if experience is any indication as to how it will actually work, hold onto your wallet.

Those who represent disability insurance claimants know that insurance companies usually have a contested claimant’s medical evidence “fine-tooth combed” by a doctor who is employed by a medical services company, retained by the insurance company. In most cases, the medical services company has few sources of income other than the insurer. Likewise, many doctors employed by the medical service company have few, if any, sources of income, other than their work for the medical services company.

It doesn’t take a genius to figure out that if the services company and its doctor employees know what’s good for them, they will tailor their medical findings to favor the medical service company’s customer, the insurance company. If they don’t, a substantial source of their income is likely to dry up and blow away.

Lawyers fighting for claimants in the disability income field learn that IMEs (so-called Independent Medical Exams) performed by a doctor employed by such a medical expert vendor, almost invariably result in a claim denial by an insurance company.

If this is the rule when the doctor’s agency employer is hired by the insurer, what is it going to be like when the insurer is actually the doctor’s “boss”? Is such a tighter relationship likely to make a doctor less favorably inclined toward the insurer?

Going a step further, the treating doctor recommends treatments and medication for the patient. If the doctor knows the insurer-employer pays for this wouldn’t there be an incentive to hold back, so as to make the treatment protocol less expensive? Isn’t that a clear conflict between the interests of the treating doctor, the insurance company for whom the treating doctor works, and the interests of the patient?

It seems clear that despite the growing trend of insurance companies buying medical groups, it should not be happening. Doctors are the people who actually define health claims, which in turn define the extent of financial liability of the insurance companies. The conflict of interest is too great if the insurer is actually the employer of a doctor defining the value of the claim against it

It’s bad enough that a whole medical service industry has grown up on the false premise that doctors who earn a large part of their living examining claimants for insurance companies can be neutral in their findings.

As a practitioner on behalf of claimants in the disability income insurance field for 30 years, we can attest that medical service IME doctors are anything but “independent”. If the doctors were direct employees of the insurance company, the odds of fair medical judgment would be laughable.

It is obvious that a patient wants a doctor to have only the patient’s interests in mind. A potential conflict of interest would have a devastating effect on the relationship. An actual conflict is terrifying.

On the basis of past insurance industry history, would anyone take bets that the insurance companies will not take the advantage that employing treating doctors affords?


The Tip Of The What?

What a surprise! A California newspaper investigated 567 disability insurance claims and found that insurance-sponsored IMEs resulted in denials in almost every case.

This is just the tip of the garbage heap (we hesitate to say “iceberg” because cold keeps things from stinking). The article clearly points out that disability claimants, particularly those covered by ERISA, are being hosed by insurance companies day in and day out at the very time when they are least able to fight back.

The article points out a basic failing of the “Independent Medical Examination” which lies at the root of a large percentage of the injustices inflicted upon claimants who are in desperate need of fair evaluations in claim determination.

In the case which triggered the investigation by the newspaper, a woman with degenerative disc disease was so afflicted with pain after surgery that her physician prescribed large doses of morphine for her. The woman applied to MetLife and the Social Security Administration for benefits. SSA granted her the benefits, but MetLife, after first starting payments, stopped because “…the medical information we have received does not support your inability to perform your duties as a client manager…”

An “Independent Medical Examiner”, paid by the insurance company, disagreed with both her treating specialist and the SSA and said she was fit to go back to work.

Although the case laws is rife with findings that IMEs are heavily tilted in favor of the insurers who pay for the exams, there is no mechanism in place to even this inherent disparity in medical “opinion”. Part of the problem is that while the treating doctor is subject to suit for malpractice if the diagnosis or treatment are medically negligent, an IME physician has no duty to the claimant because the IME examiner has no doctor-client relationship with the claimant. Therefore, the insurance company doctor has nothing to fear from the claimant even if the doctor conducts the examination blindfolded and with a closed mind as to the outcome.

Plaintiff lawyers practicing in the ERISA field have been aware of this unfair practice for years and years but have been unable to deal with it because of the ERISA precedent that shielded this practice from open view. The law required courts to give deference to the findings of ERISA plan administrators and precluded them from looking at how the decision was reached once the court found any reasonable basis upon which the administrator’s decision could be based.

To make a dent in this unfair IME bulldozer which continues to bury the hopes of so many heavily disabled employees, there must be a precedent which holds the IME physician legally accountable for misreporting a claimant’s condition to an insurance company. The problem is that under the law, the IME doctor owes no duty to the claimant and therefore is not accountable for negligence in reporting on the claimant’s condition.

It is time to stop this sham of “bought and sold” IMEs. Even if a claimant does not pay an IME doctor directly, courts should hold that since the claimant’s premium is helping to pay the doctor, a relationship is established which requires the doctor to use ordinary medical care in examining and reporting on a claimant’s condition.

This will give the IME physician something to think about other than the need to placate the insurance company so that he stay on the IME fee list, which in some cases provides most if not all of a doctor’s annual income.

It is time the Hippocratic Oath replaced cynical IME hypocrisy so that disabled ERISA claimants get a fair shake, as the ERISA law clearly intended them to.


"10 Points Of The Law"

You run into the darndest arguments from insurance companies when it comes time to pay up, whether it’s a disability income, accidental death or any other kind of policy..  When it comes time to pay, they say, “Go away.”

We recently represented the husband of a 31-year-old mother with three young children who died as a result of surgical malpractice when she tried to alleviate her scoliosis condition.  The poor woman went in for a major back operation and never came out of the hospital.  She died because the anesthesiologist in inserting a catheter, nicked a large vein which bled into her chest cavity, and then having not deposited the catheter in the vein, fluid flowed from the catheter into her chest cavity rather than into the vein.

When the insurer American International Group (AIG) was asked to deliver the accidental death policy proceeds, AIG claimed her death was not an “accident” because it was caused by complications of surgery due to “misplacement” of a central venous catheter.

AIG hired a supposedly independent physician to review its findings.  This doctor decided to call the negligent insertion of the catheter a “complication” of surgery rather than the malpractice it was.  (For more on insurance company “independent medical exams”, see IME.  Relying on this doctor’s “complication” call, AIG again denied the husband’s appeal and refused to pay.

Upon our appeal, the Federal judge, in his 15-page opinion , Barnes v. AIG, 2010 WL 376127 (S.D.N.Y.) carefully documented his finding that the malpractice was accidental under the terms of the policy.  The court found there was no language in the policy that would authorize AIG to not pay the policy benefits to the husband of the deceased wife.  The Court also ordered AIG to pay interest, legal fees and costs.

As the court pointed out, the insurer had every opportunity to exclude medical malpractice from triggering benefits by clearly putting such language in the policy.  But, not having done so, AIG then tried to dance around the issue to its advantage thereby delaying payment in an effort to get the claimant husband to “wimp” out and abandon his claim.

Insurance companies know that it is almost universally held that any ambiguities in policy language will favor the policyholder.  If any unstrained interpretation of a policy would favor a policyholder, just about every court in the nation will so do, with a long line of precedents lending support.

So, you may wonder why insurers such as AIG go through such a song and dance routine when they know deep down that the policy and the facts say they should pay. 

The simple answer is that while they hold the money, the claimant doesn’t have it and they do.  Lots of things can happen to eliminate a claim before the insurer has to pay:

* The claimant may die and there may be no one willing to pursue the claim further.
* The claimant may give up the chase in disgust or frustration.
* An inexperienced claims attorney may fumble the ball and lose the case.
* A claimant may settle for far less than entitled to just to stop the music.

We have all heard the expression, especially when we were kids, that “Possession is 9 points of the law”.   It is not accurate.  The saying should be: “Possession is 9 points of the law when you have to go to court to collect”.  This is because the burden of proof is on the claimant to obtain possession of what the possessor already has.

The possession may be absolutely wrong but the claimant has to actively prove to a court that it is wrong, meaning the loss of legal fees, court costs, and a lot of time and energy.  All the possessor has to do is sit back and snipe at the claimant’s case, while enjoying the use of the money in its possession.

Is it any wonder that insurance companies hold on to benefit monies for as long as they can?  One of the many things that can happen to eliminate a claim could happen.
Then possession by the insurance company becomes “…all 10 points of the law.”




Leave No Stone Unturned

A case in the Sixth Circuit, Balmert v. Reliance Standard Life Ins. Co., 2008 WL 4404299, S.D. Ohio,2008, reminded us that advisers to claimants, unfamiliar with the practice of disability income insurance claims, can sometimes overlook a client’s fundamental right.

An ERISA litigation is tough enough to win even when the claimant dots all the “i’s” and crosses all “t’s”. But, overlooking the claimant’s fundamental right to review and respond to a critical independent medical examiner’s (IME) report, bought and paid for by the insurer, see IME, is a disability insurance “no-no”.

It is important to note that in Balmert, the claimant wanted the plan administrator’s denial of her claim for benefits to be overturned because she had not been given the opportunity to rebut the report of the insurer’s medical expert.

The Sixth Circuit, in denying her appeal, stated clearly that she had a right to review the IME report and to rebut and/or otherwise comment on it, but her failure to review and rebut the report, since she had never asked to see it prior to the litigation, was not grounds for granting a reversal.

Not having seen it, we have no way of knowing if a review and rebuttal of the IME report could have carried the day in this case, but we do know that each and every report or piece of evidence used by the insurance company to reject a claim should be examined in detail and clearly rebutted by the claimant, if warranted, during the administrative appeal process. If a claimant waits for the opportunity to do so in the actual litigation, it may be too late.

For a claimant not to do so at the administrative level may hand the insurance company an undeserved “leg up” in its battle to deny benefits.


For The New Year

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!



 "read policy"

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).



Give Me Independence Or Give Me Debt

Federal judges finally seem to be coming to grips with phony “independent” medical examinations set up by many disability insurance carriers to deny claims, thereby feathering their own financial nests.

Lately there have been a trickle of cases in which the courts take a closer look at the relationship between the physicians insurance companies use to “independently examine” claimants and the insurance companies themselves. See Solomon v. MetLife, 2009 U.S.Dist.LEXIS 51507 (S.D.N.Y. June 18,2009)

It is no surprise that those “independent examining” doctors, relying in large part or fully on insurance company fees for their living, are frequently unable to see any merit to a claim.

Actually, the insurance company’s “examining” physician oftentimes doesn’t even see or physically examine the claimant. Only the medical paperwork provided by the claimant in support of the claim is “examined”, and it is on this “review of the record” that the doctor bases his or her opinion, most often finding the claimant is not disabled.
While the insurers are doing nothing to redress this obvious tilt of the playing field in their direction by setting up truly independent medical exams, Federal Courts are increasingly recognizing the basic unfairness of the situation.

In making decisions on ERISA disability claims, courts are beginning to take into account the relationship between the insurance company and the doctors they hire and pay as “independents”.
Courts are recognizing more and more that physicians who rely on these insurance “evaluation” assignments for a significant portion of their income know that if they find the claim valid too often, they will soon find no requests for examinations from the insurance company.

No requests, no exam fees, no income.

In fact, these medical exams are such a lucrative business that there are several agencies in the business of engaging doctors to examine claimants for insurance companies. This makes it easy for the companies to have physicians to conduct exams without having them on payroll (and, perhaps, making it look fairer to a casual observer). Such a system makes it easier for doctors who don’t want to actually practice (or are not competent to do so), get exam assignments without having to go through the trouble of looking for them.

However, one would have to be quite naïve to believe that the agencies and the physicians whom they employ for this work are not fully aware of which side of their bread has the butter.

The insurers have found a way to call a medical exam “independent” while retaining almost complete control of its outcome.

With the Solomon case, courts are getting closer to the bone with the purported neutrality of these “independent” physicians. Rather than just accept the statements of these “independent” doctors, the court looks at their personal (substitute “financial”) interest in the outcome of the exam and what they actually did medically to reach their conclusions.

Until a court is satisfied that all of the answers to these questions are fair to both the claimant and the insurer, courts should absolutely reject insurance company ERISA claim denials based upon such purported “independent” medical exams.