A Heartfelt New Year's Wish

It’s time to lift our head from our writing chores, look around and see where we have been and where we are going. A Happy and Healthy New Year Everybody!

As we approach the end of 2013, we have noticed that we are approaching a milestone – 200 full size blog posts about ERISA, insurance companies, disability claimants and related materials. That output is enough words to fill a full size hard cover book! Did we really have that much to say about ERISA and private disability claims? We did.

The question is – were those words helpful to people who needed guidance or information about ERISA and disability insurance and how to make claims in a way that will survive the land mines insurers seed in the path to benefits?

We certainly hope so. We represent only disability income insurance claimants – ERISA and private. Never in 35 years have we fought for an insurance company or an employer against a disability claimant. So, our posts primarily aim at informing and advising those making claims.

We’ll never know if our posts actually do inform unless people ask us questions or tell us about their experiences. The little insurance tricks and traps we are aware of can break the back of a perfectly valid disability claim, leaving the insured without a job or an income – maybe forever. What a depressing prospect, especially as we look forward to the New Year.

Despite what insurers and employers seem to think, disabilities are not high on an insured’s wish list. “Good health” is the toast most often drunk by most people on the holidays and throughout the year. Why do insurance companies almost automatically assume that a disabling illness or injury is something an insured wanted or needed?

Let’s start fresh. Let’s regain our enthusiasm. Let’s pump up our drive to keep letting the world know what really goes on in ERISA and disability land. Only then will the people we care about gain full advantage of the knowledge and experience they need to successfully manage an ERISA or disability claim.

So, our most profound New Year’s wish for each of you is that you will never need our services because you have becomes disabled and unable to work. Stay healthy and keep laboring at whatever you do.

But, if should ever need us, we’re here for you.



This Proof Is Not In The Pudding

The Social Security Administration has paved the way for the courts on the issue of “malingering” and we can only hope the courts follow its lead – and quickly. SSA evaluated so-called “symptom validity tests”, used by many insurance companies against disability income claimants and found the tests not worth the money they cost.

A “symptom validity test” consists of a series of written questions, the answers to which are supposed to indicate how well a patient is expressing his or her symptoms to the test giver. The answers to one particular section of the test is supposed to indicate whether the patient is “malingering”, according to the test publisher. (According to a Wikipedia entry, the author of this test worked mainly for insurance companies in personal injury cases).

Insurers deny on the basis of these tests alone. See, for example, Smith v Pension Committee of Johnson & Johnson, 2012 WL 1918822. Should the test indicate that an insured is out of the test’s “normal” range, the insurance company claimsthe insured is not cooperating and labels him or her a “malingerer”. We represented a client in just such a situation about a year ago.

Although the tests may be useful as one part of a battery of diagnostic tools when evaluating disability claimants, insurers are quick to jump on the “symptom validity test” results alone when it gives them ammunition to deny a claim.

For too many years, disability income insurance companies have used for-hire doctors who give “symptom validity tests” to knock out perfectly valid disability income claims on the ground that the claimant is “malingering”. What is overlooked many times by a court is that the for-hire doctors have more reason to fudge their reports than do the people being tested. Many of these doctors make hundreds of thousands of dollars a years working for insurance companies. How long do you think they would work for insurers if they found many claimants were entitled to benefits?

The SSA is heavily involved in determining the same issues disability income insurance companies have to determine – whether an illness or injury disables a person enough so that the person is unable to perform his or her occupation. The SSA doesn’t baby claimants. Only a third of original applications are approved.

So, when SSA says the “symptom validity test” is not helpful in determining malingering, why don’t insurance companies “own up” and do the same?

And, if the insurance companies won’t do it, why don’t the courts?



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?


Don't Let Them Snow You

While looking out of the window at another snowstorm today, it occurred to us that the weather we are having in the New York Metro Area this Winter is much like pursuing a disability income insurance claim – never-ending, frustrating and requiring a BIG shovel to get through all of the bull___ thrown at you, even though all you want to do is get on with your everyday life.

If you are unfortunate enough to get caught up in the world of disability income insurance claims, you had better know what you are doing. Most people would think that the insurance company on the other side of your claim will play fair and give you an even break – WRONG!!!

The ordinary claimant is just “plain folks”, a person who has worked all through life and is now stricken with a crippling illness or injury which makes it impossible to continue working. On the other hand, insurance company claims-deniers do little else but deny, deny, deny and receive applause from their superiors for doing so. The more they save the company, rightfully or wrongfully, the more they are held in esteem for the work they do.

And, ERISA cases can be particularly galling to claimants because the Supreme Court added brass knuckles to the fists of insurers by handing them the doctrine of deference in Firestone v. Bruch, 489 U.S. 101 (1989). Not only do the companies get to dip into their unsavory bag of tricks, the Supreme Court says that Federal Courts have to give deference to their denials.

Trying to establish a disability income insurance claim gives you the same feeling you get when you look out of the window and see the snow tumbling down week after week. More shoveling, more slipping and sliding, more cold and less sunlight. It puts you in a depressed winter mood. You feel as if you want to give up.

That is exactly the mood an insurance company wants you to be in when you are pressing a claim. They want more and more information and regard it with less and less attention. They deny and delay, knowing that you are not working and therefore not able to properly support yourself and your dependents. Why shouldn’t they take their time?

Not only do you have to know what, when and where the insurance company is taking advantage of you, but you also have to know that they are counting on you to fold your tent and slink away because of the legitimate pressure they can put on you. Denying claims is second nature to most insurers and they seem to wield this power without remorse. Insurers hold all of the cards (and the money) while you struggle to get them to fairly evaluate your claim.

Disability income claimants need someone in their corner to point out the objective of insurer tactics and to help counter them while standing by to encourage claimants to obtain what is due under the terms of their policy. Claimants not only need knowledgeable help to properly press their claim, they need someone who has the experience to encourage them to stick to their guns and not be discouraged by insurance company tactics.

Part of the insurance company claims strategy is to keep you and your family “barefoot” for as long as possible so that you get disgusted with the whole system and walk away from your claim or settle for much less than it is worth, just to be out of the grinding process of pursuing an income disability claim.

Either way, they win and you lose. From the insurer’s view, this is the Perfect Storm.