No Place For Ego In ERISA Claims

When forced to file an ERISA disability claim, ego can become one of your biggest problems.

It’s not even your ego that gets in the way. It may be the ego of your lawyer or doctor or both. The two professions frequently look down their noses, one at the other, and you may suffer because of it.

ERISA disability insurance cases require the utmost cooperation between the medical and legal professions. Time limits on supplying information are strictly enforced. The connection between the injury or illness and the patient’s ability to perform his or her occupation must be firmly established. All of this must be accomplished without live testimony and strictly within the framework set out by the client’s employer’s administrative plan and the terms of its insurance policy.

There is no room in this equation for “one-upsmanship” between professionals. The strict rules of ERISA demand that the claimant’s professionals act in a cooperative manner to present the best case for you.

Nothing in ERISA is taken for granted. Not only must the medical basis of the disability be clearly established, but how the disability causes the client’s inability to perform an occupation must also be made plain. Every part of the proof required by the plan and the policy terms must be presented clearly in the original claim documents. There are few “do-overs” in ERISA.

The lawyer and the doctor are the final “word” in your case. Unfortunately, neither profession is accustomed to checking with or answering to the other, and neither particularly trusts the other. But, ERISA claims absolutely require such cooperation to give you any chance to succeed.

ERISA is different from any other area of law, even Social Security, with which most people associate ERISA. Attorneys who have spent a large part of their career reading ERISA plans and insurance policies, should be best able to know what is important to include in your claim submission and to “captain” your claim “ship”.

Likewise, physicians are best qualified to make physical and mental findings in medical reports which are essential to any disability claim.

When an ERISA attorney suggests to your doctor that certain details regarding limitations or restrictions be included in the Attending Physician Statement (APS), it is not a reflection on the physician’s ability. It is a suggestion, based on the lawyer’s prior experience, that the document be clarified because it is required by the terms of your ERISA plan or insurance policy.

If your attorney can help your doctor write an honest, truthful report that better fits the requirements of ERISA, the lawyer should do so. Neither professional should take umbrage at such a request.

Each professional should treat the other with respect for their professional standing and their time and defer to the other’s area of expertise. ERISA lawyers may not be doctors, but they tend to know a lot more about ERISA requirements than doctors do. Each professional should keep in mind that their primary obligation is to your needs as a ERISA disability claimant. There is no room for professional prejudices.

Each professional must listen to the suggestions of the other in presenting their area of expertise and must act accordingly when appropriate to do so.

When you are sick or injured, out of work and facing a bleak future, you deserve nothing less.




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!










Keeping Doctors Honest In ERISA

It would be very helpful and save much time if there were a court rule requiring a doctor examining a claimant for an insurance company to submit a simple form setting forth the doctor's testimonial history and relationship with the insurance company along with any medical report filed in the case.

To be fair, a claimant's doctor should be required to file the same form so that if the claimant's doctor is a ''testifier" for plaintiffs, the court should also be made aware of that.

A recent case in New York Supreme Court, Bermejo v. Amsterdam & 76th Associates, New York Supreme Court (Queens County, Index No. 23985/09), brought to a head the pervasive and unfair buying of medical testimony by insurance companies when fighting disability claims. It is a practice which has become almost institutionalized by most disability carriers.

Although the Queens case was not an ERISA dispute, it clearly illustrates what ERISA lawyers see every day in their practice. Doctors beholden to insurance companies for their living, “fairly” evaluating an insured’s claim medical condition without ever seeing the claimant!

Some smart businesspeople have formed supposedly “independent” medical services to provide insurers with medical reports in their ongoing war with policyholders in disability, life and long term care disputes. These services hire a stable of physicians to work for them so the doctors can deny any direct relationship with the insurance company.

But, doctors know that if their medical reports don’t favor the insurance company, their employing medical service wouldn't last long with the carrier and the doctor would soon be out of a job and an income.

The first defense of a claim by an insurer is to deny, deny, deny in the hope that the claimant will be frustrated and disgusted and just go away.

Their very next major defense is a network of doctors or medical services who appear preprogrammed to reject of minimize all but the most obvious debilitating medical conditions. This is especially true in ERISA cases where a court, is required by law to give deference to the finding of the plan administrator, usually an insurance company, when there is a dispute.

So, why shouldn't a physician offering evidence in an insurance company claim set out their relationships with parties in the case by telling the court their testimonial history right upfront? This is particularly true in ERISA cases where there is ordinarily no live testimony either by deposition or before the court (therefore, no cross-examination), all evidence being on the record of documents submitted to the ERISA plan administrator.

If a trier of fact knows that a doctor earns all or most of his or her income from writing reports for insurers or claimants, the court could legitimately take that fact into account while weighing the value of each side’s medical reports, which should result in more accurate, truthful, just results.

Isn’t this what courts are supposed to be striving to attain? There must be some other method of evaluating credibility and independence of medical testimony where no cross-examination of medical witnesses is allowed.

Since, MetLife v. Glenn, 128 S. Ct.2343 (2008), courts have spent a lot of time and effort on arguments over discovery in ERISA cases, particularly concerning the relationship between the insurance company and the physicians providing evidence in support of claim denials.

Wouldn’t it be more equitable to all parties to have each provide the relationship information with the medical reports, thus saving time, effort and legal fees for all while providing background information important to a court in deciding the validity of medical reports?

Anybody have any better ideas?

Perils Of Technology

Speed and efficiency are great goals in medical practice, but they can’t be at the expense of accuracy, especially when it comes to documenting ERISA disability claims.

We had an experience recently which brought this problem to the fore in a way that was disheartening for disability claimants.   Streamlining medical procedures and reporting is OK, but not when that streamlining leads to pertinent and relevant medical data being omitted from a medical record or to inaccurate and misleading information being included. 

The case involved a leukemia patient who required a heavy drug regimen for treatment.  Such drug use invariably leads to severe fatigue and listlessness.  Yet, when the doctor produced his medical chart for our client’s insurance company, the record reflected an affirmative finding of “no complaint” of fatigue although the patient had complained of fatigue at every visit.

The doctor agreed that fatigue had been an ongoing complaint but that he had not noted it because “it was listed in a pre-established laundry list of possible symptoms which he was required to check off in his computer program for each patient visit.   He didn’t consider this “laundry list” important enough to spend the required time on for each patient.  So, he ignored it.

What the physician didn’t realize is that when the computer program produced a report for his patient’s ERISA insurance company, it reviewed all of the input boxes for the patient and then produced a summary report in which, because no “fatigue” boxes had been checked, stated there had been “no complaints of fatigue” from the client.

Of course this was red meat for the insurer since the claimant was claiming a long term inability to work because of fatigue, among other things. 

We’ve all heard the phrase, much used since computers came into vogue:  “Garbage in, garbage out.”  A computer can only evaluate the data it gets.  Data can be turned into “garbage” several ways:

* The original data can be in error
* A mistake can be made in entering the data.
* A failure to enter complete data.

If the “garbage” record errs in favors  of the insurance company, you can bet the insurer will rely on it.  And that leaves the doctor’s patient with a tough row to hoe, indeed.

In our case, the doctor, when advised of his erroneous report would not change it.  When asked how this report was released, he said his computer program produced the report  “by default” and he was unaware that if the fatigue box was not checked by him the report would automatically print “No complaint of fatigue”.

So, we have a situation in which doctors use technology without being fully trained or understanding it, creating medical records which say things they never intended to say.  A physician who knew his patient constantly complained of fatigue would never write a report saying the patient never had complained of fatigue.  A computer, being a machine, might very well do so.  In this case, it did.

The importance of this occurrence is to teach doctors they should not rely on computers unless they carefully review what the computer reports.  A physician with a computer system must know the system thoroughly.

The doctor must know what the equipment does, how it handles data omissions and what conclusions it draws by default from those omissions.  He or she must also make sure the system works properly and in no way misrepresents the patient’s condition.

Whether a doctor has a computer system to record exam data or still relies on the pen and pencil method, the doctor must remember the Hippocratic oath: “Do no harm”.

Using a computer system to try to speed up delivery of medical services in no way relieves the physician of that obligation.


Doctor "Do No Harm" In An APS Report

The Hippocratic Oath of doctors to “do no harm” takes on new meaning when a physician has a patient with an ERISA or disability income insurance claim.

Unfortunately, medical schools are not known for giving courses in how to complete an Attending Physician Statement (APS) which will satisfy disability insurance companies, particularly as those companies are notorious for not wanting to be “satisfied”.

The APS is a form generally used by disability insurance companies when asking for medical reports on claimants.

In the real world, doctors get many patients who suffer an injury or illness to their body which then leads to an injury to their ability to earn a living. No matter the actual injury to the body, the loss of ability to earn may have a profound effect on a patient’s ability to recover.

Doctors are by definition busy people. They have always worked hard but find their time for patient care even more limited with the trend in recent years toward more government rules and insurance paperwork. It’s likely this trend will continue.

When a disability income client comes to us, one of the first things we try to learn is if the treating doctors understand the importance of complete, accurate records regarding the client’s condition. An APS must not only accurately describe the medical condition, but must also set forth why, in the doctor’s medical opinion, the condition makes it impossible for the patient to perform job duties.

This part of the APS is known as “restrictions and limitations”. Response to this portion of the APS is crucial to any patient’s disability claim even though it does not involve diagnosis and treatment, the usual subjects of medical reports.

Without the doctor’s clear opinion of what the patient can and cannot do vocationally, the patient’s disability claim is almost certain to be denied.

Doctors have to know that insurance companies are not in the business of paying benefits if they can avoid doing so. Insurers and their stable of captive physicians try mightily to find any excuse for not paying benefits. They are experts at it.

One of their favorite ploys is to use a shoddy, ill-considered doctor’s record to shoot holes in a claimant’s case. If a patient loses benefits because of a sloppy report, the doctor is actually “doing harm” to the patient, contrary to the oath.

One example: Physicians should not lightly predict when an illness or injury will be alleviated to the point that the patient will be able to go back to work. People heal at varying rates and an average time for healing includes the fastest and the slowest healers.

If a medical report projects an average healing time, but the patient is a slow healer, you can bet the insurance company will not recognize the difference and the patient will suffer.

Just because an APS asks the physician to provide a “return to work” date doesn’t mean the doctor has to provide one unless he or she is certain of the date. It’s OK for the doctor to say, “I don’t know”, because being some time in the future, the “return to work” date is something they really can’t be sure of.

Insurance companies love to lead doctors to believe they should answer the “return to work” question. Then, if it turns out the doctor was mistaken, the company has an excuse to deny benefits to the doctor’s patient. “Do no harm”. If a doctor is not certain, the doctor should say so.

Physicians are trained to “do no harm” in giving patients the best care and treatment. Doctors should also try their best to “do no harm” when writing an APS about a patient with a disability insurance claim.

If called upon to render a report or APS in a disability case, a doctor must do it carefully after fully considering all of the facts involved. For the patient’s sake, it’s important to take the extra time required to be complete and accurate.

A mistake can cost a patient years of benefits needed to feed the family.







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.


Give Your Doctor Advice


Obviously, the most important person in the cast of characters involved when you have a disabling injury or illness is your treating doctor. You don’t have to be an Einstein to know that. Your doctor’s skill, or lack of it, can make or break your personal future.


But, if you have disability income insurance and are thinking of making a claim, the physician’s importance doesn’t end with the completion of treatments. In fact, the doctor continues as the star of your claim efforts and one unthinking or careless word from your doctor can send your claim to oblivion.

The importance of the claimant’s ability to get the treating doctor to realize the role he or she plays in your claim cannot be overemphasized. Physicians are busy people and are sometimes not too tolerant of demands on their time other than for treating patients. Yet, their word on your condition and your ability to function in a work setting can torpedo a claim faster than a claimant can “take two aspirin and call me in the morning”.

Your doctor’s value is multiplied by the fact that the first notice of claim you send the disability insurance carrier may carry the seeds of self destruction, thereby sinking your claim before it ever leaves the dock. This warning goes for rock solid claims as well as those which may be debatable.

ASAP Is Not A Priority

Many disability claimants are lulled into a false sense of security by having had previous experience reporting an auto accident claim or a stolen piece of property. In those types of claims the first priority is to get the notice to the insurer ASAP. The details can follow later. In a disability claim you have to get the details determined and in order before filing the claim, because an incomplete and/or inaccurate notice of claim can and will be used against you throughout the claims process.

Disability insurance carriers are fully aware of inexperienced claimants being fooled into thinking that a disability claim is similar to filing an accident claim. They have a full complement of analysts and attorneys waiting to dispute and cast doubt on a claim because of an error or carelessness in the initial notice of claim.

The notice becomes an indelible part of the claims record. It follows wherever the claim goes. If poorly done, it will be a bone in the claimant’s throat forever.

That’s why your doctors’ treatment is not completed until a full and fair assessment of your physical and mental problems in relation to your occupation have been presented with your notice of claim. The physician’s report should contain not only the full details of the illness or injury, but also an analysis of what effect the illness or injury will have on the performance of your occupational duties, and a corresponding assessment of the restrictions and limitations which your illness or injury forces upon you. Only then will the doctor have performed the duties required.

Don't Accept The Short End Of The Stick

Getting a physician to report in a disability claim may be difficult because the physician doesn’t understand what is required or because the doctor believes he or she is not getting paid enough to spend the time necessary to do the reporting job correctly. In either case your claim may be severely disadvantaged.

You should have a “straight talk” with your physician as soon as possible if you are considering filing a disability claim. If the doctor doesn’t get it, you must impress upon him or her that, being unable to work, disability benefits are vital to the well-being of the patient – YOU!

The doctor must be made aware that any medical report must not only describe your condition, but also what effect that condition has on your ability to perform the various job duties you have. Only such a report should be submitted to the carrier for consideration. If you or your doctor need help covering all of the bases in the proposed report, get your disability claims attorney into the picture fast so there will be no delay in getting the notice of claim to your carrier.

There is an old saying about the importance of starting off on the right foot. There is no more important place for following the sense of that saying than in making a disability income insurance claim.