"Nameless, Faceless Medical Reviewers"

We have previously written about the serious problems which result when insurance companies hire doctors to perform “paper reviews” of insurance claims without ever meeting or examining the patient, and then use those paper reviews to justify termination of benefits. In an ERISA context, this is particularly difficult because claimants are denied in most cases the opportunity to confront those professional reviewers or to cross examine them to show they are financially biased or otherwise not competent to speak to the issues about which they have given an opinion. Even so, insurance companies in increasing numbers rely on these unnamed, unknown medical sources to justify termination of benefits. On December 14, 2014, 60 Minutes broadcast a piece which speaks in part directly to this issue and points out the fundamental unfairness, indeed the dangers which can result when insurance companies make claim determinations and deprive people of benefits to which they are entitled and which they desperately need.



Labor Day is an appropriate time to think about the nation’s working people and what ERISA disability plans mean to them.

There are about 140,000,000 of you covered by some sort of ERISA plan. ERISA was conceived to help a worker have some protection if he or she became sick or injured and couldn’t work. It was passed by Congress in 1974 when the Congress was a functioning body that took its obligations seriously.

Even though it affects some 140,000,000 in a basic way, legislation similar to ERISA wouldn’t get a “look-see” in the legislature in Washington today.

The system is simple. When employers need workers, they offer employees benefits to try to lure them and to keep them. One of these benefits is usually disability insurance to cover part of the loss of income if a worker is hurt and can’t do the job. ERISA disability insurance is a system beneficial for both the employer and the employee at the time an employee is hired.

After that, though, it becomes a contest. On the one hand you have the employer offering disability benefits and on the other you have the employer wanting to pay as little as possible for those benefits so as to retain as much money as possible for profit.

It is difficult to reconcile these positions without strife. Add an insurance company to the mix and the strife becomes war. Not only does the employer want to spend as little as possible for employee benefits, but the insurance company is also looking for profits for itself.

The nature of such a relationship is conflict pure and simple. There is no way around it.

People have differing views of how and when they become disabled. Some can take more pain than others. Some have differing views of their obligation to their employer. Some are out-and-out fakers looking for benefits. So claimants run the gamut of entitlement to benefits.

Insurance companies on the other hand have only one goal - they want to make profits. They have shareholders, executives and employees, all of whom want to make as much as they can. The only way for them to operate is how to think of more and better ways to deny claims.

We understand their point of view, but we weigh it against the hardships caused employees when wrongfully denied benefits they and their families need to stay alive. Taking all of this into consideration, we think equity comes down on the side of the employee.

When you are unfortunate enough to have a disability income claim, you are facing a Goliath with armies of lawyers, adjusters and others experienced in fighting disability claims. These denial experts are backed up by a stable of doctors who never saw a claim they couldn’t belittle or ignore. Employers can take care of themselves or have monster insurance companies do it for them.

Employees have no one unless they find a veteran ERISA attorney, experienced in the disability wars. Insurance companies have all the help they need. We go for the underdog.

So, on this Labor Day, we salute all who work for a living. Without you, there is no gross domestic product.  In fact, there is no product at all.

Enjoy Labor Day. You have earned it.


No Good Deed Goes Unpunished

There’s nothing a disability insurance carrier likes better than a claimant who is “Mr. Nice Guy”. These are people who keep trying to do work even though they can no longer continue the occupation for which they have an “own occupation” policy and have a
clear cut claim for disability benefits.

What’s wrong with trying to keep working, one may be tempted to say? It’s the pioneer spirit. “Don’t give up the ship” and all that.

What’s wrong is that Mr. Nice Guy may scuttle his claim for benefits by trying to work at another job before making a claim under his policy. The carrier may have the right to say the claimant can perform duties similar to the ones he is performing at the time the claim is made, so he is not disabled as defined in the policy and, therefore, is not entitled to any benefits, let alone benefits for the occupation and income intended to be protected when the policy was purchased.
The problem is that “own occupation” is interpreted to mean the actual occupation at the time of claim – not the original occupation for which the insured originally purchased coverage.

So, if you modify your occupation to accommodate a disability, by giving up the duties you can no longer perform, then those duties are no longer considered part of your occupation when you subsequently file a disability claim.

Also, even if the carrier has to pay, the carrier may be required only to pay benefits based upon the salary or income of Mr. Nice Guy’s employment at the time of making the claim. These benefits would likely be much less than the benefits originally contemplated by the policyholder at the time of purchase. And the hefty premiums paid for the anticipated coverage would be gone with the wind.

So, if you have been astute enough to cover yourself and your family with an “own occupation” disability policy and you become disabled under its terms, don’t be a Mr. Nice Guy. To be safe, make your claim with your insurer under the terms of your “own occupation” policy when you become disabled under its terms and before you start doing any other work.

Certainly be Mr. Nice Guy to your family, your friends and even to people you may meet in the street. But, not to your disability insurance carrier.