Note-Picking Not Nitpicking

We have all heard of nitpicking arguments to try to deny a proposition, but have you ever heard of note-picking arguments used to try to do the same?

In Chambers v. Reliance Standard, 2013 WL 3712415 (S.D.Ohio) the insurance company did just that in an attempt to cut a claimant off from LTD benefits. While the claimant’s doctors found him to be unable to work because of HIV, peripheral neuropathy and the effects of the medication he was required to take, Reliance found themselves a doctor who read the medical reports and based his opinion on side notes the claimant’s doctors wrote, while ignoring the important main notes they wrote about his condition.

Mr. Chambers’s treating doctor had written in his notes that he was “…doing OK with methadone…still has some trouble feeling sleepy.” And another, “pain control is good, but tired and some constipation. Has painful area on right foot. Otherwise no complaints.”

In coming to a decision in favor of Mr. Chambers, the Court agreed with him that Reliance and its doctor “cherry-picked” the medical records to come up with the few notes that seemed to back denial while completely ignoring the meat of his doctor’s reports which substantially supported Mr. Chambers’s claim for benefits.

Reliance also totally ignored the finding by SSA that claimant was totally disabled in coming to its decision to halt claimant’s benefits.

On appeal to the insurance company, claimant submitted a letter from his treating doctor, a specialist in HIV/AIDS, stating that his patient might be able to do a sedentary job for 10-20 hours a week, but that he was not able to work full time in any occupation because chronic fatigue prevented him from performing adequately in any physical capacity for more than 4 hours a day. The doctor further noted that persistent pain would impair his ability to concentrate and that the medications he was taking caused fatigue and lethargy.

Although giving deference to the denial decision of the plan administrator, the Court found that the decision to terminate benefits was arbitrary and capricious and reinstated the plaintiff’s benefits.

In this case, Reliance proved something we have said many times before. Insurance companies have no shame in their quest to keep as much money in their pockets as they can. We were flabbergasted by Reliance accusing claimant’s treating doctor as acting “more as an advocate then a doctor rendering objective opinions”, indicating the physician changed positions to help the patient obtain benefits.

This in the face of insurance company conduct in case after case where they make it a practice to hire only doctors who make their living by being blind to claimant disabilities.

Talk about the pot...

 

A Reread For Some ERISA Judges

 

Plenty of insurance company defenders point out that there seems to be a surge in Social Security and ERISA disability claims in the last few years. They do this to paint all disability claimants with a questionable brush.

What you don’t see is a flood of these same people pointing out that the reputation of disability insurers has suffered much greater hits in recent years. For some reason, these defenders quickly forget when insurance companies admit actual, far-reaching wrongdoing.

We only have to go back ten years to revive the memory of the UNUM settlement with 48 states because of the insurer’s deceptive handling of disability claims over many prior years. This was actuality, not innuendo. UNUM settled and paid because of its unsavory conduct in dealing with people who couldn’t work because they were disabled.

 Then we had the recent instance of MetLife and other insurers hanging onto life insurance proceeds belonging to decedents’ beneficiaries because they claimed they “didn’t know” the policyholders had died. At the same time MetLife somehow “knew” of these very same deaths because it immediately stopped paying annuity benefits to these very same deceased policyholders.

Now we are in the middle of another insurance company scandal, Cigna, settling disputes with state after state about its fairness in handling disability claims.

With this history, we can’t see why some courts automatically seem to put insurance company exam reports, where the physician doesn’t see, talk to or touch the patient, on a par with treating doctor reports. Nor can we see why some courts equate supposedly “independent” medical exam reports from doctors who make a good part or all of their income from these so-called “independent” reports, on a level with the treating doctor.

It is not fair for courts to put opinion evidence from one of these “bought and paid for’ insurance doctors on the same level as the report of a treating doctor. Yet, because of Black & Decker, 123 S. Ct. 1965 (2003), many do.

Yet, to do so is a misread of Black & Decker. That case clearly dealt with only whether an ERISA court should follow the Social Security rule favoring the report of a treating doctor in evaluating evidence in an SSDI case. The Supreme Court said “No” for reasons clearly stated in that opinion.

Nowhere in that opinion did the Supreme Court say the two genres of medical evidence should be treated equally or that a District Court should not apply judicial common sense in evaluating medical evidence. The Justices said you can’t apply the Social Security “treating physician”rule. It didn’t say that judges are barred from judicially evaluating medical evidence in ERISA cases.

It is upsetting that a treating doctor’s opinion gets no more respect from some courts than does the opinion of an insurance company doctor who never sees the claimant, has no professional obligation to the claimant and probably earns a good part of the doctor’s annual income from insurance companies.

Courts which treat medical evidence in ERISA this way should reread Black & Decker.

 

 

 

 


 

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.