Avoiding the Disability Claim 'Brush-Off' - What You Need to Know
By Justin Frankel and Jason Newfield, Attorneys at Law* •
April 27, 2011
* Attorneys Justin Frankel and Jason Newfield head a disability insurance law firm (www.frankelnewfield.com) that: 1) Works with patients before they file long term disability benefit claims to negotiate medical, paperwork, and insurer minefields; and 2) Represents policyholders whose disability claims have been denied or delayed. They represent many claimants across the US with fibromyalgia (FM), chronic fatigue syndrome (ME/CFS) and other potentially disabling "invisible" illnesses.
Fibromyalgia, Chronic Fatigue Syndrome, and Long-Term Disability - What You Need to Know
Disability insurance is not like regular health insurance; claims for both involve paperwork and frustration, but disability insurance is spring-loaded with challenges, and offers a limited arena for appeals, along with a challenging landscape in litigation.
When the disability claims of people with 'invisible' illnesses hit the adjuster's desk, they are certainly red flagged. And so the challenging process begins. Here’s what you need to know to skirt the typical pitfalls.
Locate the original disability insurance policy issued when the policy was first purchased or secure a copy from your employer.
Policies change over time, and the policy purchased five years ago is not the same as those sold today. The policy serves as the governing document through the claims process and contains specific language that tells the insurance company and the Court what its legal obligations are.
Speak with your primary treating physician about filing a claim.
Unless your doctor has had patients who have gone through the disability claims process, it is not likely that he or she will know how to document your diagnosis to support a claim.
For a disability claim involving FM, ME/CFS, or indeed any chronic pain-related disease to succeed, it must address the restrictions and limitations of your occupational duties that exist as a result of your illness.
Medical records that state that a dentist can no longer work because of fibromyalgia will not support a claim. The records must include a detailed definition of the tasks required to perform the job: standing for extended periods, leaning over patients, working with hands while keeping head and neck at a particular position, maintaining focus and energy levels over extended periods of time.
It is not the diagnosis that makes a person disabled in the eye of the disability insurance adjuster – it is the restrictions and limitations that the condition causes.
It is very important that you and your doctor make a very clear distinction between physical and mental conditions.
Often, disability insurance companies will try to push a fibromyalgia or ME/CFS claim into the mental/nervous category so that they can limit and restrict payments.
If your medical records note that you are depressed because of the FM or ME/CFS, the disability insurance company may attempt to change your diagnosis to depression so they can limit your benefits.
The files that an insurance company uses to review claims are also the files used if your claim is denied - in preparing your file, they are preparing to defend a denial of claim.
Keep that in mind.
• Fill out the forms honestly and truthfully.
• Be specific about how many days a week you can conduct daily activities and how many you cannot.
• If the forms are not long enough, or if there is not enough room for details, make a note on the page that you are attaching pages containing more information.
Document every contact with the insurance company and representatives.
• Write down the date, the name of the person you spoke with, and the details of the conversation.
• Send follow-up letters to confirm the conversation and include details.
• Keep a copy of everything you send and send everything by registered mail.
• Follow-up letters are often sent by the insurance company to document conversations. Don’t throw them in a pile – read them, and if they are not accurate, write back to correct them.
Insurance companies often use in-house medical staffers to contact treating physicians, review claims and build cases against the claimants.
A typical scenario is this:
• The medical staffer calls the doctor’s office, has a conversation discussing the claimant, then sends a letter to the doctor’s office confirming the conversation.
• The letter does not accurately represent the conversation that took place,
• And the letter contains a statement that indicates “unless we hear back from you by (a certain date), you accept the statements in the letter as fact.”
If you are unable to manage recording the correspondence and phone calls, have a trusted friend or a professional help you.
Tell the insurance company representative if another person will be on a phone call, and make sure any follow up letters include this information.
Be mindful of time limitations.
Your policy should clearly state when a claim must be filed. Many, but not all, policies have a 60-day filing.
• File all paperwork ahead of deadlines,
• Send everything by overnight registered mail,
• And stay as far ahead of deadlines as possible.
Keep your claim and your life off the web.
Insurance companies today monitor Facebook, Twitter, YouTube, forums, chat rooms and social networking sites.
• Use common sense - as long as you are in the claims process and while you are “on claim” (being paid benefits) keep the claims process and your illness private.
• Whatever is posted online is available to the insurance company and will be used against you.
Most policies require claimants to undergo an IME – Independent Medical Exam.
• Be aware that the doctor performing the examination is paid by the insurance company and is not independent at all.
• Many people drop their guard during an IME, believing that they are meeting with a doctor who is sympathetic to their situation. Don’t. (Courts are watching this conflict of interest carefully.)
If you are ordered to take a Functional Capacity Evaluation (FCE), be careful.
• Review your policy to determine whether or not it specifically requires this test. If the FCE is not in the policy, you are not required to take it.
• There is controversy surrounding it, because it can be dangerous. The FCE is used to test maximum effort.
• If you go for an FCE, don’t go alone.
• If you are asked to do anything that you know you cannot do without pain or discomfort, say no and do not perform the action.
• Document how you feel after the test and if possible, see your treating physician after the test for a follow-up evaluation.
Financial records are requested to evaluate income, assets and earnings.
• Check the language of the policy for a description of what is required.
• If you are asked to provide something that is not included in the policy, contact the insurance company and have them clarify and explain the request.
• Carefully document questions to minimize non-compliance issues.
Following is a recent case illustrating the claim 'brush-off' system, which we won on appeal.
It involves a disabled ME/CFS & FM patient who was denied benefits by one of the world's biggest insurance companies without a real medical exam.
Late night television commercials sell life insurance, boasting that no medical exam is required. How about a disability insurance company that doesn’t need a medical exam to deny a claim? Maybe these companies need to get together.
Our client is a CPA whose conditions, including ME/CFS, FM, and chronic pain with degenerative disc disease, were too debilitating for her to perform the duties of her job.
Key issues driving this matter on the part of the insurer – a top player in the industry (Company X) - were lack of a proper medical review and a complete failure to accurately assess the tasks and duties of her occupation.
• The doctor who did the peer review works for a company whose sole function is to review medical claims on behalf of insurance companies. Their reviews are supposed to be independent, but the company’s only clients are insurance companies. The physician was not well versed in any areas of the client’s numerous disabilities. Most outrageously, the doctor never examined the client in person, even though the policy gives the company the right to do so.
• Company X relied on a generic classification of the client’s job as a “desk job” and totally ignored the strenuous cognitive demands of a CPA position. We have seen this same tactic time and time again – an occupational review based on an outdated document –the DOT (Dictionary of Occupational Titles). The DOT is completely useless for a service-based economy, but the insurance companies continue to use it, as it works to their benefit in claim disputes.
Company X failed to afford the client a full and fair review of her claim, by:
• Failing to consider her credible subjective description of her complaints,
• Selectively reviewing the medical records,
• Failing to conduct an appropriate vocational analysis, and
• Failing to act as a neutral fiduciary. Rather, Company X acted as an interested party, influenced by its financial stake in the claim.
We fought back, with a vigorous appeal denouncing Company X’s irresponsible medical review, occupational review and failure to act as a disinterested party.
We won – and now our client is able to focus on taking care of her health challenges and not fighting with a massive insurance company that was determined to deny her claim.
In summary, disability insurance claims pose many challenges for FM and ME/CFS sufferers.
Knowing what to expect in the claims process can be helpful. It is best to work with an experienced professional before filling a claim to avoid some of the most common problems. And if you are a professional who has become disabled, do not accept a denial based on an inaccurate evaluation of your ability to perform the tasks and duties of your career.
- Justin Frankel and Jason Newfield, Attorneys at Law, April 2011
[See also the scond in this series, http://www.prohealth.com/library/showarticle.cfm?libid=16124 by Frankel & Newfield.]
* To learn more,
Frankel & Newfield
585 Stewart Avenue
Garden City, New York 11530
Note: This article is published with the intent to provide general information and is not intended, nor should it be used, as a substitute for legal advice rendered by a professional in the context of a specific situation.
| (3 existing comments)
Canadian Legal information
|Posted by: cfs_info
Apr 27, 2011
See http://www.mefmaction.com/index.php?option=com_seyret&Itemid=78&task=videodirectlink&id=101 and http://www.mefmaction.com/index.php?option=com_seyret&Itemid=78&task=videodirectlink&id=102
more info also available at http://www.mefmaction.com/index.php?option=com_content&view=article&id=173&Itemid=88
|Posted by: CanBrit
Apr 27, 2011
Having been through the "wars" with a Canadian Insurance Company, having these tips before hand might have made the battle a little easier. I went through a year of hell with this company, denial after denial. I have FM, CFS, MPS and Degenerative Disease, compounded by a head injury. Depression is a secondary result of these conditions.
There were times I honestly thought I would have a nervous breakdown. At the end, the insurance company sent me for physio for 12 weeks. This extended to twice the amount of time because I was unable to go according to the schedule. The end result of physio was it had made me worse, not better.
This, along with a threat of a lawsuit by my lawyer, resulted in an approval of my claim. Insurance companies aren't there to protect us, they are there to make money, by taking our money.
Fighting for my Health
|Posted by: smileyinbc
Oct 31, 2011
The last three and a half years have been horrid for me. All involved: my employer, disability management, initial doctors, rehab consultant, and the insurance company have put me through the ropes.
I have been diagnosed with Psoriatic Arthritis, Fibromyalgia, and Chronic Fatigue. I deal with chronic pain and fatigue throughout most of my days. With all my health problems, it is a wonder I was at work at all. I did struggle to some degree as most days I did not feel well and was always in pain. I KNOW I am ill.
Unfortunately, after being off work for two years, the insurance company denied my claim and I was forced back to work. My wonderful rheumatologist; unfortunately, did not complete the medical reports correctly. She did not base the report on why I can't work.
Since going back to work, and just managing, my employer has now taken liberty to discredit me in my job and has had me removed from my position and forced back on sick leave without pay. My union has filed a grievance and I'm just waiting, as always, to find out what is going to happen next. The duty to accommodate wasn't handled correctly. The method used to remove me from my position was not handled properly. I definitely have a Human Rights issue at hand and am seriously contemplating filing a complaint depending on the outcome with the grievance. I have been under a great deal of stress over all of this and the situational depression has been overwhelming.
I don't know where to go next.
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