Lack of Objective Evidence
Many disability insurance companies today, especially CIGNA, have difficulty in accepting and approving claims for disability benefits for conditions such as Fibromyalgia, Chronic Fatigue Syndrome, and Chronic Headaches and Migraines. Even with all the advancements in science and technology that have greatly impacted the way we provide service to patients, some conditions are still hard to diagnose. There are currently no available testing for fatigue and pain to objectively document the “subjective complaints” of claimants with disabling fatigue and muscle/nerve pain.
Many people who file a claim for disability benefits for these types of “self-reported symptoms” are denied benefits due to the “lack of medical evidence” documenting a disability. However, insurance companies continually refuse to acknowledge the fact that there is little testing available in which to document these diagnoses. In fact, many patients have already been subject to numerous different types of testing in order to eliminate all the other possible explanations for their symptoms. Once these other diseases have been crossed off the list, their doctors are left with only one possible diagnosis.
In setting “higher-than-marketplace” standards for practicing fair and ethical processing of disability claims as required by ERISA, insurance companies are supposed to list the types of documents/evidence needed in order to properly complete the processing of an application for disability benefits. However, since there are no tests currently available in which to document these types of claims of disability, the insurance companies are not able to provide a claimant with the specific type of information they need in order to approve benefits. If the information is not available, how is a claimant expected to supply the insurance company with the information?
Definition of Disability – Own Occupation to Any Occupation Transition
Not all LTD policies have an own occupation and any occupation definition of disability. However, many LTD policies, especially group policies sold by an insurance company to an employer as part of an employee benefits package, have a 2 year “Own Occ” definition of disability followed by an “Any Occ” definition. In order to receive benefits for the first 24 months, you must meet your policy’s definition of disability based on your inability to perform the essential duties of your own occupation. After 24 months, in order to continue receiving monthly disability benefits, you must be disabled from performing the essential duties in any occupation. This means you will be considered disabled if you are unable to perform the essential duties in a sedentary job. This is very similar to the definition the Social Security Administration uses to define disability for Social Security Disability Insurance (SSDI) benefits.
Many claimants who are approved for disability benefits from their insurance company during the “Own Occ” period will receive a letter from the insurance company about 6-9 months prior to transition to “Any Occ” requesting updated information and medical records. The insurance company has already determined that you were disabled from performing your own job, but they must now evaluate if there are any jobs in the national workforce that you are able to perform. If they can find a job they believe you are able to perform or that can accommodate your restrictions and limitations, you can bet a denial letter will appear in your mailbox.
Based on the restrictions and limitations stated by your own treating physician or from the IME or record review doctor hired by the insurance company, a vocational/occupational consultant will create a report listing possible job you are able to perform based on your previous job experience, training and education. If the vocational expert is unable to find a job currently in abundance in the national market, then you meet the definition of disability under the “Any Occ” definition.
Treating Physician’s Medical Records Do Not Document Restrictions and Limitations
Most doctors today write what are called “Office Visit Notes” on each patient after each office visit. These notes are meant to serve as a reminder or summary to the doctor about the complaints voiced by their patient, any observations they had after examining the patient, and any changes to the treatment plan or diagnosis. Most doctors do not write up reports or detailed summaries after every office visit with the thought of documenting a detailed account of their patient’s restrictions and limitations as they would apply to their ability to perform their job. These notes are meant to serve a personal purpose for the doctor as a refresher of the progress of his/her patient’s care and treatment.
Nearly every claim for disability insurance is followed by a request from the insurance company for updated medical records from your date of disability to present in order to document the claims made on your application. The insurance company is looking for evidence from the medical records that prove the severity of our condition and outlines the specific restrictions and limitations caused by your disabling condition and/or treatment.
Unfortunately, most of your medical records will not consistently document this data and information. In fact, if you have been seeing the same doctor for years, truth is they are probably very familiar with your condition and treatment and need to make very few notes. To an insurance company, this is interpreted as “your condition is no longer severe and you can return to work.” Insurance companies, especially CIGNA, are notorious for taking a doctor’s note of the patient stating they are “feeling better today” as a reason for denying a claim. It is important to talk with your doctor about the impact their notes may have on your disability claim and work together to create a strong foundation to prove your disabling condition(s).
Medical Record Review Reports
Many of the large disability insurance providers in the market today rely heavily on the services provided by their “Hired Gun Doctors” who write record reviews on potential disability claimants. When a claimant applies for payment of their disability benefits, they will likely be asked to also submit medical records from their treating physicians. Once the insurance company receives these records, they are handed over to either a nurse or doctor who works for the insurance company. These Record Reviewers are responsible for reviewing the available records and determining if the patient is receiving the proper treatment based on their complaints and test results, and if the restrictions and limitations stated by their treating physicians are appropriate. In many cases, the medical records do not dictate a patient’s specific restrictions and limitations, so the Record Reviewer is also responsible for determining these as well.
It is important to keep in mind that these doctors are only looking at a claimant’s medical records. They never actually physically examine the claimant! They are only going off of what is stated in the medical records provided to them.
You can start to see where a couple of issues arise when insurance companies determine a denial based solely on these record review reports:
- Records do not always clearly depict their restrictions and limitations. As we have already discussed, most doctors do not write their notes from each office visit with the awareness that they may be critiqued and evaluated for use in a claim for disability benefits. Therefore, these records may contain little, if any, statements of what their patient can and cannot do due to their disabling condition(s).
- Record Reviewers does not always get all the records to review. In many instances, we have found that our client’s Record Reviewer did not have all the medical records we submitted to the insurance company available to review at the time they drafted their report. In many cases, the records they are missing are the important documents that help to clearly illustrate the specific restrictions and limitations of our client’s disability.
- Claimant is never physically examined. Instead of sending a claimant for an IME or FCE, the insurance company instead relies on the claimant’s medical records to provide a clear picture of the claimant’s ability and inability to perform certain occupational-related tasks. Think of it this way – a picture is always clearer when you can physical see it rather than read a description about it.
- Record Reviewers does not always contact claimant’s treating physicians to clarify. Record Reviewers are supposed to contact a claimant’s treating physician in order to clarify any misunderstandings in the records and to clarify treatment plan choices and progress. If they are not going to physically examine the claimant, it would only make sense that they get in touch with someone who has.
- Record Reviewers hardly ever contact a claimant to clarify. It is very rare to hear that a Record Reviewer directly contacted a claimant to discuss their condition and how their disability affects their ability to perform day-to-day functions. This step seems like it should be a required part of the process since the claimant will have the best idea of what they can and cannot do!
IME or FCE Reports
IMEs, or Independent Medical Examinations, are physical examinations completed by a doctor, usually hired by the insurance company. Once a physical exam is completed, the IME doctor will write a report based on their observations and any notes from the records provided (if any were provided). An FCE, or Functional Capacity Evaluation, is a series of tests and manipulations, usually administered by a physical therapist, to provide data to quantify your specific restrictions and limitations. These restrictions and limitations are then applied to either your occupational requirements or the requirements for a sedentary job (depending on your policy’s definition of disability) to determine if disability benefits are payable.
Unfortunately, these medical reports are not always completely accurate and reliable. IME doctors especially are incredibly biased in terms of the conclusions in their reports. Many IME doctors earn a large portion of their salary by contracting with insurance companies to complete these reports. If these reports are not favorable to the insurance company, meaning the doctor determines the claimants are disabled, the insurance company is likely to stop using that doctor.
The results from these IME and FCE reports also do not take into account the after-effects of these examinations. FCE evaluations especially require a lot of physical demand and endurance in order to complete the variety of different tasks requested by the evaluator. Remember, these tests usually last at least 3-4 hours. For most claimants, this is the most amount of physical activity they have performed in a while. Many claimants have to go straight to bed when they return home after an FCE and are bedridden the following day or have to increase the dosage of their medication.
Also consider that the results from a couple hours at an FCE, or from 15 minutes that most IME doctors spend examining a claimant, does little to document the level of performance required to complete a full time, 8 hours/day, 5day/week work schedule.
It has become very common for an insurance company to place a potential claimant under surveillance in order to discredit the claims made on their application. If the insurance company can catch you walk without a cane when you stated on your application that you can’t walk without one, they have a quick and easy way of getting out of paying your benefits.
It is also very common for insurance companies to place a claimant under surveillance a couple days before, during and a couple days after they have scheduled you for an IME or FCE. Nearly every disabled person will have what they describe as “good days” and “bad days”. The insurance company is looking for footage that they can use against you to prove you are able to return to work.
Some insurance companies, like Hartford and Reliance Standard, will send a representative from the company to your home to perform a field interview. Many times, after you have answered and clarified the restrictions and daily struggles you face due to your disability, the interviewer will present a video of some surveillance footage they have on your activities. The idea of showing you this footage is to try to get you flustered and go back on your statements (causing you to lose your credibility). Don’t let this happen to you!
Now that we are in the technology age, it is also important to keep in mind what you are putting up on the public platform that is the internet. Insurance companies are investing more and more in social media site investigations to help disprove claims by disability claimants. If there are pictures of your surfing while you are supposed to have chronic back pains, the insurance company is likely to use this information against you to deny or terminate your claim. Be cautious of what you advertise on the internet!
2-year Mental Illness Benefit Limitations
It is understandable to think that many people with a physical disability may at some point be diagnosed with Depression. After working and providing for your family for years, you are no longer able to help out around the house and are unable to participate in certain family events. You may feel like you have become a burden on your family because you are unable to take care of yourself. Many disability claimants with a primary physical disability develop Depression as a secondary disabling condition.
Most disability insurance policies have a 2-year (24 month) limitation on benefits for mental illnesses. Some of these illnesses include Depression, Anxiety, Post-Traumatic Stress Disorder (PTSD), Dementia, Schizophrenia, Drug/Alcohol/Substance Abuse, Bipolar Disorder, and Obsessive-Compulsive disorder (OCD).
Since this policy limitation provides a severance of the insurance company’s commitment to pay for future benefits, it is a common practice that insurance companies use to terminate disability claims early.
Pre-Existing Condition Policy Exclusions
Most LTD policies have a Pre-Existing Condition Exclusion. This means if you have previously been treated for the same condition that you are claiming disability under, the insurance company may not have to pay your disability benefits.
Although the specific time periods will depend on the language in your policy, must LTD policies have a 2-year contestability period. This means if you file a claim for disability within 2 years of the effective date you became covered under your policy, the insurance company has a right to thoroughly investigate your claim. This includes a “look back” period, usually the 3 to 6 months prior to your effective date of coverage, to determine if you were being treated for the same condition you are now claiming disability under.
These exclusions are very, very broad. For example, a claimant may have been prescribed a medication for the treatment of anxiety during the look back period. Later, the claimant develops a back problem with muscle spasms. The same medication that was prescribed to the claimant to treat anxiety is now being prescribed to treat muscle spasms. The insurance company will get the claimant’s pharmacy records and claim that the claimant was being treated for muscle spasms because they took the medication. The insurance company will then refuse to pay benefits based on the preexisting condition exclusion.
Mistakes on Claim Forms or Attending Physician Statements (APS)
Insurance companies have had years to perfect their questionnaires and applications in order to trigger certain responses from claimants and their treating physicians. Many of the claim denials due to misstatements on claim forms come from claimants and their treating physicians not taking the time to carefully read the questions and information they are submitting to the insurance company.
Nearly every insurance company requires your treating physician to complete an “Attending Physician’s Statement” or “APS” in order to process your application for disability benefits. Many times, your doctor is probably reading and filling out these forms in a hurry while they have 10 other things running through their head. In some instances, one of your doctor’s staff members, such as a nurse or records custodian, is completing the form and your doctor just signs off on it. One wrong check mark can mean the difference between an award and denial of future benefits. It is important to review your doctor’s answers on the APS in order to ensure their accuracy before submitting it to the insurance company. Once it is in the claim file, it is very hard to take out.
Time to File Your Claim for Disability Benefits has Expired
Every disability insurance policy has a time limit in which to file a claim for benefits. Most disability insurance policies allow a certain number of days in which to provide “proof of claim.” If you do not file a claim within the specified time period, you will likely be denied benefits.
Make sure you carefully read your policy in order to determine how long you have to file a claim for disability benefits. Remember that every policy is different – your policy is like a contract between you and the insurance company.