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Change of disability definition used to deny long term disability benefits - YouTube
Channel: Dell Disability Law
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GREG DELL: Hi, I'm
attorney Greg Dell, here
[1]
with attorney Stephen Jessup.
[3]
And, Steve, I want to talk
to you about something that's
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probably one of the
top five reasons
[7]
that we see claim denials.
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And that has to do with the
change in definition that
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comes about in a long-term
disability policy.
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And that, obviously, has
to do with the change
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from an own-occupation
definition
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usually to an
any-occupation definition.
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Or it used to be that you're
able to do your own occupation,
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and then you can't do a job
that pays you more than 60%
[32]
of what you used to make.
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But, for the most
part, they're usually,
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it's from your own occupation
to any gainful occupation, which
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is very similar to the social
security disability standard,
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and very common in almost every
group long-term disability
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policy because all of
these group disability
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carriers, governed by
ERISA, make you apply
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for Social Security disability.
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So they kind of tie that in
to say, look, after 12 months
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or 24 months of
getting paid benefits,
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your definition is
going to change.
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So we know that a big chunk of
the calls we get every week are
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either I've been denied because
they changed my definition,
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or they've notified
me they're doing
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an evaluation of my
claim, and they're
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saying that I'm going to have
this change of definition
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in four or five months.
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What can I do?
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So let's talk about,
first, some things
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that possibly people
could do, to prepare
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for the change in definition
to help avoid a denial.
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STEPHEN JESSUP:
I think really it
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starts from the
beginning of the claim.
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The vast majority
of people are going
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to have jobs that fall in a
sedentary, light duty capacity.
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So, when an insurance company
is reviewing your ability
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to do your own occupation
during that initial 24 months,
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at the end of the day, as
much as they are supposed
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to look at the actual material
and substantial duties,
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they usually try to
just dumb it down
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to what those physical
demands are of the job.
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So, in setting up, say you
do have a desk-level job,
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you do sedentary work--
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from the get-go, you're not only
trying to necessarily establish
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that you can't do
your particular job,
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but you can't do anything
else that will require
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the same physical abilities.
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A lot of people
just kind of take it
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for granted when
the claim's approved
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and think, oh, two years down
the road, that's so far away.
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But the reviews that the
insurance companies are doing
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start very soon on.
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And then, within six to eight
months before the change
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full-blown, is
when they're really
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going to start looking at it.
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So some of the things
you really need
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to be cognizant of-- what the
medical records are saying,
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and we've seen a lot where
the doctors don't necessarily
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document all the complaints
that are happening.
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Or there's this
standardized software
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where you click the boxes.
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And there's maybe a little
blurb about what's going on.
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So, if there's any-- if there's
contradictory evidence in those
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records because of a
data entry problem,
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compared to what's written,
insurance companies will look
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at that, or if the records
aren't documenting much
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of anything, it sounds by--
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acquiescence by sounds--
if it's not there,
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it's not happening,
kind of a thing.
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So, first and foremost,
the biggest for any claim,
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and then long-term,
longevity of it,
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is going to be what is
in those medical records.
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GREG DELL: And
so, like you said,
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when I look at any claim--
and we help people apply
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for benefits all the time,
and then we help them manage
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their claim--
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I really look at the
change of definition
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as almost starting over again.
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And often they send it
to a new claims adjuster
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because that's like the way
the claims people are trained
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is, OK, they got approved
for this first thing.
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And then we're going to look
at their medical records
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every couple months and see
if they're still eligible.
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Oh, in my training
as a claim rep,
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now I got this
changed definition.
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I'm going to re-evaluate
the whole damn thing
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and see if I can come up with
a reason to not pay the claim.
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And you were right.
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The first place is in
the medical records.
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So what we do is,
obviously, we're
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regularly getting the medical
records and reviewing them.
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We're also consulting
and advising our clients
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as to how they should
be communicating
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from a medical/legal
perspective with their doctor
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to make sure things are
documented appropriately
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in their records
because, like you said,
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everything's automated.
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I think it's required now by
law to have the digital files.
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And a lot of these
things have software
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that go through range of
motion, levels of pain,
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and then the dermatomes.
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Do you have loss of sensation
on a one through five scale?
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And often it starts
off-- it's not often.
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It does start off that
everything's normal.
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So, if you have a doctor
who is not very detailed
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and leaves a person who's
saying, I've got numbness
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in my fingers, numbness
running down my arm,
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and I have weakness in
my hands, the doctor
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has five out of five for
all of the symptoms saying,
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there's nothing wrong with you.
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And then, where it says
musculoskeletal area,
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do you have any discomfort
in the neck, the back,
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the shoulders, and it
says none, but yet you
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do, the insurance
companies eat that up.
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And the doctor will get it
back later after the fact
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and go, no, I know you told
me about this and that.
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Sorry, it was my program
that defaults to normal.
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So that's a big thing.
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It's very important
to review the records.
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And often, without
representation, the doctors
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are hesitant to give the
records to the claimants
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because they don't want
the patients analyzing
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all of the records.
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But when they have a lawyer
and they realize the importance
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of that, of somebody
guiding them and helping
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to avoid a denial,
it's also less work
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for the doctor down the road.
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The other things-- talk
about, very often, we
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see the company might change
the definitions coming,
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and they want to come see me.
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What is that about?
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And what should a
person be aware of?
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I know we've done a
lot of videos on that.
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But in a nutshell, why
are they doing that?
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STEPHEN JESSUP: They
want to put eyes on you.
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They want to see
what you look like,
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how you're presenting,
especially if it's
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a pain-related condition.
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The people that come out
are trained to interview
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and investigate.
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If you're saying you have a
bad back and you can't sit,
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but you sit for a
two-hour field interview
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without much signs
of discomfort,
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these types of
things will be noted.
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Depending on the
insurance company,
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they may have already
done video surveillance
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prior to coming to see you.
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And then they're
going to see if you're
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going to, basically,
contradict what they
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captured so they can catch
you looking like you're lying.
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And if you're lying about this,
then their whole claim review
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is going to be within
that guise that you're
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going to lie to them
because most of the problems
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that you're going
to have, especially
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in the pain-related conditions,
are subjective in nature.
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So they're looking for ways
to show that you're not being
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truthful more than anything.
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And, really, it's just
to put eyes on you
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to determine that
level of veracity.
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GREG DELL: And, when we
are representing clients,
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we participate in
that conference.
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We prep the claimants
for the conference.
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We limit the scope
of that conference.
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We make sure that the claimant
doesn't sit there and feel
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uncomfortable, answering
what they need to answer
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and not answering what
they shouldn't answer.
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Also, sometimes they hire these
third-party outside companies
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who don't know anything
about the claim.
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And they come there
and ask you 100 things
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that they shouldn't be asking.
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The other thing we see before
the change in definition
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is those extensive activities
of daily living questionnaires.
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How important is it,
the manner in which
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those forms are filled out?
[424]
STEPHEN JESSUP: Crucial,
especially some companies,
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the ones that they'll send to
the doctors at that point--
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when you look through
the answers they provide
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to the doctor, they
basically corner the doctor
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to write that you have some
level of functional ability
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to work.
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They'll have boxes.
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This person could do this--
sedentary, frequently,
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occasionally.
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They never give the option
for the doctor saying, no,
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they can't do this on the form.
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They're specifically
engineered to basically give
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a result that is, a lot of
times, different than what
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the doctor actually believes.
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We speak to people who
read the denial letter.
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I had one just the other day.
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And I said to the
client, I said,
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did your doctor really say this?
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She's like, I don't know.
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I can't believe he would say
this because he was telling me
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X, Y, and Z.
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So they are really
focused on extracting
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what piece of information they
want to go into this idea of we
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had a reasonable basis
to deny the claim,
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or to give their reviewing
doctors a really nice something
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they can just clamp onto to also
try to steamroll the denial.
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So those forms are
very, very important
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because they're
going to be looking
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to see if it's been consistent
with what's been there.
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Also, you also sometimes
get weird situations,
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where a person has been out
of work for a little while,
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so certain things should be
improving, from the rest,
[505]
and stuff like that.
[506]
So, if the medical objective
evidence isn't supporting
[510]
a worsening of conditions,
a worsening of problems,
[513]
but the person's reporting
much harder restrictions
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and inability to
do things, that's
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also going to raise an eyebrow
with the insurance company.
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So it's really a continuity of
information that's required.
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GREG DELL: The
other thing I find
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important is educating
the doctor that they're
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going to get this random
call from a nurse or a doctor
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to go ahead and discuss
the claimant's claim.
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And that's kind of like behind
the back of the claimant.
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The doctor gets cold called
and doesn't know about it.
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So we often prep our clients
to have that conversation
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with the doctor to
say, look, you really
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shouldn't speak to
this person because--
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a couple reasons, one, the
doctor from the insurance
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company will often
call, have a meeting,
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and write up whatever that
doctor wants without sending
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a confirmation to the doctor.
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So, if that does happen, we
always advise our clients,
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make sure that,
if the doctor does
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speak to the insurance
company, that there's
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a confirmation sent
back to the doctor
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that the doctor can comment on.
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What I see is sometimes there
is this confirmation sent.
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And it's a random fax.
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It comes in and says, we spoke.
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This is what was said.
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Half the time, it's
not what was said.
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And, if you don't
reply in 24 hours,
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we'll assume that you agree
with everything that's in here.
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And it's always written
pro-insurance company,
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meaning that the
claimant basically
[585]
doesn't have the
restrictions and limitations
[587]
that the claimant actually has.
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And those are very
commonly used.
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So we're always advocating,
when we're involved,
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don't let that
conversation happen.
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Make the doctor from
the insurance company
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send the questions in writing.
[601]
Then the doctor
can prepare answers
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which can be reviewed
by the claimant
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to make sure they accurately
reflect what's going on.
[607]
So that's another tool that's
used by the insurance companies
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all the time to deny the claims.
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Another technique we
see often by Sun Life,
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and some of the other
companies are doing this,
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is, hey, your definition
of disability is changing.
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We're going to offer you
six months of benefits
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because we're probably
going to cut you off anyhow.
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And, if you take
those six months,
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then your policy is over.
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And they try to scare you
into accepting a settlement.
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Have you ever encouraged
anyone to take one of those?
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STEPHEN JESSUP: No, no.
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Unless the person is planning
on trying to do something,
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or going back, or there's
some life situation,
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no, they're just selling
themselves short.
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I've seen people
who've signed it.
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And then I've been contacted.
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And Sun Life's the biggest one.
[648]
It's a strong arm buyout.
[650]
And then they want
to withdraw it.
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But they've already signed
off on it, accepted the money.
[654]
And there's really nothing
that can be done at that point.
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So a lot of times people
will call and like,
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hey, I got a buyout
offer from Sun Life.
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And my first question is, how
long have you been on claim?
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And if it's been
under two years,
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I know that's probably
what they're looking to do,
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is to deny them after it.
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And so, all right, we'll
pay the remainder now
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and give you a couple months and
let you go on your merry way.
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GREG DELL: And some of the other
things that we'll do to prepare
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is we'll do additional testing.
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If it's a psych thing, we might
do updated neuropsychological
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testing.
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We may encourage
a doctor to send
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a claimant for a
functional capacity exam
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because we know they're
going to do that.
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So we need to do it
before they do it
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so that we have the better
objective data, the more
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current data, as
to what's going on
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at the time of the
change in definition
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because we know all the tools
that they're going to use
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to try to cut off a benefit.
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And that becomes a problem.
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So you really need
to be aware of all
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of these things that can go on
at the change of definition.
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Or, often it's not just before.
[712]
It might be a
couple months after.
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And the video surveillance
you touched on before
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is absolutely gigantic
at that change.
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STEPHEN JESSUP: Very much so.
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GREG DELL: And
they're going to try
[721]
to make-- they're
going to try to get you
[722]
on video for a couple of days.
[723]
Or I've seen them go for a
month here, a month there.
[727]
They come back a
couple days at a time.
[729]
And if they're sending you
for an IME exam at that time--
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we didn't talk about that--
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that's very common that they'll
want to hire an outside doctor.
[737]
They call them IMEs, which
stands for Independent Medical
[740]
Exam.
[740]
We call them compulsory
medical exams
[742]
because you have to go
to them and there is
[744]
nothing independent about them.
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So we have other videos about
how to prepare for that.
[748]
And if you are dealing with
all of these situations,
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between having to
do new paperwork,
[753]
possibly being
interviewed, having
[755]
to deal with video
surveillance, having
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to be sent to a
compulsory medical exam,
[760]
having to deal with your
doctor, who may be challenging
[762]
and not supporting the
claim or understanding
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what it means to have
this change of definition,
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these are all things that
we're here to help you with
[771]
and that we deal with
on a daily basis.
[773]
We encourage you to call us.
[775]
We're always going to offer
you a free consultation.
[777]
Any of the lawyers
here at our firm
[779]
are available to help you
anywhere in the country.
[781]
And we look forward to the
opportunity to speak with you.
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