Disability insurance companies often employ common insurance company tactics when investigating a claim or claimant. Insurance companies are businesses that profit when insurance claims are not paid. Accordingly, they spend a significant amount of money each year scrutinizing claims, in an effort to maximize their bottom line. Knowing the common insurance company tactics utilized by your carrier may save your claim.
The Independent Medical Examination
Insurance companies frequently request that claimants submit to an independent medical examination (“IME”). Such examinations are set up and paid for by the insurance companies and are typically anything but “independent.” Often, these doctors receive most, if not all of their income from insurance companies. Understanding your rights and obligations under your policy can be critical.
Under most policies, if requested by your insurance carrier, you must submit to a medical examination. However, this does not give the insurance carrier free reign. Your insurance carrier is not free to harass or unreasonably inconvenience you. Accordingly, your insurance carrier must provide you with ample notice of your examination and cannot unreasonably demand that you submit to an examination that is so far away from your home that it is unduly burdensome. We recommend that claimants thoroughly investigate the physicians to determine how often the insurance carrier has used the physician in the past and whether the physician is truly qualified in the area of medicine relevant to the claim.
Disability insurance carriers will often take every opportunity to try to suggest that a claimant is exaggerating his or her condition. This is especially true in claims involving fatigue, an inability to sustain activity for prolonged periods of time, and/or an inability to remain functional due to medication and/or treatment side effects. Often, an insurance carrier will demand that the claimant attend an IME a significant distance from their home so that the carrier can place the claimant under surveillance driving to and from the examination. The insurance carrier will often threaten to deny the claim or discontinue benefits if the claimant does not comply. Thus, the claimant feels forced to submit to the insurance companies demands. We often ask our client’s physicians to comment on whether the claimant is capable of driving the distance and demand transportation to and from the examination. We also demand that the examination be fully videotaped to ensure the legitimacy of the resulting IME report. Remembering your rights can spare you from making rash decisions during this process.
At DI Law Group also demand information regarding the scope of the examination. If an insurance carrier orders an IME with a physician that does not specialize in your disability, you have a right to request an examination by a qualified physician. If your carrier refuses, we document our client’s objection, have their physician or an independent expert comment on the subject, and do a thorough background investigation on the IME physician.
We typically will set up our own IME for our clients, either before or directly after one is set up by the insurance carrier. This insures that there is at least one truly independent evaluation in the file. Moreover, if the insurance carrier is demanding that our client attend an examination by a doctor that does not specialize in the particular area of medicine relevant to our client’s condition, our IME report will be all the more compelling.
Often, insurance carriers will attempt to withhold the IME report from the claimant until after the final denial of benefits so that the claimant never has an opportunity to respond. We request the report and an opportunity to respond prior to the examination. We then request that our clients’ doctors review and have an opportunity to rebut the examination findings. Many times, the insurance company will contact your physician directly and request that your doctor comment on the IME Report. The carrier will often provide misleading statements to your doctor or place unreasonable restraints on your doctor’s statement. Often, IME reports will misrepresent what you did or said during the examination and keep out relevant information. Accordingly, your doctor may not be given a full understanding of your condition. It is important that the scope of the examination is explained to your physician directly after the examination and that the insurance company may be contacting him or her. Providing a video of the actual examination to your physician can be extremely helpful. Moreover, your doctor must understand that she is not bound by the often restrictive and misleading questions of the insurance carrier. She is free to comment further on your condition in explaining why the IME report does not accurately represent your limitations. We typically request to be present during the questioning of our clients’ doctors and provide a more thorough set of questions for our clients’ physicians to be later submitted to their insurance carriers.
Whether you have to submit to a certain type of examination or evaluation at the insurance company’s request is dependent on the language found in your policy. Moreover, your insurance carrier cannot require that you to attend an examination that is dangerous to you, overly invasive, or against your physician’s medical recommendation. Know your rights under your policy.
In most cases, without the claimant’s knowledge, insurance companies employ the services of private investigators to follow the claimant and conduct video surveillance over a period of several days. This video is often used in an attempt to create the illusion that the claimant is less than truthful based on answers provided during an in-person interview (“field interview”). This is often done to frighten claimants into agreeing to a settlement of their claim, much lower than their claim is actually worth. Claimants should be aware of their rights before agreeing to a settlement offer. Often, the surveillance video is unreliable and misleading however, without addressing the flaws in the video taping, insurance carriers often get away with these tactics. We typically request a copy of the surveillance video to address these issues and allow our client’s treating physicians an opportunity to review and comment before any decision is made.
We also typically have our clients provide videotaped or written statements to the insurance carrier. You are the best advocate for your case. However, you must be careful to not make a statement that can be misconstrued or purposefully misrepresented. Everything you say to your insurance carrier can and will be used against you. We also often obtain video statements from our clients’ friends, family members, or co-workers to help explain our clients’ limitations.
Insurance companies will often require claimants to submit to a Field Interview by one of its investigators. They often request that these interviews take place in the claimant’s home.
Typically, these interviews are conducted to inspect the claimant’s living environment. The interviewer notes whether there are stairs in or outside of the home, whether necessities are located on high or low shelves, whether the home is kept up, whether there is a long distance to take the trash to the curb, and whether there are assistant devices. Often, the investigator’s observations alone are misleading, as many claimants have friends, family members, or employees who help them with household chores.
These interviews are often associated with surveillance either before of after the interview. Sometimes the interviewer will ask the claimant general questions about the claimants abilities and use surveillance video to attempt to show a discrepancy between the claimant’s statements and the video footage. Often, the video footage is innocuous and not inconsistent with the claimant’s answers, which were merely taken out of context by the investigator. However, an unprepared claimant can be taken off guard and unable to fully clarify. Other times, the investigator creates a report subtly misrepresenting the claimant’s statements and pressures the claimant to immediately review and sign it. If the claimant does not notice the misrepresentations and signs the document, the claimant has asserted that the report it is correct. Often these interviews are intimidating and confusing for claimants. We allows attend our clients’ field interviews, demand that they take place in our office or a neutral location, and will not allow our clients to sign any document without first thoroughly examining it.
While claimants do have an obligation to provide sufficient evidence to prove their claim, claimants must be aware that insurance companies are not entitled to everything that they request. Insurance carriers are only entitled to relevant information to the claim of disability. Without understanding the legal implications of the documents requested by the insurance carrier, claimants often needlessly provide irrelevant information that can be unjustly used to confuse the issues at hand. Understand your rights, but be aware of your obligations. The failure to provide relevant information may be grounds for a denial.
Insurance companies commonly engage in a tactic called “slow walking.” This is when an insurance company delays rendering a decision on a claim and prolongs the investigation process. Often, a claimant will receive numerous letters stating that not enough information has been submitted for the insurance carrier to pay benefits. Typically, the insurance carrier will claim that the right “type” of information has not been provided. Claimants often find themselves in an endless cycle of submitting information only to be told that it is not enough. Moreover, insurance companies often claim that it did not receive the records submitted, forcing claimants and their physicians to repeatedly submit the same information. Insurance companies often claim that documents either went to the wrong department or the documents were illegible. The reason for this is simple – many individuals become so frustrated with the process that they give up their claims. Other claimants are too sick to endure the endless process of submitting information and eventually abandon their claims. Moreover, many individuals cannot financially sustain a delay in benefits and force themselves, against doctor’s advice, to return to work – often for a new employer as their previous job has been terminated. Unfortunately soon after, many of these individuals must take another leave of absence or are terminated because they cannot do their jobs. However, their original claim has ended, the claimant is no longer covered under the original contract, and the new employer’s disability insurance contract considers the claimant’s condition pre-existing. If this is an ERISA governed claim and the claimant is able to maneuver through the process and eventually obtains benefits, the carrier is not required to pay interest on past-due benefits, cover the cost of sending and re-sending documentation, reimburse the claimant for all the additional doctor’s visits to obtain information, or compensate the claimant for the effect on her credit score because she could not pay her bills on time. More egregious, if the claimant is forced to file suit and successfully overturns the insurance carrier’s decision, all the insurance carrier is required to do is pay the benefits it would have had to pay to the claimant originally. The claimant will not be compensated for the fact that she lost her home because she could not pay her mortgage, was unable to pay for her medical coverage or her treatment, affecting her health further, and will never pay for the pain and suffering she and her family experienced because there was not enough money for groceries. This creates a system in which insurance carriers are actually encouraged to engage in “slow walking.” Simply put, if an insurance carrier unreasonably delays a decision on a claim, chances are it will never have to pay deserving claimants their rightful benefits. If a carrier is later forced to pay the benefits under the Policy, there are no penalties for its bad behavior. Why wouldn’t an insurance company roll the dice, the odds are in its favor and there is no monetary risk if it loses?
Claimants should understand the system and act accordingly. Educate your physicians about the process. Most doctors assume that if they assert that their patient is disabled and provide medical records that should be good enough. Many physicians do not understand that they must not only document a claimant’s symptoms, but also consistently document the claimant’s limitations, test findings, treatment plan, and prognosis. When an insurance company attempts to slow-walk our clients’ files, we send a correspondence outlining the documentation already provided and have our clients’ physicians do the same. Remember to keep copies of all information submitted, keep a record of all conversations, and send information either certified mail, mail with a return receipt, or via facsimile. Most of all, be responsive to your insurance carrier’s requests, submit all of your documentation, and know when you are being subjected to “slow walking.”
The Attending Physician Statement
Insurance companies will typically request that your physician complete an Attending Physician Statement (“APS”) during the application stage. If you are approved for benefits, often your physician will be asked to complete the same form each month. Often, there are no other requests for information. Do not be lulled into a false sense of security. SEND IN YOUR UPDATED MEDICAL RECORDS ON A REGULAR BASIS and make sure your physicians are properly documenting your condition and limitations. Commonly, claimants are approved for benefits based on the APS and medical file. Since there are no additional requests for information beyond the APS, claimants are lead to believe that by submitting the APS they are meeting their obligation to provide support for their disability. After several months, claimants are often denied further benefits because of a lack of continued support for their disability.
Insurance companies create Attending Physician Statement forms to benefit the company, NOT to make it easier for you to provide information regarding your disability. Many forms never even ask the physician whether you are able to complete the duties of your job. There is a limited space to explain your condition, symptoms, and limitations. There is very little room to describe your treatment plan, list your medications, and your physicians are usually not asked to discuss side effects from your treatment or medication. Accordingly, the form encourages your physician to provide limited information that does not give a true assessment of your disability. Insurance companies are then free to declare that while you have a condition, your physicians did not indicate that it was of such severity that you would be unable to do your job. Your physician should be aware of the APS trap. We prepare our own APS forms for our clients’ physicians to complete. Our APS’ ask relevant information to your condition and disability and provide ample room for explanation. These are submitted to our clients’ insurance carriers on a periodic basis, in addition to sending medical documentation..
Misrepresentation of Your Occupation
Typically, group disability insurance policies will provide at least a limited “Own Occupation” period. This means that you are disability if you cannot perform the substantial and material duties of your own occupation, due to a sickness or injury. Accordingly, if you are unable to do your job because of your condition you are disabled even if you can work in another occupation. Often, this definition will change after a period of time (usually 24 months) to the inability to perform the duties of any gainful occupation in which you are qualified to perform due to your education, training, and experience.
Despite the “Own Occupation” definition found in most disability insurance policies, insurance carriers often characterize a claimant’s occupation in generic categories that do not accurately reflect what you were required to do at your job. This allows insurance companies a lot of leeway when assessing whether you are disabled under your policy. A manager of a large corporation that requires frequent meetings, training seminars, Powerpoint presentations, frequent trips to different offices, and marketing functions, is often classified as a “sedentary” job because it does not frequently require lifting over ten pounds. If the insurance carrier’s assessment stands without objection, the insurance carrier may claim that the claimant is not disabled if she can meet basic sedentary requirements. Often, the insurance carrier will contact the claimant’s physician and ask “does your patient use the telephone?” “Can she sit at a desk?” When the answer is “Yes,” the insurance company will often claim, that based on the claimant’s own physician’s statements, the claimant can perform the duties of her occupation, because she can perform in a sedentary job. Many claimants file for disability because their condition does not allow them to work with reasonable continuity and consistency and their medications leave them unable to concentrate. Thus, they likely cannot effectively perform their job, even if they are able to sit at their desk, because they simply do not have the stamina to complete work 8 hours a day, 5 days a week and / or cannot sustain the concentration necessary to perform their occupational duties. It is important that you thoroughly describe all the requirements of your past job and explain why your condition prevents you from performing these duties. If your condition renders you unable to sustain activity overtime, this also must be explained. Most people can do anything for short periods of time, but to maintain employment you must be able to reliably and consistently do your job. Also, we thorough explain our clients’ occupational duties to their physicians so that they can answer questions regarding their patients’ abilities appropriately.
The Transition from Short-Term Disability to Long-Term Disability
Typically, claimants will have two separate policies for short-term and long-term disability. However, often the same insurance carrier administers both policies and the policies define disability in the same way. Because of this, claimants who have been approved for short-term disability are often led to believe that there will be a seamless transition from short-term disability to long-term disability. However, they are separate policies that require a separate “investigation” into disability. Typically it is easier to obtain short-term disability and the insurance carrier engages in a longer and more far reaching investigation under the long-term disability policies. Often, insurance carriers will not initiate an investigation into the claimant’s eligibility for long-term disability until the short-term policy ends. Thus, rather than a seamless transition there is often a significant lapse in benefits. The reason for this is usually because a delay in benefits often forces claimants to abandon their claims or as discussed above – “slow-walking.”
Claimants should discuss the expected duration of their disability with their physician. If our clients’ disabilities will likely last beyond the short-term policy duration, we immediately request a long-term application. If the insurance carrier refuses, we prepare a long-term application (from our past cases) anyway and submit it, along with all the medical documentation and APS necessary to prove our clients’ on-going disability, well before the short-term period ends. Sometimes, the insurance carrier will tell claimants that there is not a separate application. In these cases, we will send our clients’ medical records and our APS to the long-term disability department and ask the insurance carrier begin the process prior to the conclusion of the short-term period. Be careful to submit all relevant information, have your doctors thoroughly explain your limitations, and prepare your physicians for misleading questions by the insurance carrier. Often claimants will be asked to attend an IME at this stage.
Exclusions and Limitations
In most disability insurance policies, there are several exclusions and limitations to coverage. Often, insurance companies will exclude pre-existing conditions. However, whether a condition is “pre-existing” is determined by the language in the policy. Many policies define pre-existing conditions as a sickness or injury that you received treatment for, took prescribed medications for, or consulted a physician for a certain period (usually three months) prior to obtaining your policy. Obviously, if you and your physicians were unaware of your condition at that time, you could not have received treatment, taken medications, or consulted FOR a condition no one knew existed. In many cases, even if you had the condition, but you were undiagnosed you would still be covered under the policy. Insurance carriers will often claim that preventative measures and medications constitute taking prescribed medications or receiving treatment for the condition, even if the disabling condition did not exist. This would include taking hormone therapy to prevent future occurrences of cancer, taking blood pressure medication to prevent a heart attack, or taking vitamins to ward off a nutritional deficiency. Many individuals faced with this argument assume that it is correct. However, the terms of the policy are often written with ambiguous language and insurance carriers often apply an unreasonably restrictive interpretation of policy language. Knowing your rights can mean the difference between a claim approval or denial.
Other policies limit benefits for disabilities caused by a mental nervous condition (typically 24 months). Many individuals who suffer from a chronic or serious illness or injury also suffer from some depression. Accordingly, many insurance companies will assert that if a claimant suffers from any depression at all, their right to benefits must be limited. However, under most policies, this is simply not the case. Moreover, insurance companies often attempt to assert that while the claimant has a physical condition it does not prevent him or her from working. Thus, the company will claim that the claimant is really disabled and unable to work by his or her depression. If a claimant is disabled by a physical condition and suffers from some secondary depression, the claimant’s doctors should clearly indicate that the physical condition in it of itself is disabling. In such circumstances, we work with our clients’ physicians so that they understand the importance of properly documenting secondary depression and the pitfalls of completing insurance forms in haste.
Be aware of the common insurance company tactics and be careful about subtle misleading questions. Do not be afraid to ask for help before or after any of these unfair and deceptive tactics are used against you. Your insurance carrier has a team of attorneys, investigators, physicians, and analysts working for them. If you have questions regarding your disability insurance claim, please contact us at www.dilawgroup.com.