Throughout the time claimants are eligible for disability benefits and benefits are being paid, claimants are intermittently advised that their claim is being reviewed and that updated information is required. This often indicates that the insurance company is scrutinizing the claim to see if there is evidence that can be used to suggest that the insured has improved enough to return to work. These requests for updated medical information may be made directly to the insured's treating physician(s) who do not have time to draft a detailed response to the numerous questions on the form being sent to them and/or who do not have the time to speak with the insured's consulting physician, who tends to call during peak business hours. Updated records are requested from doctors and the insured receives forms to complete. In certain cases, the insurance company has conducted surveillance and seeks additional information from the insured and their doctor(s) in order to obtain "clarification" about the activities seen on surveillance and the insured's reported limitations.
In the case, Suson v. The PNC Financial Services Group, INC., No. 15-CV-10817, 2017 WL 3234809, at *1 (N.D. Ill. July 31, 2017), Liberty Life Assurance Company of Boston, acting as the Plan administrator for PNC's ERISA disability plan, denied long term disability benefits to Ms. Suson who was diagnosed with bipolar disorder in 1996 and had received regular psychiatric treatment since 1990. She had also been treated for bipolar disorder and diagnosed with fibromyalgia and several other degenerative joint diseases for which she received regular treatment. Ms. Suson filed her claim for long term disability benefits on July 24, 2014. She initially based her claim for benefits on bipolar disorder but on September 3, 204 advised Liberty Life that she was also disabled due to fibromyalgia and physical limitations. Liberty denied Suson's claim for LTD benefits on October 8, 2014 stating that the records did not "reasonably support" that she had any "impairments attributable to the presence of mental illness that would preclude" her from working. Ms. Suson appealed the adverse determination and Liberty upheld its denial.
In a recent case out of the Fifth Circuit Court of Appeals, Davis v. Aetna Life Ins. Co., No. 16-10895, (5th Cir. 2017), the Court found that surveillance footage and social media were a contributing factor to the denial of the claimant's long-term disability benefits.
Almost fifteen years ago, Unum Provident entered into a historic multi-state settlement with 3 lead states, 46 other states and the District of Columbia, as well as the U.S. Department of Labor, that cost it in excess of $120 million to comply, required it to reassess claims it has denied dating back to 1997, and called for an additional $15 million in fines. Maine Superintendent at the time, Alessandro Iuppa, was quoted by the Insurance Journal as saying, "This action is one of the most significant multistate insurance regulatory actions in history, providing a uniform, verifiable and effective state-based settlement for the benefit of UnumProvident policyholders nationwide." But did the over $135 million paid by Unum and the substantial, extensive corrective action and requirements of Unum under agreement, along with risk of another $145 million or more in fines, deter UnumProvident from continued bad faith claims handling?
In many cases, without the claimant's knowledge, insurance companies hire private investigators to follow the claimant and conduct video surveillance over a period of several days. This video is often used to create the illusion that because the claimant is functional and can leave the house they can return to full time work. Often these videos are taken over a 72-96 hour period and show only a few hours of activity during that time. These videos are misleading; nonetheless they are used to deny or terminate benefits or to frighten claimants into agreeing to a settlement of their claim, much lower than their claim is actually worth.
Numerous cases exist where a physician who has specialized as a surgeon becomes unable to perform surgical procedures due to injury or illness but remains able to still perform other duties as a physician. Whether or not this is considered a total or residual disability benefits claim is contingent upon the specific disability insurance coverage you have with your insurance company. Insurance companies frequently either deny these types of disability claims by physicians outright, or attempt to pay these claims only as "residual disability," which usually involves a much reduced disability income benefit when compared to the "total disability" benefit at issue. There is legal authority to support the position that a physician who is no longer able to perform surgery is totally disabled under own occupation disability insurance coverage, particularly where "specialty" own occupation disability insurance coverage is at issue. However, having a disability insurance claim approved by an insurance company as such is another story entirely.
Applying for disability insurance benefits and maintaining those benefits requires an understanding of the policy's terms as well as the tactics and review procedures utilized by many insurance companies throughout the duration of the disability claim. During the application process, many insureds are surprised to learn that having a significant medical condition and statements from their own physician(s) certifying disability are not considered sufficient proof of claim. Companies including, but certainly not limited to Unum, Hartford, Cigna, Prudential, Assurant, Lincoln Financial, Liberty Mutual, Standard and Aetna ask their insureds to jump through numerous hoops before determining whether or not the claim will be approved. Additionally, from the onset of the claim and throughout the ongoing evaluation process, adjusters often manipulate the information received by the insured and his/her doctor in attempt to secure a claim denial or set the claim up for denial at some point in the future.
Most every group long-term disability policy will include a complete exclusion for any disabilities caused by a pre-existing condition. Private long-term disability insurance policies purchased by individuals normally also exclude coverage for a pre-existing condition unless higher premiums are paid for special coverage that does not include the exclusion. Exclusions such as the pre-existing condition exclusion are often misused by companies to avoid paying disability insurance claims in effort to save a company billions of dollars, and is another common tactic used by companies to delay or deny payment of legitimate claims. Whether a condition is legitimately "pre-existing" (and thus excluded from coverage) or not depends upon the provisions in the policy applicable to disabilities caused by a pre-existing condition. The disability policy language related to pre-existing condition exclusions can vary greatly, and even the slightest distinction could mean the difference between your disability being covered or entirely excluded from coverage under the policy. Given that the disability income benefits at issue under these policies are customarily paid through age 65 or even lifetime, whether the disability is actually excluded under the policy according to the law governing these matters is hugely significant.