A Ten Step Guide for Individual Disability
And Group Long Term Disability Claimants
By Linda E. Nee, Disability Claims Consultant/Expert Witness
The disability application process can be confusing especially at a time of personal physical challenges. Lyme disease is one of several physical impairments disability insurers generally regard as “non-limiting” claiming once the disease is treated with antibiotics, the insured is able to return to work. Furthermore, the diagnosis of the disease is most often clinical, and therefore, the lack of “objective medical evidence” is just another reason for the disability insurer to deny benefits.
Although the ten points listed below will not guarantee the approval of your claim, you will, at least, have the basis of the same investigative information the insurance company has in place as part of their internal claim review process. The ten points, or recommendations listed below, represent general actions you should consider when making your disability application to your disability insurer.
1. Obtain a copy of your Individual or Group Disability Policy and read the provisions carefully.
The decision to pay or not to pay you a monthly benefit will depend on whether you “meet” or “qualify” for benefits as defined in the contractual provisions of your policy. It is extremely important you read and understand those provisions. Provisions such as “COLA” or Cost of Living Allowances, and other benefits to which you may be entitled could remain unpaid if you are unaware of entitlement under your policy. Or, you may not completely understand all of the criteria used in determining whether or not you are impaired. Knowledge is a valuable resource, and your individual policy is the source of that knowledge.
If your policy is a group LTD policy, your employer is the policyholder and you are the certificate holder. Your employer may have provided you with a booklet, or certificate explaining your policy provisions. However, your insurance company will generally provide you with a copy of the actual policy used by them in reviewing your claim. If your claim was underwritten by an agent or broker, then you should already have a copy of your disability income policy. If not, contact your broker for a duplicate copy or call your insurance company. They should be able to provide you with a copy of your policy if you do not have one.
2. Always send information to the insurance company “Return Receipt Requested.”
The insurance company’s administrative process can be disorganized at best. Given the volume and number of claims received each day, it is no wonder comments like “We didn’t get it”, or, “You (or your doctor) never sent the information” are common at a time when it is important a decision be made promptly on your claim.
To defend yourself in the paper chase, it’s a good idea to send all information by mail and request a return receipt. When faxing, make sure you obtain the written “OK” acknowledgement printed by most machines. Always try to obtain your complete medical records yourself and submit them to the insurance company with a return receipt. If you have more than one medical provider, do the same for all physicians who have treated you. The insurance company pays an outside resource to obtain medical information on your behalf. They may receive it, may not receive it, may receive the wrong thing, may receive incomplete information, or it may take a long time to receive it. Protect your own interests by sending the insurer all medical information required by the provisions of your policy.
3. Plan your first, and all communications with the claims representative.
All insurance companies require claims handlers to conduct what is called an initial phone interview referred to as a “TPC”, or simply a “PC.” During this interview you will be asked questions about the extent of your impairment, your daily activities, and your social and personal interests, sources of income, your job, medical treatment, and information concerning your work history. The insurance company will also call your employer (if you are not self-employed) and ask questions concerning your conduct and performance evaluations. These interviews become a permanent part of your claim and will be seen by medical and administrative consultants throughout the company.
Realizing medical and administrative management often provide the claims handlers with predetermined questions to ask you, it is extremely important to answer the questions concisely, and directly, but do not offer any additional information or elaborate, since your claim may be adversely affected even though you do not intend the information to be interpreted in a negative way. Think about what you will say in advance and answer the questions honestly, but directly without offering additional information.
4. Understand the “Definition of Disability” as written in your Disability Policy.
The “Definition of Disability” provision in your policy is the starting point used by the insurance company to determine whether you will be considered impaired according to your contract provisions. It is the most important part of your policy, and therefore, it is extremely important you understand it. All disability policies ask the following three questions:
a. Is the insured able to provide proof of impairment precluding work capacity from a physician with a specialty qualified to render an opinion on a specific diagnosis? The insurance company interprets this contractual provision to mean “objective medical evidence.”
Objective evidence, as defined by your disability insurer, includes x-rays, lab tests, MRI results, surgical records (operative reports), diagnostic procedures, cardiac stress tests, EKG’s, EEG’s, lab work results, etc. “Objective medical evidence” is specific test results which prove positively, you have the impairment you and your physician claim you do.
First, many disability claims are denied on the basis there is no written, “objective medical evidence” to support the impairment you claim even though disability policies do not require, or, specifically define “objective medical evidence.” Read your policy carefully under headings such as “What Information Is Needed as Proof of Your Claim?” You may be surprised to find your policy does NOT in fact require “objective medical evidence” as proof of disability.
Second, many impairments exist for which there is little or no “objective medical evidence.” Examples include: fibromyalgia, chronic pain, Lyme disease, chronic fatigue syndrome, depression, headaches, vertigo, TMJ, and other self-reported impairments which may be limited to 24 months of paid benefits.[LJ1] For some of the above impairments, medical science has yet to develop specific diagnostic tests to prove “objectively” certain impairments exist even though your doctor has indicated you have the disease. Your physician will be able to certify your impairment by describing your “restrictions and limitations”, and, by reporting your progress in his/her office treatment notes.
You may hear your claim representative using the term “objective medical evidence” when requesting updated medical information, or, in written communications informing you there is no “objective medical evidence” to support impairment.
You might want to write a letter expressing the following:
“…. I have received your letter dated………asking for objective medical records in support of my impairment, and wish to cooperate fully with your requests for updated medical information as required under the provisions of my policy. Since my policy requires me to provide you with proof of regular care by a qualified physician who certifies specific restrictions and limitations, I have provided you with my updated office treatment notes from my primary care physician(s). I will be happy to continue to provide you with updated medical information that meets the criteria described in my policy…” (Close your letter with a positive greeting.)”
Other insurance terms you may hear include “restrictions and limitations.” Most disability policies now require your physician to report “restrictions and limitations” which are “preventing you from returning to work.” “Restrictions” are those activities which your physician certifies “you may NOT do.” Examples of medical restrictions include: “Patient is restricted from driving; patient may not lift or reach overhead.”
Limitations are those activities you may be allowed to do somewhat, but only to the extent recommended by your physician. Examples of medical limitations include: “no lifting >10 lbs., no walking or sitting for more than 15 minutes; limited exposure to stressful situations.” Ultimately, it is your responsibility to insure your primary care physician understands how to report your restrictions and limitations.
Discuss your medical “restrictions and limitations” with your primary care provider, and help him/her understand the importance the insurance carrier places upon them. Most physicians will not distinguish between “restrictions” and “limitations” even though the insurance company classifies this medical information in the highest priority.
b. Are you capable of performing the material and substantial duties of your own occupation? The key word here is “occupation”. A disability policy insures your “occupation”, as it would normally be performed in the national economy, not your current job. If your job requires you to perform tasks which normally would not be required elsewhere by other employers, the insurance company may say you are not impaired.
Your own occupation is defined as the occupation (not your job) you were performing just prior to your date of disability. Some insurance policies have a “specialty” definition of disability which means the insurance company is not allowed to interpret your occupation broadly to include other tasks not normally performed. A good example of a specialty definition of disability is the occupation of Registered Nurse. The Occupation of Nursing can be defined broadly since nurses are trained to do many tasks within the occupation of nursing. However, if an RN worked as a Pediatric Nurse just prior to her date of disability, and, her policy contains a “specialty” definition, she is impaired if she is unable to perform the duties of a Pediatric Nurse only. Typically, other occupations defined broadly are: physicians and attorneys.
If your policy contains an “any occupation” definition, you must show you are under the care of a qualified physician who is restricting you from ALL work for which you have education, training, or experience. This is a much higher degree of impairment, and may require a greater burden of proof on your part.
c. “Material and Substantial” duties are investigated by the insurance company, by using the Dictionary of Occupation Titles, published by the Department of Labor. For more complex occupations, or dual occupations, additional investigations will take place to specifically define exactly what those “material and substantial” duties are. If your policy definition is “any occupation”, the insurance company will refer your claim and all medical information to an in-house vocational consultant to determine if you are able to do ANY type of work. This investigation is called a “Transferable Skills Analysis.” Individual disability policies define “occupation” as the job you were performing just prior to your date of disability, and you may be asked to submit appointment books and tax returns, although, remember, your policy does not require such as proof of loss.
d. Do you have an earnings loss of at least 20%? You will not be approved for benefits if you cannot show via payroll records or self employment records such as tax returns, that you have lost earnings equal to at least 20% of what you were earnings just prior to your date of disability. The insurance company will be requesting payroll records from your employer, or, if you are self-employed, complete ledger records, office billings, and/or appointment books.
Therefore, in order to receive benefits, you must:
1) Provide the insurance company with proof of regular treatment by a qualified physician who certifies restrictions and limitations precluding you from working;
2) You are restricted or limited from performing the material and substantial duties of your regular occupation as it is defined in the national economy (for group LTD) your occupation (ID); and
3) You must have at least an earnings loss of 20%.
Although some policies differ slightly, the majority of disability policies contain provisions requiring all of the above.
5. Have open and honest communications with your treating physicians. Avoid surprises.
It is extremely important during the disability process for you to know exactly what your treating physicians are reporting to the insurance company concerning your impairment. Open and honest communications with your physicians will prevent surprises later in the process. Obtain a copy of your current job description and show it to your doctor. Discuss your occupation with your physician and ask him/her to tell you specifically what your “restrictions and limitations are.” Remember, questions posed to your doctor will be written in his office treatment notes, which the insurance company will rely upon as evidence of disability. Your doctor’s answers to these questions will provide a permanent record in support of your impairment, if you know what to ask. Ask your doctor at each visit to show you requests for medical information from the insurance company and keep them in your personal file. Most importantly, discuss the potential of being surveiled by the insurance company, and ask your physician to let you know if he/she receives any CD tapes for surveillance information before responding.
It is important for you to know in advance how your doctor intends to respond to frequent requests for information, and/or reports, surveillance CD’s and IME reports from other physicians. Nothing should be a “secret” between you and your physician.
6. Do not provide lengthy written documentation to the insurance company. Resist the temptation.
If it is communicated to you that the insurance company may deny your claim, resist the temptation to write the company and tell the story of your life. When these types of reports are viewed by the medical consultants, it is assumed you have work capacity. Resist the temptation to download and send medical information in support of your claim to your claims representative. Information from the Internet is considered irrelevant to the claims decision; it will remain unread. It could be adversely used against you especially if the insurance company can prove you were using the computer on a consistent basis and keyboarding was a significant part of your job. This includes copies of newspaper articles, medical journals or anything outside of medical data sent directly from your physician. In general, keep your conversations with the insurance company short, and do not offer any additional information. It is important to note frequent calls and letters to the insurance company may indicate a “red flag.”
7. Investigations, Surveillance and Field Visits.
Once an individual disability claim is submitted to an insurance company, certain “risk management” activities are placed in motion. Among these include a complete data base check, surveillance, or a visit from a company field representative. There are now Internet programs providing information to the insurance company of which you may not be aware. Information such as: marital status, divorce decrees, child support, liens, property owned, licenses held, memberships in organizations, corporations owned, criminal records, motor vehicle records, employment records, insurance records, military records, country club memberships etc. is available to the insurance handlers.
In short, the insurance company will know as much about you as you do. Second, the insurance company will request surveillance for a time period lasting from 1-3 days. Surveillance is not mentioned in your policy, therefore, a claim for disability cannot be denied solely on activities observed by surveillance. However, the disability insurer uses surveillance data to attack your credibility which may further support an otherwise weak denial.
However, surveillance CD’s are often provided to primary care physicians who are asked for their comments which in turn ARE used to deny the claim. If you have been scheduled for an independent medical evaluation, you may be surveiled the day before, the day of, and the day after the exam. This is referred to as “tag” surveillance. Be mindful of the Catch 22 position wherein your doctor tells you to try and resume your daily activities and get back to normal. The insurance company may tape you engaged in activities which would be described as “normal”, even though you may not be ready to return to work.
The insurance company may also ask you to visit with a field representative. This report provided to the insurance company will contain information concerning your appearance, your manner of speaking, and any inconsistencies you told the representative from what is in the claim file. You do not have to meet with the field representative in your home, and, you may request an attorney or physician is present during the interview. The insurance company may also speak to your neighbors in an effort to find out more about your physical activity. If you get-along with your neighbors, it may be a good idea to have them on the “look out” for strange people in the neighborhood and those who are asking questions.
8. Maintain your own disability file and keep a diary.
If you are able, begin your own disability
file, beginning with a copy of your policy and carefully document the date and
content of any conversations you have with claims representatives. Always write down their name, and title. Keep
copies of all letters provided to you by the insurance company, and photocopies
of all forms you are asked to sign. It
remains legal in
You can be sure the insurance company is maintaining a diary of chronological events pertaining to your claim. You do the same. Obtain a copy of any medical test results and current office treatment notes from your physician, and keep up to date with your file.
9. Be mindful of what you sign. Read Authorizations carefully.
Insurance companies will ask you to sign a series of forms to include an Authorization. This authorization is used to obtain health records, employer records, FICA checks, data base checks, SSDI application information, and other data. Always read what you are signing and understand the confidential rights you are giving away. Some authorizations contain a second paragraph asking you to OK the sending of information to your employer. If you do not wish to do that, don’t sign that part of the authorization.
If you are uncomfortable signing away all of your rights to privacy, write a short letter with this wording:
“With my claim form I received a copy of what appears to be an open ended authorization I really don't feel comfortable with. I assure you I want to cooperate and give you access to whatever information is necessary to allow you to make a proper benefit determination as allowed by the provisions of my policy. Therefore, if you will please provide me with a more narrow and time limited authorization, I will be glad to consider signing and returning it. If you wish to request information from any person or entity other than my current primary care physician, or previous consulting physicians and my (previous) employer, please include an explanation as to what information you believe these other persons or entities might have that would be material to your claims evaluation.....(then close with a positive phrase)."
10. Ask Questions, and Maintain Control of Your Claim.
Do not be reluctant to ask your claims representative for information you need for your own file. Always be polite. Regardless of the tone of your conversations, try not to lose your temper. Remember conversations you have with your claims representative are DOCUMENTED and may be used adversely. Ask for the name of the consultant who will be making a decision on your claim as well as the name of the Director (the supervisor of both the claims handler AND the consultant.) Ask for dates of all medical and financial requests. Ask the claims handler to provide you with documentation pertaining to how the insurance company is defining your occupation. Ask if your claim has or will be presented/discussed at any type of roundtable forum. Ask for copies of all in house p[LJ2]hysician reviews. It’s your claim. Stay in control.
The bottom line is that you are in control of your application for benefits, even though the insurance company may lead you to feel you have no control over the events leading up to the final liability decision. If you are insured under a group STD or LTD policy, remain in contact with your employer. Employers have a great deal of clout with the disability insurers who may not want to lose their business which can be in excess of 2,000 lives. Let your employer know if you feel the insurance company is: taking more than 30 days to make a decision; requesting medical information over and over again; giving you inconsistent or erroneous information; not providing you with documentation or answers to your questions on a timely basis; not returning your calls within 24 hours; being rude and/or non-responsive to your needs.
If you are insured under an individual policy, contact your broker and let him/her know how the insurance company is handling your claim. Brokers are extremely important people to disability insurers since they are the primary source of sales in the field. Most insurance companies would be in financial difficulty if brokers refused to sell policies. Brokers will contact the Account Managers and raise concerns. Disability insurers take these types of complaints very seriously. If you have an ERISA claim, contact the Department of Labor right away. Local numbers can be obtained from your governmental offices.
If at any time, you become concerned with the process of your application, or treatment of the information you provide, consult an attorney or other trusted resource. This is especially true if you are an insured under an individual policy. In many instances, an attorney will be able to intervene in the application process and prevent claims issues before they become “red flags” resulting in long delays.
If your claim for benefits is denied, read the denial letter carefully. Group STD and LTD polices are covered under ERISA statutes, and therefore, you have the right to appeal the decision on your claim. If you do not understand your rights or have unanswered questions, contact an attorney or other trusted resource for assistance. Due to the limitations of recovery on ERISA claims, many attorneys will not be amenable to taking your case. Keep searching.
Linda Nee owns and operates a
disability claims consulting business, Disability Claims Solutions. She assists
individuals with all relevant issues relating to Individual and Group LTD
disability claims for all medical impairments, including applications, own occupation
investigations, and appeals.
Her website is www.disabilityconsulting.net. She may be reached at firstname.lastname@example.org or (207) 793-4593.