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.
GOING
FORWARD………..
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.
As the insured, your primary concern is to
obtain a claim decision in a timely manner so that your life will not be
interrupted by financial hardship while you are unable to return to work. This is the purpose for which disability
income replacement policies was originally intended. Remember, disability
insurers have a direct conflict of interest in paying your claim. It’s up to you to make sure you are getting a
fair and objective review.
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 lindanee@cyberwc.net
or (207) 793-4593.