Quiat on Claims

Common Sense In ERISA

Michael Quiat — Wed, 18 Jan 2012 10:55:38 -0500

The 3rd Circuit Court of Appeals applied a little ERISA common sense recently and came up with a decision that does justice when it comes to medical expense reimbursement. The court ruled that an ERISA claim administrator’s rights are subject to “appropriate equitable relief” under 29 USC 503(a)(3) and that the word “appropriate” has real meaning.

Just about every ERISA plan has reimbursement provisions which provide that the plan is subrogated to an insured’s claim against a third party and that the plan has the right to recover any amounts it paid to the insured out of any monies the insured may recover from a third party for the same losses.

That was the situation in US Airways, Inc. v. McCutchen, 2011 WL5557411 (C.A.3(Pa.)). McCutchen, the insured, was severely injured in a motor vehicle accident in which several others died or also suffered severe injuries. Since the negligent driver did not have adequate insurance to cover all of the damages of the accident, McCutchen settled his claim for a total of only $110,000.

US Airways, McCutchen’s employer and the administrator of his Health Insurance Plan, had laid out $66,866 for McCutchen’s medical and hospital expenses, as required by his ERISA policy. After McCutchen settled his third party claim US Airways sought to recoup from those funds the $66,866 it had previously paid in medical expenses. But, McCutchen, after paying his lawyers and expenses of suit, was left with less than $66,000 from his settlement. Yet, US Airways insisted on full reimbursement of the $66,866 it had laid out.

It is important to note that although the plan administrator had the right of subrogation, (the right to sue the negligent party for the money it had paid McCutchen), US Airways chose to let the insured carry the ball and did not exercise its rights. Most plan administrators take this position. They let the insured lay out the time and money to sue and collect from the wrongdoer. Then the plan administrator just comes in at the end to take back their money without having all the hassle and expense of trying to collect from the third party.

The 3rd Circuit said, “Not so fast”. When McCutchen argued that US Airways’ claim for reimbursement was limited to “appropriate equitable relief”, the court agreed that forcing McCutchen to pay the full amount requested would amount to unjust enrichment for U.S. Airways. Therefore, the court sent the matter back to the District Court (which had earlier granted summary judgment to US Airways for the full amount) to determine what would constitute “appropriate” equitable relief for US Airways.

Other circuits, notably the 5th, 7th, 8th and 11th do not give much weight to the word “appropriate” and allow a result which the 3rd Circuit would call “unjust enrichment”. Insurance companies and other plan administrators love this because it puts the entire burden of obtaining and paying for recoveries against third parties squarely on the insured. Then, once the money is collected, the insurers and plan administrators stick out their hands and automatically collect their money without having expended a dollar in legal fees and costs, or an ounce of sweat in getting the money back.

Hopefully, the good sense and sound arguments of McCutchen will persuade circuits which pay too little attention to the word “appropriate” in addressing claims for equitable relief under ERISA, to come around to this more equitable position.

When they do, it will force plan administrators to get off their butts and help insureds,
both financially and effort-wise to collect from wrongdoers.

That would truly be “appropriate equitable relief”.

Hope Springs Eternal...

Michael Quiat — Thu, 29 Dec 2011 11:56:08 -0500

We come to the end of another year and nothing much has changed for disability income insurance claimants.

* Insurance companies are just as focused on denying claims as they ever were.
* Disabled policyholders are still put through a “meat grinder” when it comes to trying to establish a claim.
* Insurers maintain their “gotcha” attitude, nit picking at every little item they can lay their fingers on to try to build a case for denial.
* None of the big boys – UNUM, Prudential, MetLife, Cigna seem to be improving their claim “approval” scores.
* “Independent” Medical Exam (IME) doctors still mainly feed at the insurance company table, making it extremely unlikely that they are “independent”.
* People who earn a living by working or in the professions still are getting short shrift from insurers at the worst time in their lives – when they become disabled and have no income.

With all of the advances in technology over the past dozen years, one would hope for even a smidgen of an advance in the social outlook of insurance companies vis-a-vis their insureds.
No such luck. The ages old insurance battle is still a battle.

What we can do about it is what we have always done about it – give our clients what we see as the best legal advice and help and as much moral support as we possibly can.

What we can hope for is a realization by the insurance industry that unreasonable reluctance to pay disabled policyholders, who are down and out, what their policies call for, is immoral and not in their long term best interests.

A New Year brings new hope, forlorn as it may be.

Prescription For Doctors

Michael Quiat — Mon, 19 Dec 2011 11:24:38 -0500

Doctors have more problems with disability income insurance claims than most other occupations, because:

* They never read their disability policy until they have to make a claim. * Policy benefits are usually higher because they make more money.

* They are too busy to change coverage when their situation changes.

* Their duties as physicians are more likely to change because of specialization or increase in skills.

* The terms of their policy are so complex that they don't truly understand them.

This medical profession problem was succinctly pointed out by T Keith Mangrum of Medical Group Insurance Services, Inc., click here, when she pointed out 10 things a doctor doesn't want to hear when making a claim, in an article in MD Preferred,click here, an online publication for physicians. While the article dealt well with the front end of the MD disability claims process, it did not deal with the back end, i.e., what does a doctor do when faced with a denial of a legitimate disability benefits claim?

As we have said many times before, disability insurance companies have a litany of "reasons" why they should not pay benefits. Some of these reasons have a foundation in law and some do not. Since the policy is the contract which governs the insurance relationship, it is the law of the claim and dictates the rights of the doctor to receive benefits and the insurance company to refuse to pay.

So, the first thing every doctor should do is READ THE DISABILITY INCOME POLICY NOW!!! Doctors, of all people, are aware that illness or injury can strike without warning, at any time of the day or night. No one is immune to catastrophe. After reading the policy, if the full meaning isn't clear, get someone who knows, like a knowledgeable lawyer, to help you understand.

Once disaster strikes, the doctor is stuck with the terms of the policy and can't change them. If the policy doesn't afford enough coverage there's nothing to be done about it. Reading and understanding the policy before the doctor has to make a claim should help take care of the front end. What about the back end - if there is a denial?

As we have pointed out here so many times, insurance companies are adept and motivated to throw roadblocks in the path of benefits seekers even when their reasons for denying a claim sometimes border on the ridiculous. Insurers do so because they know a certain percentage of claimants will give up and allow the insurer to drop what they should have paid in benefits to the company's bottom line.

The stakes in a physician's disability income insurance policy are usually high and give the insurance company more reason to contest the claim. Before a doctor gives up on such a claim it must be absolutely clear that the claim denial is legitimate .

This goes double when the claim is covered by a group policy, purchased by an employer, of which the physician has no firsthand knowledge. To have the policy explained to the doctor by a Human Resources manager who works for the employer and who has no legal understanding of arcane ERISA insurance law and the sometimes questionable tactics of insurance companies, may not be the best thing for the policyholder. So, what is the best thing?

First, read and completely understand the disability income policy. Does the protection it affords them and their family do the job? If not, they should make the desired changes before disaster strikes. And, if they ever should be so unfortunate as to have to make a claim for disability benefits, they definitely should not take an insurer's claim denial as gospel. It is in insurance company genes to almost automatically reply to a claim with a denial, hoping the claimant will "wimp" out and go away.

Doctors know medicine, but they are not experts in insurance law and claims. Don't stand alone. Get a veteran, knowledgeable disability claims lawyer to review your situation and give you an opinion on the validity of the denial.

Only then can the doctor make an intelligent diagnosis of a disability income benefits claim.

The Personal Touch

Michael Quiat — Tue, 06 Dec 2011 12:16:30 -0500

The personal touch. We hear about it all of the time, but what exactly is it? The question is particularly pertinent when one practices disability income insurance law.

A recent post by Dr. Len Schwartz on the Pro2Pro Network, cite, reminded us of the little things we can do as lawyers to make our clients feel better about us and for them to have more confidence in how we handle their matters.

Dr. Schwartz, who has a wealth of ideas for how small businesses and professional practices can raise their “notice” factor, suggested to his followers that they make a first visit nighttime call to a new patient or client, asking if he could enlarge on or clarify any material they had discussed earlier that day.

He pointed out such calls would have two primary effects:

One effect would be to stimulate word of mouth about you. (After all, who ever heard of a lawyer taking the time to be certain a new client understands what is going on?)

The second effect would be an opportunity to get the relationship off to a great start. It would pump up the relationship and give the lawyer an opportunity to greatly improve the connection with this client.

The suggestion by Dr. Schwartz reminded us of the rare experiences we have had with doctors and dentists who had the interest and courtesy to call us the evening after
a painful or long procedure to ask us how we were doing.

Just the thought that this professional, who is very busy, took the time after a long and busy day to inquire about how we were feeling, put that professional head and shoulders above the others. The doctor took the time to call, ergo, he or she really cares!

This resonated with us on two levels. The first was that lawyers don’t do this with long-time clients, let alone new ones, even when they have discussed a complicated legal question during the day’s visit. From our own experience, it struck us, on reflection, that no matter how well we thought we understood the topic of discussion, when given time to think about it, further questions came to mind.

We all have had unpleasant medical or dental experiences. Sometimes, though rarely, a dentist or doctor will call in the evening of such an experience to ask how we are doing. When that happens, the rough edges of the day’s experience start to smooth and we have a warmer feeling toward the doctor or dentist who calls. We think- he or she cares and wants to help.

Why shouldn’t the same apply to lawyers? Our work doesn’t usually deal in physical pain. But, most of the time there is a load of mental pain and anguish for our clients. Why wouldn’t our call to a new client or an older one after a conference, with an offer to clarify any questions they might have, have the same value to that client?

Attorneys should develop this personal touch. When they hear the gratitude of clients for taking the extra time to try to help, it will make them feel better about what they do and how they do it.

If an attorney needs more reason to make that call, the lawyer can be sure the client will talk to others about the call. And, that can’t hurt.

However, there is one caveat: Make certain the client knows you are NOT billing them for your time on the call!

See More on Who Mike Is and What He Does

Don't Fish For Disability Trouble

Michael Quiat — Fri, 02 Dec 2011 12:38:17 -0500

Life is really strange sometimes. We were reading the paper last Sunday when we came across an insurance company advertisement which struck us as relevant to the insured as well.

The full page ad for Chubb Insurance pictured a lone fisherman in a rowboat placidly fishing on a quiet lake. His back was to a nearby waterfall towards which he was drifting. The caption was “Who insures you doesn’t matter. Until it does”. The unwritten message was “Buy your insurance from Chubb or you may face consequences when a claim made against you.”

It really caught our eye because it applies as much to what we try to tell claimants as it does to what the insurance company tries to sell, i.e., “Disability income insurance claimants don’t need experienced legal help, until they do”. Unfortunately, by then it may be too late.

We sound this warning time after time, not just because we are in the business, but because having done disability income claims work for 30 years, we know most all of the pitfalls and traps set before a claimant by insurance companies. (They always come up with new ones which even we haven’t seen yet).

The worst part for claimants is that the biggest trap is laid right at the start of the claims process. While most people, including attorneys not experienced in ERISA and disability income claims, believe an initial claim form is just a notice that a claim is to be made, in reality, the first disability claim form must be accurate and contain complete information necessary to support such a claim.

Failure to properly notify the carrier of a claim will certainly lead to a denial of the claim and be used by the insurer to attack the claim throughout the appeal proceedings. Any misstatement or omission will be thrown up again and again by the company in an attempt to impugn the claim. Full details and accuracy are a must, starting with the first claim form.

A checklist of data which should be included, is:

* Complete details of the injury or illness upon which ther claim is based.
* Complete description of the claimant’s job duties.
* The claimed medical reasons why claimant can no longer perform those duties.
* Full hospital and physician reports to support the claim.
* Occupational testing which supports the claim.

Leaving out or making a mistake on any of the above will be cited over and over throughout the proceedings as proof that the claim is unfounded and should be denied.
It is difficult enough to try to establish a disability income claim. Why make it even harder by giving the insurance company a home run on your first pitch?

Just as the insurance company advises (although unwittingly):
You don’t need an experienced disability claims lawyer…until you do!

You Only Get One Shot At An ERISA Claim

Michael Quiat — Tue, 01 Nov 2011 10:34:50 -0500

Sometimes in writing about ERISA and private disability claims we tend to get into the finer points of insurance claims law and downplay the basics, which are frequently more important in pursuit of such a claim.

The big thing to remember is that insurance companies fight these battles hundreds, if not thousands, of times a day. You have just one shot to get it right.

In this post we are going to try to outline what should be done in the ordinary case when a claim situation arises.

If you think that an injury or illness which prevents you from doing your job may develop into a longer-term disability which might trigger payments under your ERISA or private disability policy, be certain to retain all papers, reports, prescriptions, X-rays, medical and hospital bills involved in the course of that medical incident.

These materials should be maintained for a reasonable period of time if there is a possibility that this injury or illness may recur in future and lead to a claim.

Should you have to file a claim, understand that this is one of the most important parts of the claims procedure. Don’t be lazy or sloppy. The assumption by claimants that they can correct an omission or error on their claim form later, has sunk more disability claims than there are wrecks on the ocean floors of the world.

Your first claim form, if not carefully and properly completed in accord with the terms of your policy, seriously undermines your chances of collecting, even if you have a claim that seems to you indisputable!

Many insureds, because they are not warned otherwise, assume that they are providing that their application for benefits to an impartial reviewer and that their feet will not be held to the fire if they make a mistake. WRONG!!!

Many times, especially under ERISA, the very insurance company which will have to pay you benefits has the right to determine whether or not your claim is covered by their policy. (Guess which way these insurance companies lean in deciding this question?). And, to top it off, their decision is given deference by the courts.

Not only that, you can bet your bottom dollar that if your claim is ever reviewed by a court, the errors of what you omitted or misquoted on your original application will be thrown up to the court time and time again.

So, if in making an ERISA claim, you start off by omitting an important document or medical report or if your physician is sloppy in reporting the facts and nature of your disability, you can be certain that error or omission will haunt you throughout the proceeding. Get it right the first time!!!

When you are unable to work, making a claim for income, perhaps for the rest of your life, is not the time to take chances and hope for the best. You get only one bite at this apple. Make sure you put your best teeth forward!

If you have any qualms about your ability to present all aspects of your disability claim in its best and fairest light, get help from an experienced disability claim lawyer.

It is not wise to stand alone in this fight. You and your family have too much to lose.

What Your Lawyer Don't Know Can Hurt You

Michael Quiat — Mon, 17 Oct 2011 09:12:16 -0500

For years we have been dying to tell ERISA disability income and other types of insurance claimants that they need a lawyer with solid experience to press insurance claims. We were reluctant to do so, however, because it might look as if we were blowing own horn and overreaching to try to get claims business.

However a recent blog post written by a respected ERISA employer defense attorney points out, http//www.bostonerisalaw.com/archives/benefit-litigation-denial-of-benefit-claims-the-repeat-player-and-saving-money-on-litigation.html, many employers lose a substantial legal advantage in denying employee and other claims, particularly ERISA claims, because they don’t have attorneys who know ERISA insurance claims law.

If what’s good for the goose is good for the gander, this goes even more so for claimants who are represented by attorneys not experienced in disability insurance and ERISA law. To get a fair shake on both sides, you need attorneys on both sides who are intimately familiar with insurance claims law.

The Rosenberg blog’s advice was obviously meant for employers which may have only a few ERISA claims to deal with. Larger employers with more claims would almost certainly have attorneys who are well versed in ERISA claims law. And, it goes without saying that insurance companies that offer policies in the ERISA field would have loads of lawyers who know ERISA law and how to negotiate and defend ERISA claims.

So, why do employee-claimants many times go to their friendly neighborhood lawyer to handle their ERISA claims? Because, they have no idea of the complexity of the ERISA statute and the sometimes convoluted precedents of insurance claims law generally. This is a case of “what you don’t know can hurt you.”

Mr. Rosenberg, who mainly represents employers, talks of the “repeat player” (one who has handled ERISA claims over and over again) and the obvious difference in the knowledge and ability of the “repeat player” in handling an ERISA claim. He says, “…”I routinely see the difference when, on the other side…is a lawyer who regularly represents plan participants in such disputes, as opposed to a general practice lawyer who represents plan participants only occasionally”.

ERISA claimant rights were created solely by Federal statute, 29 U.S.C. § 1001, et. seq. They did not evolve from common law. General principles of common law may not automatically apply under the ERISA statute. So, a lawyer should have a good working knowledge of this specific statute and the case law which it has engendered to effectively represent a claimant.

Further, the law of insurance policy claims, in general, has many twists and turns which are exceptions to the common law. A claimant should consider this fact wisely before selecting an attorney to handle an insurance claim.

Just to blow our own horn, now that Mr. Rosenberg has opened the door for us, we specialize in handling complex insurance matters, particularly disability income, ERISA, life and long term care claims and claim denials. We have handled hundreds and hundreds of such claims in our 30 years at the bar and, we really enjoy doing this type of legal work.

To be fair, we are not the only ones who savor this calling. There are others throughout the country who do the same work with the same fervor.

Thanks to Mr. Rosenberg, our conscience is clear in writing this post. The aim is not to blow our horn. The aim is to blow a bugle to alert insurance claimants to consult with experienced legal counsel when fighting an insurance claim, especially one involving ERISA.

An IME Means Camera Time

Michael Quiat — Tue, 04 Oct 2011 16:35:17 -0500

You might be very happy when an insurance company asks you to undergo an IME. An IME (so-called “Independent” Medical Exam) means that, a live doctor will look at you, examine you and talk to you, before writing a report to the company which usually says you are not disabled.

However, you should know that on the day you are to present yourself for the examination, Big Brother (your insurance company), will likely be watching you on camera, waiting for you to make a false move they can use to try to scuttle your claim.

How do we know that IME day is likely to bring out the video camera? Because video surveillance of claimants is expensive and insurance companies don’t want to waste money sending a surveillance unit out when they are uncertain about whether you are home and, if you are, whether you emerge or do anything they can photograph during the time they are there.

But, when an IME is scheduled, the insurer knows that you will have to come out of the house to go to their doctor, so if they have a unit at your home, they know they are going to get some video of you in action. And, they hope their camera will catch you doing something they can use to argue that you are fit to work so they can stop paying benefits.
It doesn’t take much for an insurer to claim you can do some kind of work. For example, if they see you lifting anything, they will claim that you are fit to work on a loading dock.

Most courts are smart enough to realize that if a person is caught on film for a minute, doing something he or she was not ordinarily able to do, it doesn’t mean that person can do the task over and over for an hour, a day or a week. This is especially so if the person has presented solid medical evidence of an illness or injury which clearly would prevent him or her from doing so.

Given that an IME may be anything but “independent”, a client should be prepared to meet whatever obstacles are put in the way on examination day. The claimant should assume that the examining doctor, hired by the insurer, is not out to do the claimant any favors. The doctor is out to shoot down the claim if at all possible. And to some doctors “possible” stretches all the way to the stratosphere.

But, it is also true that sometimes a picture can appear to be compelling evidence even it does not truly reflect the reality of an impairment. The point is: Be aware that you are fair game for surveillance, especially when the carrier knows where you will be and when you will be there.

IMEs present the insurer with an ideal opportunity to spy on you and you can assume that they won’t pass up the opportunity.

What claimants can do to level the examination playing field is:

* Bring a witness to the exam and have the witness take notes of the entire procedure.
* Bring a good watch and write an exact time line of the visit, from the time you arrive at the examination site to the time you leave.
* The notes should contain the exact length of time each phase takes, i.e., waiting time, interview time, examination time, discussion, exit time.
* Write out a complete description of the IME as soon after it concludes as possible, when your memory is still fresh.
* Make a note of the name and occupation (medical doctor, physician’s assistant, registered nurse, nurse’s aide, technician) of each person who conducts each part of the examination visit (welcome, history, interview and review of your medical records, testing, and actual examination, detailing what is actually done by the examiner).

Your witness’s and your notes can be used by your attorney to keep the examining doctor’s testimony accurate, if there is a trial. If you don’t keep accurate and timely notes, much of the detail of the visit and the examination will be lost to memory. That situation would leave the courtroom playing field to the IME doctor and you have to know that that person is not inclined to do you any favors.

Now Is The Time

Michael Quiat — Tue, 20 Sep 2011 13:34:13 -0500

A recent case we read which has nothing to do with disability income insurance reminded us once again that all policyholders, particularly disability income policyholders, must read and understand the terms of their policies carefully to make certain they have the protection they want.

The case we are referring to is American Automobile Insurance Company v. Murray, et als, 2011 WL 3966114 (C.A.3 Pa.))). The case basically concerned technical judicial procedural matters, but the underlying gist was that an insurance broker failed to provide a policyholder with proper coverage advice, thereby causing the policyholder loss.

The insurance broker failed to advise a beer distributor to include an alcoholic beverage clause in its comprehensive liability policy coverage. And, of course there was an alcohol-induced accident fatal to a third party.

Whether this basic error was caused by lack of knowledge, inattention, or simply a desire to close the policy sale and make a commission, the policyholder was left with no insurance to defend or pay a judgment. Cases such as this clearly support our continuing mantra – “Read and understand your insurance policy”.

What’s the point of having and paying for a policy which you were told covers you, but doesn’t? Insurance agents are human and have human frailties. Most won’t admit lack of knowledge or uncertainty; inexperience; inattention; failure to understand your needs and desires and, perhaps, an overwhelming need for money in their personal lives which affects their business judgment. Under such circumstances, mistakes are often made and policyholders may suffer.

Disability income insurance policies have a greater potential for such errors because of the wide variety of technical requirements which must be met before benefits are paid. And, because of the very lucrative commission structure attached to these policies, brokers are highly motivated to sell them.

When a person buys such a policy they do so with certain goals in mind, i.e:

* Obtaining replacement income when a disability strikes the family breadwinner.
* Coverage for the length of time the breadwinner can’t work.
* Benefits that come as close as possible to replacing the breadwinner’s usual income.
* Protection against a rising cost of living if the disability is long term.
* In high income situations, protecting the insured’s “own occupation” and securing adequate amounts of coverage in the event of disability.

Most of us who have personal policies purchased them from an agent or broker whom we assumed knew his or her stuff and did his or her homework before trying to sell us a policy. And, “sell” is the operative word. The agent or broker is interested in making a commission on the sale. That’s how they earn money to support their families. And, the commissions on disability insurance can be substantial – up to 50% of the premiums.

Do we know how scrupulous, knowledgeable or smart our particular broker or agent is about disability income insurance? Unless we are certain of the answer to this question, we have to ask a lot of questions and make sure we see the answers in our policy.

The policy is the contract which sets forth the terms of the deal between you and the insurer. If what you think is in there is not, then your coverage is incomplete and you and your family can be badly hurt in the event you become disabled.

If the policy is the contract, you must read it and satisfy yourself that it says what you think it does. The time to do this is obviously before you make a claim. After you claim, you can be certain that the insurance company will fight hammer and tongs against a claim which is not clearly covered in the policy. And, the chances are that under these circumstances the insurer will win, even in court.

When you buy a policy you are not looking to buy the right to sue the broker or agent for a mistake or oversight. You are looking for a contractual right to benefits from a solid financial entity – the insurance company.

To assure yourself, read your policy before it’s too late. If the language is not fully understandable to you, get somebody who knows insurance language to help.

Asking for help is not a sin. Depriving your family of a future because you were too proud to ask, is.

If At First...

Michael Quiat — Tue, 06 Sep 2011 16:01:56 -0500

Many times the first thing a caller will ask us is, “Do I really need a lawyer to help me with this disability income insurance claim?” One reason it is difficult for us to answer is that we may profit from telling the truth: “Yes, in the vast majority of cases you really do need a lawyer who knows disability income practice inside and out”.

Pursuing disability income claims is the way we make our living. But, there are much more cogent reasons for having a knowledgeable insurance practitioner in your corner. Your attorney works for you and knows all of the tricks and traps of filing and successfully prosecuting a disability income claim.

One of the most damaging things a claimant can do is get off on the wrong foot when filing the original claim. Filing a disability income notice of claim, where one requests the appropriate claim application forms is not the same as filing a notice of claim in an auto accident. Don’t be lulled into a casual notice of claim in disability income insurance.

Your first notice, even though it only requests forms, is most important because whatever you say to or file with the insurer will be retained throughout the life of the claim. Omit an important fact or describe it hazily and it will haunt your claim forever, being cited again and again by the insurance company at every point in the proceedings.

Before you file your claim, two issues must be resolved:

* You must make certain your treating physician agrees that your medical condition supports your claim for disability insurance.
* Your policy must be carefully read and understood to determine if your claim is covered and the required procedure for making a claim. The policy is your contract with the carrier and you can bet your bottom dollar that if your application can be deemed deficient under the policy terms, it will be.

Your claim should contain a clear statement of why you think you are entitled to disability income benefits and supply the evidence to support your claim. Just telling the carrier you are filing a claim is not enough. Details are necessary to move the claim forward. And, those details had better be correct and apropos because any omission or mistake will undermine your claim so long as it shall live.

The claim should include:

* Full details on the policy you are claiming under.
* Full details on the illness or injury which is the basis of your claim.
* Full details on your employer, your occupation and the duties of your occupation which you claim you can no longer perform.
* Copies of all medical reports and hospital records which substantiate your illness or injury.
* All occupational or vocational testing records you intend to use to support your claim that you cannot perform the duties of your occupation.
* All pay and income records to support your claim for benefits.

As you may imagine, all of these documents will be thoroughly examined by the carrier as to their pedigree and accuracy. Misstatements and omissions will be carefully catalogued and be used against you throughout the proceedings, no matter how many times you correct the misstatement or provide the omitted material.

Errors committed in your first submissions create a situation in which you not only have to prove your case, but also have to “unprove” the error or omission you made under oath.

Getting a disability income insurance carrier to pay on a properly submitted claim is tough enough. Getting the company to pay after defective or omitted claim documents is darn near impossible.

Why take the chance?

Practical Way To Cut Medical Costs

Michael Quiat — Mon, 15 Aug 2011 08:58:28 -0500

There are a lot of reasons for the high cost of medical care in the U.S., many of them having to do with the cost of evolving cures for formerly incurable illnesses, miraculous drug treatments and the fact that people are living longer these days.

We don’t want to suggest potential cures for these kinds of seemingly insoluble problems, but we do have some basic, common sense thoughts which could still save a lot of money while streamlining the medical system.

The idea came to us while we were reading a study by the Weill Cornell Medical College, the University of Toronto and the Medical Group Management Association, which concluded that U.S. physicians and their staffs spend almost four times more time dealing with health insurers and health payers, than do doctors in Canada. This additional administrative time is figured in the fees charged to patients and their insurers.

The study calculated that if U.S. doctors had administrative costs similar to their brethren in Canada, the savings in health dollars to the U.S. would about $27 billion. This might seem like a pittance when compared to the overall health costs in the U.S., but we have to start somewhere and this is an area which does not touch on the quality of treatment. It just makes sense.

Canada has a single payer health system. If we don’t want to have such a system in the U.S., there certainly should be no objection to uniform forms which document services and medical necessity and provide treatment summaries to minimize the administrative burden on the doctor’s office staff. Rather than having to “recreate the wheel” every time an insurer asks for information, the use of standardized formats by all carriers will make it easier for the doctor’s office to comply with the request and to comply in a timely, cost effective manner. Like anything else, when you repeat the same procedures over and over again, you become familiar with them and it becomes easier for you to fill in the information on a familiar form.

Insurance companies should be expected to jointly design a series of reporting forms for U.S. doctors which sets forth the information the insurers need while providing doctors and their staffs with a user-friendly, standard record to complete.

Such standardized forms, devised by the insurance companies themselves, should be used by every health insurer so that once doctors and their staffs become familiar with them, it will take less time and effort to complete them, and to do so correctly the first time.

Why is this important? Because the study found that doctor’s nurses and medical assistants spent more than 20 hours a week per doctor on tasks related to health insurance plans, more than 10 times that spent by the same staff in Canada.

Evaluation of the time spent by senior office administrators and clerical staff told the same story – substantially more time spent in U.S. offices than in Canada. If time is money, and it is, then it is easy to see that administrative waste is eating up a much larger chunk of the medical pie here than it is in Canada.

If health insurers, whose profits are soaring these days, would cooperate and spend the time and effort required to devise standardized reports, it would cut down on the heavy administrative costs doctors pay their staffs (and charge patients for), while streamlining the medical reimbursement system.

Such a move should save appreciable money and maybe a few bucks would fall off the table for patients. What a concept!

Do It While You Think Of It

Michael Quiat — Tue, 02 Aug 2011 09:39:21 -0500

Whenevcr we think about writing a blog on life, health or long term care insurance, we think about how many policies may be lapsing at that very moment because the policyholder has the beginnings of some cognitive disorder which affects the ability to remember to pay premiums.

One would think that an insurance company which deals with older persons would be aware of the fact that advancing age sometimes brings on Alzheimers or some other functional disorder that affects a person’s ability to take care of their business. If the insurer were a friend, or even neutral, one would expect that the insurer would make inquiry about the failure to pay premiums before canceling a long term care or life policy.

However, the insurer is anything but a neutral, vis-à-vis the policyholder, and is plainly and simply, an adversary. So, when it comes time to pay premiums on the policy, the insurance company gains nothing by spending a lot of time and money trying to ascertain why the insured has stopped paying the premium after many years of payment. After all, if the company cancels the policy for nonpayment of premium it has the best of both worlds – it keeps the premiums it has and sheds the obligation of ever paying money out. What could be better?

That’s why every state should have a law requiring the insurance company to follow a specified procedure to try to make certain that the policyholder hasn’t defaulted because of cognitive failure. This procedure might involve absolutely requiring a check of Social Security’s
Master List of Deaths to see if the person has died. If the person has not, further inquiry requirements should be set forth before the policy could be legally canceled.
As an example of making a start on the problem, New Jersey has a statute, N.J.S.A. 17:29C-1-2, requiring that every senior citizen (a person over 62) be permitted to designate a third party who shall receive notices of cancellation, nonrenewal or conditional renewal before those policy changes can be effective. Although this statute doesn’t shut the door on cognitive policy loss, it should help to cut these losses.

But, let’s be real. No matter what the requirements of the law, insurance companies will do the minimum required to meet the law and that may not be enough. There will be nobody at the company working on the insured’s behalf when it decides to cancel the policy.

Every policyholder should protect against losing his or her insurance coverage because of a lapse caused by cognitive dysfunction, by making certain immediately that their policy requires at least a 30-day notice, not only to the owner, but to a close relative or friend, of the insurer’s right to cancel or substantially alter the terms of the policy.

In this way, a policyholder will have someone in his or her corner when the company decides to cancel because of nonpayment of premium or some other reason related to a cognitive failure.

If you are such a policyholder, and while you are thinking of it, just notify the company of the names and addresses of those besides yourself to whom you want notice of cancellation sent, so you will know you are protected if things start to go downhill mentally for you.

After all, when things start to go downhill for you after years of paying premiums, that’s the worst time for you to lose your coverage.

From the insurance company’s point of view, it’s the very best time.

Impartial Medicine?

Michael Quiat — Thu, 21 Jul 2011 08:00:00 -0500

Just when you thought insurance companies had reached the ultimate in stacking the deck against insureds, they come up with a new ace in the hole. Now they are buying up groups of treating doctors, which they will own, lock stock and barrel

In other words, a doctor who is treating you for an illness or injury which may be the basis of a disability insurance claim and who has to file medical reports on your behalf, may be filing the reports with his or her boss – the insurance company.

Talk about a conflict of interest!

The reasoning put forth by the companies is that they will be able to control costs better if they control how the medical practice is managed. Sounds good, but if experience is any indication as to how it will actually work, hold onto your wallet.

Those who represent disability insurance claimants know that insurance companies usually have a contested claimant’s medical evidence “fine-tooth combed” by a doctor who is employed by a medical services company, retained by the insurance company. In most cases, the medical services company has few sources of income other than the insurer. Likewise, many doctors employed by the medical service company have few, if any, sources of income, other than their work for the medical services company.

It doesn’t take a genius to figure out that if the services company and its doctor employees know what’s good for them, they will tailor their medical findings to favor the medical service company’s customer, the insurance company. If they don’t, a substantial source of their income is likely to dry up and blow away.

Lawyers fighting for claimants in the disability income field learn that IMEs (so-called Independent Medical Exams) performed by a doctor employed by such a medical expert vendor, almost invariably result in a claim denial by an insurance company.

If this is the rule when the doctor’s agency employer is hired by the insurer, what is it going to be like when the insurer is actually the doctor’s “boss”? Is such a tighter relationship likely to make a doctor less favorably inclined toward the insurer?

Going a step further, the treating doctor recommends treatments and medication for the patient. If the doctor knows the insurer-employer pays for this wouldn’t there be an incentive to hold back, so as to make the treatment protocol less expensive? Isn’t that a clear conflict between the interests of the treating doctor, the insurance company for whom the treating doctor works, and the interests of the patient?

It seems clear that despite the growing trend of insurance companies buying medical groups, it should not be happening. Doctors are the people who actually define health claims, which in turn define the extent of financial liability of the insurance companies. The conflict of interest is too great if the insurer is actually the employer of a doctor defining the value of the claim against it

It’s bad enough that a whole medical service industry has grown up on the false premise that doctors who earn a large part of their living examining claimants for insurance companies can be neutral in their findings.

As a practitioner on behalf of claimants in the disability income insurance field for 30 years, we can attest that medical service IME doctors are anything but “independent”. If the doctors were direct employees of the insurance company, the odds of fair medical judgment would be laughable.

It is obvious that a patient wants a doctor to have only the patient’s interests in mind. A potential conflict of interest would have a devastating effect on the relationship. An actual conflict is terrifying.

On the basis of past insurance industry history, would anyone take bets that the insurance companies will not take the advantage that employing treating doctors affords?

The Client-Patient Comes First!

Michael Quiat — Thu, 07 Jul 2011 10:19:12 -0500

Although doctors and lawyers handling an injury claim for a client-patient should always cooperate, disability income insurance claimants have a most pressing need for ongoing and speedy communication among their medical experts and attorneys. Disability income claims require medical reports that meet special standards and must be filed within strict time limits.

In view of these constraints, it is amazing how many doctors and lawyers can’t seem to get along.

It’s common knowledge that lawyers and doctors, as a class, generally don’t like each other. Each profession has had some bad experiences in dealing with the other, particularly in the area of medical malpractice lawsuits, but that’s no reason to shortchange a claimant-patient, locked in battle with an insurance company. By not helping each other to understand the important parts of a claimant’s case, shortchanging is exactly what the professionals may be doing to their client-patient’s disability income case

Does anyone doubt that the lawyers and doctors, working on the defense for the insurance company, coordinate their efforts to try to put their best foot forward for their client? Why shouldn’t a claimant’s doctors and lawyers be able to work together to present the best case for their client?

The basic problem seems to be that the claimant’s doctor and lawyer are not employed and paid by a single entity, as are the professionals hired by the insurer to defend against the claim. Without this unitary control exercised by the insurer, who is paying them, professionals are subject to their past experiences and prejudices and, sometimes, one profession finds it difficult to cooperate with the other.

It can reasonably argued that an attorney who has spent the best part of his or her professional life reading and interpreting insurance policy language and dealing with insurance companies, is best qualified to know what is important and necessary to include in a disability income claim submission to the insurer.

On the other hand, doctors are clearly best qualified to make medical and psychiatric findings and to produce the necessary medical reports required by insurance companies.

With the expertise of each profession clearly established, and both having the same client-patient, why shouldn’t they be able to work together to present their client-patient’s claim in the best light?

Both professionals should want to do the best for their client-patients. In actuality, they don’t many times, because they view the needs of the case from their own medical or legal standpoint only and do not understand the other profession’s view.

Doctors and lawyers seem to have no patience or inclination to take the time to understand or to trust the judgment of the other profession. Because of this, client-patients do not, in some cases, get the full benefit of the professional knowledge and experience they need

Both professions should understand that the other is busy and overwhelmed with paperwork. Extra time is not usually available to either. Any unnecessary request, one to the other, should be avoided.

But, in the interests of the client-patient, they must communicate. Mistakes or ambiguities in a medical record or report can be fatal to a disability income claim and leave a patient to face a handicapped future without income for the patient or the family.

The attorney must take the time to explain clearly to the doctor what questions the medical or psychiatric reports must answer to meet the requirements of the patient’s insurance policy.

If the lawyer and the doctor retained by the claimant to press his case before the insurer don’t do their jobs properly, who will do it?

If the doctor and the lawyer approach each other in a considerate, respectful manner, there should be no problem in doing their jobs for the client-patient in a professional way. If the doctor and lawyer approach each other with a chip on their shoulder, there is a big problem.

The disability insurance client-patient has enough problems dealing with the insurance company. That’s why the professionals were retained. It is incumbent upon them to drop the “attitude”, if any, and get on with the work they were hired for.

Give a Little TLC

Michael Quiat — Thu, 30 Jun 2011 10:31:29 -0500

In our work, we read a lot of case reports, articles, blogs and treatises on insurance. Most concern the latest legal decisions and what they mean to insurance litigation; many concern settlement procedures, buyouts and other practical aspects of pursuing claims against insurance companies.

But, very few, if any, are written from the point of view of the plight of the actual policyholder – the person whose righteous claim has been denied. What goes on in the mind of the person who truly believes he or she has met the requirements to obtain benefits, but is blindsided when the insurer turns down the claim?

And, when we say “met the requirements”, it means that some kind of personal disaster has befallen the policyholders, usually affecting the very basic elements of their lives. After all, people usually don’t buy personal insurance except for life, health, disability income and similar life-altering happenings.

How do these people cope?

First and foremost, if they have a disability which prevents them from working and bringing home a paycheck, they need financial support for food, medication, ordinary living expenses for their families. This should be understood by everybody. All of an insured’s time and energy go into keeping body and soul together for the family.

The stress created by such a situation can be overwhelming even for a healthy person. For people suffering from a physical or mental disability severe enough to prevent them from earning a living, the stress is devastating. Pile a questionable insurance company claim denial on top of this package of woes and the outlook is even grimmer for the claimant.

The point we are driving at is that everyone involved on the claimant’s behalf must be very aware that the claimant needs some TLC from the people in their corner, even if those people are not in the habit of offering TLC.

Doctors and lawyers are accustomed to being deferred to in their everyday practices and are, maybe, due some acknowledgement for their importance in many people’s lives. But, when it comes to denied insureds whose very financial future and wellbeing are threatened, they must find some extra TLC to help carry the people they serve through the crisis.

As busy as professionals are, we have to find that little extra bit of time to take a call personally and talk to a client or patient when the world seems at an end to them. Such a sign of their doctor’s or lawyer’s particular interest in their case may do much to help give them the strength to go on.

From the denied claimant’s point of view, the situation is extreme. No job, no money and only one hope – that the lawyer and the doctor will be able to get the insurance company denial turned around. This is a large responsibility calling for skill on the part of the professionals to get the job done.

The extra effort we are calling for here is not in a professional sense. Doctors and lawyers, as a class, go all out professionally for their clients and patients in all matters. The extra effort required for denied insurance claimants is for the professional to be understanding and supportive through the claimant’s tough time. Find the time and energy to give a little TLC.

Being aware of the stress your client or patient is suffering is half the battle. Doing what you can to alleviate the stress is the other half.

Insurers See Only What They Want To See

Michael Quiat — Thu, 16 Jun 2011 09:40:23 -0500

When insurance companies look to do what is right, they look though a 1-way mirror. This comes as no surprise to those of us who have to fight with insurance companies every day to get them to do what is right for our clients.

What brings on this observation is the ongoing investigation by 35 states of “unclaimed” life insurance policy death benefits which seem to disappear into company books, never to reappear again.

The “right” part of the statement has to do with annuities, which the companies have contracted to pay their customers (in return for good money, of course). Most of these annuity contracts call for the annuity payments to end when the annuitant dies. Many times, the annuitant dies and the insurer receives no notice, thereby increasing the danger that the company will continue to send annuity checks to a deceased.

But, never fear. There is a Master List of Deaths maintained by the Social Security system which is also very interested in learning when one of its benefit recipients dies. The data in this list is kept current and is available to anyone interested for a fee.

We have no argument with the insurance companies protecting themselves by following the Master Death list closely and updating their annuity files so as not to pay benefits to those who have expired.

The problem is that these same insurance companies don’t use the Death Master List to notify life insurance beneficiaries of policyholders who have died leaving paid policies for relatives and others who are unaware of the policies.

The result of this failure is that the life insurance benefit may never be paid if the beneficiaries didn’t know they were named in the policy. Further, most states have an escheat law which commands that in any situation where life insurance proceeds are unclaimed for a certain period of time, they escheat to the state.

If the insurer doesn’t know that the policyholder died and the policyholder is ill or so incapacitated that he or she can’t take care of business, the company can send out premium notices and then cancel the policy for nonpayment, thereby writing the potential liability off its books relatively quickly.

We have a feeling that the insurance companies under investigation will wind up paying hefty fines in a settlement to the investigating states, just as Unum did in 2004. See Unum. But, in actuality, they will be paying a lot more. It will be another instance of insurance companies playing fast and loose with their policyholders and making every effort to add dollars to their bottom line.

This is why we shudder when we hear legislators trying to tell people that Social Security should be shifted to a private insurance system. The record of the private insurance industry in dealing with their policyholders does not give us much confidence that such an adversarial system, with profit as the main underlying motive, will deliver for Americans the social network they have come to expect from Social Security since 1934.

We know that the system needs tightening up economically – but, not destruction at the hands of private insurers. There are many ways in which more revenue can be earned while benefits are reduced in a humane way, that will allow the system to continue for decades and decades to come.

With the way that insurance companies fight their policyholders to hold onto every dollar
they can, as most recently demonstrated by the ongoing Master Death List investigation,
the Unum probe and settlement, IME doctors, denial bonuses for their employees, why
would anyone in their right mind entrust the future of Social Security to private
insurers?

Addiction Is A Disability

Michael Quiat — Wed, 08 Jun 2011 13:29:48 -0500

Many people are not aware of it, but addiction to drugs, food or alcohol is a recognized disability under the terms of many disability income policies. If there is a true addiction and it prevents the insured from performing his or her occupational duties, it may be covered by an ERISA or a private policy.

The stigma and guilt usually associated with addiction may lead victims to believe that the addiction is their “fault” and that there is no coverage for this disability. Not so.
Addiction means just what it says – “I can’t help myself”.

Many times the addiction is the result of prescription pain medication given as treatment for injuries or illnesses. They may also be the result of nervous or psychological conditions which are very real to the afflicted person. When these conditions are added to the treatment protocol for the illness or injury the result may be an addiction which will not cure itself.

If the addiction is so bad that the person cannot perform the duties of the job, medical or psychiatric treatment is required, and, if there is coverage, the benefits of a disability income policy may very well be available.

However, it would be a mistake to think that the insurance company will accept an addiction claim without putting up a battle royal. After all, the courts are full of cases where the illness or injury would be clear to any neutral observer, but the insurance company puts up a no-holds-barred fight with its stable of IME doctors to try to discourage the claimant.

We have spoken before about the strategy insurers use to discourage claimants from pressing claims. They know that claimants are usually at a low point, without work and without income. See Docility. So, they turn up the screws to add more pressure by demanding more and more information and turning their pack of doctors loose on the claim.

Insurers make the claimant jump through hoops in an effort to get the claimant to back off. How do insurance companies react to claimants who say they can’t work because of an addiction? They play the stigma and “fault” cards for all they are worth.

If a person is in a position where they can’t stop eating, drinking or drugging to a point where they can’t do their job, they have to seek professional help and they may be entitled to disability benefits under the terms of their disability income policy.

However, when they do decide to make a claim, they should know that the road to income recovery will be a rough one, with the insurance company pulling out all of the stops to avoid paying. They should be certain they get the help they need, both legal and spiritual from an attorney who has successfully handled addiction cases before.

Insurance companies smell blood in the water when they see a case brought by someone whose affliction indicates a lower threshold for pain and suffering. Knowing this, if you decide to go ahead, be prepared to take some punches and travel around some roadblocks.

But, also know this – with an attorney who believes in your case in your corner, you can prevail.

Get Your Scorecard Here

Michael Quiat — Thu, 26 May 2011 11:31:01 -0500

What a lovely gift for insurance companies!

There’s going to be a Congressional investigation of SSDI brought on by charges that an SSDI judge ruled in favor of applicants 99.7% of the time. The fact that the judge is only one of 1500 judges in the SSDI system will be of little significance to the investigators.

The majority of House Republicans, seem to be salivating at the opportunity to ravage the Social Security system as we know it, and to turn it over to private insurance companies. With Republicans holding a large majority in the House, they will have a field day with hearings on this issue.

Insurance companies are certain to jump on the bandwagon because of the ongoing question of what weight courts should give an SSDI finding of disability on ERISA and private disability income insurance claims they are considering. Successful SSDI claimants want the SSDI judgment to weigh heavily in an ERISA disability case, while insurance companies generally ignore SSDI findings (even though they usually have forced claimants to apply for the SSDI disability benefits).

Group LTD insurers get the best of both worlds when a claimant wins in SSDI:

* Insurance companies get the first money from the claimant’s SSDI benefits and repay themselves the money they have already paid the claimant under the terms of their policy.
* Insurance companies then completely ignore the SSDI finding of disability while defending the claimant’s case under their disability policy.

A 99.7% success rate in an adversarial litigation system should raise the strongest suspicions. It certainly requires severe “looking into” and remediation. But, it shouldn’t negate the value of an SSDI decision as part of the evidentiary fabric in an ERISA disability case.

We have a suggestion to help a Federal judge decide. Have the SSDI judge’s scorecard of disability decisions supplied to the court with the SSDI judgment. This will give the trial court a good handle on any predispositions the SSDI judge may have and make it easier for the trial judge to value of the SSDI judgment in ruling on the case before it.

But, at the same time, the court should be supplied with a scorecard on each doctor in the insurer’s stable of “physicians” who has rendered an opinion about the claim before it. In what percentage of cases in which the particular insurance company doctor ruled did the physician find the claimant had a disability? Such scorecard information would also afford the court a better picture of the value of the insurance doctor’s opinion.

After all, what’s sauce for the goose is sauce for the gander.

A court having the benefit of knowing if either or both an SSDI judge and/or an insurance doctor had a predisposition, would certainly help a judge weighing the factors in coming to a decision, as required by the Supreme Court in MetLife v. Glenn, 128 S. Ct.2343 (2008).

Be Careful With ERISA

Michael Quiat — Mon, 16 May 2011 11:13:49 -0500

A recent decision of the 7th Circuit Court of Appeals underscores a couple of issues of interest to ERISA claimants and attorneys:

* You just can’t “wing’ it when your legal right is created by a statute.
* Even a seemingly minor procedural miscue by a claimant can get the claim booted out of court, with prejudice.

In Edwards v. Briggs & Stratton,2011 WL 1602061, a claimant was 11 days late in filing her disability appeal with her plan administrator even though there had been ongoing communication between her and the administrator. The administrator rejected her appeal on “lateness” grounds and the Federal District Court and Seventh Circuit agreed, taking the position that the failure to file on time constituted a failure to exhaust administrative remedies and dismissing the case with prejudice.

We are all familiar with attorneys advertising their experience in their particular practice area, and why clients need that experience. Some of those claims are valid and some are pure advertising hype. The Edwards case demonstrates that such a claim is valid in ERISA matters.

In Edwards, the court found that Ms. Edwards made several procedural errors which “deep-sixed” her claim. She was late in advising that she intended to appeal, and also in providing certain information required for her claim. Although, it might seem obvious to an ordinary observer that she was appealing a decision of the plan administrator, she did not make her intentions absolutely clear, with this “wiggle” room, the administrator and, ultimately, the court, found that she had not actually appealed within the time frame required by Federal regulations, and, therefore, she had failed to exhaust her administrative remedies. The court dismissed her claim with prejudice.

Although the court could have exercised discretion and give her some leeway since she was only 11 days late in providing what the court was looking for, the court withheld its discretion and dismissed her case with prejudice.

This case illustrates that ERISA law is one of those areas in which experience is generally a “must”. ERISA disability claims are created by statute. ERISA regulations promulgated by the Department of Labor along with the statute itself, cover thousands of pages in the United States Code and the Code of Federal Regulations.

It is a “picky” law which starts off giving the plan administrator deference in decisions. We have to assume that administrators will always give themselves and the plan the benefit of doubt, so a claimant a starts off behind the 8-ball.

Add to this the regulatory time limits and other technical requirements which must be met to pursue a claim, and it’s easy to see how those, unfamiliar with the timing and format of claims, can trip over the requirements. And, once they trip, as shown in Edwards, they may be out forever.

Much about ERISA is counterintuitive, so just exercising sound, common sense judgment, will not always win the day for a claimant. We don’t mean to enshrine ERISA claims work in some kind of voodoo mysticism, but we do mean to point out that ERISA practice requires more than a cursory reading of a few sections of the ERISA statute and regulations to become proficient.

If one prosecutes ERISA disability insurance claims, one needs a decent knowledge of other statutes which affect claims, such as HIPPA and COBRA. Experience and a good working knowledge of general insurance law are also a plus. It is not enough to just prove a medical disability in a disability income insurance matter. The claimant must also show that the disability prevents the claimant from performing the duties of his or her usual occupation. Sometimes the policy will require proof that the claimant is unable to perform the duties of almost any occupation.

As the Edwards decision shows, ERISA litigation should not be a hit or miss undertaking, where a claimant or an attorney can read a few cases to “get the feel of it” and then go winging along to a successful conclusion.

What you don’t know about ERISA can kill your claim. Just ask Augusta Edwards.

A Stiff Upper Lip Can Hurt You

Michael Quiat — Tue, 03 May 2011 11:36:53 -0500

As anyone who practices in the area of disability law can attest, employees who become disabled are reluctant to admit they are disabled, and instead try to “suck it up” and carry on, even when their condition gives them very little hope of ever being able to permanently keep working. We’ve written about the “working disabled” before, but not in the context of O’Hara v. National Union Fire Insurance, 2011 WL 405448 (C. A.2 (N.Y.))).

O’Hara clearly illustrates that because a disabled employee continues to try to work, does not mean that employee will automatically be denied disability insurance benefits. This court clearly states that an employee’s continued presence at their place of employment does not preclude a finding of disability, if there is evidence he or she was actually incapable of performing the job.

This important principle needed to be reaffirmed. Disability carriers latch on to the fact that an employee tried to carry on despite the disability, to justify the denial of benefits.

In O’Hara, a company administrative assistant suffered a head injury in a fall. She was treated by several neurologists following the fall on March 15, 2001, but she continued to work.

As with all policies, Ms. O’Hara’s LTD policy had limiting language which defined whether she was eligible for long term disability. As with all policies, the language was not simple. She could recover if as a result of an accidental injury she was totally and permanently disabled and prevented from in engaging in each and every occupation or employment for which she was reasonable qualified by reason of education, training or experience. In addition, the policy required the disability to manifest itself within one year of the accident and to continue for a year.

Ms. O’Hara, while working, told her treating doctors it was necessary for her to make notes at work and at home so she could be able to remember the things she had to do. Also during this period, several of her coworkers complained to her superiors that she was behaving unprofessionally. However, her employer did not terminate her until June 6, 2002.

All during this period, Ms. O’Hara reported continuing headaches and severe memory lapses to her doctors, and was found by her own treating neurologist to be “completely disabled”.

Although the Federal District Court granted summary judgment to the insurer on a motion for summary judgment, the appeals court sent the case back for trial saying that the fact that Ms. O’Hara worked after the injury does not automatically mean that she was not permanently disabled by the accident. The appeals court found much in the record to support her contention that she was actually disabled even though she went to work. The appeals court found that the District Court had erred in granting summary judgment while there were major facts in dispute and that a trial and findings of fact by the trial court were necessary.

Insurance companies and courts should realize, as the 2nd Circuit did in this case, that disabilities are not necessarily fully developed when they first strike. Many illnesses and injuries take time to develop the full extent of their impairments.

Further, many employees are not anxious to go on disability and resist it for as long as they can. As a matter of public policy, employees should not be penalized for doing so – they should be praised.

If insurers jump on every employee who tries to work through their injury and deny benefits because the employee tried to work, insurers will be hurting themselves because they will discourage claimants from trying to work.

The decision in O’Hara sends a clear message to carriers that such conduct will no longer be accepted unless the evidence in the case justifies it.