Winning Isn't Easy: Long Term Disability ERISA Claims

Social Media, Criminal Background Checks, Unemployment - What Disability Carriers Do With These to Determine Your Occupation, and How That Can Impact Your Disability Case

September 07, 2022 Nancy L. Cavey Season 2 Episode 60
Winning Isn't Easy: Long Term Disability ERISA Claims
Social Media, Criminal Background Checks, Unemployment - What Disability Carriers Do With These to Determine Your Occupation, and How That Can Impact Your Disability Case
Show Notes Transcript

Winning Isn't Easy: Social Media, Criminal Background Checks, Unemployment - What Disability Carriers Do With These to Determine Your Occupation, and How That Can Impact Your Disability Case

Speaker 1:

How social media, criminal background checks and unemployment can impact your disability insurance claim. Hey, I'm Nancy cavy . Welcome to this week's episode of winning. Isn't easy. I'm a national risk and individual disability attorney. And I see these issues come up all the time in disability , uh, claims and during the course of a disability claim. And that's what we're gonna talk about today. But before we get started, I have to give you a legal disclaimer. This podcast is not legal advice, but Florida bar association says, I have to say it, but nothing prevents me from giving you an easy to understand overview of the disability insurance world, the games that disability carriers play and what you need to know to get the disability benefits you deserve. So off we go making the decision to reduce your hours and apply for residual disability benefits or to stop working together and apply for total disability. Benefits can be difficult. Now you may think that once your doctors made the diagnosis of a medical condition, that's gonna prevent you from working or your employer tells you that you're having trouble and you should apply for disability benefits. It's all going to be smooth sailing. You may even think that once you've , um, submitted your insurance application to the disability carrier or plan, or even get benefits that this is gonna be a piece of cake. It isn't when you apply for your disability insurance benefits, your initial application is gonna be reviewed by the disability carrier. And they're gonna be looking at it from three perspectives. The first is what are the terms of your disability policy or plan two are your medical records sufficiently complete to establish that you are disabled and disabled as that term is defined by your policy or plan. And what's your occupation in terms of your policy or plan. In other words, can you do the material and substantial duties of your occupation, or is there something else that might be interfering with your ability to do those occupational duties? Now in this multi-part series, I'm gonna be concentrating on the occupational evaluation. I want you to know the factors that the disability carrier plan is likely to consider in deciding whether or not they're gonna pay your benefits. So when you apply for your own occupational disability insurance benefits, you're going to be asked a number of questions. What were your specific occupational duties just prior to the onset of disability? What were each of the specific physical and or mental requirements associated with each duty? How long did you perform each of these duties in the course of an average day or a week? How does a disability carrier verify your occupational duties? What's the date of your onset of disability and how does that apply to your occupational description? And we talked about the status of your license today. We're gonna talk about the database and social media searches, the criminal background check and continuing criminal checks the question of whether or not you might even have a job to return to in the view of the status of your license. So let's take a break for a moment and we're gonna come back and dive into these topics.

Speaker 2:

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Speaker 1:

Welcome back to winning. Isn't easy. Hey, we're going to be talking about database and social media searches. I will tell you that one of the first things that this way carrier do is gonna do when they're looking at your initial application and during the course of the claim is to do a database and social media search. They're going to be looking for a number of things. First, they're gonna be looking at your , um, CV, if you're a professional for memberships in professional associations, and they're gonna check the status of your membership and the involvement with the organization both before and after your disability claim, they're gonna be looking at sites like LinkedIn, and they're gonna look at civil litigation and criminal litigation sites for your involvement in lawsuits. And I'm gonna talk a little bit about that, you know , later in this podcast, but they're also going to do a broad social media search. They're gonna be looking at gaming sites, Facebook, Twitter, support groups, professional sites, dating sites, don't think they won't guaranteed. They will got it. All right . So let's talk about the issue of memberships and professional associations and the status of your membership. Why would they wanna do that? They wanna have an understanding of what you are advertising , uh, in the community as to your occupational duties, because obviously they're questioning whether the occupational description that you provided is accurate and complete, and whether it's consistent with what it is you're suggesting that you do on professional sites. So they're going to look at your participation in professional associations. They wanna see what you do , um, whether you're active in that professional organization. Uh , and they're going to look to see what it is you've done both before your claim and after your claim, but they're also going to be looking at LinkedIn or any other professional , um, site that deals with employment and your occupational duties. Again, what they're trying to do is to figure out what your occupation is at the time you became disabled. And of course, what you might be doing after you're claiming that you're disabled. Again, they're looking for inconsistencies between what you've put on your forms, what your employer might be telling you and what you put on LinkedIn. You have to remember that this is all related to the definition of occupation in a disability insurance policy or plan. That definition might be a definition of your inability to do your own occupation , uh, in the local economy, in the national economy as performed by your employer, or as performed based on the dictionary of occupational titles and outdated labor department of labor publication. So that they're going to be using these sites to really drill down, to figure out what it is your occupation might be. Okay, let's take a break before we move on to our next topic , Come back to winning. Isn't easy . Let's talk about some of the , uh, other churches that disability carriers are going to be doing. They're gonna be doing a criminal background check, and they're gonna continue to do a criminal check. Why is that? Well, first off, they're looking for past criminal behavior like fraud or dishonesty type offenses from passing a bad check to fraud, to embezzlement because they want to know whether or not, you know, you're kind of a nefarious person. Who's going to falsify , um, a claim such as a disability insurance claim. Now they're also gonna be looking for criminal behavior after your disability claim, such as a physical altercation, that might be inconsistent with what you claim you can't do. And that can range from spousal assault , um, assault and even murder. I know that may sound strange, but I've actually had a case in which my client who , uh, was paid disability benefits , uh, because of a back condition was actually , uh, ultimately arrested as being a drug dealer. He was basically traveling between the United States and south America doing drug deals. And unfortunately he was involved in an , uh, altercation, which resulted in the murder of three of his , um, uh, colleagues in his drug running business. Ultimately, as you can imagine, he ended up in jail probably as going to be there for many, many years. And that was the end of his disability claim. So something as simple as being involved in a motor vehicle accident, which you're injured, being involved in , uh, criminal activity from spousal abuse to assault to even murder can impact. As you can imagine, your disability insurance claim. Why is that? Well , many times there are policy terms that , um, will impact the disability carriers , uh, obligation or plan to pay , um, disability insurance benefits. The first is a provision that says if your sickness or injury, which is the basis of your claim as the result of a commission of a crime, then no disability benefits are due. So let's say you're arrested during a protest and you are injured. No benefits are going to be , um, do an ING. They may even say that , uh, if you are , um, that you are , uh, involved in the commission of a crime, that results in your incarceration, that you're not entitled to your benefits. So let's say that you're a pilot and you are disabled, but you're arrested for DWI. And you're in jail for a couple years. You may or may not be entitled to your benefits if your policy has a criminal in incarceration provision. And that actually happened again to another one of my , uh, clients who was fortunately able to collect his benefits, but we had a hard time certifying his ongoing disability because the prison doctors, you know, obviously weren't doing a good job of examining him and were all , and more importantly, we didn't necessarily want , um, them to know that he was in prison. Um, so we were able to improvise to, to do some video type examinations , uh, and have this treating physician, give us medical records and reports and fill out APS forms. But I tell you that was a hard road to tow . So you can see that these kinds of issues can adversely impact your disability insurance claim. So let's take a quick break.

Speaker 2:

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Speaker 1:

Welcome back to winning isn't easy. Well, what other searches as a disability insurance carrier or plan going to do? They are going, if you are a professional to do a license check, why are they going to do that? They want to make sure that you still have a license, and if you don't have a license, they sure as heck wanna know why you don't have, have a license now, many disability policies or plans say that , uh, just because you lose your license, doesn't mean that you're entitled to your disability , uh, benefits. But if you're having issues , uh, with malpractice or even criminal or civil issues, and ultimately you lose that license , uh, they're going to try to argue that your disability claim is based on the loss of your license, not on any type of disabling medical condition. So we've gotta be careful about that. If you're having any professional problems where your license is in , in question in jeopardy, you need to be communicating with your disability insurance attorney. And of course you do have one, right? Because that's going to have , um, an impact. Now it also can have an impact. In another way. I unfortunately have a client who , um, has become involved in some Medicare scams, inadvertently , uh, during a residual disability claim. And he could potentially , uh, can not only lose his license, but he potentially can end up , uh, in jail. Uh, fortunately for him in his disability policy, there is no , um, provision that says, if you're, if you're in jail, you lose your benefits. Uh , but you can see that the disability carrier is going to be , uh, doing this ongoing check of your criminal records, your , um, your , um, uh, status of your license. Now they're also potentially by the way, gonna be doing a civil check. Why is that? There's this infamous case that I've spoken about before, where the attorney in New York claims that he's disabled as a result of psychiatric conditions says he can't work, but the disability carrier does a pacer search. And a pacer search is a set of , uh, federal records , uh, that or court records. And you can track somebody by their name and they plugged in his name and up came 12 , uh, cases that he'd been involved in and had been actively involved in and had gotten paid. He lied ultimately on his forms to the disability carrier. The carrier said you're not disabled denied his benefits and off they go to federal court. And the judge was not particularly pleased with this attorney and ruled in favor of the disability insurance , uh, company. Now this case , uh, for example, could end up in a fraud prosecution and could end up in him losing his law license. So there are all sorts of complications that can flow from this bad behavior. One of the other searches that disability carriers might do is to see if you're collecting unemployment compensation benefits. Why is that an issue? Well, it's an issue because , um, when you apply for unemployment compensation benefits, you are claiming that you are disabled. Uh , I'm sorry that you're not disabled and that you're able to work. That's clearly inconsistent with , uh, filing a disability insurance claim and saying that you're disabled and unable to work. And of course, how would they know that? Well, if they don't find it out , uh, by doing a search, they can also find it out by , um, by the forms that they send you to fill out because you have these monthly forms that you fill out and it asks questions about your occupation. It O I'm sorry, whether you're working. And if so, if you're working where you're working, how much you're earning, but it also asks about other sources of income, social security benefits that you might receiving as a result of a settlement. Uh , ask questions about whether you're getting pension benefits and low and behold. There's a question about unemployment compensation benefits. When you sign those forms, you are testing that those forms are accurate and true. And if you're lying about it, that's gonna come back and bite you in the butt and maybe bite you. Uh , when you end up in a , uh, uh, a lawsuit with the state , uh, insurance commissioner's division of fraud, or you are being challenged , uh, in regard to your law license or , or medical license or any other license. So your life is an open book. When you apply for your disability insurance benefits, they will do a media search. They will do a search of professional organizations. They will do a criminal search, they will do a civil search. And of course, they're gonna do all those social media searches that I talked about, expect it, and govern yourself accordingly. Quite frankly, you should stop posting to any of your social media sites, stop posting to any professional organizations that you're a member of, and basically keep it down low and under the radar. Got it. I hope that you've enjoyed this week's episode of winning. Isn't easy. If you've enjoyed this episode, consider liking our page, leaving a review, or sharing it with your friends and family also consider subscribing to this podcast. That way you're gonna be notified every time a new episode comes out. I hope you tune into next week's episode of winning. Isn't easy. Talk to you then. Thanks.

Speaker 3:

Okay . So

Speaker 1:

That's short , but that, that I'm , I'm sorry, Josh. That was , was like way too long to cover.

Speaker 3:

Well , I mean, I actually think it would've been a normal length episode, which is why I did it, but , um, so you took the first two parts of section three and the first part of section four made it into one. So I'll take the third part of section one and the last two parts of section four and make that into the next script.

Speaker 1:

Yeah . Yeah. So do three, five and six for me.

Speaker 3:

Yeah .

Speaker 4:

And Josh, can you, in the, the document version of this, that shared, could you just make that as a little notation for me to read back later, or I'll just watch this part of the video?

Speaker 3:

Well , I'll , I'll just edit the script directly in the document so you can see what, what we shot and what we didn't shoot.

Speaker 4:

Okay. Thank you very much.

Speaker 3:

Yeah . I'll just make the first complete script and then cross that out and then remake the second script. So you can see what is in .

Speaker 1:

So when we do situational factors do a , a line for me that says , um, the , um, professional search LinkedIn , and then a line that says , um, uh, criminal issues and then licensure issues. Cause I'll kind of redo those

Speaker 3:

Professional search LinkedIn issue

Speaker 1:

And licensure issues.

Speaker 3:

And you want me to put that at the top of the episode where you read out that?

Speaker 1:

No . When you get into section five, if you will put that in the top of section five, cuz I want to just reiterate those before I jump in .

Speaker 3:

Oh, oh , okay . Okay . Yeah . Yeah . Okay . Yeah. I see. Okay . I see what you mean.

Speaker 1:

Okay .

Speaker 3:

Okay.

Speaker 1:

Okay.

Speaker 3:

So , so go ahead . So the next script will do, do you have a job to return to, and then situational factors and then the elector shock ? Yeah . As one script . Okay . That sounds good.

Speaker 1:

Yep . So I , I guess I'm gonna be in California for three weeks. Um, so I was thinking perhaps , um, while I'm out there, we can try to do a , a , um, a , um, podcast and see how well it works.

Speaker 3:

Okay.

Speaker 1:

Okay .

Speaker 4:

I , I was just talking to , to Josh , uh, when we broke the first time saying that I'm always happy to help with your own studio.

Speaker 1:

Okay. I'm not sure that I .