Winning Isn't Easy: Long Term Disability ERISA Claims

Episode 16: The Games That Disability Insurance Carriers Will Play Concerning The Last Day A Policyholder Was At Work When Trying To Avoid Paying Their Disability Benefits

December 15, 2020 Nancy L. Cavey Season 1 Episode 16
Winning Isn't Easy: Long Term Disability ERISA Claims
Episode 16: The Games That Disability Insurance Carriers Will Play Concerning The Last Day A Policyholder Was At Work When Trying To Avoid Paying Their Disability Benefits
Transcript
Nancy L. Cavey:

Hi, I'm Nancy Cavey , national ERISA and individual disability attorney. Welcome to winning. Isn't easy. Before we get started, I've got to give you a legal disclaimer, this podcast isn't legal advice. The Florida bar association says that I've got to say this. So I've said it, but nothing prevents me from giving you an easy to understand overview of the disability insurance world, the games, the carriers play and what you need to know to get the disability benefits you deserve. So off we go today, I'm going to be talking about why you aren't insured on the last day of work or disabled coverage games that disability carriers play to wrongfully denied disability insurance benefits. Well, that's a mouthful, but you need to understand that disability carriers are always looking for a reason to deny a claim. And one of the most effective weapons is what's called coverage defenses. Now you may well be disabled, but for various reasons, you may or may not have courage, even though you paid your premium. Hmm . There are at least three policy terms that can impact your eligibility for short and long-term disability benefits. And we're going to talk about those terms today. The first term is active service or being an active employee. Second, last day word . And lastly, we're going to talk about disability during and beyond the elimination period. Disability carriers will weaponize these policy terms to deny a claim based on one or more of these coverage, defenses they'll claim that you were not a full-time active employee at the time you became disabled and therefore there was no coverage, or they may claim that you weren't disabled on the last day that you work, or they may say that you weren't disabled during and beyond the elimination period . And they'll deny the claim for any one of these three reasons or a combination of these three reasons. So let's work through these coverage denial games. I'm going to talk first about what the term active service means and the coverage game, how disability carriers evaluate disability as of the date last work, how the disability carrier will claim that you're not disabled during and beyond the elimination period. And then I'm going to tie it all together with a great story of a car dealership, employee who beat a carriers . You weren't insured on the last day of work and you weren't disabled coverage games and provide you with a roadmap for overcoming a wrongful denial. I'm going to take a quick break, but when we return, we'll get started, stay tuned.

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Nancy L. Cavey:

Welcome back. You're ready to get started. Let's start with what the term active service means and the coverage game. When you apply for shorter long-term disability benefits, the adjuster's going to consult the eligibility provisions of your policy to determine whether you were covered on the date of disability. Now, some claims will involve specific eligibility questions such as whether you are out of work on the date of the disability. But right now we're going to talk about the act of service requirements. Disability policies will typically typically require that you be an act of service to be eligible for coverage. The definition of active service can vary from policy to policy. Now your policy may or may not define what an approved paid leave of absence includes. It may require that the employee, you be performing your regular occupation, working at one of your employers , usual places of business, or at some location to which you're required to travel. Now, the key definitions here that you will have to consult or the definition of regular occupation and usual place of business. Now, some policies will defined usual place of business to include work at home and telecommuting as supported by the employer. But again, we've got to be looking at your policy. The other operative definitions are , uh , weather , um, scheduled holidays, vacation days or a day when you isn't one of your regularly work scheduled days , uh , was a day that potentially could impact this active at work provision. And what they'll generally say is look , um, if you were performing your regular occupation immediately prior to a holiday, a vacation or a day when you weren't performing your scheduled work day , that will count. That'll count as active service. And I know this sounds really nitpicking , but you will see in the story, I'm going to tell you why it was important and why it may be important in your case. So you have to be inactive service to have coverage. That means before you stop working, you better darn look at your policy and make sure that you understand what the terms active service mean. Because if you don't meet the act of service requirements and you stop working, the carrier's going to say, Oh no, we don't know you any benefits. There's no coverage. And you're not entitled to your short or long-term disability benefits regardless of your inability to work. It's where I call the too bad. So sad coverage defense in the next segment, I'm going to talk about how the disability carriers evaluate disability as of the date last work . So stay tuned after this quick break, Welcome back. I'm going to continue with how disability carriers evaluate disability as of the date last work. Now we're assuming that you are actively at work as of the date you last work . So we're going to get past that defense, but we're going to talk about , um, the issue of disability. As of the date you ask work, I'll tell you one of the first things that an adjuster is going to look at when you apply for your benefits is whether you had treatment on or around the date you last work and whether or not you were disabled. Why is this important? Well, many disability policies have a provision that require you to be under appropriate care and treatment of a medical provider. During a period of disability, therefore, a certification of disability from the date you asked , worked for the last date of act of service through the benefit waiting period or the elimination period is required. Now, the adjuster is going to get a copy of the medical information that documents your inability to perform the material and substantial duties of your job or occupation due to your disabling medical condition. As of the date, you last work, the adjuster's going to confirm one that you were an act of service as defined by the policy before you became disabled. And they're then going to, as I said, try to certify that you are in fact disabled as of the date you last work, but there are problems that can arise when the policy holder first got medical treatment for the disabling condition. After the last day of work, in other words, they were working, they were having problems, but without consulting a doctor, they stopped working. And now they're filing a claim for disability benefits. You can understand why the carrier would be legitimately in my view asking, well, how could you be disabled? Uh, as of the date you last worked because you hadn't seen a doctor and no doctor taken you out of work, I'm often asked what are the factors that an adjuster will consider in determining the date of disability. Now, that's pretty clear if you've been in an accident or an injury car accident, for example, the disabling event and the date of disability are generally pretty clear. It's the date of the accident, but unfortunately that's not always the case. So it can be hard to certify a date of disability. When the policy holder stops working and doesn't seek medical treatment until after the date, they were last in short or had an ongoing medical condition, but may or may not have gotten medical treatment immediately before or after the date, they last work or they contacted their treating medical provider, couldn't get an appointment, but just felt they couldn't continue to work in all of these examples. And in the absence of actual treatment on or around the last date work , the adjuster will try to do a Hocus Pocus and determine what restrictions and limitations reasonably existed as of the last day at work so that they can determine if the claim date of disability is reasonably supported. Now we're going to talk about one of the other folks that are become involved in this , uh, um, analysis is what I call the liar for hire in-house of physician. So what does an adjuster do? Or what should they do? Well, first they should consider the total situation. And that's probably the last thing they do. They should consider a , whether there's any medical information, including restrictions and limitations, leading up to the date, you last work, they should consider whether or not there's any medical information. After the last date, you work, including the nature of that information. They're going to look at such things as your subjective complaints, your history as to why you stopped working, what the physical examination shows, whether there's any objective findings that would sort of correlate with your decision to stop work. They're also going to be looking at medical information in terms of addressing your current treatment, the course of the treatment , uh , and how that treatment has impacted your ability to work. They're going to also look at your medical records and see has the doctor, the treating doctor changed your restrictions and limitations after you stop working and NAS got you out completely or may now be releasing you to some form of work. They'll look at information from your employer regarding your occupation duties and whether or not there was any modification in the duties were , or the hours that you might be working, or the number of days that you were working or the way that you were working. And so they're going to ask the employer, were you able to do the material and substantial duties of your occupation before the date you last work? And of course you see if you could, that's going to create an issue. They're going to ask information about any personnel issues you had. Like, were you going to be fired? Was there going to be a , um, a lay off , um, was there personal things that you know, were going on in the person's life that would have led them to stop working, not withstanding the fact that they claim they're disabled. They're going to ask your employer about that last work, the number of hours work they're going to ask your employer. Was there a loss of wages? Did you change the person's rate of pay or because of the change in their hours? Were they earning less? And if so, what, and they're going to be talking to you. They want to know the reason that you are giving for stopping work on a particular date. Now, I told you there was going to be another player. That's the liar for hire medical review provider. And you can be assured that all of the medical information is going to be reviewed by that liar for hire disability insurance carrier doctor. And you can also be assured that if the basis of the restrictions or limitations or the reasons why you left work on a particular date, isn't clear, you're going to get that call from the adjuster, asking for clarification. Well, I think you should consult with an experienced . There is a disability attorney before you stop work and apply for benefits. In my view, you should definitely consult with an experienced Orissa display attorney before you returned that adjuster's phone call. The answers that you give to these questions can make or break your claim, and they can be darn hard to fix after the fact why I know I've had to try to fix some of these. So what are the questions that the adjuster are likely to ask you about the reason you stop working on a particular day first, was there an exacerbation of some longstanding medical condition you had? How did that exacerbation impact your ability to perform the material and substantial duties of your occupation? How did your medical condition deteriorate , uh, did that deterioration impact your ability to perform the material and substantial duties of your occupation? If your medical condition remained the same, they want to know why is it that you're now unable to continue working due to that medical condition while you've been working for quite some time before you stop working with this condition, what changed? And they're going to ask, was there any change in your duties or did it change in the workplace that impacted your ability to continue working when you transferred shifts? Did your job duties change in some way now that's just the beginning of the questioning. The adjuster's going to ask you and your employer, whether there are any non-disability or workplace issues or factors that occurred prior to the last date, you work, they're fishing, they're fishing for a reason to deny the claim on the basis that your medical condition had nothing to do with your decision to stop working. So the adjuster is going to ask you what's your job or occupation , uh, is, is that job subject to elimination? Was there going to be some downsizing? Um , has anybody told you , uh, or have you told anybody that you just didn't want to do the job anymore? You just didn't want to work anymore. You were tired, you wanted to retire, or he couldn't stand your supervisor in the harassment. Were there documented performance issues that weren't related to your claim to disabling medical condition? Like you're having a run in or dispute with coworkers or your supervisors. Now, when the adjuster has gathered that medical information and has talked to you and your employer, the adjuster, as I said, is going to consult with the medical provider. They're going to talk with that liar for hire medical provider or your treating physician to determine whether the medical records support a conclusion that your claimed restrictions and limitations are appropriate, that you're unable to perform your occupational duties as claim . And they will probably , uh , consult with a senior claims management team, their supervisor, prior to making a decision as to whether to pay or deny your benefits. So you can see why it's so important that you get medical treatment before you stop work, that you have your doctor support your claim with objective restrictions and limitations and , and the basis for those restrictions that you document any changes in your occupational duties and difficulties performing them. And that you also address any personnel issues , um , because there are all reasons why the adjuster will be looking for, or looking at , uh , to twist the information , uh, and to justify claims. Now, remember, once your claim is denied, you'll only have 180 days in which to file an appeal of your wrongfully denied claim. That appeal is a trial trial of your case. I think it's time for you to hire an experienced Teresa disability attorney before you stop working and apply for benefits, or when you get that call from the adjuster, asking for more information. And certainly if your claim has been denied in the next segment, I'm going to talk to you about how the disability care will claim that you aren't disabled during and beyond the elimination. So stay tuned.

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Nancy L. Cavey:

Welcome back. I'm going to now talk about how the disability carrier will claim that you're not disabled during and beyond the elimination period. Many disability policies require that you satisfy was called an elimination period before you're eligible for your benefits. Now, an elimination period is that period of time that you have to be continuously disabled before being eligible to receive the benefits. The terms of an elimination break in differ from policy policy. And in fact, sometimes , uh, the elimination period may require that you be totally disabled before you can claim what's called residual benefits where you're working, but not earning as much as you were making, or some will say you have to be totally disabled. Uh , before you are entitled to any benefits, you can see that it's crucial that you get out your disability policy and understand what the requirements are for , uh , satisfying the elimination grade and the length of time that's required to satisfy an elimination period. Another reason why that's important is that sometimes the elimination period requirement is that you be continuously disabled, a certain number of days. So if you work one day and can't work a couple of days, and then you work another day, you have a problem because you're not continuously disabled in those days that you're working can screw up the calculation of the elimination period . Now, your policy might define disability as the inability to perform the material and substantial duties of your occupation or the inability to perform important duties of your regular occupation or the inability to perform the duties of your occupation as performed in the national economy. What's important here is that whatever the standard of disability is, you have to meet that definition during the elimination period. And you have to meet the length of time required by the elimination period. Be it a certain number of days or continuous the disability during a certain number of days. If you don't, the carrier is going to deny your claim. And don't be surprised if there's a fight when the elimination period starts and it ends. So if you're in a situation where you're having difficulty working and you think that you are not going to be able to continue, you should really understand the definition of active at work so that you don't reduce your hours and lose your coverage because you're not working the correct number of hours to be actively at work, or that you just don't stop working because you can't do it any morning. Can't get in to see the doctor or, or you don't think you need to see a doctrine. It's okay. If you just say you can't work , um, because if you don't understand what it is, you have to prove in terms of definitions of the disability, the elimination period, and the length of time, you can just destroy your claim. You're setting yourself up for a claim denial that can be hard to fix after the fact in the next segment, I'm going to put this all together for you. I'm going to tell you the great story of how Mr. Chad hook overcame all of these coverage defenses. So stay tuned. Welcome back to isn't easy. Sometimes court key cases read like a mystery story. Sometimes they read like a horror story, and sometimes they read like a fairy tale. I'm going to explain how the carriers use of the defenses we've talked about today , uh, were , um, considered by one judge at how the judge saw through all those defenses. Now, I know we've thrown a lot of difficult , um, and complex , uh, concepts and policy definitions at you today, but I hope that this story will put it all together for you. So let me tell you this various tale story of Mr. Chandhok . He was employed at Malloy brothers enterprises, which is a car dealership in Alberta , New Mexico. This story illustrates the importance of an interaction of terms in a disability policy and how facts matter. The terms are full-time active employee last day, worked and disabled during an elimination period. As I've said, disability carriers will weaponize these policy terms to deny a claim based on one or more or a combination of these coverage defenses. Now, the disability carrier will say you weren't a full-time active employee at the time you became disabled. Therefore there is no coverage. They may say that you weren't disabled. As of the last date you worked , they may say that you work to well beyond the elimination period or during the elimination period . And they're going to use, as I've said, any one of the combination of the , these reasons. So let's work through the coverage denial games. In this case, Chad hook was covered under a group disability insurance policy that covers all full-time active employees. Full-time employment means that an employee has to work at least 30 hours per week. Now that's not uncommon. They'll set a threshold on the out number of hours that you work. The policy went on to provide the disability benefits were payable. When the insured became one disabled through the elimination print wall and shorten of the policy, they were disabled through the elimination period, and they remained disabled beyond the elimination period . And of course they submit proof of loss to us. So it was a continuous stream of disability. Uh, uh, at the time the person became disabled through the elimination period and beyond. And if you didn't meet the definition in any one of those periods, the carrier could deny your claim. Now, the policy terminates waited , uh, on the last day of the month or on the next following the month in which your employer terminates your employment, the day you cease to be a full-time active employee. Now, these terms are important , uh , because we have cases where the employee has been terminated, and we're trying to figure out if there's still coverage and that termination can result in the , uh , basically the termination of , of , of the policy. So again, these are all terms of art. You need to get your disability policy out and review it, but generally policies will say that that the term disability is the inability to perform the material and substantial duties of your occupation. So hopefully we've got some basic definitions here that we can work from and apply. Let's now talk about the facts of the claim. And in my view, facts of the claim are crucial when we're involved in these kinds of coverage, defenses, they're date dependent . Chad hall claimed that he was injured on January nine, 2016. When he fell on his left knee, despite his pain, he was a tough guy. He worked full-time between his fall and March four, 2016. In fact, he was so tough. He didn't get any medical treatment until one week before he stopped working. Now, when he applied for his insurance benefits, he alleged that most of his job required him to walk and that his boss has told him to take time off because he was limping on the job. Ultimately, when he saw a doctor, he was diagnosed with lots of orthopedic problems, including low back problems in the prompts . So when he applied for his disability benefits, what happened, let's talk about how the carrier used the terms that we just covered to deny his claim. His claim for disability benefits was denied on the basis that he was working while he was disabled, and that his coverage had ended on the earliest of the following of the last day on or next following the month in which your employer terminated your employment and that if he was disabled and a disability ended during the elimination period , now that sort of makes in a contradicts itself, but the carrier is trying to cover all of its basis. So what was his counter argument to this? His counter argument was that the policy did not require him to prove disability with a doctor's note on the date of disability, that he was sent home by his employer on March 4th, that he was insured through the end of the month. And that he was an active employee on March four when he was sent home or March 15, when he was taken out of work by his doctor and that he was disabled during this entire period of time through and beyond the elimination trip . Well, fortunately, the court agreed with Mr. Chan hook. The judge said first that there was no logical in compatibility between working full-time and being disabled from working full-time . In other words, just because you can work full-time doesn't mean that you're capable of performing the material and substantial duties of your occupation on a full-time basis. That's an important distinction because the Cara got stuck on the fact that he was working on a full-time basis without paying attention to what the material and substantial duties of his occupation was. So it's not so much the question of the hours work with that can be relevant, but rather whether he was performing the material and substantial duties of his occupation while working full time . So it was on this basis that the judge rejected the carrier's argument, that since he had worked some, two months after fall, they could not possibly have been disabled on the date. He last worked or March 15. In other words, the carrier said, look, he was working. How on earth could he be disabled? Again, the carrier got hung up on this full-time employment without evaluating whether he was really performing the material and substantial duties of his occupation. Now, the judge took on the other defenses and said, look, Chad hook wasn't fired. He was only temporarily absent as a result. He didn't lose his status as active at work. In fact, the judge said, look, if he had taken a vacation or sick leave, he would have lost his coverage. The plain language of this policy didn't require him to have work full time immediately prior to asserting coverage, because the record reflected that he was on a short-term medical leave rather than permanently off work, the policy covered him until he was diagnosed and impaired as of March 15, 2016. Now the court fortunately found that this decision to deny benefits was arbitrary and capricious and awarded benefits. I hope this story explains the games that carriers are playing with the terms actively at work, no coverage , no disability during or after the elimination period. If the carrier has denied your claim, I wouldn't be surprised because they will routinely misuse and misapply. These terms to deny coverage, they collect your goal and they rule that you're entitled to your benefits. But remember, they're lawyers like myself who can help you get the disability benefits you deserve, regardless of where you live in. The United States will take on a disability carrier and address the misapplication and misuse of these terms. Well, that's it for this episode, please, if you like this podcast, consider liking our page, leaving a review or sharing it with your friends and family. This podcast comes out wiggly . So tune in next week for another insightful episode of winning isn't easy.

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