Winning Isn't Easy: Long Term Disability ERISA Claims

Episode 18: The Difference In The Standard Of Disability Between Social Security Disability Claims & Long-Term Disability Insurance Policies

December 28, 2020 Nancy L. Cavey Season 1 Episode 18
Winning Isn't Easy: Long Term Disability ERISA Claims
Episode 18: The Difference In The Standard Of Disability Between Social Security Disability Claims & Long-Term Disability Insurance Policies
Show Notes Transcript

In this week's episode - Nationwide ERISA Long Term Disability Attorney Nancy Cavey talks about  "The Difference In The Standard Of Disability Between Social Security Disability Claims & Long-Term Disability Insurance Policies" and much more!

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Nancy L. Cavey:

Hey, I'm Nancy Cavey national ERISA disability attorney. Welcome to winning. Isn't easy. Before we get started today, I've got to give you a legal disclaimer. This podcast is not legal advice. The Florida bar association says, I have to say this. So I've said it, nothing is going to prevent 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 last week, I talked about the own occupation period of disability benefits. In this episode, we are going to talk about the most deadly period in the life of a disability insurance claim. It's the transition or change in the definition from own occupation to Antioch occupation. Now, most disability policies will pay 24 months of own occupation benefits, but what happens next? I want you to consider this. The definition of disability might change to something like this. After 24 months, you're considered to be disabled. When you are able to perform the duties of any gainful occupation, for which you're reasonably fitted by education, training, or experience. This is what's called the change in definition from an inability to do your own occupation, to the ability to do any occupation. And this in my view is a crucial stage in your claim. It's an opportunity for this way and trans company, because in all your benefits. So before we get started, I want you to get your disability insurance policy and find the definition of any occupation in your policy, because that's going to be the framework for our discussions today. You're ready to learn more. So I'm going to be talking about the disability carrier six part game plan put in I in your claim when the definition of disability changes from own occupation to any occupation and what you need to know to protect yourself, why the social security disability standard of disability is not the same as a disability and trust policy definition of any occupation and the vocational mistakes your disability carriers make. When they identify any occupation to justify a claims termination, we're going to take a quick break, but when we come back, we'll begin, stay tuned.

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Nancy L. Cavey:

Welcome back. We're going to talk about the disability carriers, six part game plan for denying your claim where the definition of disability changes from an inability to do your own occupation, to an inability, to do any occupation and what you need to know to protect yourself, but many disability insurance carriers, target claims for any occupation investigations beginning about nine to 18 months of paid own disability benefits. In fact, you might even get a letter from the disability insurance carrier saying that they're going to investigate your claim to determine whether you'll meet the any occupation definition of disability. The games are on now. Disability insurance carriers are well aware of the financial costs of paying disability benefits for any occupation claims, because they're going to have to pay that claim through a storyline , which is normally age 65. You can bet they've calculated it to the penny. This is an unprofitable situation for any insurance company, and they're not in the business of losing money. As a result. I see in every case, this investigation done for the purposes of denying disability benefits on or about the time the disability benefit changes, the definition changes from any occupation to your, from your own occupation to any occupation. When the definition of disability changes from own occupation to any occupation they carrier is going to have to show that you can perform other occupations other than your own, and that you could hypothetically perform that alternative gainful occupation based on your training and experience. And generally they have to prove that it pays a wage such that you would not be entitled to your disability benefits. Got it. All right . So let's talk about the six part game plan that carriers use for denial. Number one, there's the letter notifying you of the change in the definition of disability from own occupation to any occupation. And there are forms to fill out. There's going to be number to contact with your physicians to clarify your restrictions and limitations. Since they're not going to accept what your physician has to say, based on just review of your medical records, then at step three, they're going to play the we're going to argue that you can do sedentary work game. Then step four, they're going to talk to you on the phone to clarify what you do every day, because they're going to compare that to what you've told your doctor and what your doctor has said about your restrictions and limitations. And then at step five of this game, they're going to clarify all of this with their liar, for hire physicians. And lastly, then they're going to have their liar for higher vocational evaluators do what's called a transferable skills analysis and a labor market survey. All of this is designed to create evidence that will justify their claims denial. So are you ready to talk more about the six steps first, the insurance company is going to send you that letter notifying you that they're beginning the own investigation stage. They're going to investigate your claim beyond that 24 month period. And quite frankly, in my view, this is a signal that you should be securing legal representation. Now, the letter will quote at length the definition of disability from your policy and remind you that the definition is going to change from any occupation to own occupation. By the way, you should check that letter against what's in your disability policy, because sometimes they don't even get their own definition of any disability benefits, right? So soon after you're going to get a second letter, and that's going to ask you for updated medical information, and they're going to ask you to complete a form called training education and experience. Now it's crucial that you fill out this T and E form accurately and completely. And it's also crucial that you understand what the definition is of a sedentary occupation, because that's where a part, one of these games store for disability carrier is going to contact your physician. And you're going to request information regarding your physical or your psychiatric restrictions and limitations. That's part two of the game. But if you look at that form, you'll see that that form does not ask the right questions about your restrictions and limitations that this carrier doesn't really want to know what it is you can do that form is designed purposely so that your doctor can say that you can do at least sedentary work. And that form does not define sedentary employment or provide even less than sedentary criteria for your physician to consider. Now, in my view, it's crucial that you're communicating with your physician at all stages of the claim, but particularly here, because your physician probably doesn't understand the traps that are ill sitting in those disability forms or that they should be using an alternative form , uh, such as the forms that you'll find in a social security, residual functional capacity form. And they certainly don't understand the definition of sedentary work. Now, what is the definition of sedentary work? Basically, it's an , it's an ability to sit at least six out of eight hours of a day, and to lift , uh , at least 10 pounds. Now what's important about this definition in my view is the sitting and the lifting, but what's also important. And generally not considered in this physical description of sedentary work is the need to alternate sitting and standing the need for breaks, the impact of pain or fatigue , uh, and perhaps even the need to elevate your legs or take a nap. Those are the kinds of questions that are asked on a social security disability, residual functional capacity form, and not purposely asked on these APS forms. So your doctor should understand this definition of sedentary work. So when they look at the form, they can see that it doesn't ask the right questions and that they can be at Liberty to add things to this form or to accurately reflect your correct restrictions limitations. So why is that important? Well, if the disability carrier determines that you're capable of doing sedentary work, they're going to locate occupations that are considered to be sedentary, gainful. And they're going to use this as a way to find other jobs using a transferable skills analysis and a labor market survey to justify that claims denial. Now the training and education form will be used to help them identify , uh , occupations that are alternative to what you may be doing based on your education and your skills. And so it really is important that you're filling out that form accurately. Now, the next stage of this game, as I've said before, is where the claims adjuster gets on the phone and has a happy chat with you. Well, they're happy because they're looking for , uh, statements or comments that you make that can be later, be determined to be inconsistent with what you've put on your forms before or inconsistent with what you've told your doctor, or even inconsistent with the surveillance film that they have on you. So they're looking for these inconsistencies, cause they're going to call you on them. They're going to call your doctor on them by showing them any surveillance film , uh , that they might have, or any discrepancies between what you've said you could do. And , um, what you're telling your doctor, remember this is not a social call. This is , uh , a call that is being used as the foundation for a claims denial as a guy that my clients I've prepared a book called the guide to preparing for your field statement. And I have my clients review this and we practice before any type of contact with the adjuster. In fact, I'm there monitoring it and I'm there directing this conversation. Now what happens next? Well, when all of the medical documentation that's been requested has been received, or the deadline you've been given to complete these forms has passed. The insurance company is going to refer your claim to their in-house liar for hire where their outhouse peer review , um, liar for hires to clarify your restrictions and limitations, that's code language. They're not going to accept the restrictions and limitations given by your physicians. Your claims adjuster is going to examine your records, create restrictions and limitations. They think they're going to be reasonable and ask that their in-house nurse, their in-house doctor, their outhouse peer review, doctor bless this. And it doesn't matter which of those cast of characters does this review. They're going to conclude that you can engage in at least sedentary work. Let's part five of the termination game. So once they've reached this magical internal conclusion that you're capable of doing sedentary work, regardless of what your physician says, they're then going to refer your file to either an inside or an outside vocational rehabilitation agency for what's called a transferable skills analysis. T S a. Now that's part six of the carrier game. This vocational evaluator is going to look at the restrictions and limitations as determined by the disability carrier. They're going to take your completed training and education forms. And they're going to use software programs to locate alternative occupations that they think you might be hypothetically capable of performing. Now they're going to identify more than one occupation and in doing so, it will normally list the expected hours. The , uh , uh, you work per week, the hourly rate, the yearly salary amounts. That's going to let the disability carrier identify gainful occupations for which you are reasonably fitted by age education, transferable skills, so that they can deny your claim for benefits. Now, the TSA has to show alternative occupations and gainful occupations. The disability. Care's going to ask the vocational evaluator to do a labor market survey. And this is going to determine the availability of jobs within a 50 to 60 mile radius of your home. This is going to document specific employers, job requirements, and salaries. So what they're going to do next is the vocational evaluator is going to submit this transferable skills analysis and the labor market survey to the claims adjuster. Now, if the TSA has identified gainful alternative occupations, you can do, if you have your age education experience, your claim will be denied the restrictions and limitations given to you by your doctor. Aren't going to be considered. But I find that often inaccurate information is given to the vocational evaluator, conducting the transferable skills analysis. They ignore your physician's recommendations. The recommendations regarding the restrictions and limitations assigned by their providers are generally inaccurate or inconsistent with the medical evidence. And we start to see mistake upon mistake piled on level by level for the purposes of denying your disability benefits as a , uh, an attorney who represents disability policy holders across the United States. I see this game plate with all disability carriers across the country, and I know how to take that game apart, but I want you to understand this six part strategy that the carriers engage in as part of the change of the definition of disability game, because you need to protect yourself from a claims denial, ready for a break. When I come back, I'm going to explain why the social security definition of disability is not the same definition that you will find in a long-term disability case. Welcome back. I'm going to talk about why the social security disability standard of disability is not the same thing as a disability insurance policy definition of any occupation. Now, I was also security disability attorney in addition to being an arrested disability attorney. And I get this question all the time from clients and prospective clients. So let's talk about the social security definition of disability. The social security act defines disability for adults as the inability to engage in substantial gainful activity by reason of a medically determinable physical or mental impairment. So the disability in question has to be expected to end in death, or one of which was going to last, or is expected to last for at least a minimum period of 12 months. So get out your disability policy. Like I told you, does that definition of disability that I just told you look like sound like the disability definition in your policy. The answer is generally no. Now the social security administration also uses a five-step sequential evaluation to determine title, mentor benefits. It's a sequential evaluation process. The first question they ask is, have you been out of work for at least a year? Do you have a condition that would keep you out of work for at least a year or resolve in your death? Next is your disabling impairment temporary or permanent? So is it like a sprain or strain or something that's going to heal or is it going to last longer, at least 12 months? Do you meet what's called a medical listing? What on earth is a listing? Well, the social security administration uses a listing of impairments to evaluate the severity of most mental and physical conditions. It's called the blue book, the listing of impairments, but to meet a listing, your condition has to document specific medical findings and systems symptoms, rather that have resulted in significant and specific functional limitations. The bottom line is if your medical records don't document all of the elements of a listing, you aren't going to be found disabled at step three. Now, happily, if your records document that your condition meets or lists a Mesa listed impairment, you're going to be found disabled. But in my experience as a social security attorney, that just doesn't happen very often. And part of the reason is that doctors didn't go to medical school to learn how to write their reports for social security, disability purposes, much less long-term disability. So as a result, most social security disability applicants, don't realistic because of the way their medical records have been compiled. So if you don't meet a listing at step three , we go to steps four and five, which are medical and vocational in nature. And what I mean by that is the question is on the one hand, what are your restrictions and limitations both physically or psychiatrically. And secondly, do you meet the necessary vocational tests that step four and five and step four? The issue is, can you go back to the lightest physically or simplest demanding job you held in the 15 years before it became disabled. Now at step five, even if the social security administration determines that you can't return to your past relevant work, you may not have won your social security case. And it really depends on your age, but you have to go on to step five and step five, the burden of proof shifts from you to the sole screen administration. They've got to show that you've retained the capacity to perform other work that exists in significant numbers in the national economy. In view of your age, education, transferable skills and restrictions. Did you hear that operative word age age is generally not a factor in the definition of disability in a disability insurance policy. It's a key factor in a social security claim. Disability carriers have to at least acknowledge a social security award in evaluating your case. Based on a us Supreme court called a case called MetLife versus a Glenn , but they'll explain a way that social security favorable decision on the basis that there's a different standard. Uh, and that age is a key factor in determining your entitlement to benefits. So that's why the definition of disability for a social security case is rarely the same as a longterm disability definition of disability. Got it. All right . Let's take another break.

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Nancy L. Cavey:

Welcome back. Let's talk about the vocational mistakes that disability carriers make when they identify , uh , an any occupation to justify that claims denial or claims determination , where the disability definition changes from an inability to do your own occupation, to an inability, to do any occupation. The carrier has got a lot of things to prove. First, they have to establish that you can work in a sedentary capacity. Next, they have to establish that you have transferable skills that you have learned and that you can take to lighter or similar occupations. They have to identify those occupations that you could hypothetically perform in view of your mental or physical capabilities, your education, your training, your experience, and those transferable skills. And they have to establish that those occupations pay a wage such that you can earn a salary and that no disability insurance benefits are payable. So how do they do that? Well, they employ a stable of vocational evaluators who create a , uh , report that will justify the claims denial. What's a vocational evaluator while they're an expert in the world of work. And in my view, they're nothing more than a hired gun for disability insurance companies who are looking for a way to deny benefits. But I found in my many years of practice, that there are common mistakes made by vocational evaluators and performing the transferable skills analysis or the labor market survey or both. So what are those mistakes? Well, mistake number one is that the VTE is basing their opinion on inaccurate, incomplete, and cherry picked medical information about your physical or psychiatric restrictions limitations. They don't consider what's called non exertional impairments, but what's an exertional impairment. It's the ability to , um, sit, stand stoop, walk, bend, lift that sort of thing, but there are not exertional impairments and non exertional impairments can include the need to alternate sitting and standing the impact of pain on concentration or pace, the side effects of medication on pace or concentration, attendance issues , um, absenteeism issues. So there are all sorts of non exertional factors that I find that vocational evaluators never ever consider . The next mistake I find is that the vocational evaluator fails to accurately consider your educational training and identifying those other occupations. The vocational evaluator also uses the outdated dictionary of occupational titles when defining the physical cognitive or behavioral requirements of the alternative positions or how that occupation is performed. For example, the dictionary of occupational titles still has it in it as an occupation, an elevator operator. When's the last time you ever saw an elevator operator. And in fact, the dictionary of occupational titles doesn't have a lot of jobs that exist in today's economy. The fourth mistake that a vocational evaluator will make is they will prepare a faulty transferable skills analysis. They'll give you skills that you don't have, or they'll identify skills that don't transfer. And lastly, they'll create a faulty labor market survey. And what we see is that those identified occupations are really not gainful, or they don't exist in the appropriate numbers. And it comes down to math. All of those mistakes in my experience add up and they're ignored conveniently by the disability carrier . They're only looking for ammunition to deny the claim and the liar for hire gives them that ammunition. So what do I do? I hire my own vocational rehabilitation counselor to take apart and destroy the transferable skills analysis or the labor market survey, or both. We want to show the carrier. Not only are we serious about this claim, but ultimately if we appear in court that the labor market survey , uh , and that the transferable skills analysis that the carrier is relying on is faulty and should not be relied on. And that the use of that, their reliance on it is an abuse of discretion. Okay, that's a wrap next week. We're going to talk about knowing what policies you have and what are in those policies before applying for benefits. Hey, if you liked this podcast, consider liking our page, please leave a review and, or share it with your friends and family. Remember this podcast comes out weekly. So tune in next week for another insightful and fun episode of Winning isn't easy.