Winning Isn't Easy: Long Term Disability ERISA Claims

Episode 26: What is an Attending Physician Statement, and How It Can Make Or Break Your Case From The Start

March 08, 2021 Nancy L. Cavey Season 1 Episode 26
Winning Isn't Easy: Long Term Disability ERISA Claims
Episode 26: What is an Attending Physician Statement, and How It Can Make Or Break Your Case From The Start
Show Notes Transcript

In this week's episode - Nationwide ERISA Long Term Disability Attorney Nancy Cavey talks about  "What is an Attending Physician Statement, and How It Can Make Or Break Your Case From The Start"" 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, I've got to give you a legal disclaimer. This podcast isn't legal advice. The Florida bar association says, I have 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 that carriers play and what you need to know to get the disability benefits you deserve. So off we go with today's episode over the last several weeks, I've been talking about the disability insurance application process. What you need to know about the application, the work history forms , the activities of daily living forms that you have to fill out as part of the application process. But today I'm going to talk about one of the most important forms that can make or break your disability. Insurance claim is the attending physician statement form known as the APS form. Today. I'm going to talk about three things. The first thing I would talk about is what is an attending physician statement, how it can make or break your claim from the very beginning. Secondly, what's the APS form used for. And how is it used to deny your claim when the definition of disability changes from your own occupation to any occupation. And lastly, I'm going to tell you the story of a David versus Goliath, how constant pain prevented a policy holder from sitting more than four hours and how pain should be a factor in evaluating every disability claim. So before we get started with today's episode, let's take a quick break.

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Nancy L. Cavey:

Welcome back. Are you ready to get started? So let's first talk about what is an attending physician statement and how it can make or break your claim from the very beginning, an attending physician statement form. Here's a form that the disability carrier is going to send to your physician. That form is going to ask your doctor questions about your physical or your psychiatric restrictions and limitations that you need to understand right off the bat that the APS form will never tell your doctor, that if they assign what's called sedentary restrictions and limitations, your benefits will be stopped at the , uh , uh, any occupation stage and the forms are designed at all stages of the case to have your doctor on give you restrictions and limitations that will allow you to Nye your claim. So let's first talk about the own occupation stage on occupation. Benefits are normally paid , uh , for the first two years after a person becomes disabled. And the issue is whether or not you're able to do the maternal and substantial duties of your own occupation. Now in this stage, I think there are three important things to consider. The first is the APS form itself. As I've said, the APS womb rarely asks the right questions about your physical ability or psychiatric ability to do your own occupation. This is a generic form that doesn't ask the right questions because the carrier doesn't want to pay benefits. What I do is I take that generic and wrong APS one , and I will modify it by attaching to it. What's called a residual functional capacity form. Now I'm a social security lawyer. So I know all about these residual functional capacity forms that are used for various medical conditions. I want to make sure that your physician is being asked the right questions. So that's why I attach the residual functional capacity form. That's applicable to your medical condition and ask your physician to complete it. And by the way, if I'm representing you and your social security case, I am using that APS form , uh , in the residual functional capacity form in your social security claim. Now, the second thing that you need to ask is, is my doctor going to fill it out? And if not, what do I need to do? I just had a call with one of my clients. Who's rheumatologists refuses to fill out the form. And I had to tell her that we have no choice, but to find another rheumatologist who will fill out the form, or we're not going to win because the carrier properly will insist under the terms of the policy that the APS form be completed. It's a policy requirement. And if you don't have that policy requirement fulfilled, the carrier has a legitimate reason to deny the claim. They don't even get to the question of whether or not you're disabled. The other thing that we need to consider at this stage is what's in your medical records and do your medical records reflect your symptoms and the impact your symptoms are having on your ability to function. That's crucial because we need to understand a carrier needs to understand what those symptoms are and the impact on your ability to do not only your activities of daily living, but your ability to do your own occupation. And that leads me to the third thing. And that is what's information. Should you supply to your doctor to assist them in filling out that form accurately? Well, obviously a good history of what your symptoms are and how your symptoms impact your ability to function is key because the doctor's going to be relying in part on your complaints. But more importantly, the doctor probably has no clue as to how you do the material and substantial duties of your occupation. Now you've got to go to the policy definition to learn that is your occupation is defined by the dictionary of occupational titles, how it's done in your local economy, how it's done for your employer, because you want to make sure that you are providing the doctor with irrelevant information about your material and substantial duties that conform with the definition of disability in your policy. I like my clients to actually write down what the material and substantial duties of their occupation, or both physically cognitively or behavioral, and then right across from that particular duty, what the symptoms are that impacts their ability to do that particular function so that the doctor can connect the two in filling out the APS one. So let's take a quick break. And when we return, I'm going to talk about our second topic. So stay tuned. Welcome back. So our second topic for today is how does the APS form how's it used to deny your claim, whether the definition of disability changes from your own occupation to any occupation. Now, as I've said, normally benefits are paid for two years in an AE own occupation policy. And then the definition is going to change to an inability, to do any occupation. And that's normally what you see two years for [inaudible] for the life of the claim. And now the key here is the APS warm once again, because the carrier is going to start doing an investigation a couple of months prior to the change in this definition of disability. And they want to determine what your restrictions and limitations are. Because as I've said earlier, if the doctor says you can do at least sedentary work, looking to deny your claim. So what is sedentary work? Well, the dictionary of occupational titles , uh , created by the department of labor defines sedentary work as lifting no more than 10 pounds at a time, okayness lifting or , um, carrying articles like docket files, ledgers, or small tools, and sitting occasionally with occasional walking and standing. Now, if you look at the APS form, the APS form, doesn't let the doctor say that you can't work or that you can work in less than a sedentary capacity. The way the form is written is designed to get your doctor to agree that you can do lifting of up to 10 pounds, that you can do occasional lifting or carrying, and that you can occasionally sit, walk and stand. Now again, with those kinds of answers, the carrier is going to say, Hey, we think can do sedentary work. And we're now going to have a vocational rehabilitation counselor, look at your education, your work history. And we're going to determine whether or not you have any transferable skills to other occupations that you could do in a sedentary capacity. Well, of course they're VIII . We'll always find other occupations based on that sedentary profile. And as a result, they are then going to , um, determine whether there are other jobs or occupations that exist in your local economy or the national economy that you could hypothetically do that would pay a wage such that they don't owe you any , um, any occupation benefits and that's their strategy. Their strategy is to find a reason to deny your claim. My strategy is to make sure that your doctor is asked the right questions. So I always want to amend that the attending physician statement form where the applicable residual functional capacity form, and sometimes I'll even recommend that my client get a functional capacity evaluation, which is an objective measure of restrictions limitations, or in the case of , um, fibromyalgia or , um, chronic fatigue syndrome and DCFS . I want to get what's called a C pet examination to determine a person's , uh , physical abilities, but exertional issues and exhaustion issues, secondary to fatigue. So what we want at the , um, any occupation stage is a less than sedentary, exertional , um, level of functioning. And so one of the things that's important in the course of your seeing your doctor and giving them the history of your symptoms and complaints and the doctor's opinion about your level of functional capacity are exertional impairments and non exertional impairments. Of course, the APS form, doesn't ask this, but I want you to consider exertional issues such as a sit-stand option. In other words, you have to sit for a period of time, maybe 30 minutes, then you have to get up 10 minutes. Then maybe you can sit down or maybe you have to put your feet up. So sit , stand options. Elevating legs are two ways to reduce an exertional level to less than century. Now, another way to do that is the issue of bilateral manual dexterity. Most jobs require that you use your hands and your shoulders, that's typing, keyboarding, manipulating things. And so if you're having bilateral manual dexterity issues, we want to make sure that that's documented and commented on in the attending physician statement form. But of course, doesn't ask the right questions. Well, how about non exertional issues? Not exertional issues can include the need for a break, pace issues, concentration issues, visual issues, urinary issues, absenteeism, and the impact of pain. I think that it's really key that you're communicating with your physician about your symptoms and your functionality, both from an exertional standpoint and a non exertional standpoint. And of course your physician's got to understand what is the definition of sedentary employment, because that's the game and these APS forms and the physician needs to understand how to use alternative forms or amend the forms that will allow them to accurately address your restrictions and limitations. Well, that's a lot of information, wasn't it? So let's take a quick break and I'm going to wrap up with story time and I'm going to put it all together for you.

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Nancy L. Cavey:

Welcome back. Let me tell you the story of David versus Goliath. And this story involves how constant pain prevented a policy holder from sitting more than four hours and how a judge said that pain should be a factor in evaluating a disability claim. Now, I read all the ERISA disability cases across the United States, and sometimes I will read a horror story sometime I'll read a fairy tale. Sometimes I'll read a story like this, David slaying Goliath. And I love these stories. Now let me set the stage many times. Long-term this way carriers will ignore disability . Policy holders need to alternate sitting and standing as well as their limits on their ability to sit for even a short period of time because of pain. Well, why do they do that? Because first the carrier has to , um, determine what your functional physical capabilities are. That means how much can you lift? How long can you sit or stand? How far you can work, go walk. Rather, those are exertional issues. Now, when you applied for your benefits, your doctor filled out that , uh , attending physician statement form, it, didn't ask all the right questions. And , um, the carrier will use this APS form as the starting point for the analysis of your restrictions and limitations, your functionality. Unfortunately, many times the carrier will have your medical records and the APS one reviewed by their own liar for higher doctors. And guess what? Those doctors will normally come up with a completely different conclusion than your doctor came up with regarding your functional capabilities. And that gives the carrier a reason to deny the claim because they can say we don't care what your doctor has to say once they've done that, then the carrier is going to determine what your, whether your past occupation , uh, was heavy, medium, light, or sedentary in nature. And what the carrier is trying to do is to match up the functional capabilities or requirements rather of your past occupation with what your alleged functional physical cognitive or behavioral restrictions are now. And so what the game is is that they , the carrier wants to say based on these restrictions limitations of what we think your restrictions and limitations are, you're capable of performing the Caroline's substantial beauties of your own occupation. And they do the same thing, quite frankly , uh, at the , um, any occupation stage when they're determining whether there is other work that you can do. But what I see day in and day out is that this week I was rarely consider the impact of pain on a person's ability to sit or stand or the need to alternate sitting and standing. And in my view that can often result in an unfair claims denial. So if you have an occupation that sedentary in nature, in other words, you're sitting on your rear end and you can't sit for more than four hours in an eight hour day. You can't by definition, do a sedentary job. Why? Because sedentary work requires sitting more than four hours in an eight hour day. So if you can't sit more than four hours in an eight hour day, you can't perform sedentary work. Now, many disability carriers like MetLife will ignore this. And they will use that as a reason to deny the claim. We ignore alternating sitting and standing and the impact with pain. That's what happened in a case called Gerritsen versus MetLife. As a case out of California, things are more liberal out there by the way, but he was a project manager for , uh , Kaiser Permanente's information technology department. And that required him to sit on his rear end all day. And it required him to have his head and neck in a static position, five to six hours per day, doing this. He was keyboarding. Now he underwent a disc replacement and a spinal fusion surgery where he was left in severe constant pain. He even had an implanted spinal cord stimulator, and that didn't improve his pain. He was then sent to chronic pain management, where of course, guess what he was prescribed, lots of opioids. He had stopped working because of his chronic pain. And obviously he was incapable of performing sedentary work. I guess what this claim was denied. He appealed any submitted medical reports from his doctors, a letter from his wife, a letter from his son letters from his coworkers , talking about the extent of his pain, the nature of his pain and how the pain interfered with his ability to work. MetLife had no less than three liar for hire peer review doctors who of course disagreed with his treating physicians opinions and said that the claims denial was absolutely great. Well, he didn't give up fortunately. And he ended up in court and the judge said, Oh, no, no, no. I'm going to reject these liar for higher opinions of MetLife because they all engaged in speculation about the frequency and nature of his pain. And they reached conclusory opinions about his physical limitations that didn't have any basis, in fact, or in medicine. And the court said, look, I can see in the medical records, he's got conscious, severe pain. And we agree. I think as the judge, that he is not capable of sitting more than four hours a day. And as a result, the judge reversed this claims denial. I think it really is crucial to have the support of your physician statements of family, friends, or coworkers documenting the extent and nature of your pain and its impact on your ability to function. In my view, it takes teamwork to get the disability benefits you deserve and that APS form can make or break your claim. Well, that's a wrap. I hope you've enjoyed this podcast, please like our page, leave a review or share it with your family members or friends. Remember our podcast is weekly, so stay tuned next week for another insightful episode of winning isn't easy.