Winning Isn't Easy: Long Term Disability ERISA Claims

Episode: 27 What You Need To Know About The ADL Forms That The Disability Insurance Carrier Will Require You To Fill Out, And How They Can Be Used To Deny Or Terminate Your Claim For Benefits.

March 22, 2021 Nancy L. Cavey Season 1 Episode 27
Winning Isn't Easy: Long Term Disability ERISA Claims
Episode: 27 What You Need To Know About The ADL Forms That The Disability Insurance Carrier Will Require You To Fill Out, And How They Can Be Used To Deny Or Terminate Your Claim For Benefits.
Show Notes Transcript

In this week's episode learn about: "What You Need To Know About The Activity Of Daily Living Forms That The Disability Insurance Carrier  Will Require You To Full Out, And How They Can Be Used To Deny Or Terminate Your Claim For Benefits." and much more!

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Nancy L. Cavey:

Hey, I'm Nancy Cavey national ERISA and individual disability attorney. Welcome to winning. Isn't easy. Before we get started, I have to give you a legal disclaimer. This podcast is not legal advice. The Florida bar association says, I 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 that disability carriers will play and what you need to know about getting the disability benefits you deserve. So off we go, now, we've been talking about the disability insurance application process and all the forms that have to be filled out the application form, the attending physician statement form. Your doctors have to fill out the work history form and the occupational form that you have to fill out lots of forms. But today I want to talk about the infamous activity of the, of the living form, which I call a case killer form mistakes that you make on this form can make or break your claim. But guess what? You can learn how to fill out this form. Probably not just once but many times, but why did I say many times if you're placed on claiming your benefits start, you'll be asked to fill this form out again. And again much like your doctor's going to be asked to fill out an attending physician statement form again and again, as I've said, mistakes that you can make on this one can destroy your claim at this stage. So I want to teach you about the ADL form and the traps that are waiting for you. So in this episode, I'm going to be giving you an introduction to the activity of daily living form. And I'm going to talk about the seven traps waiting for you and the activity of daily living forms and how you can avoid mistakes that will destroy your claim. Before we get started. Let's pause a second.

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Nancy L. Cavey:

Welcome back to winning. Isn't easy. You're ready to get started. Well, I'm going to start out with an introduction to activities of daily living forms . The disability insurance company is going to ask you to fill out these activities of daily living forms. I'm going to call them ADL forms. Your answers will be taken out of context. Your answers will be cherry picked and your answers will be construed in a manner to allow the disability carrier to argue that your activities of daily living are consistent with your ability to work, that your activities of daily living are inconsistent with the level of pain or functionality that you claim that you have. They'll argue that there are inconsistencies between what you say you can do and what you've told your doctors. They're going to argue that the inconsistencies are such that , uh, they're, they're gonna put surveillance on you because they want to try to catch you doing more than you said you could do or doing more than what you told your doctors you could do. So they're looking again to use surveillance for inconsistencies. That activity of daily living form is also going to be used to schedule you for a field interview. It might also be used to schedule you for a not so independent medical evaluation. And it also may be used to schedule you for a, not so independent functional capacity evaluation. And that form will give their doctor's reason to talk with your doctor about your alleged restrictions and limitations and inconsistencies because their doctor's job is to try to change your doctor's mind about your restrictions, limitations, or say that you can work well. That's a lot of tools that the disability carrier will be using as a result of this activity of daily living form . So I'm going to take a quick break because next I'm going to go into specific detail about the questions on the form and the traps in each question, I'll be back in a minute, Welcome back to winning. Isn't easy. I'm going to talk about the seven traps that are waiting for you in an activity of daily living for them and how you can avoid a mistake that will destroy your claim. Now, as I review the common questions, I want you to notice that the questions are open-ended, they're not specific, be careful about how you answer these questions and do not exaggerate. Never say that you can never do something. I promise you the disability carrier will have a picture of you doing what you said you couldn't do. I want you to make sure that you understand that you are going to be giving ranges and estimates, and that you make sure that you explain that you have good days and bad days and compare and contrast those days. So you're ready. All right, question number one in a typical month, please state how many good, fair or bad days you have each month. So good days, maybe days when you do well, and you complete all your activities of daily living your home care activities . So the question is how many good days you have a month? Fair days, days when you fail to complete some of the home care activities. So they want to know what's the total of fair days, bad days, bad days or days that you function very poorly and you fail to complete most living in home care activities. So they want to know the total bad days. And then they're going to ask you to describe your typical month in terms of good days, fair, bad days, bad days, and give examples of a bad day or days that are worse. Now, again, this is kind of an open-ended question, and I like to use ranges even with it in the context of a fair day, a good day and a bad day. The second question they may ask is are there days that you just don't get up because of your health? If so, how many days a month does your health health keep you in now? I don't like that question for lots of reasons. Um, you may have a medical condition that, that requires you to get up. Um, maybe get back in bed, maybe walk around , um, maybe elevate your feet. There might be days where , um , that's your entire day. There may be days where you limit your ability to get out of bed, or there may be days that you don't get a bit at all. So I don't like that idea of, of this vague question of days that you don't get up because of your health, because nobody spends 30 days a month in bed. Um, so again, we're talking about a range here. Now, the third question is compared with a year ago. W how are you functioning? Are you better worse or about the same? So if this is an initial application and you're filling out this warm , you know, I don't really, excuse me. See the point of this question. Why? Because last year you were working now, I don't know what the word functioning means either. Does they mean what you do at work? Have your job duties been modified , uh, are you missing time from work? Are you getting written up? And I don't know what functioning means in terms of your activities of daily living, are you able to bathe or dress, or do you have to take breaks in the course of doing things around the house? So again, an open-ended question that I don't really like and , and whatever your answer is , uh, I think that you need to do these in drafts . Sit them down, think about it, look at your medical records and then go back and look at your answers. The fourth question is caring for yourself. So do you have problems or serious difficulty, whatever that word means, taking care of any personal needs, including the following duty or medical condition. So we want you to check and describe any that apply and give examples, okay. Bathing, using stairs, holding on to objects, doing things on time, taking medicine, doing your hair, eating, keeping well-informed, whatever that means using the telephone, whatever that means, caring for others, shopping, you know, that could be running into the grocery store or , or doing a grocery trip for Thanksgiving, dinner, recreation. I have no idea what that means. Does that mean gaming? Does that mean walking? Does that mean playing tennis, transferring? In other words, moving from position to position using the toilet in terms of getting on or off the toilet, getting to the toilet, making decisions, finishing things , um , that's important because you may have to take breaks. You may have concentration issues. You may have fatigues , um, shaving dressing, leaving on time, taking medication on time and the right dosage, understanding and following instructions, personal business, finance, visiting people, getting places, whatever that means might mean your doctor might be in the grocery store, might be going to a movie. I don't know what that means. Hobbies again, another vague term group activities like church or clubs. So that's a lot of questions about what you're doing in terms of your personal needs. And again, you might have a good day. You might have a bad day. You may have days, you can do more days. You may do less. You may have family members that help you. You may have to spread chores out or any of these activities , uh , out. Um, so you might want to actually keep a diary , uh , a week or so before you fill out this form, just to get a sense of what it is you're doing. But remember, again, we're talking about arrange as good days, bad days, that sort of thing. So I like to kind of spread it across the waterfront. If you will schmear a bagel with cream cheese to schmear it all over the place, we're going to have a range of activity. We're not going to have a lump of cream cheese on your bagel. Okay? So we're going to take a break because that was a lot to digest. So after a quick break, I'm going to come back and cover the rest of the mistakes and questions that you are going to be asked. Stay tuned.

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Nancy L. Cavey:

Welcome back. So let's continue. Uh, the fifth question , uh, on an activity of daily living form , uh , that I think , uh, contains craps the questions about meals. Do you prepare serve meals? Yes or no? If so, what meals do you make? Well, what on earth does any of that have to do with your ability to work? I think it's a, we use a legal term question. Now there may ask breakfast, you know, what do you do? How many days a month do you make breakfast? How about lunch? How about dinner now? Again, I don't use it as anything to do with your ability to work. Um, but again, we're talking about ranges. Um, you know, breakfast could be putting a pop tart in a toaster. It could be making scrambled eggs. It could be serving , uh , Christmas day dinner , uh , breakfast rather. So again, this is a whole range of activity regarding breakfast, lunch, and dinner. Um, so, so again, use estimates. Um, do you have to stand, do you have to sit, you have to alternate positions. Do you have to use a microwave? Does your spouse or a partner make your lunch and leave it for you? Um, is dinner takeout , um, who goes and gets the takeout, that sort of thing. Um, if you're alleging you have a hand injury, I certainly wouldn't want to see information about you chopping vegetables up because that requires you to use your hand. Or if you're alleging a back injury, I don't want to hear that you're standing at the stove for 30, 45 minutes to an hour making something. So think about what your medical condition is and your restrictions and limitations and work backwards in answering that question. Number six, caring for the place you live in other words, household activities. So what things do you do describe the home care activities you do regularly, things that you do for other people like your spouse, children, or neighbors, things that just don't get done and things that you did before that you don't do anymore. Again, what on earth does this have to do with your claim? I don't think it does anything except for, to create inconsistencies. So what do you do regularly? I hope that you're not vacuuming. I hope you're not dusting. I hope that you , um, are not doing spring house cleaning, that sort of thing. Um, you may, you know, do a little swipe wiping around on the counter, but we really don't want to hear you doing everything else that I've just described or even more things that you do for others. Now, look, we've got kids, we've got to take care of kids. Uh, and so one of the things that they're always interested in is what are your children's school? What are your children's activities? Are you attending them? Because that's fair game for surveillance. Now , I'm not suggesting that you don't do any of this, but I think that you need to make sure that you understand, at some point you may be under surveillance. So we don't want to see you , uh, you know, racing around taking your kids here and there and attending this or that. Uh, and, and alleged that you're unable to work because all that activity requires sitting, driving, standing. And any of that can be inconsistent with your restrictions and limitations. So use your common sense. I'm not telling you not to do these things. I'm just telling you to do them within your limits. Uh, take breaks, sit down. So if they got film of you, they see you , um, uh, taking the breaks that you claim that you need things that can't get done around the house. Well, again, I told you what I hope you're not doing. And I certainly hope that you're not doing your hard work. I certainly hope that you're not out there building a flower garden. I hope that you're not out there. Um, you know, changing the oil in your car, any of that activity can be inconsistent with your restrictions limitations as you described them to your doctor or what your doctor says. So think about that things that you did before that you don't do. Now, another dumb question, but what they're looking for is for you to say, Hey, I used to golf before and now I don't golf . And then they get a picture of you golfing. So again, I like the good days, bad days, you know, I , I don't do any of this, but on a good day, if I feel like I can't , I will , I might try this, but I pay for it the next day. All right. Number seven. Now we're getting down to business work-related activities. Do you have any serious difficulty doing any of the following on a sustained basis? Now there's two weasel words here. What on earth is serious difficulty and what is a sustained basis? I have no clue. So they're asking you to rate what it is you can do. And then again, looking for inconsistencies. So one of the questions is sitting. If you have to alternate sitting and standing, then tell them you have to alternate sitting and standing within a range, depending on how you're feel walking, same way. Now you have a dog, great . The dog needs to be walked . I wouldn't necessarily be walking that dog , uh, for any distance. And if it's a big dog, I sure as heck would not be picking up that dog. Preferably you can open the back door and let Fido out and do his business, or have somebody else walk your dog, crouching and squatting. Well, when you go to the grocery store, what do you do to get things off the bottom shelf? You crouch and you squat. So don't say that you don't do it because they may have a picture of you in the grocery store doing it to say that you could do it with difficulty and you try to limit it same way with things like lifting. Now, look, if you've got a young child and your child falls down, you're going to pick that child up regardless of your restrictions and limitations and your pain. So if you do have kids, you want to maybe explain that, you know, you do what you need to do. And in the case of an emergency, you know, you'll deal with your child. Um, one of the other questions is remembering, well, if you have problems with fatigue or memory issues, you might make lists right. Lose your lists. So those are the kinds of things or examples of how I think you should answer question, pushing and pulling with your hands. Well, that involves bilateral manual dexterity. And that's really important in sedentary jobs. So if you say I can't keyboard, but you know, you're out there with something using your hands repetitively, that's going to contradict what it is . You said that you could or couldn't do , um, reaching up, reaching down, reaching out in front of you, all of those range of motion issues. Um, again, we don't want to see a picture of you at Costco loading, a case of sodas or more into the back of your trunk, because you've got your arms out in front of you. You're lifting, you're bending. Uh, all those activities can be construed by the , um, uh, disability company as something that indicates that you're capable of working. Um, another question might be traveling. Do you have difficulty traveling or driving? Well, look, if you're going to go take a vacation after things calm down in the world, don't necessarily tell your doctor that you're out on an airplane, but that you've taken a road trip. Um, that again, indicates that you have some capacity that's greater than what your doctor has assigned . Um, if ask , certainly tell the truth, but that's something I don't necessarily volunteer. How far do you drive? Well, you know, you may drive to the grocery store. You may drive to the , um, your doctor's office, the gas station , um, good days, bad days need to be explained. I hopefully you're not driving an hour or more anywhere because again, unless you're in the backseat flat or somebody else's driving and you're stopping, getting out and moving around, that can be an issue. Um, another one might be , um, problems with , uh , working productively. In other words, can you work productively in the, and maintain the pace and concentration that's required and meet the production requirements that are , um , require ? I think you need to work backwards. Think about what your , um, maternal insubstantial duties are of your occupation. Think about what you can't do, physically behavioral. We are cognitively and make sure you cover those things in the context of these questions. But again, it arrange good days, bad days now. Um, you need to, I think also emphasize the difference in what you do now and what your occupation requires, particularly , uh, your need for breaks, any non exertional issues, such as changing position frequently , um, taking naps, elevating your legs, those sorts of things that can erode and eliminate your ability to meet the patient production requirements of your occupation. Now I've mentioned the word surveillance a lot. Uh, I don't want you to be paranoid, but I do need you to understand that surveillance is one of the tools that disability carriers will use if they think there's inconsistencies. And I will tell you right off, if you are a Hartford policy holder or for Liberty life, you can expect that you will have surveillance on your case. Uh, particularly at the time where the definition of disability changes from an inability to do your own occupation, to an inability, to do any occupation. And of course, I'm going to talk more about surveillance in later episodes of this podcast. Well, that's a wrap in this next episode, I'm going to talk about one of the deadliest events that can happen in a disability insurance claim, the field interview, that's letting the monster into your house. So look, if you like this podcast, consider liking your , this page, leaving a review or sharing it with your friends and family. Remember this podcast comes out weekly, so stay tuned next week for another insightful episode of winning isn't easy. Thanks!