Winning Isn't Easy: Long Term Disability ERISA Claims

Episode 31: The Mistakes Made During A Field Interview That Can Ruin Your LTD Claim Part 2

May 10, 2021 Nancy L. Cavey Season 1 Episode 31
Winning Isn't Easy: Long Term Disability ERISA Claims
Episode 31: The Mistakes Made During A Field Interview That Can Ruin Your LTD Claim Part 2
Show Notes Transcript

Episode 31: The Mistakes Made During A Field Interview That Can Ruin Your LTD Claim Part 2

In this week's episode learn about: "The Mistakes Made During A Field Interview That Can Ruin Your LTD Claim Part 2." 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've got to give you a legal disclaimer required by the Florida bar. This podcast isn't legal advice, but I'm going to give you insights about 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, disciplinary carriers are not in the business of paying disability claims that just doesn't help their bottom line. The golden rule is they're going to collect your premium dollar, and they're going to rule that you are not disabled. And one of the most common tools in the disability carriers, arsenal that they'll use at all stages of a claim is the field interview. Now in the first part of this episode , uh, I talk about the mistakes that you can make in giving a statement without representation, letting the disability rats, visit your house, mishandling questions about your medical condition, making mistakes in answering questions about why you can't work, making mistakes in answering questions about your treatment, the side effects of medication and the results you're having from treatment and mistakes that you're making in answering questions about your restrictions and limitations. In today's episode, I am going to be focusing on restrictions and limitations, because this really is the , the heart of questioning is that they will ask you, that's going to lay the foundation for other questions and ultimately a claim termination. So let's first talk about why the carrier is asking all these questions about your activities of daily living. When your doctors already filled out forms and the common restrictions and limitations questions. Remember if you're being called or contacted about a field interview, you are being set up for claims denial. You need protection from yourself. Yes. I said yourself and from the carrier, are you ready to learn more about the next, the stakes that you can make in a field interview and hear another story about what the impact of those mistakes are? Great, stay tuned. I'll be back in a second.

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Nancy L. Cavey:

Welcome back. So why, Why is a disability care asking all of those questions about your activities of daily living when your doctor's already filled out these forms? Now I'm spending four episodes of this podcast to talk about the field interview. I've seen too many claims denied because the policy holder thought, look, if I just talk with the insurance company, representative, grind, meet with them , everything's going to be fine. They're going to see that I'm disabled. They're going to see that I'm entitled to my benefits. Sorry to disappoint you. Your claim is in trouble. If the long-term disability carrier calls you to take a statement or arrange a field visit. Now I will tell you it's not necessarily in trouble in initial application because statements are common, but nonetheless, you still need representation , uh , for ad preparation in this statement. But my experience is if you are being , uh , set up for a statement or a field visit while you're on diary and being paid benefits, they're setting you up for claims denial. So the purpose of the visit is first to determine if there's objective evidence of disability, because your actions contradict what you say. You can do what you're telling your doctor and what they have shot you on surveillance doing. Now. They're also going to be taking this statement because your doctor is relying on what you've had to say and is rendering their opinion about your functionality based on what you've told them. And that opinion is faulty and are reliable because you misrepresented to the doctor, what you can and cannot do. And they're taking the statement to prove that there is no causal relationship between your disability and your restrictions and limitations and your inability to engage in your own or any other occupation. They don't like the restrictions and limitations assigned by your doctor. They want to punch holes in those restrictions and limitations. Now, I want you to remember if you're at the , uh , any occupation or your own occupation stage, you have to prove that you can't do the material and substantial duties of your occupations , decide by policy, not your job, your occupation, and if your job, your occupation rather is sedentary in nature, then they're really going to be trying to punch holes in those stretches and limitations, because they want to prove that you can go back to doing a summer, all the material and substantial duties of your sedentary occupation. If you're at the any occupation stage, you have to prove that you can't do the material and substantial duties of any occupation by virtue of your training education experience, the skills that you've learned and those restrictions. So limitations, different standard of disability , uh , but a similar game here. Okay. Now I know that generally , uh, when we are on D claim or dire and you're being paid benefits, the disability carrier probably has surveillance on you and they are trying to set you up for that claims denial. They have a laundry list of questions that they're going to ask to help justify that claims denial or termination. Now that isn't to say that they may not have surveillance on you at the initial application stage. I generally don't see that. But what I do see is the same game, because once they take your statement, they identify discrepancies. They're going to take that information to your treating physician and ask them to sign off on a letter that says you are capable of at least engaging in sedentary work. So what they've done is they've sprung a trap on you for the purposes of painting you as a liar, I'm a winger or a fraud so that they can justify a claim denial or termination. Now, I think that you need the assistance of an experienced disability attorney and you need to be prepared. You want to be with someone such as myself, who's reviewed your policy. Your medical records reviewed the forms you completed discuss the format of , and the questions with the adjuster in advance and try to negotiate what those questions are going to be , uh , has prepared and practice with you. The questions in the answer and someone who will protect you doing a statement and manage that statement. I'm always trying to control how that statement is going and what the adjuster is asking. So today I want you to make sure that you understand that the types of questions that you're going to get are not as simple as they may sound. And that each question is a trap. So let's start covering those questions in a minute. Let's take a quick break. All right , welcome back. Are you ready? We're going to be covering a mistakes. Number seven through 12. And these are questions that involve issues about restrictions and limitations. Now , the questions are going to be about sitting, walking, standing, lifting, bending, twisting, squatting, kneeling, pushing, cooling, breaching climbing balance, and the use of your hands. Now these topics are pretty exhaustive and you can spend minutes or even hours talking about each one of these issues, but let's give you a quick overview mistake. Number seven is questions about your restrictions and limitations in sitting. Now, this is a crucial question and I'm not joking. If your own occupation involves sitting carers game is to show that you can sit long enough on your rear end, that you can do this job. If you are at the own occupation stage and your job is sedentary, the game is on. They want to show that you can sit at least six out of eight hours a day. Why? Because if you can do that, you can do sedentary work and the same game exists. If you are at the any occupation stage, because quite frankly, all they have to do is to show that you can engage in sedentary work. And that based on the skills that you've learned based on your experience, based on your training, there is some other mythical not real-world occupation that you can do that requires you to do sedentary work so that they can terminate your benefits. So the questions about sitting can include what's the maximum number of hours. You can sit at one time. What's the maximum number of hours. Can you sit during this day? Now there's a track right there. They didn't ask minutes. They asked hours. That question is clearly misleading and designed to have you commit to hours, not minutes, and you can't give a hard and fast answer. I'm sure your ability to sit and stand depends on whether you're having a good day or bad day. What you might've done the day before, what medication you're taking. Now, interestingly, that question doesn't ask, do you have to alternate sitting and standing, what problems do you have standing that interfere with your ability to function? How long do you have to sit before you develop symptoms that interfere with your ability to engage in activities of daily living? So how often do you have to alternate sitting and standing? In fact, you have to get in your recliner. Do you have to get in bed? Those questions are not asked, regardless of the questions . I want you to qualify your answers. So you're narrowing it in its scope into minutes and addressing your need to alternate sitting and standing mistake. Number eight, standing, you're going to be asked, how long can you stand? But it might be what's the maximum number of minutes you can stand, or what's the maximum number of hours you can stand big difference. What happens to you after you stand that length of time? Does your pain level increase after you stand for that long? And what symptoms do you have when you stand for that long? Now, interestingly, again, what they're not asking is your need to alternate sitting and standing. How problem stand interfere with your ability to function, how long you can stand before you develop symptoms that require you to change positions. Now, as I've said before, disability carriers use surveillance and they may have a picture of you doing something you say that you can't do. You may say, look, I can only stand for 15 minutes and they've got a tape of you standing longer than you said you could. They're going to argue that you have not been truthful to your doctor about your abilities. And they're going to question your doctor's reliance on your statements. So don't fall into that trap and make sure you're giving ranges good days, bad days, days you can do more mistake. Number nine, walking. Okay. Well, we all walk. We all walk every day we walk , uh , sometimes around the block. We might walk in the grocery store. Um, so they may ask you how much can you walk? How far can you walk at one time? How far can you walk before your pain level increases without defining the term pain level on a scale of one to 10? How does your pain level increase? What happens if you walk too far ? Well, what is too far? They haven't defined that and they let you define that. I don't like that. How much walking do you do during the day while performing activities, like taking your children to school, do you take them out of the car and walk them into the school? Do you go to the grocery store? How far do you walk in the grocery store? Or how much walking do you do from the parking lot of your doctor's office into the doctor's office? Do you , uh , spread your walking around? Um, in other words , um, you , um, one day walk a lot in the grocery store and then the next day , uh, take a walk in the park. Um, so they're trying to figure out whether or not you are or how you're scheduling your walking and how you may spread it out. And back in the days, when people walked in the mall, they may say, well, how far do you walk in the mall ? Uh , they may ask you, but rarely do they do you sit down when you take a walk and here's the killer question. Do you walk with a limp? How often do you walk with a limp ? I promise you, I promise you they will have a picture of you walking without a limp. When you said that you live all the time, okay. Do you need a cane or an assistive device? If you say I use it all the time. When they have a picture of you not using it all the time, you have, you are causing them to question your credibility. When you go grocery shopping, are you hanging onto the cart or do you have to use , um, uh , the cart? Uh , the electric cart. And if so, how often? And again, they're trying to catch you. If they ask you those kinds of questions. My little radar and Cana are buzzing because I think they've got surveillance of you. Do you carry things when you walk? Well, of course you do. If you're a woman, you got a purse. Okay. Um, so if so, how heavy now, some persons can weigh , you know , less than a pen and some of them look like a suitcase. So you have got to make sure that you understand that. Ultimately, this is not only a question about walking, but a question about lifting. Now, I want you to think about these questions and your answers so that you can explain what you can and cannot do. You can also need to be able to explain how your pain and medications impact your activities. And you have to explain good days and bad days. As I said, never say never. Don't say I never walk. I never walk more than a block. I never fill in the blank. They will have a picture of you doing what you said you never did. And you also should never say always, don't say I always use a cane. I always walk with a limp. I always fill in the way. I promise you that they're going to have a picture of you doing what you said. You are not doing what you always said you did. Okay? So ranges, good days, bad days, no absolute answers that they can hang their hats on. All right, let's take a quick break.

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Nancy L. Cavey:

Welcome back to winning. Isn't easy. You didn't know that there were so many mistakes that you could make in your disability claim when the carrier calls asking for a field statement, but we're not done. We've got a lot more to go. Mistake. Number 10 is questions about lifting, carrying, bending, and twisting. Now I gave you a little hint about that earlier. They like to ask broad open-ended questions that are hard to accurately answer, but can be trapped . So the questions may be well, how much can you lift and carry? Remember if you can lift more than 10 pounds you've met or meeting the definition of sentence at work, they may ask you to give an example of something you can carry without being uncomfortable. What on earth is that question? That is like, so open-ended , um, it doesn't ask what you carry, how long you carry it, what they mean by uncomfortable. They let you dig yourself a hole and bury yourself in it. Now, have you lifted more than 10 pounds? Of course you have most people lift gallons of milk. There are at least eight pounds. Um, if you have young children or grandchildren less , they're an infant. They probably weigh more than 10 pounds. So you probably have lifted 10 pounds. And if you say no, well, you cause yourself in trouble, but if you say I might occasionally lift 10 pounds or on a good day, I might be able to lift 10 pounds. Uh , but I will pay for it the next day. And the, and the range of what I can lift is this to that. Okay. Now again, I think the real issue here is frequency of the lifting that you're doing and the consequences that you pay for lifting. Now, they're questions that I just reviewed. Don't ask you how much you can lift without having symptoms, how much you can lift repetitively, how much you can lift repetitively without having to stop. Uh, and of course, that question doesn't take into consideration, real life lifting situations in the workplace. And again, your answers are going to be compared with that surveillance tape. If they catch you lifting more than what you say, what can I say? Gotcha. Your answers are going to be given to the doctor. And they're going to say, look, they say their activity of daily living form that they can't lift 10 pounds. We've got a picture of her lifting, 15 pounds. Um, do you agree that they could work at a sit-down job , uh, even with lifting up to 10 pounds, 15 pounds? Well, the answer of course is going to be yes, but here's the other intangible we're now actually it's pretty tangible what you can lift and carry depends on the size of the object. It's weight, whether you're lifting it off the floor, lifting it off the table. Um, how many times you lifted, whether you've got a bend twist, lift and squat. Okay. So remember , uh, if you're asked about these bending and squatting issues , uh, the, the question again is going to be, for example , uh, do they have a picture of you picking up a case of beer out of the grocery cart, lifting it up or so you bent over, you picked it up and you lifted it up and then you twisted to put it over your trunk and then you bent over and you put it in the trunk. Well, they've got you here, twisting, bending. And if you say you can't do it, and the picture says that you can, well, you're in trouble. So again, no absolute answers here, ranges and estimates, make it clear that you can make, be able to do it on a good day that you have difficulties doing it, that you pay the price. All right , mistake, number 11, squatting and kneeling. Now they may ask, are you able to squat to sit in a chair or to the floor? You use the toilet, don't you? So of course you can squat. Uh , that's a really , um , bad question, but the next question is going to be , uh, can you have any symptoms? They may ask you that generally they don't, but if they do, what are the symptoms that you experienced ? Do you need assistance from someone or hold onto something to get up from a squatted position? Okay. So let's say you're in the grocery store and you need to get something on the bottom shelf. Are you going to bend or you're going to squat, probably going to do both. Do they have a of you doing that? If they're asking you that kind of question, the answer is probably yes. Now they may ask you, can you, Neil , what symptoms do you experience? Do you, what do you need assistance now, for those of us who are churchgoers, you are in church. You pull out the prayer bench and you kneel to prayer. [inaudible] to say a prayer. So of course you're able to squat, but it may hurt like the Dickens to squat. So again, these questions are designed to see whether or not you are being consistent with what it is you're telling your doctor what you say you can and cannot do now for those guys out there. And I don't mean to be sexist, but a lot of my clients like to wash their cars. They take pride in the appearance of their claw or a car, and they'll kneel to clean the hubcaps, or some people are gardeners and they'll squatter kneel to pull weeds or plant flowers. Amazingly the long-term disability carrier is going to interpret those activities as the equivalent of work activities. So be truthful Kelly now. Yeah. You know, I washed the car. It was a nice sunny day. I was having a good day. I took my pain medication , uh, and I washed it and I bent and I kneeled and it's a shining gleaming, beautiful car, but you know, something, my back cursed like crazy. And I had to go in, take a ton of pain pills and I went to sleep and I hurt the next day and I couldn't get out of bed. Okay. Mistake number 12, the use of your hands. Now, this is crucial. It's crucial for a number of reasons. Let's say you are engaged in an occupation that requires bilateral manual dexterity, like typing. Let's say your claim involves a herniated cervical disc with penetrating down into your arms, or you've got carpal tunnel. Look. Um, if you can't do the full range of sedentary work, because you have issues with bilateral manual dexterity, then the carrier has got some problems. So if you've got problems with your hands, your arms, your upper extremities , uh, that can be a problem for them because part of sedentary work is the ability to engage in a bilateral manual dexterity. You may be asked , um , questions about what your dominant hand, how often you use your hand. Can you button your buttons? Can you pick up coins? Uh, can you turn , uh , doors , uh, you know, open doors? Uh, uh, can you write, can you type, can you hold a coffee cup? How long can you hold a coffee cup? I want you to be thinking carefully about those answers, because we want to demonstrate that you have problems with the full use of your hands and fingers. So you might have problems opening a jar, buttoning, a button, unlocking doors, doing those things that require manual dexterity or bilateral manual dexterity. Think carefully about that question, because we know for the most part that we use our hands all day, day in and day out, but you may have difficulty doing it. You may have to stop or start the activity. Uh, you may have Tinley or numbness. You may then start to drop things. You may have to use splints or braces. Um, you may have difficulties , uh , with your shoulders where you're reaching out in front of you. So we've got to think of the manipulative restrictions and limitations and problems that you have and talk about ranges, give examples, good days, bad days. Um, don't answer these open-ended questions that will lead the carrier to say you've been exaggerating and that the doctor should not be relying on your comments about your restrictions and limitations in their , and rendering their opinion about the level of work capability that you've got. So I want you to take the time to think through these questions, look for the open-ended nature of the question, and you reframe the question in a way that's accurate and complete. That takes into consideration pain side effects of medication, good days and bad days. Wow . We're giving you a lot to think about, but we're not done. We have got more mistakes to cover. So in the next episode, I'm going to be continuing on about problems and mistakes that you can make answering questions about restrictions and limitations. Remember, this is the carrier's game and you need to stay in this game. If you like this podcast, consider liking our page, leaving a review or sharing it with your friends and family. Remember this podcast comes out weekly, so stay tuned for next week's episode of winning. Isn't easy. Thanks.