On Episode 37 of Winning Isn't Easy - We focus on Aetna Disability Insurance Carrier and the Games they play with your Long Term Disability and ERISA benefits.
I'm Nancy Cavey national ERISA individual disability attorney. Welcome to this episode of 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, but now that I've said it , I want you to understand that nothing will ever 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, do you have an Aetna short or long-term disability insurance policy, or are you the beneficiary of an employer provided Aetna disability plan? If so today's podcast is for you, but if not, and you're insured by another carrier, you can still learn lots of lessons from this podcast that could be applicable to you and your case. I'm going to be talking about three things today. One why a court upheld the denial of an end to disability insurance policy holders claim, and the lack of medical documentation of disability to what happens in Vegas. Doesn't stay in Vegas, baby. What you need to know about social media postings and the simple way that disability carriers take advantage of policy holders and the preexisting condition clause. Let's take a break for a moment. Before we get into this episode,Promotional Message:
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Welcome back to winning isn't easy. Are you ready to get started? Let's talk first about why a court upheld a denial of an Aetna disability policy holders claim and how the lack of medical documentation of disability just destroyed this claim. When you stop work and apply for your long-term disability benefits, or when you're on claim and you're being paid disability benefits, you still have the burden to prove that you meet the terms of the disability policy. In other words, you have to prove that you're disabled as that term is defined by your policy and that you're getting medical care. If you don't or you can't, it can be really difficult to convince a court that you're entitled to your disability benefits when they're faced with your appeal and ultimately a lawsuit. And that's exactly what happened in the case of hall versus Aetna. This is a Northern district California case, and I think there are several lessons to be learned in this case, regardless of where you live or regardless of who your disability carrier is. So let's talk about this case hall was a relationship manager for city national bank, and he became disabled because of longstanding back problems and surgery had been recommended , uh , for these problems. And she filed a claim now , uh, Aetna , um, paid her benefits for over three years until her doctor no longer certified disability and Aetna of course, and rightfully so terminated her benefits. Now, during the three years, she was on claim. She married and she had a child and she never had that back surgery. The disability carrier asked her to submit new medical evidence that established that she , um, was disabled and that she , um, w was entitled to her benefits. Now, one of the things that hall argued was that she couldn't submit any new medical evidence , uh, because she no longer had any insurance. She couldn't afford to pay for the surgery. And our doctor wouldn't treat her because she couldn't pay the bills. Well, at the end of the day, the court was not very sympathetic because she did not provide any evidence of her allegation, that the doctor's refusal to see her was a result of a loss of her group health insurance. There was no evidence that her coverage had in fact lapsed. And the court said, well, this is confusing because you had a baby. So you must have had group coverage, but they wanted to see proof that she didn't have coverage. There was no explanation as to why she couldn't see a new treating physician. And there was no updated medical treatment information from a new physician. So clearly regardless of the circumstances, hall did not meet her burden of proof. So what should she have done? Well, she should have seen a doctor who supported her claim if she was in so much pain that she couldn't work. I don't think it's believable that she would not have gotten any medical care anywhere. There are many, no cost or low cost medical facilities, including the health department where a person can get treatment. So don't expect the disability carrier to pay a claim without documentation of both treatment and documentation that establishes that you meet the disability definition in your policy. If your claim has been wrongfully denied or terminated, you should take on the disability carrier with an assistance of a, of an experienced disability attorney, such as myself and had she come to me, I would have counseled her about the places where she could have gotten medical treatment, the kind of treatment she should have gotten the documentation that was needed to document her lack of insurance coverage, why she hadn't gotten treatment. And now she was able to get treatment. And of course we would have provided documentation of that treatment and disability that met the policy definition. So don't let the disability carrier deny your claim because of the lack of medical proof. Let's talk next about what Las Vegas has to do with your disability insurance claim. Let's take a quick break. Welcome back to winning. Isn't easy. What happens in Vegas? Doesn't stay in Vegas, baby. What you need to know about social media postings. Look, social media postings are a gold mine of information for disability insurance carrier. If you have a social media account or accounts, shut them down, shut them down, shut them down. You get the point, tell your family and friends, not to post pictures of you, or even comment about you. It's all fair game. And it will be used against you just as Sondra Williamson. In the case of Williamson versus Aetna life, she was a customer service representative for the bank of America, and she became disabled as a result of both a neck and a low back fusion. She reported in may of 2014, that she was no longer driving. That her friends helped her with her groceries, that she needed to cane . And she couldn't stand for more than 15 minutes. Well guess what showed up on our Facebook age, there were several posting that seemed to indicate she traveled to California. She was posing on a motorcycle. She was standing and walking around and no apparent the discomfort. And guess what? They checked a dating social media site. She posted that she loved motorcycles. She loved camping, fishing, boating, and just in general, having fun, her posts even indicated that she had recently gotten married. Well, congratulations. That's great news. But Aetna took her social media posts and ran with it and they put surveillance on her. The S word. Now the surveillance showed her driving to and from the grocery store, pushing a cart full of groceries, lifting groceries in and out of her car days after the surveillance, she reported data that she couldn't drive or lift anything greater than five pounds. She lied and it did what one would expect and terminated or benefits. Now she filed a lawsuit ultimately, and she ended up in court. Now for her benefit, the court was going to say lenient. They saw this as being curated reality, and you can't always count on a court taking this lenient view. But what the court said was that just relying on surveillance or social media posts is not a reasonable basis to deny a claim. When you actually look at the medical records that Aetna should have independently verified the post information beyond the limited surveillance. And the problem with the posts are that they are really curated reality, edited know when the picture was taken or seek , um, additional context. And, and , um, she provided context in her appeal. She indicated that the motorcycle was in a museum and that she took , had a picture taken of her while she was in the museum posing next to the motorcycle. And she in her appeal , um, submitted explanations as to these social media postings. But Edna did nothing to verify this , um, which they should have done. Um, and the court said that look, 11 minutes of surveillance over 73 hours, didn't show her doing things that people, even those who are in pain have to do as part of her life. Now, I think the court was particularly forgiving , uh, and I've seen many courts just rely on the social media posts and the lack of honesty about her activity as compared to what was on a surveillance. So she really got a pass, but the point I'm trying to make here is that social media, all forms of social media are goldmines regularly. When I'm dealing with denied claims. I will tell you one of the first things that the carrier does is to do social media checks and they do them on a regular basis. It's just not a one-time thing. I'm right now reading a 7,000 page administrative record. And there is regularly a request by the insurance company to do social media postings. And even though in this particular case, they have paid benefits for years. They cut my client off and they're pointing to social media posts years ago as a justification. Now I don't think that's right either, but the point I want you to understand is that the social media postings are , um, just a minefield for you and that you should turn them off, turn them off, turn them off. Got it. All right. Let's take a break.Promotional Message:
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Welcome back to winning. Isn't easy. Now that we've talked about what stays in Vegas may or may not stay in Vegas. Let's talk about how disability carriers will take advantage of policy holders by using what's called the preexisting condition clause. One of the other toolbox or tools in the carriers toolbox are to deny claims based on coverage issues. Well, what happens when a disability policy holder stops working in files, a claim for disability insurance benefits? The first thing that disability carrier is going to look for is what I called coverage defenses. And one of the best one once is the pre-existing condition clause. Now the preexisting condition clause is a common clause that we will find in practically every disability policy, but there are different versions. And so the language is really , um, key. So the general terms of the preexisting condition clause is something like long-term disability coverage doesn't cover any disability that starts within the first 12 months of your current long-term disability coverage. If it's caused or contributed to by a preexisting condition. Now, a disease or injury is pre-existing . If during the three month period before you became covered, which is called the look back period, this condition was diagnosed or treated services were rendered for the disease or the injury, or you took drugs or medication prescribed or recommended by the physician for that condition. Now, this is an example of a very broad pre-existing condition clause. And if you're disabling medical condition that you're claiming is the basis of your disability is preexisting . Your claim very well could be denied. So I think it's crucial that you get your medical records and your pharmacy records and your policy before you stop working and you consult with an experienced Arista display tree to figure this out. So let me give you an example. Let me tell you about the story of Mr. Labrie , who was a regional facilities manager for restoration hardware. He came under the care of his PCP for a lesion on his back that had been there for over six months. He saw his PCP on April 14th, 2014 . Now dates are important here. That was in the look back period. And the PCP thought he might have basal cell carcinoma and referred him to a dermatologist. The PCP didn't prescribe any medications or give him any treatment, but did make a referral. So on June 10th, 2014, after the effective date of his courage, Labrie was seen by a dermatologist who biopsied the lesion and unfortunately diagnosed a malignant melanoma. He stopped working in any claim disability as of September 30th, 2014. So the issue here was, was the malignant melanoma appraising condition that would allow the carrier to deny the claim. So Aetna's disability benefit manager decided it wasn't. And , uh , that was confirmed by Aetna's internal clinical consultant. However, four days later, without explanation, the supervisor noted that the benefit manager wanted the claim denied because the initial appointment with the PCP subjective this whole claim to the pre-existing condition clause. So Labrie appeal and Aetna couldn't figure it out. So they had another internal clinical consultant look at the PCP records and recommended that the claim should not be denied because the record was clear that he was not diagnosed or treated for the disabling condition of the malignant melanoma until after the biopsy. So the benefit manager noted that the claim should be reinstated, but Aetna said, oh, no, we're going to deny it again, but we're going to deny it on the basis that had, Laverty gotten medical treatment care services , uh, uh, during that look back period, then that would have been sufficient to , uh , deny the claim because , um, the, the, just having seen the PCP and had the referral was , uh, important to the ultimate diagnosis of a malignant melanoma. So what they did to F to , um, sort of goose this is they would change the look back period from, to , uh, rather to April 1st, 2014, through June 30th, 2014. And that was based on an amendment that the employer had made regarding the coverage start date. So you can see facts are important. When was the person hired , uh , what is the period of time in which the coverage becomes effective? What's the length of time that the look back period is did the person get any , um, medical evaluations, treatment, prescriptions referrals , uh , in some cases even , um, use of vitamins. Um, I know this sounds strange, but you can see the carriers always looking for a reason to deny a claim. So ultimately this case ends up in the first circuit and the first circuit said this denial was an abusive discretion while it could broadly construe the provisions as excluding any disability benefits for which treatment or services were provided for any symptoms , uh , which in hindsight appears to be a manifestation of the disabling sickness or injury Aetna's conflict of interest in the way it handled this claim. Wasn't abusive discretion. And the court said, Aetna behave like a conflicted party intent on advocating for desired result, which was a denial rather than a fiduciary explaining its decision. Now I'm often asked, could a disability carrier like Aetna benefit from his violation of the department of labor regulations by changing the look back period, that's a game. So one of the ways the carriers do that is to just do that. It's like moving the yardsticks backwards , um, so that they can change the look back period for what it thought would be a guaranteed win. The first circuit said that changing the look back period of the last minute was a violation of the original regulations. And Labrie was prejudiced by this last minute, you know, changing of the, of the post here. Uh, and the court said, we're not going to that. The lesson here is to closely review the look back period, and pre-existing terms of the policy review the medical records in the claims notes. And if you have an opportunity to go for a period of time without treatment, then that might be the way to cure the pre-existing condition. If it's applicable, otherwise you need the assistance of unexperienced service , a disability attorney to really work your work the way through the facts, the dates, the medical records to determine whether or not this pre-existing condition clause is going to be applicable. And if so, how to appeal a wrongful denial. You never know what you're going to find. And you might find that the craziest and condition clause isn't applicable, and you might have a case just like this, where you can argue that the disability carrier played games with the rules and regulations to create a reason to deny the claim denying you or others have a full and fair review of the claim. I hope you've enjoyed this week's episode. If you liked this podcast, consider liking this 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. Take care.