Winning Isn't Easy: Long Term Disability ERISA Claims

Carrier Spotlight Series: What Disability Insurance Policyholders Insured Through UNUM Need To Know About Their Claims Denial Tactics

August 23, 2022 Nancy L. Cavey Season 2 Episode 58
Winning Isn't Easy: Long Term Disability ERISA Claims
Carrier Spotlight Series: What Disability Insurance Policyholders Insured Through UNUM Need To Know About Their Claims Denial Tactics
Show Notes Transcript

Nationwide ERISA Disability Attorney Nancy L. Cavey talks about UNUM and how they handle your claims on Winning Isn't Easy Episode 38: UNUM Disability Insurance Carrier Spotlight! 

ERISA Attorney Nancy L. Cavey:

Hey , I'm Nancy Cavey national ERISA, disability and ID disability attorney. Welcome to a winning isn't easy. Before we get started, I've got to give you a legal disclaimer. The Florida bar association tells me, I have to tell you that this isn't legal advice, but nothing is ever 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, do you have a unit short or long-term disability insurance policy, or are you the beneficiary of an employer provided a union policy or plan? If so today's podcast is for you now, if you're not insured by Unum or covered under a plan, that doesn't mean that you should just turn this episode off. Cause there are lots of lessons to be learned, particularly lessons , uh , that maybe applicable to your case. Disney carriers do a lot of things the same way. Um, some carriers are worse than others and there are certain carriers I would put in that category. But today is an important day because we're going to talk about three things. Can Unum deny your claim. If you're unemployed at the time you became disabled, the importance of a see pet examiner, chronic fatigue or , uh , uh , MSFS claim. And what are you taught court did in overturning unit was wrongful denial. The trial attorneys claim for disability as a result of post-cardiac surgery, complications and complaints of pain. So let's take a break a moment before we dive into these great topics.

Promotional Message:

Have you been robbed of your peace of mind from your disability insurance carrier? You owe it to yourself to get a copy of robbed of your peace of mind, which provides you with everything you need to know about the long-term disability claim process, request your free copy of the book at caveylaw .com today.

ERISA Attorney Nancy L. Cavey:

Welcome back to winning. Isn't easy. Can Unum deny your claim. If you're unemployed at the time you became disabled, many disability policies or plans require that you be actively working at the time. Your disability arises to be entitled to disability benefits, but what of you have an individual disability insurance policy that doesn't have what's called an active at work requirement. It doesn't exclude coverage for unemployed individuals. Are you entitled to your disability benefits? So here's the question. Are you unemployed and disabled? If so, are you entitled to your benefits? So I'm going to tell you the story of Catherine [inaudible] , who was an administrative assistant, who left her job. And she began looking for other work. Now while she was unemployed, she injured her back and her doctor told her that she was totally disabled. She had an IDI claim and she filed this claim against Paul Revere life insurance company, who was her carrier. And they said, heck no, we're not going to pay these benefits. You were unemployed at the time of your disability. Paul Revere said that she was not entitled to her benefits. And ultimately she ended up filing a lawsuit in New York state court. Paul Revere moved to dismiss her lawsuit and the court agreed. However she didn't give up. And she appealed to the Supreme court of the state of New York who disagreed with this denial. So in the case of professi versus Paul Revere, the appellate court said that Paul Revere's interpretation of their policy language was wrong. In fact, the court said that since Paul Revere didn't use specific language requiring a policy holder to be actively at work at the time they became disabled, they couldn't exclude coverage for a disabled unemployed policy holder. Now a basic principle of contract interpretation and insurance law is that when the meaning of an insurance policy term is in doubt, Russ subject to more than one reasonable interpretation, the ambiguity, the confusion has to be resolved in the favor of the policy holder and a guest , the insurance company who drafted the policy. In other words, if the visibly carrier meant what they said, they had to say what they mean. Got it. That's pretty clear if you're going to limit coverage, then you need to say, you're not entitled to disability insurance coverage. If you are unemployed at the time you become disabled. The court reasoned that the occupation that she was regularly engaged into what she was attempting to return when she was injured was an assistant administrator. The court ruled that part of your couldn't deny her benefits because she was temporarily unemployed at the onset of her disability. So don't let a disability carrier , uh, Rob you of your peace of mind by interpreting the terms of the policy in their favor. That's not how it works. Got it. Let's take a quick break. Rugged back to winning. Isn't easy. The importance of a CT pet examination in this Emmy CFS , uh , claim is important for you to understand why well disability, insurance carriers like first unit of life are not in the business of paying disability insurance benefits for conditions like Emmy CFS. They'll argue there isn't any objective basis for the diagnosis, not withstanding the fact Emmy CFS can't be established through objective medical evidence. Courts are generally not impressed with that argument. The next argument is one they are impressed with, and that is the carrier will say, look, we look at these medical records and we just don't see an indication that your records support a level of impairment that would prevent the policy holder from working. They'll argue that there's no objective basis for restrictions and limitations assigned by the treating physician that would justify the payment of disability benefits. And that's true, even if the policy is silent on requiring objective evidence of disability or even , uh, requiring a level of impairment as the standard of disability . So what do you do in an Emmy CFS case? Because documenting the restrictions and limitations on an objective basis can be hard, but there is an objective test called a cardiopulmonary exercise test known as a CT pet . It can objectively measure fatigue and other symptoms that will objectively interfere with the policy holders ability to work. But what a disability carriers say about C pet examinations? Well , I will tell you they don't like them. They don't like them because they're objective evidence of disability. So what are the games that disability carriers will play is to try to discredit the CT pet examination. And the first thing they'll say is, well that see pet exam isn't time relevant. It doesn't address the policy holders functionality at the time the claim was denied. Now, if that doesn't work, they are going to say that the CT pet findings were not supported by a physical examination conducted by the treating physician or they'll then get into treatment issues . They'll say, look, the level of the treatment provided or the nature of the treatment recommendations, they're just not supportive of the level of severity, not withstanding what that CPA exam fines . And then of course they'll argue that the CT pet is not objective evidence of impairment because it's based on the subjective complaints of a policy holder. So that's a lot of arguments that they'll raise to try to negate wipe out that see pit exam finding what do courts do with these arguments? Well, let's talk about the case of tan versus first United life insurance company. And Ms. Tam was a software engineer. She suffered from Emmy CFS . She applied for, and she was paid her short-term disability claim. Even after undergoing an IME with carrier had that found her amazingly to be severely impaired. I'm sure they never used that IME provider again, but when she applied for her long-term disability benefits, you didn't play the game, always plays . It had four medical reviews by physicians reviewing her medical records. And of course, none were qualified to evaluate her medical condition. UNIV denied her LTD claim and on appeal, she submitted a C pet exam, which was favorable to her not to be undone or , uh , not to have their denial on done . Unum hired a fifth medical reviewer who ignore the CT pet exam and said, eh , it's not time relevant. I don't think it's valid. And Unum did what Unum always does. It upheld the denial. Now the judge was not impressed with a Unum playbook denial. The judge noted that none of these five peer review writers had any experience with her multiple medical condition . Secondly, the court criticized unit's demand that she submit objective evidence of her medical condition because the court noted that CFS can't be established through objective evidence. Third, the court rejected units arguments that the sea pet test was not time relevant because the medical reports rendered retrospectively shouldn't be ignored. Based on that fact alone, the test should have been considered in combination with all the medical records, because in fact, those test results were consistent with the prior medical records. And guess what? Ms. Tam was awarded her disability benefits as she should have been. Don't let disability insurance carriers like Unum, pull out their playbook and deny a claim. This based on subjective medical conditions, it might be an Emmy CFS claim. It could be , uh , a migraine claim, but it could be any number of claims based on subjective complaints. Disability carriers don't want to pay your benefits and you owe it to yourself to hire an experienced ERISA disability attorney to overcome a wrongful claims denial. I'm going to talk next about how Unum and other carriers look at pain complaint cases. We'll be back in a second.

Promotional Message:

Are you a professional with questions about your individual disability policy? You need the disability insurance claim , survival guide for professionals. This book gives you a comprehensive understanding of your disability policy with tips and to do's regarding your disability application that will assist you in submitting a winning disability application. This is one you won't want to miss for the next 24 hours. We are giving away free copies of the disability insurance claims survival guide for professionals order yours today at disabilityclaimsforprofessionals.com.

ERISA Attorney Nancy L. Cavey:

We'll go back to winning. Isn't easy. Let's talk about how a Utah court overturned unit's wrongful denial of a trial attorney's claim for disability as a result of post-cardiac surgery, complaints of pain, disability carriers, like unit hate disability claims based on complaints of pain and restrictions associated with those complaints because of the lack of objective documentation, just like I talked in our earlier segment about CT pet exams and how they're used in , uh , Emmy CFS claims disability carriers will often argue that disability benefits are not doing oh , I , because there's no objective basis of the restrictions, the limitations. And they'll also argue that any restrictions or limitations are based on the policy holder, subjective complaints, which are not reliable. And that's exactly what they did in the case of snip versus Unum life. Uh , and Unum went out of its way to deny this claim by having five peer review providers all say that do snip could work and wasn't disabled. Now, I think it's important that we all know that Dustin was a former trial attorney. And I suspect that the courts , uh , uh, were familiar with him or certainly they would have Googled him to see that he was a trial attorney and he had undergone a quadruple bypass heart surgery was, which was successful, but he left him in constant pain. Now Unum said, oh no, we're not going to pay benefits. The medical evidence contradicts your self report of pain. And the diagnostic studies confirm that you're physically capable of working. And those physical tests, don't cooperate with your complaints of pain. Now, Unum also said, Hey, you've refused or you're discontinued the use of medication and you're not undergoing procedures that would help relieve your pain. And by the way, we're going to cherry pick the medical records. And we think your condition is improving. Now, the court , uh, said , uh , no , that doesn't work because do snip had neuropathic pain. And there really is no way to test neuropathic pain. Um, and they also noted that Dustin had declined treatment because , uh , of side effects of the medication, they were so significant that he just couldn't continue to take the medication. And so the court said, look, his refusal to undergo treatment or to take this medication is not sufficient in and of itself to justify a claims denial. You just can't deny a claim based on the lack of objective evidence of the diagnosis or restrictions and limitations you're required to , uh, get past these subjective complaint issues. This is important because as I've said, this is really carriers hate subjective medical conditions like pain claims, Emmy CFS , migraine complaints. So it's important for you to understand that the disability carrier really isn't going to get very far in denying a claim on the basis of lack of objective evidence of the diagnosis. They do have a better run at it. If they're denying the claim on the basis, that there's a lack of objective basis , uh , for the complaints of pain or other symptoms that would justify the restrictions and limitations, but there are always ways around this. I think so don't let the disability carrier deny your claim on the basis that you could never possibly be diagnosed or be disabled because of pain or that your pain doesn't , uh, arise to a level that results in you being disabled. So what are the lessons that we learned uh , today? Well , the lessons that we have , uh , learned are that , um , you can collect potentially your disability benefits, even if you're unemployed, particularly if you have an IDI claim that may not be the case. If you have an ERISA claim, secondly, disability carriers can't deny claims solely on the basis of a lack of objective basis of the diagnosis. And we've learned that disability carriers , uh, can sometimes successfully deny claims on the basis of a lack of objective evidence for the restrictions and limitations, but that there are really are ways around that particular defense, particularly if , um, you had, for example, a CT pet examination, which are key in a, in a MECs case or a fibro case, or you have pain, that's consistent with a diagnosis and the treatment. In other words, pain isn't to be expected as a side effect , uh, and that there is potentially objective evidence of the restrictions and limitations, be it via the C pad exam or a functional capacity evaluation. So there are ways around these carrier defenses. I hope you've enjoyed this week's episode. If you liked this podcast, consider liking our page, leaving a review or sharing it with your friends and family. Remember this podcast comes out weekly. So tune in next week for another insightful episode of winning isn't easy.