Winning Isn't Easy: Long Term Disability ERISA Claims

Episode 37 Season 2: How The Contents Of Your Medical Records, And You Attending Physician's Statement Forms Can Be Used By The Disability Insurance Carrier To Deny Your Claim

October 11, 2021 Nancy L. Cavey Season 2 Episode 37
Winning Isn't Easy: Long Term Disability ERISA Claims
Episode 37 Season 2: How The Contents Of Your Medical Records, And You Attending Physician's Statement Forms Can Be Used By The Disability Insurance Carrier To Deny Your Claim
Show Notes Transcript

In this episode of Winning Isn't Easy, learn "How The Contents Of Your Medical Records, And You Attending Physician's Statement Forms Can Be Used By The Disability Insurance Carrier To Deny Your Claim" by nationwide Long Term Disability ERISA Attorney Nancy L. Cavey.

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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've got to say it, but I've said it now. And we're going to move on because nothing is going to prevent 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 is crucial that you understand the role of your doctor and your short and long-term disability claim. Before you stop working and apply for benefits and even appeal a case. I'm going to be talking about four things today. Number one, what do your medical records say and what isn't in your medical records can make or break your claim from the very beginning to what an attending physician statement form is and how it's used in your disability insurance claim three, how the carriers evaluate your claim using disability duration, guidelines, and forth . I want to tell you a David versus Goliath story and the story of how one court took on Unum and took them to task for Holly handled a fibromyalgia case before we get started. Let's take a break for a moment.

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Nancy L. Cavey:

Welcome back to Winning Isn't Easy. I'm going to talk about what your medical records say and what isn't in your medical records and how that can make or break your claim. From the very beginning, when you apply for disability benefits, one of the first things the disability insurance carrier is going to do is to get a copy of your medical records. And quite frankly, you should be getting a copy of your medical records before you stop work and apply for your benefits. You're going to be stunned at what you see and what you don't see in your medical records. Now, I will tell you that doctors are not in the business of taking a really good medical history. And that history is crucial to your case. When a disability, insurance carrier reviews your medical records, they want to understand when your symptoms started. They want to understand what your symptoms are, how often you have the symptoms, how long the symptoms lasts , and more importantly, how your symptoms impact your ability to do your own occupational duties or any occupational duties. Now let's take all of that apart. Many times, I find that problems will start from the very beginning. When the doctor asks , how are you doing? In fact, I talked to a client today about this, and as we were talking, his wife and her Jackson says, well, Ms. Cavey, do you know that every time he sees the doctor and the doctor says, how are you doing? He says fine. And I know he's not fine. And I have to interrupt and tell the doctor, all of the symptoms and problems my husband is having and how they impact his ability to function. Would you tell him to give a good history? And I laughed and I said, well, your wife is giving you good advice, because if you are telling the doctor, you're fine. How on earth do you think the disability carrier is going to react to that? And when we asked the doctor to fill out a form for testing your restrictions, limitations, what do you think he's going to say? He told me he was fine, but now he wants to apply for disability benefits. So you have to be straight up honest about your medical symptoms and how those symptoms impact your ability to function. The other thing I think that is very important is the fact that your doctor is documenting those symptoms and your functionality issues. Many times the disability carrier is also asking you to complete forms called activity of daily living forms. And they want to know what your symptoms are. In other words, what can you do? And how do those symptoms impact your ability to do things they're going to compare and contrast what you put on the activity of daily living form with what's recorded in your medical records. And if there's a discrepancy that will give the carrier ammunition with which to deny your claim. So again, important that you tell your doctor, your symptoms and functionality. Now I have my clients use something that I've developed called a symptoms and functionality worksheet. It helps my clients give a good interval history to the physician about their symptoms and hallow symptoms, impact inability function. And those are two words. I'm sure you're going to end up hating by the end of this episode. But what I mean by that is, let's say you have a back condition you've had back surgery. You have back pain that radiates down to your hose . We want to document that you have the back pain that radiates down to your toes, that it happens 24 7, that you can't sit more than 45 minutes. For example, without having to get up and move around , uh, that you may have been a recliner most of the day say two-thirds of the day with your feet elevated, or you can't even stand at the sink for more than 15 minutes doing dishes because of the back pain. And then you have to sit down, you see I'm connecting the symptoms with the functionality, and that's really crucial. The other thing of course, that's crucial is that your doctor understand what the definition of disability is and your D and the , um, definition of your occupation. Because the doctor , as I said, is going to be asked to fill out these a attending physician forms. And if they don't know what it is you're doing , uh , and particularly what you're having problems doing, it will be very hard for them to actually fill out an attending physician statement form. And as you read your records, before you stop working, apply for benefits, you may be stunned to find that your doctor doesn't support your claim. And if that happens, you better switch doctors immediately and see a new doctor at least several times before you stop working in apply for benefits because the disability carrier is simply not going to assume that your complaints are legitimate and valid and you can't work , uh, not withstanding the fact that your Dr. May not support your claim. So you can see that what's in your medical records and what isn't in your medical records can make or break your claim from the very beginning, let's take a quick break, Welcome back to Winning Isn't Easy. I'm next going to talk about what an attending physician statement form is and how it's used in your disability insurance claim. Most disability insurance companies are going to ask your doctor to fill out a form called an attending physician statement form at APS one . But what the carriers are also looking for is the office treatment notes to document the treatment and your disability. Now, many times I find that doctor's records suffer from a disease that I've just discovered, and I call it the document deficiency disease. Now, most disability carriers, as I said, are going to review your medical records because they have a fiduciary duty to investigate your claim. Now, while there's no contractual obligation for the insurance company to request medical information on your behalf , uh , it's generally your responsibility to, to provide them with the proof of your entitlement, the benefits. Now that doesn't mean they aren't going to get the records. In fact, most of the time they do get the records, but what happens , uh , that can be problematic is that your medical records, as I've said, don't support your disability claim. They don't have , uh , information regarding your symptoms and functionality, the diagnosis, the objective basis of the diagnosis, the objective basis of the restrictions and limitations. Now, the next problem is sort of a compounded problem is that attending physician statement form the APS form. And I think they also suffer from documentation deficiency disease, probably completed APS forms are the key to getting your benefits. Now, I will also , uh , explain to you that many times the APS form doesn't ask the right questions on purpose because the carrier doesn't want to know your true restrictions, limitations. I, as a matter of course, we'll either amend or that APS form within a social security disability, residual functional capacity form for what's that we use them in a social security disability claim. And they've been developed by lawyers, such as myself to really get at the meat of the diagnosis. Uh, and more importantly, the restrictions limitations and the APS form is really designed for the doctor to say that you can work in some capacity, preferably a sedentary capacity while the residual functional capacity forms on the other hand are really designed to get at your true restrictions and limitations, not pigeon you hole pigeonhole you into a carrier type analysis of your restrictions limitations. Now I have found the doctors don't always understand their role in documenting medical records or filling out attending physician statement forms. And so if you're having these problems, I think there are three suggestions that you should consider first. You should have an open off the record discussion with your doctor about the requirements that you have to meet for disability benefits. Once you explain what you have to prove in terms of the definition of the disability and your occupation, you want to make sure that the doctor understands that and also understands that the disability carrier is going to be asking the literature records and to fill out forms. It's also appropriate. I think , uh , number two, to ask your doctor to incorporate into your medical records, any activity of daily living forms that you've completed together with that interval history form. I talked about that symptoms and functionality sheet, and you want to also make sure that your doctor is documenting your treatment plan and what that treatment plan consists of. And the fact that you're getting regular inappropriate care , uh , the carrier also has a tendency to deny claims on the basis that people aren't getting regular and appropriate care. So you want to make sure that in this open discussion with your doctor, that , that they understand that you need to be seen on perhaps more regular intervals than, than normal, especially at the beginning of your claim. Uh, because the carrier's got old , look at the frequency, duration, and nature of the care that you're getting. Now, the third thing that's important is in this open discussion , uh, that you learn whether or not the carrier is can rely on, well, excuse me, you , you understand if the physician does not support your claims is not going to be cooperative. If the doctor says, I don't think you're disabled, or I'm not going to fill out the forms, then you're in trouble. I know that your Dr. May be the best doctor to treat your condition, but if they don't support your claim, you don't have a claim. And if they're not going to treat you on a regular basis, you're not going to have a claim. So I want you to understand that medical care is appropriate and necessary, not only for your medical condition, but to , um , address your crew restrictions and limitations. You've got the burden of proof and not the doctor. Now, one of the other things I want to talk about quickly is that you may have a medical condition where there are no, no tests or objective data. And your doctor has to make a clinical diagnosis based on your physical examination or your subjective complaints. This is common in cases like Lyme, fibromyalgia, chronic fatigue, RSD, depression, panic attacks, multiple sclerosis vertigo. There was a lack of objective evidence generally to form a diagnosis. And the carrier is going to want to see how the diagnosis was arrived at and the objective basis, ultimately for the restrictions and limitations. Um, remember carriers are in the business of collecting premium, not paying benefits. And they're going to hire a staff attorney or a liar for hire peer review doctor whose sole job it is, is to review your claim and render an opinion that your doctor's diagnosis of your medical condition. Isn't based on objective medical evidence, and that it's not supported by diagnostic studies or that the restrictions of limitations are not supported. And you can see that having an experience. There is a disability attorney to assist you in reviewing your records before you stop work or appeal. A case is really crucial in getting the disability benefits. Um , you deserve, so let's take a break. I know I covered a lot of stuff, but this is important stuff that you need to understand before you stop work and apply for your disability insurance benefits or appeal, a wrongful denial of your claim.

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Nancy L. Cavey:

Welcome back to Winning Isn't Easy. Let's talk about how carriers evaluate claims using disability duration guidelines. Now let's get started by talking about restrictions and limitations. Disability carriers want to see that you have restrictions and limitations that impact your ability to do your own occupation or any occupation. Now rarely are restrictions and limitations defined in a disability policy. Physical restrictions are really restrictions that impact your ability to do things like sit, stand, walk, stoop, bend, lift , um, cognitive restrictions limitations are the kinds of restrictions and limitations that impact your ability to process information , uh, to manage information, to make decisions, to apply that information in different work settings. And then of course there are what I call behavioral restrictions and limitations. And they're generally of a psychiatric , uh , nature. The question there is , um, how do you interact with others in the workplace? How do you accept criticism? How do you deal with changes in the workplace tasks , uh, that you may be asked to do now? Oftentimes disability carriers will review your doctor's forms about your restrictions and limitations and how long they're going to last. And then what they'll do is they will pull out a disability duration guideline. Um, there is a big two-volume book , uh, called , uh , disability duration guidelines that , uh, all people, a psychiatrist compiled , um, in conjunction with other medical providers, and it is almost a disability duration guideline Bible that carriers will use in consult to say, Hey, well, you've had a herniated disc and you've had a surgery. And according to this guideline, you should be able to go back to work in 12 weeks. And just because your doctor has given you all these restrictions limitations, we don't think that those are valid restrictions limitations because our disability duration guideline says you should be recovered in back to work. Now, obviously that's ridiculous because you are not everybody. Your condition is personal and how your condition impacts you in terms of your functionality is unique to you. But I want you to understand that disability duration guidelines are just one of the tools in the display carriers, toolbox that they're going to use to deny your claim, or to say that you are no longer disabled based on a rote RA reading of this disability guideline and without true consideration of your restrictions and limitations. That means that if you are finding yourself in a claims denial situation, based on disability duration guidelines, that you may need to undergo some objective testing, like a functional capacity evaluation that objectively measures your physical restrictions and limitations. If you have a condition like fibromyalgia or Emmy CFS , you may have to undergo a CT pet examination that will document your levels of fatigue after physical activity. If you're having neuropsychological issues, problems with cognition, you may have to undergo neuropsychological testing and repeat scans, brain scans to document that there is an organic basis for your ongoing problems and your restrictions and limitations. If your claim is being denied because of disability duration guidelines, you really do need an attorney at that point to help you understand not only what the policy says, what the carrier is doing, how they're you misusing the disability duration guidelines, and then to formulate and implement a plan to show that the disability duration guidelines are not applicable and that the restrictions and limitations assigned by your doctor are in fact objective . We based got it. Let's take a break. Welcome back to Winning Isn't Easy. This is my favorite part of the show. I get to talk about David and Goliath and the story of how one court took on Unum that task and took them to task pretty severely in a fibromyalgia case. Now, what normally will happen is in a fibromyalgia case or a case that's hard to diagnose the treating physicians may be uncertain about the diagnosis and you may present a treatment challenge. Does that sound familiar? Well, the issue is can the disability insurance company legitimately deny your claim? As I've said, in this entire episode, the disability carrier is going to review your medical records. They're looking for positive findings on physical examination. They're looking for the treatment plan, and they're looking for your response to the treatment. If you lack any persistent, physical manifestations of a disabling condition, either in the form of imaging tests like x-rays or MRIs, or there's no demonstrated positive physical exam findings and your, and your medical condition, hasn't responded to treatment. The court's going to uphold the denial of the claim because they just like the carrier are looking for positive physical findings on exam. Uh , they're looking for , um, objective testing and they're looking for your response to treatment. And if it all doesn't match up, the judges are more inclined to say, okay, we get why this claim was denied. There's really no objective diagnosis and no objective basis for the restrictions limitations. However, and it's a big, however, conditions like fibromyalgia, ME CFS are different courts have recognized. For example, that fibromyalgia is not a medical condition that can be confirmed by objective testing and fibromyalgia patients. Often don't present with objectively alarming signs of their conditions other than their reported symptoms. And it's really well-recognized that it's difficult to prove an objective evidence of fibromyalgia. So I'm going to talk about a case of Mesa versus Unum life insurance company. It's a middle district of Tennessee case that came out in June of 2021. Now I like this case and I use it in my Unum cases and my fibromyalgia cases, because there's some good comments by the court and the court in this case said that they won't mistakenly assume that hard physical diagnostic tools are the only legitimate source for evaluating a patient's fibromyalgia. The court recognized that there were subjective accounts of symptoms that were legitimate sources of information, both from a diagnostic standpoint and from assessing a person's restrictions limitations. But the court recognized that a patient's claim about symptoms. Isn't always determinative of a congested medical question because patients can lie. They can exaggerate, they may perceive their symptoms inaccurately, or they may complain of symptoms that are out of proportion for personal or psychological reasons. Now, at the same time, the court recognized that the disability insurance carrier has to present evidence that suggests any other source of diagnostic information , uh, would be so comprehensive and reliable that it would negate the self-reported symptoms of fibromyalgia. Now that's exactly what happened in this case. UNM said, look, we don't think her symptoms are as severe. She claimed she provided Unum with narrative evidence from her family members and the opinions of her physicians who had a long standing treatment relationship. Her physicians confirmed that those complaints were consistent with their diagnosis, not withstanding an unremarkable physical examination. Now, fortunately, the court recognized that an unremarkable physical exam in and of itself is not a sufficient basis to deny a claim. Now, despite unit's arguments that the lack of objective findings supporting the diagnosis, but was the basis of their denial. The court said, look, the real issue here is, is her fibromyalgia disabling because we, as the court recognized, there is an objective basis for the diagnosis of fibromyalgia. So let's get to the real issue here. Unum and the court looked at the accounts from her family members and doctors that confirmed that her symptoms made it effectively impossible for her to reliably come work complete days, even in a sedentary position. Now this is the way carriers have their own , uh, table. Uh, if you will, stable of doctors that they use to deny claims. And one of them is , uh , Dr . Norris and Dr. Norris is not a rheumatologist and Norris was of the opinion that fibromyalgia can never, never, ever prevent a policyholder from performing sedentary job duties. Now that is a familiar reframe that I see in fibromyalgia cases, but the court noted the Dr . Norris and Dr. Yuna , I'm sorry. I knew of them did not provide any support for such a conclusion. They found that Norris's conclusionary rejection, that fibromyalgia was disabling was particularly striking because Nora says it's never ever disabling. And we know as a matter of course, that that's a bit of a ridiculous opinion. Now, specifically, in this case, the court noted more SMAs history of professional success, her dedication to a career, and they found that way against any inferences that she would falsify her complaints or exaggerate her symptoms to avoid her career responsibility. In fact, her immediate supervisor for the three years prior to her claim for discipline submitted an affidavit that advised that she had been dedicated, honest, and a positive attitude. And in fact, the supervisor commented that she wished she had a dozen employees just like worse month . The court found that she had not gone from having an exemplary outstanding performance to exaggerating her symptoms so that she could avoid work, but rather fibromyalgia had destroyed her career. And the court recognized, look, I understand there's a struggle with fibromyalgia cases, but in a snarky, but telling comment, the court said diseases and disorders don't always present themselves in a matter that leads to simple disability insurance claims administration. In fact, the judge said that disability based on difficult to assess conditions are as common as cases involving disabilities based on easy to assess conditions. So the court said, look, there's no difference between a fibromyalgia case and a herniated lumbar disc case carriers and beneficiary , uh, providers, administrators have to approach these situations by applying the applicable plan provisions to the administrative record. And they have to consider the best medical records that are there, even if the understanding of the disease or the progression of the disease or the restrictions and limitations are evolving and incomplete. So I love this case because it recognizes that there are medical conditions that don't have an objective basis for a diagnosis. It swept aside UNMs false evaluation of this case and went to the heart of the matter. And in this case, it was not whether she's correctly diagnosed with fibromyalgia, but whether or not the restrictions and limitations that have been assigned by her doctor are sufficient to result in award of benefits and in doing so, the court was impressed by her career record, by the comments of family and friends and the affidavits of her supervisors to come to the conclusion that this woman had no reason to exaggerate the , her symptoms, her disease destroyed her career. You know, that the court reversed unit's determination and awarded her benefits. And I love it. I hope that you've enjoyed this week's episode, please. If you liked this podcast, consider liking our page, leave a review and share it with your friends and family. Remember my podcast comes out every week. So tune in next week for another insightful episode of Winning Isn't Easy.