Winning Isn't Easy: Long Term Disability ERISA Claims

The Importance Of Attending Physician's Statement Forms In Your Long-Term Disability Insurance Claim

January 10, 2022 Nancy L. Cavey Season 2 Episode 40
Winning Isn't Easy: Long Term Disability ERISA Claims
The Importance Of Attending Physician's Statement Forms In Your Long-Term Disability Insurance Claim
Show Notes Transcript

Episode 40  Season 2: The Importance Of Attending Physician's Statement Forms - Welcome to another episode of Winning Isn't Easy! On this episode Nationwide ERISA Long Term Disability Attorney Nancy Cavey talks about the Importance of Attending Physician Statement forms in your disability claim.

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Nationwide ERISA Attorney Nancy L. Cavey:

Hey, I'm Nancy Cavey, national ERISA and individual disability attorney. Well , welcome to a winning isn't easy. Before we get started, I've gotta give you a legal disclaimer. This podcast is not legal advice. The Florida bar association says, I have to say this. So I've said it, but nothing will ever prevent me from giving you an easy to understand overview, the disability insurance world, the games , the of disability carriers play and what you need to know to get the disability benefits you deserve. So off we go, I'm gonna be talking to today about the wonderful world of medical records and attending physician statement forms. These documents are the key to getting your disability insurance benefits, which why I'm spending a lot of time talking about these issues. I'm specifically today gonna talk about having a supportive doctor and why that's the key to getting your benefits, the nine tips for getting your doctor to fill out a winning attending physician statement form in your ERISA claim . And I'm gonna tell a story. I'm gonna tell you this story about how reliant standards seized on a misstatement of a treating physician about a policy holder's ability to work and what one court did about it. Let's take a break before we get started.

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Nationwide ERISA Attorney Nancy L. Cavey:

Welcome back to winning isn't easy. Are you ready to get started? Have a , a supportive doctor is the key to getting your short and long term disability benefits. Why, but when you file a claim for disability benefits, you have the burden to prove that you're disabled and unable to perform the material and substantial duties of your occupation. As all of those terms are defined in your policy. The first thing of course we need to get out is your policy and review those definitions. And once we understand them, then we need to understand how we prove your claim. And it starts with medical proof. I think that the medical proof takes two forms. The first is your medical records. And the second is an attending statement form . Let's take medical records on first, the disability carrier or plan is gonna get a copy of your medical records. And you need to know what's in your medical records before you stop work and apply for benefits. And you need to know what your doctor is saying about you in those medical records, if you are on diary and being paid benefits. So let's think in fact, why don't you get out a set of your medical records? Got 'em okay. What do your medical records say about your symptoms? Your functionality at home were work . The problems that you have doing your work duties, whether or not you have problems with your employer, like you're not getting along with them, your diagnosis, your restrictions and limitations, your treatment plan and your response to the treatment plan, your attempts to work with accommodations or reduced hours, whether your exaggerating, your pro problems, you need to know based on a review of those records, not only what's in those records, but you can sort of tell whether or not your doctor is supporting your claim. And if you can't tell you better ask them because your doctor is going to be asked to complete a form called attending physician statement forms. Now, if your doctor does not support your claim or won't fill out forms before you stop work and apply for benefits, you need to change doctors and you need to see that Dr. Long enough, so that you've established a relationship with them where they feel comfortable filling out forms that can delay your disability claim. But if you don't and you work and your doctor doesn't support your claim, you've just given your disability carrier , uh , the ammunition that they need to legitimately deny your claim. So let's talk about the next important document. It's an attending physician statement form. The forms are a pain in your doctor's rear end . And depending on the nature of your disabling condition in this stage of your case, the carrier may want these blasted forms filled out monthly, particularly at the initial stage of your claim. Now , once your claim has been accepted, the carrier might ask for these forms to be completed every six months or even once a year. But regardless of how often the form is a pain. Now, in my view, it acquires teamwork to get a properly competed , completed residual functional capacity form . Now, the first thing is helping your doctor. And the thing you need to do to start out with is to understand what are the material and substantial duties of your occupation as defined by the policy? The policy may say material and substantial duties are based on how it's performed for your employer. Well , that's great. Or it may say how it's performed in your local economy or how it's performed in the national economy. That's getting worse or how it's performed pursuant to the dictionary of occupational tiles, which hasn't been updated in over 30 years. Not so good. You need to understand what's the, a definition of occupation, because once you do that, then I think you should be getting out a piece of paper and writing down each material and substantial duty and draw a line to the right and write down what are the symptoms that are preventing you or interfering with your ability to do those material and substantial duties. And , um, specifically give an example. So you want to be able to explain to the doctor that, that, you know, my, my job , um, is working at OCO as a , a supervisor , uh , but I'm also a working supervisor. So I'm doing stocking, I'm getting on ladders. Um, I'm dealing with orders, I'm dealing with , uh , employees and hours and customer complaints. So it's just not a purely intellectual job. I'm on my feet, I'm running ums, I'm running a forklift. And by the way, because I have problems , uh, with , um , man's disease. I have dizziness. So I have trouble looking at the computer up and down side to side . I have trouble bending over to look at , um , um , the , uh, information that I need to in for stocking purposes, or I get really dizzy if I have to climb up that ladder and, and look at a product. So we wanna be talking about the material and substantial duties and the problems, the symptoms that you're having with the dizziness and how that impacts, for example, your ability to do those duties. Why are we going through all this? Because that will help your doctor do a better ABA filling out the attending physician statement form. Now, one of the other problems of course, is that the APS form is, is designed to lead your doctor down the path to say that you can work. It purposely does not ask the right questions. And I'll talk about that more in , uh , the next , um , uh , segment of this episode, but you need to understand , uh, that your doctor needs to understand first and foremost, what are the material and substantial duties of your occupation? And , um, what am I being asked to address in this attending physician statement form? And sometimes as I'll talk about later , uh , we want to make sure that we are giving the doctor , uh, this information in writing so that they're either , um , filling out the form with you or they're filling out the form later, but they've got this information. The, a APS form, as I said, is just so crucial to your case. The APS form has to be consistent with your medical records. So we wanna make sure that what you're telling the doctor about your symptoms and functionality in your medical report is consistent with what they put in the APS form. Because as we've talked about in earlier episodes, the Access Ability carrier is gonna compare that against what you've put on the activity of daily living forms and their are gonna use social media to check on what it is you're doing. Got it. All right . In my next segment, I'm gonna talk about those nine tips that you , uh , can use to get your doctor to fill out a winning attending physician statement form. Let's take a quick break, Welcome back to winning isn't easy. What are the nine tips to getting your doctor to fill out a winning attending physician statement form in your disability claim? One of the most crucial pieces of evidence in your ERISAa claim is that attending physician statement form your disability policy requires that you prove that you meet the policy definition of disability, that you have an objective basis for the diagnosis, and that there is an objective basis for the restrictions and limitations assigned and your inability to perform those duties of your occupation or the any other occupation. Now, the disability carriers have created gene often irrelevant attending physician statement forms that purposely don't ask the right questions. I will supplement the carriers APS form with appropriate social security, disability, residual functional capacity form. These are forms that have been developed by social security attorneys and their disease specific a properly RFC form can make all the difference. I think in determining your entitlement, not only to your long-term disability benefits, but social security benefits so often because I do both social security and ERISAa disability work, I am using the residual functional capacity form, not only in the ERISA a disability claim, but in the social security claim . And that's important because most carriers require you apply for social security. So this kills two birds with one stone. So what are those nine tips to getting your doctor to fill out the APS form and the right social security, residual functional capacity form. Number one, understand the definition of disability before you ask your doctor to fill out any forms. You gotta understand how the policy defines disability and whether or not you need objective evidence of the diagnosis and disability. And if so, your doctor's gonna need to know that , uh, right off the bat, because if there are no objective findings for the diagnosis, we're gonna have some issues. So maybe we want to have some agnostic studies to prove up the objective basis. Number two, understanding the material and substantial duties of your occupation. You need to both understand how the policy defines material and substantial duties. Is it how you performed it for your employer and the local economy, the national economy, or pursuant to the dictionary of occupational titles. So once you understand how your occupation is defined, we wanna create that document that identifies on the left hand side, the material and substantial duties, not lumped together, one by one by one. And you wanna draw a line from the left side to the right side of the paper, and you want to write down, well, what are the symptoms that prevent me from doing X and exactly how do those symptoms impact my ability to do X? Because your doctor's gonna need to understand that if they're to accurately and completely fill out the attending physician's statement form number three, picking the right RFC form. Now there are many different residual functional capacity forms, and you may have to pick out more than one and take one to each of your appropriate specialties. Uh, it might be that you have, for example, a low back problem, so you to use the low back residual functional capacity form, but you're also having , uh , problems with , um, depression. So you have to take to your psychiatrist, a depression, residual functional capacity form, or you might have a cardiac condition , uh , combined with a hip condition. So you want your cardiologist out a security residual cardiology form, and your orthopedist to fill out a orthopedic, a lower extremity or major weightbearing joint residual functional capacity form. Now you can go online and you can download those and go ahead and do that for a moment. Take a look at those and compare them to that generic APS. <affirmative> can you , can you see the difference where you should be able to see the difference? Because the RFC form asks relevant questions that are unique to your medical condition. The APS form asks vanilla generic questions designed to confuse your doctor or limit their ability to explain why you can't perform material and substantial duties of your occupation. In fact, I think that the APS forms are purposely designed. So your doctor has no choice, but to say that your can function in a sedentary capacity, and that's the answer that carriers are looking for, cuz it gives them ammunition to deny your claim. Number four, doing a draft APS form and residual functional capacity form to take your doctor. Now, I think it's important that you tell your story to the disability carrier in a way that they understand , uh , and certainly to the social security administration in a way they understand it and that's symptoms and functionality. You can take that APS form, make a copy of it, do it in draft, do the same thing with the residual functional capacity form. Think about what are the and substantial duties that you can't do or have difficulty doing. And then back into these questions about the ability to sit, stand, walk, stupid , and vent , then take the draft to your doctor with a clean copy. Number five, schedule an appointment with your doctor. The, there are two ways to go about this. The first is to schedule an me to fill out forms with your doctor. And the second is to just set up a regular appointment and discuss the form with your doctor. If your doctor says I don't do paperwork, or the nurse says he doesn't do paperwork, set up a regular appointment and talk directly to your doctor. If your doctor says no, it's time to find another doctor who will treat you and fill out forms. Now, the next thing you have to do is to schedule an appointment with the right doctor. If you're treating with a specialist, you want the specialist to fill out the appropriate form. So for example, if you're treating with a rheumatologists for fibromyalgia, you want to have the APS form, add a fibromyalgia, social security, residual functional capacity form, complete it . Now, if for some reason they don't fill out the form or they don't think you're disabled, take the physical residual functional capacity form to your primary doctor and see whether or not they will complete them. I , if I had a preference, I would obviously prefer the rheumatologist number seven, tell your doctor what's going on with you at the beginning of the appointment, tell your doctor, you're applying for long term disability and probably social security benefits. And you need their help. You can provide your doctor with copies of all the relevant testing in some form of on logical order and the draft forms you completed. You do not want to give them all the medical records. This is a highlight. This is like, you know, Monday morning quarterbacking. And you get to see the highlights of the game. You wanna explain to your doctor that this is your opinion about your functionality over the course of an eight hour Workday and what you think you can do either at work or a at home or both give your doctor examples of those symptoms and how those symptoms impact your ability to function. You might only be able to stand at the kitchen for 15 minutes to do the dishes. And then you have to sit down because of your back pain that radiates down your both legs. So give a couple examples that will help tell your story. Now, number eight, sit with your doctor. As they fill out the APS and residual functional capacity form. Doctors may wanna fill out the blank forms later, but I think that's paperwork that just ends up on their desk and it gets lost. It's easier to go through the residual functional capacity form with your doctor, but you wanna make sure that their medical opinions are based on your examination, findings, the diagnostic testing, any surgical records . So there's an objective basis of the restrictions limitations. Now your Dr. May say, Hmm , I don't fill out these S forms. You go get a functional capacity exam. Now that can be done. Um, and it costs anywhere from $900 to $1,500 to get an FCE it's rarely done by insurance or paid by insurance and explain to your doctor that the disability carrier and the social security administration really want their medical opinion and not a functional capacity evaluation. But if the doctor insists it is time ladies and gentlemen, to get a lawyer, a social security lawyer and ERISA lawyer who can and do several things. One, they can arrange an FC at your expense with the right functional capacity provider. Who's gonna be sympathetic. They can alternatively , um , send you to another doctor or help you find another doctor who will fill out forms. This is where you really, really need the assistance of an attorney. Number nine, paying the doctor. In addition to the cost of the appointment, many doctors are gonna charge anywhere from $250 to a thousand dollars to complete a form. And even more, if I send them the form, they think I'm a deep pocket and that I'm gonna pay it without asking you to reimburse me. So doctors will try to make some money on the forms and I get it. I mean, I routinely pay doctors $250 to fill out RFC forms. Uh , but they're good RFC forms. And the , and the APS forms that's money will spin cuz ultimately at the end of the day, the forms are crucial to the success of your case, but they should only be completed if your doctor supports your claim. Why? Because if it's not favorable, it will be ammunition used by the disability carrier and worse yet the social security administration requires that you send to them inform information from your LTD file. So if there is an unfavorable APS form or RFC form, the social security administration can use that to deny your claim. And if you try to hide the ball with that, then potentially your social security disability claim can be denied. So what should you do when you get those forms? Well, if you're represented, obviously you should give the forms to your attorney for review and filing. There are times when the answers on the RFC form have to be clarified or modified before the form is set to the disability carrier or the social security administration. Now I think that getting the APS form and the RFC form can it , it is great. But the next thing that needs to be done is, is you need to compare what is in your medical records, which what with what's on that form , uh , because they wanna see consistency in your medical records. The medical records should tell the story of your symptoms and functionality and the story should be consistent with the APS form and the residual functional capacity form. Now I like to have my clients take what I call a symptoms and functionality worksheet to their doctor. Uh, it explains between visits what's going on with their symptoms and functionality based on the medical condition that they're being treated with. Now, why is all this important? Because you know, I love stories. And in the next segment gonna tell you how reliant standards seized on a misstatement of the treating physician about the policy holder's ability to work and what one court did about it. And I don't want you to have to end up in court because of that kind of mistake. Let's take a break.

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Nationwide ERISA Attorney Nancy L. Cavey:

Welcome back to winning isn't easy. Are you ready for story time ? I read the case law that comes out every week and I'm reading cases across the United States by , uh , different judges involving different medical conditions and different carriers and different issues. Sometimes I will read horror stories. Sometimes I read stories that make me wanna cry. Sometimes I read stories that make me wanna cheer. Let's talk about how reliant standards seized on a misstatement of a treating physician about a policyholder's ability to work and what just one court did. So just because your disability carrier is paying you benefits, you deserve don't think they're happily going to pay your benefits through the life of your claim. Disability carriers are always looking for a reason to deny a claim and reliance standard is no exception. What I find is that the attending physician's statement form can be a gotcha game. And the carriers play this game in your claim with every APS form. So even <affirmative>, if you're on claim , generally the disability, carrier's gonna ask your doctor to complete the form and that form can be completed monthly, maybe every three months, every six months, but it doesn't matter. The frequency. Why? Because the forms are written in a way to mislead physicians about the disabling medical conditions, that form the bit basis of the claim and a pine that you can work. So let me tell you the story of Dr . Patrick, a gastroenterologist. He had a significant right shoulder injury and he underwent, she underwent rather surgery that was only partially successful. She filed a disability claim with her carrier standard who approved her claim in April of 2009 . Over the years, she developed left shoulder bursitis because of overuse in the right shoulder. And she continued to have significant debilitating right shoulder problems. Dr. Joen , the treating orthopedist continued to assert that she was disabled from performing the duties of a gastroenterologist because of the right shoulder problems. But in December of 18, he app applied on an APS form that she could return to work without restrictions and limitations. Now, this is an example of what can happen. Uh , doctors get busy doctors aren't paying attention. Sometimes it isn't even the doctor who fills out the form, but nonetheless, without seeking any clarification, reliance said, I gotcha . I gotcha . I gotcha . And they terminated Dr . Patrick's benefits. Was anybody surprised? No. Dr. Joen amended the report and submitted a sworn declaration under oath clarifying that while Dr . Patrick had no left shoulder restrictions limitations, she continued to have the right shoulder restrictions limitations that prevented her from performing her occupational duties. So what did reliance do ? They stuck their finger up in the air and said, eh , too bad. So sad. We're not gonna change our position. Ultimately of course they amended. They ignored the amended report and the sworn declaration, Dr . Patrick SU reliance standard as she should. And the federal judge was not impressed to say the least now, sometimes the judges are, but in this case, the judge was not impressed. The court said, look, reliance your failure to consider the amended report. And sworn statement was arbitrary and capricious. In addition, reliance didn't have any medical notes or opinions that contradicted or even called into question. Dr. Joes can conclusion that Patrick remained unable to practice as a full-time gastroenterologist. They didn't even have their liar for hire doctors address it. They just seized on the air that Dr jonin made and Joen was clearly commenting on the left shoulder, not the right shoulder and rely on standard, ran with it and tried to run away , uh , with robbery running away from the scene of the crime. And the judge said, oh no. And ultimately directed , uh , the carrier to pay her the benefits. Now that was a great result, but she had to end up in federal court and hire a lawyer and Sue reliance to get there. So you can see that is really important that the APS forms be completed accurately and hopefully reviewed by an attorney before they are submitted. I hope you've enjoyed this week's episode and learned some lessons about attending physician statement forms. 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 insightful episode of winning. Isn't Easy.