Disability Insurance Lawyer Blog

FRANKEL & NEWFIELD WARNS CLAIMANTS - DIAGNOSIS WITHOUT TREATMENT CAN PUT YOUR DISABILITY INSURANCE CLAIM AT RISK

Filing a disability insurance claim without being under the care of a physician and without undertaking a course of treatment for the disability puts claimants in a vulnerable position. To the insurance company, no treatment means no disability - and no disability means no benefits.

This is especially true for individuals suffering from symptoms that overlap.

An example: Chronic Fatigue Syndrome (CFS) manifests in a number of varied symptoms, including overwhelming fatigue, cognitive and neurological problems, irritable bowel syndrome (IBS), vertigo, muscle and joint pain, to name a few.

But what if that diagnosis is mixed in with untreated sleep apnea? One of the most pronounced symptoms of sleep apnea - a condition where breathing repeatedly stops and starts during sleep - appears to be the same as CFS. So an untreated case of sleep apnea combined with a diagnosis of CFS equals a denied claim from an insurance company.

Frankel & Newfield has represented many individuals suffering from the effects of Chronic Fatigue Syndrome (CFS) with great success. If you are suffering from CFS or sleep apnea and are not in treatment for either condition, you may be putting your future at risk. To learn more, call our office at 877-LTD-CLAIM (877-583-2524).

Your first objective is to care for your health. Our first objective is to protect your disability benefits. Together, we can find the solution. Call Frankel & Newfield today at 877-LTD-CLAIM (877-583-2524).

Appeals Court Reverses, Grants Retroactive Benefits

The Ninth Circuit Court of Appeals seems to "get" it. The Court reversed a decision that was favorable to an insurer, granting the retroactive payment of benefits to a claimant who has had numerous hip revision surgeries, and was getting paid Social Security Disability benefits.

The Court found that the quantity and quality of the medical evidence supports the claim, where the Court rejected the insurer's argument that a lack of objective evidence existed, where the Court embraced the consistent use of strong paid medication, and where a Functional Capacity Evaluation ("FCE") supported a finding of impairment. The Court found that the insurer failed to credit reliable evidence. The complete disregard of the Social Security determination further informed the Court's decision.

The Next Supreme Court Justice? How will claimants fare?

As Judge Sotomayor's prior legal decisions, speeches and viewpoints are analyzed by the media and politicians, it is important for lawyers to appreciate her views and perspectives on issues that may impact our respective practices. So, what is Judge Sotomayor's perspective on disability insurance issues?

She has been involved in a number of decisions regarding disability insurance law, both when on the District Court bench, and on the Second Circuit Court of Appeals. She has been involved in decisions providing considerations of equitable principles to assist claimants, but she has also found in favor of insurance companies on several matters before her on the Court of Appeals. It appears that she will follow the law largely, and despite many protestations from the politicians, she is likely to refrain from too much judicial activism, at least as it pertains to the area of disability insurance law.

The attached article offers the opinion that Judge Sotomayor may in fact be pro-insurer.

CDC Reports More Americans Reporting Disability - Frankel & Newfield is here to help

According to a study released on April 30 by the Centers for Disease Control and Prevention, the number of American adults reporting a disability took a significant leap upwards between 1999 and 2005.  As the recession continues to grind on and the baby boomer generation continues to age, expect to see more claims for long term disability insurance benefits.  And don't think for a moment that the LTD insurance companies aren't paying attention.  After all, the entire business of insurance is based on the model that while some people will file a claim, most will not. 

When the statistics become overwhelmingly out of favor for the insurance companies, the hardball of claims will get even tougher.  If you have been denied disability benefits, if you are on claim and payments are delayed, if you are about to file for long term disability claims, or if you have had enough of dealing with the insurance company and want to explore a settlement, visit our website, give us a call at 1-877-LTD-CLAIM (877-583-2524) or click here to send an email.   Speak with a partner and find out how we can help you.

 

Investigative Tools Used by Insurers

There are several investigative tools used by insurers on disability claims, including IME's (Independent Medical Examinations), FCE's (Functional Capacity Evaluations), Peer Reviews, Field Investigations, and Surveillance.   The insurer has a contractual right to compel a claimant to undergo an IME, and in most circumstances, a claimant has the obligation to attend an examination.   However, certain testing may not be reasonable, and certain evaluators may not be independent. 

An FCE is an entirely different scenario.  In contrast to an IME, an FCE is not generally contractually required.  This test is utilized by insurers to test one's maximal effort, which is then used to extrapolate whether one can work full time on a sustained basis due to the ability to perform a myriad of tests.  Thus, there are numerous grounds upon which to refuse to attend an FCE, and both attorneys and claimants should be vigilant about asserting rights to refuse this test.  For additional information about FCE's please see our August 28, 2008 post or click here.

Insurers often use in house medical staff to contact a claimant's treating physician to discuss the claimant's condition, restrictions and limitations.  In essence, the insurer's medical staff seeks to develop evidence from the physician to demonstrate the claimant is not disabled.  Often, the insurer sends a letter to the physician "confirming" the conversation and stating that absent a quick reply, they accept the statements in the letter.  The letter, however, may either distort the facts, or cast them unfavorably to the claimant.   This can doom a claim.

Insurers also conduct peer reviews of claims, relying upon a non-examining physician to address functional abilities.  This has inherent problems, because it precludes the claimant from receiving an appropriate evaluation of the claim.  Thus, claimants must ensure that their treating physicians provide well developed, organized office notes and/or narrative reports to support the claim.

Field investigations are common techniques employed on claims by medical professionals.  An investigator will stop by unannounced to speak to the claimant.  Often, the investigator seeks to ascertain the claimant's activity level, determine whether the claimant is working in another interest, or to develop other information to be used by the insurer.  Caution should always be used when speaking to the insurer or its investigator.  Providing interviews should be done on the claimant's terms, whether recorded with witnesses, or by having a confirmation of interview prepared - all to avoid anyone distorting the information provided.

Surveillance is another technique frequently employed in high benefit cases, or where claimants allege disability based upon either subjective type conditions or where the objective support is not indicative of the restrictions or limitations.  In high benefit claims, the insurer is willing to invest significant money to terminate or deny a potentially expensive claim.  Claimants must be wary not only of their activity levels while on claim, but of any statements made to the insurer about their daily activities.  Inconsistencies can be fatal to a claim, as the expression a picture is worth a thousand words holds true with regard to surveillance.

Careful consideration must be given to each aspect of the claim, to ensure that the claim gets approved and remains accepted by the insurer. To learn more, visit Frankel & Newfield, P.C.'s Web site by clicking here.

Californians Should Be Concerned About Their Disability Insurance

According to Michael Kiltzik of the LA TIMES, anyone who lives in California should start worrying about their disability insurance protection.  Steve Poizner, a successful businessman and Insurance Commissioner of California, wants to roll back regulations that reduce disability insurance benefit payments to offset payments that the claimant receives from pensions, workers compensation payments or wages.    While offsets are business as usual when it comes to Social Security disability claims, why should Californians - or anyone, for that matter - who worked hard to earn a pension have that money offset against their benefits?

Poizner  is taking the position that insurance regulations already in place will prevent this - but these are the regulations that protect Californians from the insurance companies' chronic policies of denying and delaying and offsetting whatever is possible.  Poizner has set his sights on a Republican nomination for governor next year, and many are questioning this and other decisions where his chief constituency appears to be the insurance companies, not the good people of California who he has been entrusted to protect. 

New FMLA Requirements Are Now In Effect

As of January 16, 2009, employers will be required to comply with the United States Department of Labor's new Family and Medical Leave Act ("FMLA") regulations that concern employees who are related to military personnel and create new employee notification obligations. Among numerous changes, the revised regulations implement two new forms of leave for employees in the military.

Military Caregiver Leave which provides medical-oriented leave for employees caring for family members with serious injuries or illnesses incurred in military duty and
Qualifying Exigency Leave which provides leave for various, non-medical obligations that arise out of a spouse, son, daughter, or parent being on active duty or on call to active duty status.

The new FMLA regulations also require employers to provide several new forms of notice regarding FMLA rights and obligations.

A new "General Notice" must be provided to employees as part of an employee handbook or through documentation issued upon hiring.

Upon five days of either a request for leave or learning that a leave may qualify under the FMLA, an employer must issue a personalized "Eligibility Notice" that addresses whether the employee meets the statutory requirements of the FMLA.

Upon five days of either a request for leave or learning that a leave may qualify under the FMLA, an employer must issue a "Rights and Responsibilities Notice" that sets forth various facts relevant to the employee's leave.

Five days after receiving sufficient information to determine whether the need for leave is FMLA qualifying, employers are required to issue a written "Designation Notice."

Insurance Companies Are Circling The Wagons

As the economy grinds ever slower, markets dive and the only increasing numbers are jobs lost, disability insurance companies have begun circling the wagons into a tight, self-protective circle that claimants will find increasingly harder to break through. The disability insurance companies are fighting to protect their cash reserves and the claims area is the first and fastest place to shore up cash reserves.  There is no downside for these companies when they delay or deny a claim, and long term disability policyholders need to keep that in mind as they go through the claims process.

When disability insurance companies deny or delay claims, the worst that happens to the insurance company is that a court will force them to pay the original amount of the claim to a date certain (and not into the future) and their in-house attorneys will be busy.  For policyholders, claim delays and denials can lead to a ruined credit rating, loss of their home, bankruptcy and worse.  

Disability Income Insurance: What Everyone Needs to Know before buying an Individual Disability Policy

Have you taken steps to protect yourself in case of a sudden disability that prevents you from working?  The right disability income policy can help you keep your household going if you suffer a disability. Before you go shopping for a DI policy, you need to know what features to look for in a high quality policy--and the language the insurance industry uses to describe them.

• Non-cancellable: To avoid the possibility of losing your coverage just when you need it most, choose a policy that's non-cancellable and guaranteed renewable to age 65--with premiums also guaranteed until age 65. With group (employer sponsored) or association group coverage, you run the risk of being dropped and left unprotected at a time in your life when, due to your age or to a change in your health, it would be very difficult to qualify for coverage from another provider.

• Conditionally renewable for life: Although premiums may increase after age 65, your policy should be guaranteed renewable for life, as long as you are at work full time.

• "Own-occupation": This coverage defines "totally disabled"--and therefore eligible for benefits--as being unable to perform the material and substantial duties of your own occupation even if you are working in a different occupation. As a highly skilled professional (a doctor for example), who has invested so much in education and training, you want to ensure you have genuine own-occupation coverage...so that for example, even if you can teach in your field--but cannot practice in your medical specialty--benefits are still paid.

• Residual Disability coverage: Through a rider, a good individual DI plan can provide you with protection against the income loss you may suffer as a result of partial (residual) disability--even if you have never suffered a period of total disability.

A choice of "Riders": Riders offer optional additional coverage such as annual Future Increase Options, Automatic Increase and Cost of Living Adjustments.

To learn about additional key terms, vist Frankel & Newfield, P.C.'s website by clicking here.