Common Insurer Tactics

The claim staff unfairly cherry picks from the medical records to exaggerate function and ignores medical evidence supportive of the impairment. The insurance company must perform an analysis of your overall condition and whether it renders you disabled. The insurer should not ignore your doctors’ consistent conclusion that you are unable to work due to the interaction of your physical condition and necessary medications to treat them.

The insurance company utilizes biased medical and capacity forms designed to extract from medical treating doctors’ information useful for a denial of the claim. The misleading forms often do not provide room for the treating doctor to elaborate on their opinions and may not provide the option to indicate less than sedentary capacity. Your treating doctor does not have to complete the forms if they are misleading and can instead prepare a letter responding to the insurer’s questions about the medical support for your restrictions and limitations.

The insurance company has its medical consultant call or write to the medical treating doctor, challenging the grounds for the disability and advocating unfairly that the treating doctor acquiesce and support work ability when there is none.

Often your treating doctor will be called by a medical consultant, pressing them to agree with their position that you are not disabled for varying reasons. The medical consultant will then note that he spoke with your doctor, and mischaracterize the doctor’s statements. Your doctor should be instructed not to speak with anyone on the phone from the insurance company and to have any requests for information or dialogue placed in writing so the doctor can sit down with your medical records and provide a response.

The insurance company challenges your credibility, ignoring your self-report of your condition and what symptoms disable you, without any evidence that you are not honestly portraying your condition. The courts have roundly criticized insurers’ reliance on reports by reviewing physicians that make credibility determinations about a claimant’s self-reported symptoms without having examined the claimant. The impressions of your treating doctors sensibly are given more weight that insurance medical consultants that look only at the medical records.

Many policies issued by disability insurers contain a limit for the time period a mental illness will be covered under the policy, often restricting LTD benefits to 24 months. Mental health is a tricky subject when it relates to a disability. There are certainly some disabilities based purely on one’s mental health, such as bipolar disorder, severe depression, post-traumatic stress disorder and other DSMV mental health disorders. But what about mental illness caused by physical illness? During life’s trials and tribulations, most of us have some experience with anxiety, depression and uncertainty. It is reasonable to suffer some mental health issues when facing disability based on a physical illness. No one is happy when learning they have a serious medical illness, and experiencing an inability to work.

We are often hired to help clients prove to the insurance company that their disability is not due to, caused or contributed to by a mental illness but their physical condition independently causes the disability. Careful monitoring of medical records and coordination with health care providers can reduce the risk that an uninformed treating doctor will cast a claim as one caused by mental health functional limitations if a physical illness is the primary cause. Many courts around the country utilize the “but-for” causation test, which provides that benefits will continue beyond the two-year limit for a mental health condition if a physical illness independently supports a total disability claim.

The insurers have a right under the insurance contract to require that you undergo an IME, they title “independent medical examination”, when in reality it is really an “insurance medical examination.” The doctors retained to perform these exams often make a lucrative career by performing IMEs, and limited their actual patient practice. We educate our clients about IMEs and prepare them with the information they need to fulfill their obligation to cooperate, but also establish the disabling features of their condition, either with a pre-post IME exam by their own doctor, a witness to accompany them to the exam, or other creative resources to establish the evidence necessary for success and to refute the insurance company’s assertion.

FCEs are performed by physical therapists, and their goal is often to find that the patient is capable of working in a sedentary capacity. Most FCEs’ under value and under report the patient’s limitations during the exam, and how their pain limits their function. We suggest that you schedule an examination by your own doctor for the day after the FCE so your doctor can evaluate your level of function and pain at that time. Even if you could perform on the FCE, if your condition deteriorates on the day following the exam, you can use this to establish that you cannot work on a reliable, consistent basis.

The insurer often requires claimants to submit to a neuropsychological examination by certain biased doctors they have used in the past. These examinations are not focused on objectively evaluating your cognitive function and often are looking to establish that a person is “malingering” or exaggerating symptoms. We do not permit our clients to undergo these examinations with certain doctors that we refer to as “reliable resources for denial” and insist that the insurer select a more neutral examiner. If you are scheduled for such an examination, we suggest that you ask to tape record the interview section of the evaluation, take breaks during the testing noting the time of each, and ask that the examination be scheduled over several days if you have a problem with cognitive fatigue.

The insurer’s vocational review and analysis (if any) focuses on your physical ability to “sit” and fails to account for your inability to perform all of the material and substantial duties of your own occupation or any occupation as required by the policy.

For the past decade, insurance companies have generalized how much physical activity is required of a job, by using categories of sedentary, light, medium or heavy. Insurance companies seek to associate many jobs in a physical category of “sedentary.” The category of “sedentary” means that the job can be performed with the worker sitting for the majority of the day. Then they try to establish that if you can sit for most of the day, then you should be able to perform your job.

These physical categories, often used in Social Security claims, deprives you of key aspects of your occupational duties. Barely anyone simply sits in a chair to perform their occupation. We all must use a keyboard, computer, interact with others, and utilize extensive cognitive skills to perform assigned duties. Rafel Law understands the importance of these assessments, and works with her clients to establish the physical and cognitive demands of their occupation, connects that with their impairments with proofs necessary to succeed.

Cognitive decline is ignored by the insurance company. We suggest to our clients that they undergo a Neuropsychological Evaluation to objectively establish memory deficits, problems with processing new information, problems with multi-tasking, issues with recording new information recently learned. The evaluation involves a battery of tests to objectively measure your intellectual functioning, memory, executive functioning, speed processing. Validity testing should also be performed to confirm the objectivity of the results. The full evaluation is usually performed over one to two days.

The disability insurance company conducts surreptitious surveillance of you, to try to entrap you, to show that you are doing more than you say. They use companies trained to follow and record activity and even in a case with Liberty Life, used a drone to follow my client! The videos are then placed on a CD and provided as “video clips”- rarely are we provided with the actual raw footage from the moment the surveillance begins to the time it ends. This selectivity is objectionable! The courts are, by and large savvy to the limited relevance of video tape showing you leaving the house, taking care of your outdoor property, walking your dog, getting groceries. Indeed, courts viewing limited video evidence in disability cases often conclude that it supports a disability claim when it corroborates our client’s own account to the insurance company of his limited activity.

Once LTD benefits have been awarded by the long term disability insurer, they require you to file for SSA. The reason is that they offset, or reduce the amount of monthly benefits they pay to you by the amount of money you receive from the SSA. But, when it comes time to pay claims, the insurer conveniently disregards the SSA decision. They assert that they look at other evidence that was not before the SSA, but often that is not the case. Courts uniformly hold in disability cases that an insurer’s disregard of a favorable disability finding by the Social Security Administration is grounds for reversal of a denial. The favorable disability determination by the Social Security Administration is significant evidence in support of a claim because the SSA is an independent judicial body and its finding represents a reasoned conclusion based on the same evidence that was available to the insurance company.