Unum’s Doc to Doc Calls – Careful….or You May Lose Your Claim

In keeping with Unum’s end of the year targeting and efforts to deny as many claims as possible by year-end 2009, it has come to our attention the company’s “internal physician consultants” are contacting as many primary care physicians as possible.  It is important to review the below information and contact your physicians as soon as possible.

This is an exerpt from an article on the subject reprinted for the benefit of our non-clients.

One of the many ways in which insurance companies manage medical information for claimants on disability is to request what is called a doc-to-doc call. It is quite common for an attending physician to feel obligated to speak to an insurance physician when, in fact, he/she has no real obligation to do so. Physicians do have the right to refuse to speak to any insurance physician verbally on the phone. It is important to communicate this to your doctor and offer him/her the option of asking the insurance company to submit their questions in writing.

Doc-to-Doc calls are pre-planned by the insurance medical department with specific goals to accomplish the following:

• Intimidate the physician with higher credentials or reputation- place the attending physician in a situation of submission because of “board certified credentials.”
• Convince the attending physician to support the insurance company’s point-of-view that the insured can work in some capacity.
• Document a return to work release in the shortest amount of time.
• Create a document signed by the attending physician which supports the insurance company’s medical review in order to support a claim denial in the quickest amount of time.
• Obtain a written return-to-work release from the attending physician.
• Obtain a prescription or verbal release to perform a Functional Capacities Evaluation or a written “buy-in” to an IME.

Usually, the insurance company will send the physician a letter with a request to schedule a doc-to-doc call. Then, after the call, the insurance company will always follow-up with a confirming letter stating, “if you agree with the basis of our conversation, please initial or sign the letter on the bottom and fax back to us.”

Quite often Unum’s physicians will contact your primary care physican during a busy day to deliberately catch the doctor of guard. Doctors are in the business of patient care, not disability reporting. It is likely physicians can give Unum information without sufficiently reviewing your patient file, or having the opportunity to prepare and think about his/her responses.

In addition,  Unum’s follow-up letters do not state the basis of the doc-to-doc conversation honestly, and actually attempts  to take advantage of the physician’s busy day to obtain a signature on the document that does not accurately reflect what was actually said.

After reading a few thousand of Unum’s doc-to-doc follow-up letters, it is clear the communication is deliberately intended to misstate the basis of the conversation – these letters to your doctors are NEVER accurate presentations of what was actually said between Unum’s doc and your doc.

 It is very important for the physician to know he/she is under no obligation to speak to an insurance physician on the phone on behalf of any patient, and can request Unum submit any questions in writing. The physician should charge Unum a regular fee. 

If your physician agrees to participate in the doc-to-doc call, it should only be done with the full knowledge and consent of the patient and a record of the call should be made and placed in the patient file. Then, the physician should document his/her own confirmation letter rather than signing the one submitted by the insurance company.

 The above  is appropriate for any request made by an insurance company for a doc-to-doc call.  If the questions are answered by the doctor in writing, there will be NO question as to what he/she actually said about the patient’s condition and ability to work. In fact, your doctor eliminates the opportunity of being misquoted by responding to Unum only in writing.

Anytime a doctor speaks to an insurance company physician, particularly Unum’s physicans, there will be a risk of being misquoted. Unfortunately, the attending physician can attempt to recant what was said later, but it is nearly impossible to do so. The “gotcha” initiated by Unum takes advantage of the attending physician and the insured in order to manipulate a work release signed off on by an attending physician who may not be paying attention. 

It’s important for the attending physician to realize the insurance company has an intended objective of obtaining information needed for a work release in order to make a termination of the claim look credible.  The insurance physician would NOT be calling the attending physician if the insurance company agreed with the reported restrictions and limitations precluding work. Unum always has its own agenda for making a doc-to-doc call and it isn’t good.

Coming out the gate, then, it should be clear the insurance company is contacting the doctor because it disagrees with his/her medical opinions.

DCS recommends to all primary care physicians that they submit invoices to Unum for their time in filling  out written narratives, or participating in doc-to-doc calls. Fees range anywhere from $200-$500. Please make sure you let your physicians know they can charge Unum their hourly fee.

Fees for responding to written narratives can increase if Unum engages in vexatious, repetitive requests which take even more time out of the physician’s busy day. This includes any administrative costs incurred for photocopying, postage, or time spent by administrative personnel in typing, or preparing information requested.

In conclusion, it is important to share this article with your attending physician. Good communication between doctor and patient and respect for the physician’s busy schedule goes a long way to having a cooperative relationship with a physician. It is crucial to go prepared with notes about your condition to each appointment and request the treatment notes before you leave the office.

It is also important to remind the doctor’s office that they are not to be intimidated by the insurance company’s requests and that the doctor can charge a fee to the insurance company for any requests for forms, narratives, and phone calls etc. which take considerable time to complete.

In addition, any physican can refuse to communicate with Unum, or any other insurance company on the phone and request any additional narratives be submitted in writing. Your physicians should be informed of the need to protect the integrity of their opinions by making sure all communications with an insurance company are in writing only.

 Unum and other insurance companies have no authority or power over primary care physicians. In fact, it’s quite the opposite. Physicians often do not realize the “power” they have in communicating their opinions to an insurance company and frequently take the path of least resistance fearing they might be hurting the patient.

In reality, physicians can be very assertive in stating their medical opinions and need to do so.  Many times when physicians take the proactive and firm approach, the insurance company stops vexatious requests for information and is more inclined to accept the physician’s prior recommendations and medical restrictions.

Attending physicians can communicate with the insurance company by:

1. Completing the Attending Physician’s Report on a monthly basis clearly documenting medical restrictions and limitations precluding productive, consistent work. Additional pages can be added to the APS as appropriate. Your physicanis not limited to the Attending Physician’s Statement.
2. Providing a written narrative describing the patient’s medical history, treatment plan, prognosis and ability to work. Although narratives are credible presentations of the physician’s opinion regarding the patient’s condition, the same information placed in office treatment notes is more credible to an insurance company.
3. Completing a written series of questions received from the insurance company referred to as a “narrative” in lieu of actually speaking with an insurance-paid doctor on the phone.

Although it is important for all primary care physician’s to provide Unum with medical restrictions and limitations, your doctors should recognize Unum’s ability to manipulate opinions and previously reported medical restrictions in their own favor.

With regard to doc-to-doc calls, insureds have HIPAA rights in designating patient records and medical information as “PHI” or Protected Health Information. If you contact DCS we will inform you of how to protect your rights and prevent doc-to-doc calls from taking place. We prefer to keep this additional information proprietary, but we’ll help you if you fear Unum may have contacted your doctor or will contact your doctor in the next several weeks.

Bottom line……………Unum (and other insurance companies) are doing everything they can to terminate as many claims as possible before year end.  Take control of the process and don’t let it be YOUR claim. Talk to your doctor and provide him/her with this information soon.

ADDENDUM   November 27, 2009

We received word today that Unum attempted to contact a primary care physician by phone and actually gave the physician inaccurate information from the insured’s claim file. Either Unum’s internal physican didn’t thoroughly review the file before contacting the insured’s physician, or, the misstatements were deliberate. In either case, this information is consisent with our observation that Unum’s physicians use prejudicial means and mistatements of fact in an effort to persuade physicians to say the insured can work in some capacity. Fortunately, this physican did not sign the misstated follow-up letter and will be providing Unum with one of his own. We will be reporting this physican to her state licensing board.

DCS was also contacted about another physician who received a call from Unum’s doc. We are currently working to resolve this situation with the insured.

Unum’s Holiday Cheer – A Field Representative Visit or Worse

DCS, Inc. has received many calls today about Unum field visits. The next six weeks are going to be pretty scary with Unum unit managers trying to deny as many claims as possible to “roll in” their targeted profits. Unum may not be admitting to financial reserve targets, but there’s a reason why activities such as field visits, surveillance, doc-to-doc have increased in the last month. Regardless of the reason, Unum appears to be targeting claims to meet end of the year financial targets whether the company admits it or not. The next six weeks are going to be really scary for claimants and insureds. It’s very important for you to clearly understand how to control the interview process.

If you have any questions about insurance field visits please feel free to send me a private email so we can chat about this.

Also, please be aware Unum often conducts surveillance before, during or after a field visit. If you need information about insurance surveillance please visit our website and read some of our articles. http://www.disabilityclaimssolutions.com

 

Unum November Complaints

Jim of South Portland, ME November 10, 2009

I have been paying into my health ins plan for 7 years.It was established by my partner, who was an Unum employee. He passed away 7 years ago. Never was a problem until about July of 08. I was hospitalized and missed a payment. Since that time things have never been the same. I would mail my payment, it never cleared my account. I would call and be told I was going to be terminated. My credit union however had the numbers of Confirmation. Where was my check, no one knew. This process has continued until today. I called the Resource Center, spoke with Elina, who was very gracious, and it seems my November check is missing and I am about to receive a Notice of Non Coverage due to lack of payment. How does a company the size of Unum, use a benefit company like Hewitt.Where are my checks that are stamped as being received, yet I have my coverage discontinued.Something is very wrong here.

Anthony of Nesconset, NY November 6, 2009

I work as an RN and had to go out on disability August 17th 2009. The reason was “substance abuse” which originated from a prescription anxiety medication I was prescribed Klonopin which is very addictive, and was on this medication approximately three years. In addition I was prescribed several other addictive sleep medications such as Ambien, and Lunesta and Fiorcet for my Migraine Headaches.

After I had to leave work I went right in to Rehab and saw all the appropriate doctors. I promptly applied for Disability under the Auspices of the rehab Physician. After close to a month I recieved my first denial notice which stated “substance/drug abuse is not covered unless prescribed by a physician”. This was their first stall attempt. The medication was prescribed. However I decided to play along.

I wrote them a long letter describing the situation. In addition I provided the full year of pharmacy printouts which showed the ambien, klonopin, lunesta, and fiorocet. In addition my primary doctor wrote a letter stating he prescribed the ambien and lunesta and my Psychiatrist wrote a small note stating that he had prescribed the Klonopin for generalized anxiety.

I sent this package via certified mail October 13th with hight hopes and received my second declination on November 5th. This time their reason was completely outrageous and I know they are just trying to waste my time. They state “The diagnosis provided by my physician is generalized anxiety disorder and is excluded from the policy” The fact that I had Anxiety and was being treated with Klonopin in the past should have nothing to do with the fact that I was now claiming substance abuse as disability which they DO cover. I am not disabled from anxiety. In fact Sice being in Rehab since August I have not been on any medication what so ever.

I do not think they can change my whole disability claim to “anxiety” because my doctor wrote I was being treated for anxiety in the past on a prescription pad. I filled out all the legal appropriate forms and had the rehab doctor sign the disability forms stating substance abuse was my disability. NY state paid my disability.

I have some meager sick time left from my Job but it is not enough to support my family. And it irritates me that through this all first Unum is still being paid every pay period and and not paying me on my claim. Now they say they want my full private medical records and I am not sure if I should give that to them. they already have enough information.

I cannot return to work until the middle of December. My sick time and benefit time from my job will end in November 2009. As a result I will not be able to pay any of my bills in December. My mortgage alone is 2200 not to mention oil,electric,car payments and then it is the holiday season. I am entitled to 2700 a month from first Unum which I have been paying 60 a month for years just in case something like this happens.

Read more: http://www.consumeraffairs.com/insurance/unum.html#ixzz0XbCn1sBX

Met Life Denies FMS Claim Based on Surveillance

Met Life recently denied a longstanding  FMS LTD claim of 15 years based on surveillance and a doc-to-doc call with a primary care physician. (DCS, Inc. takes a firm position with doc-to-doc calls. Please call  us for assistance.) Remember all disability insurers have stepped up surveillance activity in order to deny as many claims as possible before year-end.

Met Life’s denial letter states the claimant was seen during a 4 day surveillance doing the following activities: 1) walking her dog around the block; 2) entering and exiting her vehicle and driving; 3) entering a U.S. Post Office; and 4) stopping at a well known Mexican Deli. Met Life also conducted an activities check which it is referring to as a “spot check” and found the claimant is affiliated with a charitable business.

The described surveillance is nonsense. Fibromyalgia patients are always given direction by their primary care physicians to remain active and exercise as they are able. This would, of course, include “walking a dog around the block”, and going to the Post Office.

Getting in and out of a car and driving is equally ridiculous since fibromyalgia patients are generally not given medical restrictions preventing them from driving.  The fact that Met Life used such a surveillance report as backup to deny a claim it paid for 15 years is an indication of how far disability insurers are willing to go to deny claims prior to year end.

After viewing the DVDs, Met Life then referred the claim to a “board certified” (an insurance paid rubber stamp physician) who provided a report that there was no”objective evidence to support the insured is disabled.”

All of this for a monthly benefit of $250 per month!  Please think about this for a moment…..a major disability insurer agressively risk managed an ERISA LTD claim it paid for 15 years for $251 a month. Incredible isn’t it?

Surveillance, used appropriately, is intended to show the claimant is performing physical activity beyond restrictions and  limitations provided by a physician. In other words,  as long as the claimant does NOT perform activities previously restricted by a primary care physician, the insurance company may not use the surveillance to support a claim denial.

BUT………disability insurers do not often read the claim file and connect the dots between legitimate medical restrictions and limitations and observed surveillance activity. Claims specialists are always in a hurry to terminate the claim and often “forget” what the intended purpose of surveillance is, or how it could be justifiably used.

When used appropriately, surveillance CAN identify claimants who have filed fraudulent claims. However, when used adversely against the insured without connecting the dots between legitimate restrictions and limitations and observed activity, surveillance is always used to back-up an otherwise weak case for a claim denial.

For the record, this claimant does not want to pursue an appeal – she just wants to “let it go.” As she told me this evening, “for $250 a month, it isn’t worth getting upset over.”  Unfortunately, this ERISA case is just another one of those situations where disabiltiy insurers deny claims hoping the claimant will just go away – and this one is going to do just that.

However, the claimant will be filing a complaint with the US Department of Labor and DOI in California requesting a conduct market examination of Met Life’s claims practices. 

If anyone has any questions about surveillance please visit our website, or send me a private email. We have information available that may be of assistance to you when you notice an insurance surveillance taking place.

The Second Worst Disability Insurer – Sun Life Financial

While Unum Group continues to hold first place in the worst disability insurer category, Sun Life Financial ranks a definite second. If Internet viewers believed Sun Life’s marketing for group insurance, “Take the worry out of your disability plan with our easy administration, expert claims mangement, and return to work incentives”,  no one would have to worry about their disability future at all. But, that’s not the case.

Sadly, Sun Life Financial doesn’t pay claims. Our experience with Sun Life’s claim review process is that it operates in chaos, negligence, and with poor customer service. On two occasions Sun Life lost documents sent to it, one of which was an entire appeal package with over 100 documents. The company cannot be relied upon to receive documents sent in the mail. They lose nearly everything.

In addition, I’m wondering how the company can get away with claims of an “easy administration” when the company takes up to 6-8 months to make claims decisions. “Expert claims managment” is often outsourced to ex-Unum managers who reside in other states.

Sun Life’s applications for STD and LTD are over 20 pages in length ! That’s not an easy task for a claimant who is impaired. But, the more difficult, lengthy, and frustrating Sun Life can make the application forms, the easier it will be to claim the company didn’t receive a complete application, or the information it needs in order to investigate the claim. A twenty page STD application is not reasonable – a company who understands disability should know that.

Most claims handlers I’ve spoken to at Sun Life are more interested in tricking the insured, or investigating red flags when there are none. Claims handlers can spend a great deal of time chasing alleged malingering ghosts. The company needs to train claims handlers to focus on the facts of the claim rather than trying to make a fraud case out of every application. Most claimants are honest.

Finally, Sun Life’s “return to work incentives” are pretty clear – when claims are denied, claimants have to return to work. That’s some incentive.

In fact, we got the impression Sun Life’s employees believe their claimants are no more than malingerers and treat them accordingly. DCS, Inc. does not recommend Unum Group or Sun Life Financial to employers. Sun Life Financial just doesn’t appear to have it together, and just doesn’t pay claims. Employers need to hear that.

Unum Eliminating Jobs in Portland Office

DCS, Inc. is receiving calls regarding Unum’s eliminating jobs in Portland, ME. We’ve made no effort to confirm this information since Unum has been downsizing the Portland office ever since its headquarters were officially moved to Chattanooga, TN some years ago. 

Confirmed or unconfirmed, this is yet another indication Unum’s services to its customers may be diminishing.  Customer service, a former top priority of the company, is nearly non-existent while managers are still running around crazy at the end of the month attempting to “bring in” as many terminated claims as possible. This is not good news to claimants and insureds who are entitled to services and fair and equitable claim reviews.

It was always believed by employees of Unum that HOIII on Congress St in Portland would eventually sprout wheels and roll to Chattanooga anyway in order to centralize operations. It wouldn’t surprise anyone to see Unum pull out of Maine entirely. Please let us know if you have any additional information about Unum eliminating jobs in Portland. In the meantime we will keep you informed of any information we have.

When Does a Disability Insurer Cross the Line? by Linda Nee

When Does a Disability Insurer Cross the Line? Editorial by Linda Nee

All disability insurance companies have the right to fully, and fairly investigate all of the facts of claims submitted to them for payment for the policies sold. The insurer also has the right to conduct surveillance and to make sufficient inquiries in order to determine insured’s inability to physically or mentally perform work and meet the definitions of disability as written in the policy contract.

In addition, all insurance companies have a legal, contractual accountability to perform all duties under the terms of the policy and to pay those claims that should be paid and deny those claims that should not be paid. In the performance of these duties all insurers are required to review claims with “good faith and fair dealing.”

If disability insurers would just do that there would never be a problem. Unfortunately, all U.S. disability insurers have come to realize it is impossible to make a profit, or at least a sustainable one, “just doing the right thing.”

Disability insurance has become big business with the potential of accumulating huge investment portfolios and profits. The entire industry involving the collection of premium based on the laws of large numbers and the assumption of risk cannot operate in the black without aggressive “risk management.

Disability insurers, unable to make a profit on the legitimate pay/not pay principle, seek to manage the risk and profitability of selling disability insurance policies thereby reducing the number of claims paid. What does this mean in plain language? In order to make the disability claims product profitable, insurers must DO something to deny compensable claims in addition to those which should legitimately NOT be paid. There’s no money in just denying the bad or fraudulent claims and this is where insurers begin to get themselves in trouble.

One of the first, and definitely the worst, strategy devised by disability insurers is that of “discretionary authority” which gives insurers the right to determine what is and what is not proof of claim in addition to the right of interpretation of policy provisions.

In a way, ERISA is wrapped around the concept of “discretionary authority” because the law actually allows the insurer a great deal of “discretion” in deciding which claims are to paid and those not. In ERISA once this decision is made, even the judge must agree with the insurer unless it is found the insurer acted in an “arbitrary and capricious” manner.

A handful of states along with the National Association of Insurance Commissioners (NAIC) have gone on record as stating “discretionary authority” is not conducive to fair and equitable claim file review. Some states have actually outlawed the provision. Still, “discretionary authority” is the primary way in which US disability insurers have managed the system to transfer their risk to the insured. When the fox is in charge of the hen-house potentially ANY compensable claim can be denied merely on the say-so of the insurance company.

Although “discretionary authority” is the beginning of that “stacking of the deck” you hear me talking about so often, independently, disability insurers concoct internal review strategies deliberately intended to produce higher volumes of denied claims.

A good example was Unum Life Insurance’s “blue memos” which directed the claims handlers to deny claims under certain conditions outside of the policy contract. Another internal strategy used by Prudential was to require the application of an “objective evidence standard” to all claims before the claim was approved. The problem was (and still is) most disability policies do not require objective evidence as proof of claim.

 In fact, Unum claims handlers were so brainwashed about needing “objective evidence” to pay claims most were amazed when they were told to actually find the provision in the policies and never found it. Occasionally, I still read Unum’s internal medical reviews written to say, “There is no objective evidence to indicate…….” This particular strategy was taken to the extreme when “objective evidence” was also required for mental and nervous claims. This crosses the line.

Disability insurers also cross the line of good fair and fair dealing by “snatching” key medical phrases from patient notes favorable to it, at the expense of all else contained in the notes favorable to the insured. This is a common strategy which is particularly egregious and deliberately harmful to the payment of legitimate claims.

Medical review personnel become quite skilled in their ability to mis-state, and misinterpret patient medical records in the company’s favor. Although medical records should be reviewed with the intention of arriving at a consensus as to what the insured’s actual work ability is, most insurers “look for” and “snatch” key phrases which if misstated create the illusion of work ability.

The creation of Aesop’s fables crosses the line and borders on internal insurance fraud with deliberate intent to harm. Insurance management which approves any “pattern of business practice” involving the documentation of false information from medical records for the purpose of deliberately denying the claim should be held accountable through a RICO action.

Most disability insurers target select groups of claims with specific criteria for the deliberate purpose of denying claims within that group. The most recent example is Unum’s targeting of Anesthesiologist residual claims where its medical reviewers generated review documents claiming the physicians could work in excess of 50+ hours a week.

Claims can be targeted by impairment, such as FMS or CFS, or by characteristic and occupation, such as all 9-18 month paid claims requiring any occupation investigations. Targeting and discriminating within insurance product groups, impairments, characteristics, or otherwise is representative of deliberate actions taken on the part of the disability insurer to deny claims within certain groups.

How can these claims possibly be reviewed fairly when the same risk management activity is applied to each one for the same purpose? Targeting of disability claims for the deliberate purpose of terminating benefits crosses the line.

Basically, at any time when the disability insurer deliberately “does something” with the intended purpose of causing claims to be denied, completely disregarding a preponderance of evidence in support of the insured, it has crossed the line of “good faith and fair dealing.”

In addition, insurers who deliberately, and consistently engage in misstatement of facts, and misinterpretation of medical patient notes, lab reports and records, for the purpose of creating a false impression in order to deny claims also crosses the line and should be brought into lawful accountability for their actions.

Remember, disability insurers cannot “play it straight” and make a profit – the only way to give shareholders their expected dividends is to cross the line and deny legitimate, compensable claims along with the 10-15% that shouldn’t be paid in the first place. One heck of a system isn’t it? Maybe we should change it.

Unum’s Fibromyalgia Position Statements and Guidelines

Unum’s Fibromyalgia Position Statements and Guidelines (7/29/2002)

Just before leaving Unum in 2002 one of its physician consultants handed me a copy of Unum’s “position statement” regarding Unum’s handling, review, and philosophy in administering fibromyalgia claims. Although this report is now over seven years old, there are strong evidences based on current Unum file reviews of fibromyalgia claims that many of its former guidelines are still supported by the company’s medical staff and claims managers to the demise of many insureds and claimants.

The report itself states, “Please note that although these guidelines have been written for fibromyalgia, considerable overlap exists between fibromyalgia and other defined syndromes of medically unexplained symptoms (such as chronic fatigue syndrome.”)  Therefore, it is clear Unum considers CFS in the same impairment category as Fibromyalgia Syndrome.

Unum’s Fibromyalgia Position Statements and Guidelines list the following internal Unum physicians as contributors to the report:

Edward C. Alvino, MD                      
Alan Cusher, PhD                            
Robert N. Anfield, MD, JD
Les Kertay, PhD
Marianne Justin
Burton McDaniel, MD
Thomas McLaren, PhD
Nancy Ball, MD
Paul Martin, MD

It is reasonable to assume then, at least in July of 2002, Unum’s executive medical director had already provided the company’s medical resources with a “position statement” regarding the management and review of fibromyalgia claims submitted for payment.

On page 2 of the report entitled: Our Current Position Statements of Fibromyalgia the following statements are made:

• Fibromyalgia is a defined syndrome; one that represents a patient population experiencing a constellation of medically unexplained symptoms.
• Current evidence does not allow one to conclude that fibromyalgia is a physical disease – it etiology remains unknown and to date no pathophysiological process has been established.
• Psychological factors may exist in a significant portion of individuals label with fibromyalgia.
• Treatment plans, which include cognitive behavioral therapy and a graded low impact aerobic, conditioning program, have been shown to improve symptoms in some fibromyalgia patients.
• The vast majority of individuals labeled with fibromyalgia have no physical impairment; they are on a physical basis able to return to work (especially with appropriate care). Generally, continued activity (including work) is of value even in the face of symptoms.

Contained within the position statement are Unum’s general “current findings on disability” related to fibromyalgia. The document makes the following statements:

1.  It is estimated that between 10-12% of the general population experience chronic widespread body pain. Most do not see a physician for this symptom and proceed with the business of daily file.
2. The majority of fibromyalgia experts are presently in agreement that fibromyalgia patients are not physically impaired.
3. Severe psychological distress in patients with fibromyalgia not only plays a significant role but also may lead to psychological impairment.
4. Physicians should discourage inactivity and disability in fibromyalgia patients because if these are prolonged there is an adverse effect on the prognosis.
5. We must halt the trend to label patients with FMS as disabled, and we must interfere with the social trend toward encouragement of the disability concept.

In 2002 Unum’s solution to the “somatization” of symptoms of fibromyalgia culminated into: A Fibromyalgia Process Proposal.

In summary, Unum’s contributing physicians proposed getting involved early with the insured’s primary care physicians in order to prevent a disability from being supported. Recommendations were also made in the report for detailed phone interviews, nurse-to-doctor and doc-to-doc calls for the purpose of Unum’s early intervention of a disability due to fibromyalgia. Unum’s general consensus or understanding of the disease, as indicated in the position paper, is that fibromyalgia is NOT a physical disease, is “somatoform” (imagined), and that with a little persuading of the doctors, in most cases the insured could return to work full time.

The idea of a major disability company writing a “position paper” stating “the official position of the company with respect to fibromyalgia (and related impairments)”, means all insureds who file claims for fibromyalgia don’t get an objective fair review since outcomes and liability determinations are predetermined by Unum’s medical department before any claims are actually filed.

Further, Unum’s position that fibromyalgia is NOT a physical disease but a “made up mental one” allows the company to abuse the 24-month mental and nervous provision in the policy by limiting benefits to a much shorter period of time. Further statements by Unum calling fibro symptoms “somatoform” also gives the company a great deal of wiggle room to claim the impairment is “self-reported” and also limit or deny benefits.

There was also a time when the Unum policy was to conduct surveillance on every fibromyalgia claim. I thought this to be a tremendous waste of Unum’s time and money because the treatment plan for nearly all fibromyalgia patients includes “exercise and daily activity as able.”  Physicians want their patients to remain active, so catching someone on a CD walking around a Mall is exactly what the doctor ordered. Fibromyalgia patients are NOT required to remain in bed with the covers up to their nose.

Today, Unum continues to deny most fibromyalgia claims, or, if the claims are initially paid, they aren’t paid for very long without aggressive Unum intervention to encourage rheumatologists to return the insured to work as soon as possible.

Although Unum’s position in 2002 was as described above, one can reasonably document from  current claim files the company’s position hasn’t changed in the last seven years despite advancements in new technologies and using innovative clinical approaches for the diagnosis, treatment, and management of pain. Medical authorities now know fibromyalgia isn’t “all in your head” and aerobic exercise on a treadmill won’t cure disabling muscle and joint pain. Fibromyalgia, and all of the symptoms associated with it, such as fatigue, insomnia, joint and muscle pain can be extremely disabling thereby preventing insureds from sustaining work on a consistent basis.

Still, Unum has a long history of labeling fibromyalgia as a psychological syndrome rather than a bon fide physical impairment which often precludes work. After all, it’s in Unum’s best financial interest to not pay fibromyalgia and CFS claims. Of course, Unum would have you believe the 2002 position paper is no longer followed internally, but the files DCS reviews do not show that to be the case. Fibromyalgia claims take much longer to review; they are investigated thoroughly with surveillance and IMEs; and it is possible from our own statistics that a greater percentage of fibromyalgia claims are denied as compared to other disability groups.

In addition, Unum’s internal physician consultants are quite skilled in convincing physicians their patients can work full time jobs with a little effort. Unfortunately, fibromyalgia and chronic fatigue are two areas of disability management easily used by Unum to support goals for financial profit. Incidentally, FMS and CFS are only two of the impairments Unum has difficulty paying. Others include early onset MS, RSD, Lupus, PTSD, and chronic back pain.

Unum does a grave disservice to its customers when it denies claims by telling insureds, contrary to the recommendations of the American College of Rheumatology, “their pain is all in their head”, and symptoms are all “imagined or made up.” Instead of realizing Unum is using this defense to get out of paying claims, insureds may actually begin to think perhaps they really ARE crazy, and the severity and length of the disability is nearly more than some people can actually deal with.

Fibromyalgia insureds must now realize: 1) fibromyalgia is a real physical disease; 2) the condition is often treated with medication; 3) symptoms of joint pain, fatigue, and depression are real; and 4) fibromyalgia is always treated with recommendations for exercise and daily activity; do not be afraid to exercise because Unum conducts surveillance and holds your treatment activity against you. Obey your doctor.

If you have any questions concerning Unum’s 2002 position paper. or how to successfully manage fibromyalgia claim, please contact us privately. We’re here to help.

We do have a copy of the actual position paper and will provide it to attorneys upon request.

Disability Insurance Bad Faith by Linda Nee

(This article relates to Individual Disability Income claims not those subject to ERISA, unfortunately. Due to the content of the information I should remind everyone I’m not an attorney, and if you determine this information is relevant to your claim, we recommend you consult an attorney in your state. )

The laws in most states imply a duty of good faith and fair dealing on behalf of  disability insurers. This duty expects Unum and other disability insurers to act reasonably in the handling of claims submitted to them by the insureds. Even though disability polices do not contain specific language in the insurance policy concerning the duty of good faith and fair dealing, most likely it will be enforced by the courts as if it were.

In general, in order to prove an insurance company has violated their duty with respect to good faith and fair dealing, the insured (plaintiff) must show: 1) the disability insurer acted intentionally; 2) the disability insurer either denied the claim, failed to pay the claim, or delayed payment on the claim without a reasonable basis; and 3) the insurance company was aware it had no reasonable basis to act, or it failed to conduct a fair and objective investigation to determine if its’ actions were in fact reasonable. Bad faith disability is more difficult to litigate than one might think since the insured must prove intentional, and deliberate actions intended to harm.

Basically, disability insurers may not ignore the duty to investigate fully all of the facts of a claim before making a liability determination. If a claim is not fully and objectively investigated, the disability insurer may later be prevented from saying it had a good reason to act in ‘good faith’. Additionally, a disability insurer may not conduct an investigation favoring its’ own interests above those of the insured. Instead, the disability insurer is required to consider the interests of the insured at least equal to its own.

For example, the above concept doesn’t seem to fit in with Unum’s persistent denials of claims based solely on its own medical opinions rejecting all others, nor does it indicate Unum conducts objective and fair investigations considering all of the available evidence including that which favors the insured.

In order to prove an insurer has committed “bad faith” the insured must prove: 1) the insurer is guilty of violating the duty of “good faith”, and therefore has committed “bad faith”; and  2) and the insurer’s acts of “bad faith” were the cause of any damages suffered by the insured. When the insured is successful in winning a “bad faith” lawsuit, he/she is generally entitled to recover: 1) actual damages; 2) general compensatory damages; and 3) punitive damages.

In order to win compensatory damages, the insured must prove to a jury that the facts of the claim are more probably true than not. This is very different from beyond a reasonable doubt, which is a much higher standard used in criminal cases. The concept of “more probably true” means that the insured’s facts and evidence need only “outweigh” the defendant’s evidence by even the slightest margin.

In contrast, in order to win punitive damages, the insured must provide proof of clear and convincing evidence,  which is more than “mere probability”, but less than “reasonable doubt.” The insured is required to show the insurance company acted with an “evil state of mind” which is defined as: an intent to cause harm; or conduct motivated by intentional ill will; or willfully ignoring the substantial risk of harming the insured or others.

Again, those who might be inclined to “hurry into court” should realize “intent” is very hard to prove in bad faith cases particularly when companies such as Unum cloak their activities to avoid the appearance of engaging in bad faith.

 Awarding punitive damages is left entirely to the jury. Members of the jury may choose to consider: the character and motive of the disability insurer’s motives, the degree of harm it caused, and the standard of reported wealth of the company.

Disability insurers may also be sued for breach of contract, which arises when the administering insurer does not abide by the express written provisions of the policy issued.  On occasion,  one can prove a breach of contract where there is no express written provision, but when the insured has a reasonable expectation of coverage based on information communicated at the time of sale, or produced in marketing brochures or advertisements. In addition, some practices may also be considered consumer fraud  in some states.

Another  cause of insurance bad faith is when a disability insurer stops evaluating claims based on the unique facts of the claim, and instead, or in addition to, DOES SOMETHING specifically with the intent to terminate more claims. Internal strategies devised by management for the purpose of targeting claims for profit, or out of contract activities for the purpose of producing more profit could be determined to be “bad faith” by the courts.

Finally, there is also “bad faith by omission” meaning the insurance company knew it was right to do something (such as an IME), but failed to do it because the result would likely have been favorable to the insured. Sometimes NOT doing something in favor of the insured is as bad as deliberately intending to harm for profit.

In the end insurance bad faith is expensive, difficult to prove, and can take quite some time to get through the system.

I suspect “good faith and fair dealing” was pretty much trashed by disability insurers when it was discovered the concept wasn’t profitable and they could play the financial numbers and “get away with it” most of the time – not a good testament to the insurance industry at all.

Court of Appeals Finds Sun Life Acted Arbitrarily and Capriciously

Posted on April 5, 2009 by John Wood

Sherry DeLisle continued working after her car crashes in 1998 and 2000. She suffered spinal and closed head injuries.  Her employer, Krandall & Sons, fired her on April 17, 2002, stating that “she was not doing her job.”  Eight months later, DeLisle filed for long-term disability benefits with Sun Life, the insurer of Krandall’s disability plan. She submitted medical records and statements of five treating physicians. She listed April 17, 2002, as her date of disability.

The Social Security Administration determined that DeLisle was eligible for disability benefits effective April 17, 2002.  Nonetheless, Sun Life denied her claim and upheld its decision in an internal appeal.  The company found that she was no “actively at work” under the policy when her claimed disability started.  DeLisle filed suit in federal court.  The district judge found that Sun Life’s decision was arbitrary and capricious and ordered the company to determine whether DeLisle was in fact disabled on April 17, 2002.

On remand, Sun Life reviewed DeLisle’s extensive medical evidence. Sun Life sent DeLisle’s records out for review by a clinical neuropsychologist, a psychiatrist, an orthopedist, and a rehabilitation counselor. It denied her claim again, stating that the medical evidence did “not document the presence of conditions physical, psychological, or cognitive in nature of such severity that [DeLisle] could not continue to perform her occupation on April 17, 2002 or thereafter…” 

DeLisle appealed again, and Sun Life sent her records to three more records-reviewers (another neuropsychologist, another psychiatrist, and an orthopedic surgeon).  Sun Life upheld its denial of benefits.

DeLisle again sued Sun Life.  The district court granted her motion for judgment on the administrative record, finding that Sun Life’s denial of benefits was arbitrary and capricious. The district court sent DeLisle’s claim back to Sun Life to determine the amount of her benefits and ordered Sun Life to pay DeLisle’s attorney’s fees.

On appeal, the Sixth Circuit upheld the judgment of the lower court. The Sixth Circuit ruled that:

-Sun Life acted under a conflict of interest as claims decision-maker and payor of benefits. As such, the company had a “clear incentive” to find consultants who are “inclined to find” that claimants are not disabled. The Court pointed out that nearly all of the records-reviewers chosen by Sun Life were under regular contract with the company. 

-Sun Life’s in-house attorney told at least some of the records-reviewers that DeLisle had been “terminated for cause.” However, the only information communicated to Sun Life by Krandall was that DeLisle was fired “because she was not doing her job.” The assertion that DeLisle was terminated “for cause” gave the records-reviewers incomplete and potentially prejudicial information. The improper communications justified the court “giving more weight” to the conflict of interest.

-The Social Security disability determination was “far from meaningless.” The failure of Sun Life to mention DeLisle’s Social Security award, especially when the policy required her to apply for Social Security disability benefits, was not lost on the court: “Sun Life’s silence here does not make its denial arbitrary per se, but is among those ‘serious concerns’ that, ‘taken with some degree of conflicting interests,’ provide a proper basis for concluding that the administrator abused its discretion.”

-After reviewing the quality and quantity of the medical evidence, the court found that “the entirety of the medical evidence available to Sun Life was not reviewed in a ‘deliberate’ or ‘principled’ fashion, which is a factor suggesting that Sun Life’s ultimate determination was arbitary.”

-The fact that DeLisle worked for two weeks after leaving her employer and listed “lack of work” as her reason for leaving her employer did not amount to persuasive evidence that she was able to complete the duties of her job on April 17, 2002.

For these and other reasons, the Sixth Circuit agreed with the district court and concluded that Sun Life had acted arbitrarily and capriciously.

 The case is DeLisle v. Sun Life Assurance Co. of Canada, 2009 U.S. App. LEXIS 4251 (6^th Cir. March 4, 2009).