IDI Attorney Idiocy – ” Have They Lost Their Marbles?”

On occasion, I just can’t seem to resist criticizing the nonsense “nice guy” attorney approach in dealing with private disability claims. I realize most attorneys like to negotiate, patronize, and chase the settlement carts, but advising a client to “nice guy” an IME physician, known to be an industry claim killer is pure lunacy. Advice like this gives the cagey and sneaky stereotype of the “Philadelphia attorney” a whole new meaning.

“We don’t want to intimidate the IME physician on this one”, said a very naive Florida attorney. “I had two cases several years ago where he decided in favor of the insured.” Nice try, but. not likely to give $200 for passing go.

IME physicians would not still be “on the work list” for the insurance industry if they rendered overwhelmingly favorable reports. Assuming you can “smooze” an IME physician enough with the “nice guy routine” is not only terrible advice, in my opinion, but risks the claim and sometimes millions in financial reserve.

Interestingly, in Florida there is case law allowing attorneys to attend and even videotape IMEs (The Standard vs. Cimino). I had suggested that in addition to other basic information, the insured include a copy of the Cimino decision in his folder to be provided to the IME physician. “Oh no!”, said the attorney, ” we don’t want to upset the IME physician.” What?

Although Mass Mutual refused to allow the insured’s attorney to attend the IME I couldn’t image that a physician licensed to practice in Florida was not familiar with that particular law. Surely, this was not the first time he was confronted with it. I recommended that the Cimino case be added to the record to show the IME physician was complicit with Mass Mutual in not permitting the attorney to attend. In essence, the insureds rights to have an attorney present during the IME were violated. Once the opportunity to enforce the law is lost, it’s lost.

However, the attorney of record’s opinion prevailed and a copy of the Cimino case was not placed in the official claim file. In fact, the insured (who is also an attorney) expressed concern that if they upset the IME physician, he would not decide in his favor. This same attorney is probably going to recommend that his client submit to an oral, sworn deposition imposed by Mass Mutual – another mistake.

This is not the first time I’ve encountered “chicken little” attorneys involved in the disability claims or appeal process. Most of the well-known “hard knocked” litigation attorneys are deceased such as Gene Anderson in New York, John Holder in Maine and Michael Tobin (retired as far as I know) in Florida. These attorneys would never have agreed not to push back with Florida law favoring their clients when given the opportunity.

Keith Martin, a very competent attorney I worked for in Pennsylvania for many years took a hard line with insurers, enforcing the law when appropriate.  What’s going on with these rubber-necked attorneys who seem to want to negotiate everything and appease insurers and their hacks with niceness? This approach does not always work and much is lost from the insureds perspective often leaving no other choice but to settle on the courthouse steps for much less than the claim is worth.

In my opinion, some attorneys have entirely lost their marbles. No wonder insurers are getting away with unfair practices when attorneys prefer to act the nice guy in order to resolve cases with low ball settlements if they can. Unfortunately, “nice guys often finish last” in court as overly cooperative strategies leave the official file and records lacking.

Attorneys are often part of the problem, not the solution. I stand behind my own strategies of holding insurers accountable to act upon the laws and contractual rights of insureds.

As far as I’m concerned, “acting in the best interests of my clients” means what it says. While there is nothing to be gained by getting deliberately “huffy” with an insurance company, “appeasement” is clearly a  strategy of weakness that does not always work.

 

 

 

IDI Problems – Filing Procrastination

One of the most negative aspects of filing IDI claims is the tendency of insureds to not file claims at the time of “disability” but to wait months, even years after the elimination period has ended to file. These claims are referred to as “late filings” and may evoke an alleged argument of “prejudice”, adding on additional issues of investigation.

When asked “Why did you wait so long to file?, insureds always respond, “I hoped I’d be able to return to work. Isn’t that a good thing?” Well actually, no it isn’t. In fact, claim problems probably began long before this when the insured just stopped working on his/her own accord without the buy-in of qualified physicians who recommended a period of disability. For some reason, IDI insureds often believe they can just shut the doors to their businesses, and/or stop working on their own belief they are disabled.

Only treating physicians can “take someone out of work” legitimately. This is true for ERISA as well as IDI individuals. Most IDI policies contain a provisional writing as to when claims should be filed and up to a year if the insured is mentally incapacitated. It is presumed that since the insured is disabled and has a loss of income that he/she would file sooner rather than later, which is not always the case.

By policy definition the issue of late filing does not stop insurers from paying claims, but the issue of “prejudice” just might. Most of the states have passed laws requiring insurers to “investigate” and prove prejudice before denying claims.

“Prejudice” means that because an insured filed a claim way beyond the date of disability, the insurance company cannot conduct an investigation today the same way it would have been able to at the time of disability. “An IME today, is not the same as an IME” months or years ago. Perhaps treating physicians have moved away or died, or patient notes lack any mention of recommendations to cease work.

In any event, if by filing a claim late the insured prevented the insurance company from conducting an investigation at the time of disability, claims may either be denied much earlier dates of disability, or only accepted using a current date of disability when “proof of claim” is much more available.

Sometimes, IDI insureds forget that their types of policies are referred to as “income replacement policies.” In other words, the purpose of IDI claims is to pay a loss of income due to disability. If you shut the doors to your business three years ago and file for disability now, what income are you looking to replace exactly? Most insurers will ask to see recent tax returns to verify you did have recent income that is significantly reduced.

Most insurers will want to investigate and verify that you DID HAVE income just prior to your date of disability and that as a result of disability there has been at least a 20% earnings loss. Using a date of disability of three years ago, there must be proof of claim that your physicians AT THE TIME recommended a period of disability. But, then again, you may have returned to work, perhaps even several times. Now, prejudice may come into play as well.

I really don’t understand the rationale of waiting months, even years before filing an IDI disability claim. Doing so brings on added investigations that can be disastrous. Mass Mutual, for example, often misrepresents policy provisions and drags out investigations as long as possible. Guardian throws in the argument, not fairly mind you, that any income losses reported were not the result of disability, but due to economic downturn. No payment.

I recommend IDI insureds file disability claims as soon as possible, or within 90 days   after the end of any period of claimed disability. This is the way IDI claims are intended to be submitted and the claims review process is much easier to navigate.

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Lyman v Unum –  https://casetext.com/case/lyman-v-unum-grp

Unum did not abuse its discretion in denying Plaintiff an extra year to

file her short and long-term disability claims where the policy states

that, “Written notice of a claim should be sent within 30 days after the

date your disability begins. However, you must send Unum written proof

of your claim no later than 90 days after your elimination period. If it

is not possible to give proof within 90 days it must be given no later

than 1 year after the time proof is otherwise required except in the

absence of legal capacity.” (emphasis added).  Unum determined that

Plaintiff’s explanations for the late filing, including that she thought

she was going to be able to return to work and that she was intimidated

by the claim forms, was not a reasonable basis for not filing a timely

claim.  The court found that Unum made a reasoned decision that it was

possible for her to file her claim on time.

 

Sunday Q & A

How can I fake a Functional Capacities Evaluation?

Insureds who ask these types of questions probably should not be receiving disability benefits. DCS, Inc. doesn’t support “fake” anything and my only consolation is that both FCE and IME evaluations provide for “validity” and “fake bad” results so that people who try to “fake” evaluations are found out.

My recommendation is to take the tests honestly with good effort and let the chips fall where they may.

What if my insurer sent an addendum request to the IME evaluator?

When you ask for a copy of the IME report you should say, “…a copy of the IME report and any additional addendum provided by the IME physician.” IME reports favorable to insureds are usually followed up with additional questions “to clarify” the initial IME report in an attempt to persuade evaluators to change to a more unfavorable position. Insureds should always make sure they request copies of all addendum reports, as well as the first IME report, sent to treating physicians for rebuttal and comment. IME reports are incomplete without the additional addendum additions.

Can an employer fire you if you claim disability after resigning?

To begin, I’ve written many posts informing readers that they should NEVER resign (or use the word “resignation”) when leaving work due to disability. But, insureds are also very confused these days about FMLA (Family Medical Leave Act) that allows employers to terminate employment and benefits after 12 weeks if they do not return to work. Some employers may allow FMLA to continue until LTD is approved, but most do not. US employers can terminate employment after 12 weeks with the blessing of the federal government.

Are insurers getting more aggressive and strict with disability status update forms?

Actually, they are. It is even more important in the current environment to be able to identify the “wolves in sheep’s clothing” questions. “Less is more” when completing update forms and insureds should seek help with update forms rather than putting down information that could be used against you.

I’m reading a great deal of information about disability insurers from the Internet. How much of it is true?

Of course we all know that if it’s on the Internet IT MUST BE TRUE! A long time ago people used to say that about newspapers. Today, most information about private disability found on the Internet is inaccurate, including that which is found by insurers about you. Readers should always check out the credentials of those who are writing about disability claims and how much experience they have.

Personally, I don’t bother with information written by attorneys because they have conflicts of interest: acting in the best interests of a client vs. making the most money. Even when attorneys are experienced in peronsal injury law they take on ERISA and IDI cases when they actually know very little about ERISA and IDI. Keep in mind too, that the Internet often contains only the worst case scenarios. Nearly everyone can tell you a bad story about a disability claim!

In my opinion, spending more than an hour researching on the Internet in a month is a indication that your claim has taken you over, or that you are overly anxious about your claim. Checking an insurer’s website portal should not be something anyone does more than a few times in a month. DCS, Inc. doesn’t recommend the use of insurance portals due to tracking software attached to it.

I also don’t think it’s a good idea to solicit information from family, friends, neighbors etc. when they don’t know what they are doing. “But, I had a friend of a friend who had a claim with Guardian and this……….happened.” These types of tall tales do not help and when related to me are generally way out there from accuracy.

Insureds also try to “look up cases” from the Internet and then cite them in their letters. Case law is useful in court, properly referenced by an attorney. Citing case law in letters to an ignorant untrained claims handler who has been deliberately dumbed down is a waste of time.

 

 

IDI Insureds – Attempting to Put Round Pegs In Square Holes

Several claim situations have come up recently that really should be of concern to those with IDI policies who attempt to interpret, or twist policy provisions in such as way as to allow them to do what they want to do. A trend seems to be emerging where insureds are attempting “out of contract” activities, but swear their policies support what they are doing. And, I really take issue with this.

A general description of IDI policies is that they are “income replacement policies”, or contracts that compensate for income or occupation lost. Many of them were sold as miracle solutions to highly paid individuals such as doctors, dentists, and wealthy executives. Insurance companies took the risk that these groups of insurers would never file claims for secondary gain, but quickly found out they were wrong and nearly lost their shirts in the “own occupation” market.

To make matters worse, insurance agents sold “own occupation better-than-sliced-bread” policies giving insureds the impression that if they cannot perform their own occupation they can get full benefit even when working in another field. At the same time, the agents (looking for increased royalties) sold “Residual Disability” riders thereby providing yet another defintion of disability in the policy if the insured is “unable to perform one or more of the duties of their own occupation, or in any other occupation…” in effect negating the advantages of “own occupation.” The only real own occupation policy is one in which there are no “Residual Disability” provisions or riders. 

The distinction between total disability sliced bread and residual toast is as clear as the nose on most insureds’ faces. Still, some insureds will fight, argue, defend, swear to, and get angry over the fact that they believe they can perform jobs other than their own occupation and still get 100% total disability when policies contain Residual provisions.  It is possible to be paid 100% of benefit while Residually disabled, but this is not the norm. However, those who insist that they can return to work in another occupation AND not have an earnings loss, AND still get paid for total disability are as wrong as they can be.

One insured this week absolutely insisted she could return to work in another occupation, make more money than pre-disability (not have an earnings loss), and still get 100% of her total disability benefit. “Who told you that?”, I asked. “My agent told me.” The “own occupation” fallacy goes a long way apparently.

Despite my recommendations, the insured then goes back to her agent who gives her the same inaccurate information and she calls me back ready for round two. Now, we have an insured trying to put a round peg in a square hole because she wants to go back to work full-time no less, will not have an earnings loss, but wants to keep her total disability benefit. She was prepared to vehemently argue her false assumptions.

What this insured intends to do is to depend on the insurer and claims handler to be so dumb that they never identify that she doesn’t have an earnings loss, or understands “Residual” policy provisions, a very dangerous, potentially fraudulent way to go. At this point I’m out the door. These claim situations aren’t going to end well. Clearly, for ethical reasons I’m not going to support insureds acting on false policy interpretations.

Let me also stress that all claim situations are different and depend on different policies and policy language, circumstances etc. No two claim circumstances are the same. Still, IDI insureds cannot engage in misrepresenting policy provisions any more than insurance companies should be allowed to do that.

I do take issue with those who want to argue their points of view to the nth degree when potentially they could end up with 6 figure overpayments in the future. Depending on an “agent” is also a mistake. One agent told the insured to call up the claims handler and ask her if it’s OK not to have an earnings loss, basically getting permission from the insurance company in advance to return to full time work without an earnings loss.

I’d like to be a fly on the wall to see how that one turns out! Although I’m a trained disability contract specialist, sometimes you just have to let people fall into their own black hole – unfortunately.

ADDENDUM  Please see my response to comments on 5/18/2019.

 

 

 

 

Living With A Disability Claim – Improving The Claim Review Process Pathology

Over the last 25 years I’ve probably spoken to, or managed thousands of claims. During that time, trends, questions, problems, conflicts and insureds’ objectives show patterns of behavior and actions common to those who depend on corporate America for their daily living. I refer to these common beliefs and practices as “pathology” since most of the identified patterns are either the cause of increased stress and worry, or the result of fear and inaccurate information.

I define the “pathology” as follows:

All insureds attempt to “defend” their claims and evoke sympathy [to insurers] rather than enforcing Plan or policy provisions as a business transaction. Nearly every insured I have ever spoken to reports having conversations with claims handlers that attempts to explain why they are out on disability, describes the rationale for not being able to work, reports how the system has broken down their finances, and states emphatically a return to work is desired in the future [whether it is possible or not]. These are all characteristics that all insureds demonstrate at one time or another during the history of their claims.

The “pathology” here is in using human emotion and feelings in an attempt to convince robot assembly-like processes that all claims are credible and should be paid. Imagine yourself sitting in a manufacturing plant talking to a robot in charge of an assembly line conveyer belt with thousands of widgets. Some of them fall into the PAID barrel, some STAY on the moving belt, and most fall into the TRASH container. In essence, this is what most insureds try to do in order to “feel safe” when on claim, even when the robots are incapable of recognizing or responding to emotion, reason, or even common sense.

While claims are moving on the assembly line, robots apply direct labor, additional resources, and fixed overhead to the claims. Direct labor is the cost of employees, additional resources are vocational, medical and occupational reviews, and overhead represents the cost of utilities, rent and other fixed costs occurring throughout the process.

Regardless of what insureds do, or say, or write, they cannot shut down the assembly line, or influence the direction the widgets are traveling unless they are aware of what  outside resources stop the in-process barrel fall that keeps claims on the conveyer belt. Therefore, throughout the process, insureds may feel like the illustrated ant above carrying the full weight of a disability claim on their backs to maximum duration.

As a result, the above pathology produces life long fear, instability, anxiety, stress and a compulsion to control claims that are traveling on the assembly line in predetermined directions controlled by the plant robots. Although you may not be appreciating the allegory here, it is an appropriate one.

Finally, the ERISA robots have complete discretion to pluck widgets from the assembly line and toss them into the TRASH barrel at any time. Sometimes there is no rhyme or reason for the ditch, but there are ultimately less widgets. Those of you who may be familiar with finance must realize that there has to be an endless supply of new claims so that fixed and overhead costs can be distributed to greater numbers of widgets increasing profit by lowering costs allocated to each unit.

And here you have the complete life of disability claims in a nutshell. Insureds, while drawn into a reactionary response, often do not realize how little input and/or control they have to affect the outcome of any disability claim. The real objective is to treat claims as business transactions, figuring out how to keep the widgets on the assembly line indefinitely.

In the end, insureds can’t manage claims with “nice guy” objectives such as using emotion, sympathy, or “play along” tactics to get what he/she wants. Business requests such as asking for all transactions in writing, defending Plans and policies, holding insurers accountable, and “only the facts”, devoid of emotion and defensive explanations of credibility, works.

Like the above ant, insurers can actually remove claims from their backs and deal with them on a more sterile level as business transactions. In general, insureds can’t change what they don’t recognize or admit.

Once you see your claims as widgets on an assembly line, you may understand how wasted your emotional exchanges are and prefer to deal with insurers on the same robotic levels as they deal with you.

 

 

 

 

Just A Reminder…..

Here is a friendly reminder that DCS, Inc. is taking its monthly newsletter public, and there will no longer be any exclusive newsletter sent just to DCS clients. The annual subscription fee is $25 per year payable through Pay Pal using my email address: DCS@metrocast.net.

The newsletter will feature articles (written by me) about the private disability industry. I will NOT be publishing the articles in the Newsletter on the blog. Although the blog will continue with general information, the majority of my articles will now appear in the monthly newsletter.

The format for the newsletter will be such that you can download it and keep it in a three ring binder if you want to.

The deadline to subscribe is May 31st, so please make sure your name is added to the distribution list before that time. The first issue will be sent to you via a blind email distribution on June 1st.

I think you will find the newsletter helpful to you as well as providing information you may enjoy. Please don’t miss the deadline to receive your first issue on June 1st!

 

Friday Q & A

What percentage of present value is Unum paying out these days?

A recent settlement offer from Unum to an insured was 71% of NPV (net present value) with an average offer of 65% being the most common. It’s unclear whether Lucens is now handling Unum settlements, but there is every indication that they are. Remember, Unum’s settlement offers are “compromise settlements” meaning they will never payout 100% of present value. Settlements are really “life” decisions and therefore my recommendation is to consider settlements very carefully.

If you are looking for more information about settlements please see the eBooks tab from Lindanee’s Home Page.

I started researching attorney fees and found, to  my amazement some attorneys are charging $500-$600 per hour. What’s up with that?

Those who read my blog know I give attorneys very little sympathy for the high fees they charge when it comes to private disability. This is probably an unfair statement for the few attorneys who do make an effort to keep fees consistent with what they actually do; however, the fee amount you mention in your question can be described as “highway robbery.”

I know an attorney in Boston who is experienced with private disability who charges $600/hour just to give advice on claims. Other ERISA attorneys charge back/future fees of 30% to recover back benefits, and 40% of benefits to age 65 or max duration. If you actually sit down with paper and pencil and figure this out, attorney fees can be six figures over the lifetime of the claim. These exhoribant fees reduce the claimant’s portion of benefits to less than 30% of pre-disability earnings? Is it worth it?

Some claimants say, “Yes! Something is better than nothing”, but I’d have to think carefully about that one. In my opinion, attorney fees for private disability of $500 an hour are excessive unless of course you’re hiring Clarence Darrow.

Are Short-Term Disability medical records subject to HIPAA and can I designate them as “PHI” (Private Health Information)?

Private disability records are specifically EXCLUDED from falling under HIPAA laws. However, physicians who handle, and electronically exchange records, ARE subject to HIPAA. Short-term medical information is the same as Long-Term patient records so it’s not that distinction that makes a difference. But, private disability companies are specifically excluded when it comes to HIPAA even though they tend to mention it in their Authorizations.

Having said this, anyone can designate their medical records as PHI and refuse to disclose them. However, disability insurers have the right to review patient records (not psychotherapy notes), and insureds need to be careful about refusing to provide “proof of claim.” When insureds apply for medical disability they should expect to provide medical records (not therapy notes) on a regular basis. Insureds who seem to want to keep control over what the insurance company sees, or does not see, generally wind up with denied claims.

Do insurance companies pay benefits if you live abroad?

Insureds need to check their Plans and policies very carefully in order to get the right answer for them. Some policies have provisions that say a flat-out “No” while others say if you live overseas more than 6 months they won’t pay. Please check your individual Plans and policies to see what it says before making any decisions to live abroad.

What is WIB?

“WIB” refers to the Work Incentive Benefit provisions in most Plans and policies that provide incentives for insureds to return to work part-time. I’ve written several specific posts about this topic, so please Search on the Home Page to find those posts.