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Friday Q & A

Q&AUnum denied my ERISA claim and I can’t get an attorney to take my case. What now?

This is a situation that far too many claimants find themselves in. You can appeal your claim yourself, or find a consultant who will assist you. However, what I’m recommending is that ERISA Plan participants who are not treated fairly should inform their employers (in writing) of what happened and ask that the company not renew its Plan with that company. Group insurers can’t stay in business if employers refuse to buy their Plans.

Unfortunately, nearly all of the US group insurers are equally bad these days. Unum, Prudential, CIGNA and MetLife are definitely out in terms of reviewing claims fairly. CIGNA just merged with Blue Cross/Blue Shield and if anyone has ever tried to get in touch with a health insurer on the phone, you will know what I mean about delayed holding on the phone – not a good sign.

But, if you feel your insurance company was unfair, I’d certainly let your employer know. Employers are not mind readers and need to be informed when insurers are unfair and deny claims without just cause. Maybe your employer should insist on a service contract?

What’s up with DMS? I’m getting far too many requests for information.

Disability Management Services is a reinsurance company and as such is interested only in “resolving” claims by denying or settling them. Reinsurance is a concept whereby insurance companies pay other insurance companies to assume all or part of their risk. The point is for DMS to either settle or deny claims and have quick turn overs for new business; that’s how they make their money.

In the last two weeks DCS, Inc. received 5 calls from insureds with claims managed by DMS, so we know something is going on there. My experiences with DMS haven’t always been that good. The company engages in over the top investigations that it twists and turns to fit its needs. Claims handlers aren’t professional or “nice”, but rather make insureds feel they have done something wrong. In my opinion, DMS seems to manage claims for the “quick buck” and isn’t really interested if insureds are really disabled or not.

I certainly will be keeping an eye on DMS, but for the moment the company’s reputation is heading south.

Can you explain what a medical restriction and limitation is? What’s the difference?

In theory, both medical restrictions and limitations should be connected to one’s occupation and written by a physician after he/she has reviewed the patient’s job description. In truth, most treating physicians never see a job description and either do not write R&Ls properly, or do not link them to the patient’s occupation.

By definition, a medical restriction is those work activities the patient may never do. For example, a restriction for the occupation of Administrative Assistant diagnosed with carpal tunnel might read, “Patient is permanently restricted from keyboarding.”  This statement is clear, and says what it means – no keyboarding at all.

However, in the same example as above, a physician might write a work “limitation” defined as work activity the patient may do, but only to a limited extent such as, “Patient is limited in her keyboarding ability to no more than 15-20 minutes at a time intermittently.

It is extremely important for insureds and their physicians to understand R&Ls and their importance in establishing medical disability, particularly for private insurance. Unlike Worker’s Compensation that depends on the determination of a percentage of whole body disability, private insurance disability is determined by medical “restrictions and limitations”, and if absent or poorly written could result in the non-payment of claims.

I don’t understand why my insurance company just won’t leave me alone. I’ve been paid for nearly 12 years now and my insurer continues to harass me. What can I do?

All disability insurance companies have the right to conduct investigation of claims for as long as they are paying you. There is never a time when insureds enter a “payment safety zone” but can be asked to produce “proof of claim as often as is reasonably necessary”, or every 30-45-days. For Individual Disability insureds may be asked to produce “proof of claim” every 90 days if the insurer really wanted to.

In some respects, insureds and claimants are actually lucky that most insureds don’t ask for update information every 30 days but often extend the time to quarterly, or even yearly. Still, there is never going to be a time when insurers just accept your total disability and put you on a pay no mind list. Frequent requests for updates take place in the beginning and may taper off eventually, but they will never go away.

Once insureds understand the insurer’s rights to updated information, received requests won’t be so scary. I’ve received phone calls from insureds who tell me they went 12 months without an update request but described the request as “harassing.” This isn’t harassment.

Insurance companies are permitted to investigate claims as long as they have liability for them and the requests should be treated as normal and customary. Just fill out the paperwork and move on.

Chronic Fatigue Syndromehttp://www.socialsecurity.gov/OP_Home/rulings/di/01/SSR2014-01-di-01.html

RehabDCS has been getting quite a few questions from insureds concerning disability rehabilitation and return to work assistance programs. Although nearly all group disability policies contain provisions for rehab, they are rarely used in lieu of denying claims outright.

Under certain circumstances, rehab assistance and compensation for child care while on rehab can be extremely helpful to those who have some work capacity. Not reading disability policies and Plans is the primary reason why claimants miss out on opportunities that may be beneficial to them.

Here is the provisional language from one of Unum’s LTD policies:

“HOW CAN UNUM’S REHABILITATION AND RETURN TO WORK ASSISTANCE PROGRAM HELP YOU RETURN TO WORK?

Unum has a vocational Rehabilitation and Return to Work Assistance program available to assist you in returning to work. WE will determine whether you are eligible for this program, at our sole discretion. In order to be eligible for rehabilitation services and benefits, you must be medically able to engage in a return to work program.

Your claim file will be reviewed by one of Unum’s rehabilitation professionals to determine if a rehabilitation program might help you return to gainful employment. As your file is reviewed, medical and vocational information will be analyzed to determine an appropriate return to work program.

We will make the final determination of your eligibility for participation in the program.

We will prove you with a written Rehabilitation and Return to Work Assistance plan developed specifically for you.

The rehabilitation program may include at our sole discretion, but is not limited to, the following services and benefits:

  • coordination with your Employer to assist you to return to work;
  • adaptive equipment or job accommodations to allow you to work;
  • vocational evaluation to determine how your disability may impact your employment options;
  • job placement services
  • resume preparation;
  • job seeking skills training; or
  • education and retraining expenses for a new occupation.

This particular rehab wording pays “an additional disability benefit of 10% of your gross disability payment to a maximum benefit of $1,000 per month” and will continue to pay a monthly benefit for 3 months after your disability ends.

Claimants should notice immediately that participation in Unum’s rehab programs is at “Unum’s sole discretion.” In other words claimants cannot force Unum to offer rehab simply because they ask for it.

Although rehab programs can benefit those who have work capacity some caution must be taken to ensure any rehab program offered is explicitly detailed in writing. Some Unum policies also allow the company to deny claims when claimants are given part-time work capacity by their physicians, but do not return to work.

In the past, I’ve seen Unum deny claims after entering into rehab programs when claimants are released by their physicians, but then cannot physically endure the rigors of returning to work in any way.

Without specific written rehab expectations written by treating physicians that the medical release given is for the purposes of rehab and work hardening only, insurers will exercise their right to deny claims if a work release exists, but no return to work actually takes place.

Make no mistake – the intended purpose of rehab provisions is to eventually terminate claims because claimants are able to return to work successfully. No insurer is out there working with claimants out of the goodness of their hearts because it’s the “right thing to do.”

Another pitfall that some claimants fall into is thinking too optimistically about their actual physical capacity for work and actually “talking their physicians into” medical releases that are unrealistic to various medical conditions.

Although “disability guilt” is a very common phenomenon, entering into a rehabilitation program prematurely, or having unrealistic expectations about return to work, can often cause the loss of benefits before claimants are actually able to remain at work long-term. “Thinking and wanting” to return to work and “being able to work long-term” are often two different things.

DCS supports return to work programs and will help claimants work through the process, but in a way that is advantageous to them.  We want to make sure the proposed rehab program is reasonable and the written agreement includes details particularly about what happens if claimants are unable to continue working and need to go back on total disability.

Working is healthy, both emotionally and physically, and those who can work should work.

Claimants are also allowed to work while receiving SSDI according to the limitations below. Many claimants are unaware that they can keep their SSDI while earning less than $1,090 per month in 2015. In combination with Unum’s WIB program for the first 12 months, claimants can actually benefit and get a fresh start.

Claimants should always consider return to work expectations carefully including a realistic view of fatigue and energy levels, and physical ability to remain at work long-term once a return to work plan is started. In addition, it is extremely important to obtain any rehab program in writing from insurers before obtaining any medical release.

Frustrated attorneysLindanee’s Blog is after all a “blog” and although I don’t often write off-topic editorials I think this particular subject deserves a mention.

It’s come to my attention recently that there are a fair number of attorneys who read Lindanee’s Blog; and if their purpose in coming here is to obtain information they don’t know, then I welcome their visits. If, however, the intent is to find out if I’m writing about them and rabble rouse amongst themselves, then let me suggest that they visit somewhere else – this blog isn’t for you.

Lindanee’s Blog is intended to provide insureds and claimants with information equal to that of the insurance companies who review claims. A smarter, more knowledgeable insured makes it more difficult for disability insurers to unfairly withhold benefits they are entitled to. I’ve been in the business now for 23 years and have helped thousands of insureds and claimants nationwide. In other words, I know my stuff.

Recent groupie gossiping through the not-so-mature attorney ranks reminds me of the old ERISA Esq., double-secret group of ERISA attorneys who originally came together to share information about UnumProvident roughly ten years ago. Membership was expensive, secret, and the list serve was changed several times for fear that Unum had infiltrated into the sanctum of knowledge that only attorneys could share amongst themselves.

It makes me laugh a little now to think back how the exclusive ERISA Esq. group was and the paranoia that flew through the ranks that the big, bad UnumProvident would find out about its existence, or that there were “moles among us.” Although I was not to be included in the inner sanctum there were several attorneys who provided me with information from the group.

About half of the ERISA Esq. attorneys were in favor of me being included in the list serve, and the other half did not. Nevertheless, two attorneys did provide me with copies of information from the group on a regular basis.

Although I am told that ERISA Esq. still exists, in reality there are probably many new members that weren’t in the original selective group and did not participate in the CIA-like secrecy that became a closed fraternal group of over imaginative attorneys looking for ways to win ERISA cases against UnumProvident. I’m hoping the group has become a more practical and less over-imaginative secret entity, not looking for Unum ghosts around every corner.

Attorneys as a group have always had a “you pat my back, I’ll pat yours” attitude toward each other, and frankly I don’t care about that. But, as far as I’m aware, attorneys aren’t perfect and make mistakes, just like every other human being on this planet. Attorneys, as far as I am aware, aren’t above the human frailty of error.

In lieu of acting like spoiled little boys and girls, attorneys should take their “knocks” and negative comments and just move on. Most attorneys I respect and work with do that. Honesty and forthrightness will win over “cover my butt” every time.

However, as I said earlier, recent incidents reminded me of the foolishness of the original ERISA Esq. group and the over-reactive protectiveness that existed a decade ago. It’s time to grow-up and admit that as fallible human beings, mistakes are made, and it’s not the end of the world. Believe me, attorney reputations will recover with that kind of honesty.

There are quite a few ERISA Esq. and other attorneys who only accept benefit wealthy claims, or who tell prospective clients, “come back when your claim is denied” because that’s where the money is. There are also groups of high-profit attorneys who sell their reputations as “supporting ERISA”, but who wouldn’t take a $1,000 benefit ERISA case if their lives depended on it.

This may sound a bit harsh, but I totally support the ERISA folks and remain of the opinion that some attorneys throw a large segment of America’s working class under the bus.

If you are an attorney who accepts ERISA cases, even low-benefit ones, I’m obviously not talking about you – my clients and I appreciate you and commend you for doing the right thing by the American worker. Quite a few attorneys have contacted me over the years to say, “you’re not talking about me”, and clearly I’m not.

On the other hand if you are a groupie attorney (ERISA Esq. or not) who visits Lindanee’s Blog with the intent of covering a peer’s back, please find another source of entertainment. This Blog does a great deal of good for thousands of readers.

What we don’t need here are little boy and girl attorneys who cause problems by acting like children. If you can’t accept and win non-wealthy ERISA cases, then stop obstructing the consultants, and para-legals who do extraordinary work helping those thrown under the bus with no benefits and not enough time to obtain counsel elsewhere.

http://www.dailymail.co.uk/sciencetech/article-3173222/Facebook-posts-used-prosecute-benefit-cheats-New-York-test-case-Ruling-forces-social-network-comply-warrants-angering-privacy-campaigners.html

Daily Buzz

Reminders

Yea to Lindanee’s Blog!

Statistics reported today that the number of reads for Lindanee’s Blog has exceeded 700,000! Thanks to all of my readers and visitors who have supported me over the last several years, Lindanee’s Blog has become a well-known entity on the Internet visited by insureds, claimants, attorneys, and of course, insurers. Calls and emails I receive report that the information obtained here has value and has helped many insureds and claimants who choose to manage claims by themselves.

I hope that the information posted here continues to help insureds and claimants become more knowledgeable about the disability claims process. A knowledgeable insured makes it more difficult for insurance companies to withhold or deny benefits unfairly. Congratulations to readers who implement many of the suggestions and recommendations given from the blog.

Unum denies Chronic Fatigue and Fibromyalgia claims

Claimants have been contacting me to report Unum’s denials of CFS and FMS claims. It’s the same old Unum story of not wanting to pay for “self-reported” impairments by denying claims outright, or limiting benefits to 24 months. I refer claimants to their policies to check out actual “self-reported” language or exclusions policies might have specifically for CFS and FMS.

Ten years ago FMS patients were treated with morphine pumps. At the same time Unum’s “Fibromyalgia White Paper” suggests that if FMS patients would only “get up on a treadmill” all would be well and healed. In the meantime, Unum’s UK physicians are engaging in research to eliminate CFS and ME from Britain’s welfare program where claims also remained unpaid.

In America, the American Psychological Association published the new DSM-5 describing both CFS and FMS as “somatic” mental illnesses that are all “in one’s head.” Clearly, the insurance industry has established a prejudicial view challenging CFS and FMS as credible causes of disability. The industry won’t pay, and that’s not likely to change.

Recently Web MD published several articles referenced on this blog giving credibility to CFS as a physical disease. Nevertheless, Unum and several other insurers are refusing to pay long-term (if at all) for CFS and FMS.

In my opinion, if insurers such as Unum do not want to pay CFS or FMS claims, then it should include specific language in its policies naming CFS and FMS as specific exclusions. Premium would be lower and employers would know in advance that its group Plan does not pay for these two impairments. Most importantly, those who are eligible for group STD/LTD would know in advance what the policy covers and what it doesn’t. (Providing claimants obtain copies of their Plans and read them.)

My objection is that nothing should be left to the discretion of any insurance company leaving the door open to abusive claims practices. Those insurers who do not want to pay for CFS or FMS should be honest when writing the policy and specifically exclude them. My guess is that Unum may have a harder time selling policies containing yet another set of adverse exclusions since most group Plans already contain changes in definition after 24 months, limitations for Mental and Nervous claims and various Offsets.

Given Unum’s current “patterns of practice” the company shouldn’t be allowed to have sole discretion about anything.

Prudential appears to be on the denial path again

Claimants are reporting to DCS that Prudential denied claims without sufficient investigation just prior to the end of a profitability reporting period. It appeared to me that perhaps Prudential may have taken a hiatus from unfair review, but alas, the company has re-emerged as second in line behind Unum as an egregious reviewer of claims.

Prudential is well-known for its assorted tricks such as denying STD claims within a week or two prior to max STD only to allege claimants did not meet the EP for LTD. Prudential is also known for taking the “cheap way out” and using Registered Nurses to review claims worth hundreds of thousands of dollars in financial reserve. Once in a while Prudential will bring in an MD, but unfortunately its chosen physicians are old “claim killer” doctors from UnumProvident or Unum Group, many of them retired.

Registered Nurses are not qualified to render medical opinions regarding disability and in the past I have actually suggested they practice medicine without a license. In any event, apparently Prudential is back in the claim denial business and going strong.

I really don’t see Prudential changing much in the future; the company is too flaky, negligent and historically unfair.

Progress on holding Maine AG accountable

In keeping with my efforts to change Maine law providing for the election of the Attorney General by the people AND the appointment of an oversight committee with the ability to sanction, I had an opportunity to speak on the phone with state Senator Woodsome from my district. Not surprisingly, he was totally unaware that the Maine Attorney General was without any “checks or balances” and was very interested in “doing something about it.”

The Maine legislature is out of session now but will open again in January. Senator Woodsome said he had until January to “figure something out.” This will give me time to make phone calls to all of the Maine legislators to make them aware of the problem. My conversation with Senator Woodsome was consistent with a prior conversation I had with Attorney Montgomery, Special Counsel to the Governor, who is also looking for alternatives to reign in the Attorney General.

The Office of the Maine Attorney General is the only government office in Maine that has no “checks and balances” and no oversight or accountability to either the Governor (an elected official), or to the people. Scary, huh?

 

Just the facts Ma'amI’ve been asked to write a post regarding maximum benefit limitations in most group LTD plans. This topic seems to be of concern to some claimants who are highly paid and find their employer Plan to be inadequate in providing benefits sufficient to cover expenses at the level required. Of course, the lower the “maximum employee benefit” is, the lower premium employers are required to pay.

Those of you who have read your group Plans (policies) may recall that most Plans pay 60% of pre-disability earnings up to a maximum of $5,000, $10,000, or $15,000 (or any other amount) per month. You may also recall that some Plans divide employees into “Classes” and write-in criteria for each class of employee separately.

For the “Class” of employee usually designated as “wage earners or salaried employees” maximum benefits do not usually pose a problem in providing claimants with adequate disability income even at the 60% of pre-disability earnings rate. Although claimants may find it difficult to live with a loss of 40% of future benefits, the actual dollar amount of loss is tolerable; it encourages employees to return to work, but at the same time most employees can live on 60% of pre-disability earnings.

The “fault” with employee group  maximum benefit limitations is that highly paid executives who are limited to, let’s say $10,000/month in benefit will not be paid 60% of pre-disability earnings.

For example, Executive X is paid $265,000 per year, but finds he must go out on permanent disability. His group policy limits benefits to $10,000 per month. Let’s do the math—     $265,000 x 60% = $159,000   $159,000/12 = $13,250/month

Each month Executive X loses $3,250 or $39,000 per year because of the $10,000 monthly limitation in benefits. Or, Executive X is limited to 37.74% of pre-disability earnings because of the $10,000 max benefit.

Some may ask, “OK. Where’s the break?”  An Employer Plan with a $10,000/month max benefit is advantageous to employees employees earning approximately $200,000 or less per year. ($200,000/12) x 60% = $10,000.

Bottom line….highly paid executives earnings in excess of $200,000 are not covering 60% of pre-disability earnings in the example given. Most executive financial advisors usually recommend purchasing one or more Disability Income Replacement policies to make up the difference or cover up to 100% of lost income. Self-employed owners who purchase group Plans to cover employees should always purchase a DI policy along with a Disability Overhead policy to cover financial loss both personally, and for the business.

Other company employees can be hurt by benefit maximums if the amount written in the Plan is fairly low such as $2,000, $3,000, or even $5,000 per month and the employee is paid slightly or near the “break.”

The key to understanding group benefit maximums is PLANNING.

DCS, Inc.’s recommendations to employer Plan participants are to obtain copies of the Plan at the time of coverage; read them; and have a clear understanding of the amount of benefits to be received in the case of disability. Maximum benefit amounts are listed along with other important information in the Summary Plan Description (“SPD”) your employer is required to give you.

Executives and their financial advisors will always cover the loss with additional policies, but that’s often not possible for other employees who have limited means to pay the often high premium of DI coverage. We’re also assuming here that the average middle class worker is sufficiently knowledgeable to know how to fix the problem, or, if they do, can afford “the fix” with additional expensive coverage.

Maximum benefit amounts are not usually a problem to most of the employee rank and file. However, those who are paid slightly over “the break”, or who are highly paid executives may want to consider the maximum benefit provision in their estate planning by purchasing other coverage to cover monthly benefit losses.

The issue of “maximum benefit” is another reason why employees need to obtain copies of their group Plans long before a disability occurs and plan for any losses in benefits that may occur. I can guarantee you highly paid executives and their advisors are on top of this as part of their estate planning.

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