Editorial – Situations That Should Never Happen…

What the heck did I do?

In February DCS received a call from an insured who told me he was “scared to death.” He said that he had been “clean” from over taking his Percocet for a day, and that Unum was currently harassing him to payback nearly $35,000 in retroactive SSDI. Specifically he wanted to know if Unum could take everything he owned since he no longer had all of the money to pay the company back.

While this is a very tragic position to be in, it also should never happen. This same insured also confided that he had not read his LTD policy, did not know which Payment Option Form he signed, and if Unum took all of his remaining money he’d be out in the street. He had no idea why he had to pay back the money and wondered if he could convince Unum “to just be satisfied with the offset.”

“Good grief”, I thought. To begin, anyone taking prescribed medication like Percocet, Oxycodone, morphine, or other opiates should not: 1) speak with insurance representatives on the phone, and 2) not sign any documents, particularly if they are abusing the drugs.

Unum’s newest POF form (if signed) gives the company voluntary liens on property when lump sums are not paid back, therefore “yes” Unum could take this insured’s property.Where this insured got the idea that Unum would be satisfied only with the offset for SSDI is beyond me, but obviously this insured didn’t have a clue as to what happened to him, or what could happen.

DCS has been recommending to insureds and claimants that the obtain copies of their Plans or policies, read and understand them, prior to going out on disability. We’ve also been recommending to insureds that they NOT speak with insurance representatives on the phone and insist on all communications in writing. Most people who phone in are still talking to insurance companies and are creating fires that will eventually be very difficult to put out.

Any insured who is taking pain medications should abide by the above and protect themselves from saying and signing things they do not understand. I asked the above insured to pull out a copy of the POF he signed, but he didn’t have one. This situation, although tragic, should never happen.

Binder and “take a hike….”

Another caller described a situation when he hired Binder and Binder to assist him with his SSDI award. Although SSDI benefits were approved, a year later he received an update from SSA and noticed information about his disability that was incorrect.

Afraid to change the information himself, he went back to Binder and requested assistance in filling out the update review forms. Binder refused to assist him claiming it had “thrown out” most of his paperwork other than a short electronic file. Mr. X then began calling many other attorneys in his area asking for assistance with correcting information and filling out his SSA review forms.

No attorney wanted the job. This situation doesn’t surprise me at all. SSDI attorneys get 25% of retroactive awards up to $6,000 to assist applicants with SSDI applications. Why should attorneys waste their time writing a fee agreement to help someone fill out review update forms? One attorney told this insured to “just muddle through the paperwork himself.”

By regulating fees that can be charged for SSDI assistance, SSA really isn’t helping matters when applicants need assistance for other SSA matters. Attorneys aren’t going to be inclined to spend their time with menial issues for small flat fees.

In the end this insured searched the Internet and listened to unknowing friends who told him not to ask SSA for help since it will just deny his benefits. In my opinion, national chains like Binder and Binder are no more than SSDI mills and although they boast of high approval rates provide very little service if needed in the future.

Applicants for SSDI should ALWAYS find their own local SSDI attorneys who are accustomed to working with county Administrative Law Judges. Claimants should stay away from insurance industry connected services such as Advocator Group, GENEX, or Allsup. National firms such as Binder and Binder are impersonal and an arms length away from personal claims and unique situations.

This insured will likely listen to friends and neighbors hammering him with inaccurate information. This is a situation should never happen. SSA should make sure that any attorney who is paid a fee to assist with an SSDI award should also assist with any subsequent issues in the future.

Summary

Are you beginning to see a trend here?  Many situations described to me contain similar threads involving misinformation (or no information), inaccurate information, not obtaining policy copies and reading them, and finally, allowing fear to dictate action.

Fear will do strange things to people, but the fear that occurs when receiving disability benefits rests in the realization that if benefits are denied, there are no other options and there will be no money coming in to pay bills. Suddenly, “living on the streets” becomes a real possibility and claimants will often do anything, say anything and sign anything to obtain the money needed for self-support.

Insurance companies are well aware of the financial urgency and play the system and emotions as far as they can. Unfortunately, many insureds and claimants walk right into the insurance ambush and later regret that they “just didn’t listen.”

There is a great deal of information on Lindanee’s Blog as to what is appropriate and what isn’t. I strongly recommend to new readers that they take a moment and read some of the posts relative to their own situations and make an effort to thoroughly understand private disability insurance and how it works.

Most Americans can’t afford to manage these claims “in the blind.”

More Credibility for Chronic Fatigue

http://www.webmd.com/chronic-fatigue-syndrome/news/20150227/immune-system-changes-tied-to-chronic-fatigue-syndrome?src=RSS_PUBLIC

Daily Buzz

Prudential uses RN reviews to deny claims.

DCS is still hearing rumblings from claimants regarding Prudential claim denials based on medical reviews conducted by Registered Nurses. Those of you new to Lindanee’s Blog may not know that at one time I reported a Prudential RN to the Maine licensing board for “practicing medicine without a license.” Not surprisingly, Maine supported Prudential and other insurance lobby interests located in this state.

In my opinion, the financial liability of disability claims to age 65 is far too substantial to use unqualified RN reports as credible evidence sufficient to deny claims. Many times Prudential’s RNs do not have impairment specific experience or education to render medical opinions concerning disability and the inability to work. Many physicians document THEY aren’t qualified to evaluate functional disability. How is it that Prudential’s RNs are allowed to provide documentation when they aren’t qualified either.

Requesting that Prudential provide medical reviews conducted by qualified physicians really doesn’t help either since the company arms themselves with former Unum medical claim killers who often pad their medical reviews with misrepresentations and lies. An attorney client defended his own denial on appeal and discovered that Prudential’s IME doc actually lied in her final report.

My assessment of the situation is that Prudential uses the “cheap way out” using RNs to write medical reviews in support of denials, but also has an arsenal of insurance defense physicians who can just as easily discredit claims.

Remember, Prudential is still second to Unum in the conduct of unfair claims practices; and the company’s RN reviews are among an entire list of unfair claims practices such as forcing claimants to release actual psychotherapy notes in order to support mental and nervous claims.

HIPAA protection doesn’t really exist for Prudential claimants who are forced to provide mental health records under threat of non-payment of claims. It’s still my opinion though that Prudential RNs are practicing medicine without a license.

Unum is still forcing all claimants to apply for SSDI under threat of offset estimates.

This has been a longstanding problem with Unum and many other disability insurers since 2008 when I was an expert witness in the qui tam case of Loughren vs. UnumProvident wherein Unum was charged with forcing all claimants to apply for SSDI even when the company was aware some claimants didn’t qualify. At that time, the cost to the US government of reviewing SSDI applications of those who intended to go back to work was in the millions.

Although Unum lost the case eventually, the company is still threatening insureds to apply for SSDI as of a certain date or risk offsets (reductions) of benefits for estimates of future awards. Letters to claimants are particularly plentiful with end dates from March 15th to 31st.

We all know that March is the end of the 1st Qtr. profitability reporting which means Unum managers have their eye on “offset” coding to reduce financial reserves. In the past, Unum managers harassed claims handlers to code “presumptive SSDI awards” on BAS in order to reduce financial reserves even more.

Although Unum’s “forcing” of claimants to apply for benefits during the first 24 months of paid benefits may be inappropriate, it is hard to justify why claimants WOULD NOT apply for SSDI beyond 24 months when contractual changes in definition closely resemble that of SSDI.

Claimants who cannot perform ANY occupation in the national economy should apply for SSDI. In addition, those claimants who can work part-time may be able to keep their Unum benefit AND SSDI when earning less than $1,020 per month.

Unum’s wrongdoing today seems to involve informing claimants “they will give SSDI awards every consideration” when the company is really using the awards to discredit claims and perhaps forwarding its opinions back to SSA. To me, Unum’s deception regarding SSDI files is more egregious than ever.

How long is Unum surveillance conducted for claims in the UK?

As most Brits are well aware, Unum’s influence introduced the concept of insurance “risk management” into your government programs and therefore I assume Unum surveillance in the UK is conducted as it is here. Surveillance is most often a three-day event usually on Thursday, Friday and Saturday.

Unum is also infamous for its “tag surveillance” conducted around the same time as field visits, or IMEs. Brits should be prepared to use their cell phones to take pictures of identified strange cars casing neighborhoods sending clear messages that surveillance has been identified. Blowing an investigator’s cover generally sends them packing. Remember, surveillance is credible only when it’s “secret.”

In any event, Unum paid surveillance is generally a three-day event. Given the amount of “snoop doggery” that takes place in Great Britain anyway, Brits should be more concerned with technological, Internet, and phone surveillance as well. Unum isn’t a stranger to technological snooping.

While I’m unfamiliar with the laws in your country, there are also devices that can be placed under vehicles to identify where claimants are at all times. Cheap software is also available allowing investigators to listen in on cell phone calls.

Top Five Impairments Disability Insurers Won’t Pay For

DCS has been receiving quite a few calls from insureds and claimants “shocked” when Unum and other insurers won’t pay their claims. When questioned as to the nature of their impairments, I’m not surprised to learn that the same medical conditions are not paid by insurers time and time again. It’s the same old story, “Let’s create a hit list of impairments easy to deny and target those.”

First on the popular “hit list” of unpaid private insurance claims are Fibromyalgia and TMJ with new designations in the DSM-5 of a somataform syndrome disorder defined as imagined, over exaggerated, and resulting from a wide range of mental disorders.

Although those who suffer from FMS complain of severe pain in at least 11 of the identified 18 tender points, medical science is no longer supporting physical causes of the disease but rather that patients are depressed and therefore “imagine” physical symptoms. Although Lyrica is often prescribed for pain, disability insurers point out that Lyrica is also an anti-depressant and is prescribed for FMS for that reason.

In most instances, if insurers pay FMS claims at all, benefits are limited to 24 months under the mental and nervous provisions of the policy.

In general, those impairments listed as “syndromes” are not presumed to be totally disabling and insurers balk at paying benefits long-term.

Sjogren’s Syndrome is second on the “hit list” and is rarely considered a significant component of total disability. Characterized by symptoms of dry eyes and mouth, it is considered treatable and not significant enough to prevent claimants from working. Although Sjogren’s is known to cause joint pain, and other symptoms, dry eyes and mouth are viewed by most insurers as unacceptable causes of disability.

Third, although Chronic Fatigue Syndrome is gaining in credibility it is still listed as a “syndrome” without sources of objective evidence. Most insurers will only pay CFS claims with a preponderance of medical information supporting the CDC and DSM-5 guidelines. Many insurers could follow the DSM-5 and limit benefits to 24 months as a mental and nervous disorder.

Next on the list of non-compensable claims is Lyme disease. Most insurers are taking the position that in the absence of recent Western Blot or CD-57 testing, the disease doesn’t exist. Even when insureds have positive Western Blots or tests for other bacteria after 12 weeks of antibiotics, most insureds will expect claimants to return to work.

Therefore, most insurers have now thrown out the “Late Onset Lyme Disease Syndrome” supported for many years as the cause of myalgia, arthralgia, and joint pain. Furthermore, IV antibiotics is no longer an acceptable reason to pay Lyme claims unless of course insureds are able to return to work in some capacity afterward. Lyme disease is no longer a sure bet for disability benefits beyond 12 weeks of antibiotic therapy.

Finally on the top five is Chronic Pain. Although some insurers will pay short-term for chronic pain claims, eventually insurers look to pain management, injections, and medication management to improve medical conditions sufficiently to return claimants to work in some capacity.

If the direct cause of Chronic Pain is determined with objective evidence, claims may be payable. For example, multiple failed back surgeries contribute to chronic pain and therefore a direct cause can be proven with MRIs or x-rays.

Remember that the measurement of pain is relative, meaning that what is experienced as moderate pain to one person might be experienced as severe pain to another. Unresolved chronic pain may be limited to 24 months if insurers determine chronic pain is “somataform” and arising from a mental disorder of some kind. Remember also that chronic pain fits very conveniently into the category of “self-report” and “subjective” also limiting payment of benefits to 24 months.

It is not uncommon to find patients diagnosed with several of the above syndromes. For example, most FMS insureds who call me also tell me they have Sjogren’s. I have always found this to be an anomaly since neither one of these impairments are connected to each other.

FMS patients may also be diagnosed with chronic fatigue, although not Chronic Fatigue Syndrome. Physicians may not often distinguish or document chronic fatigue as a symptom of FMS from Chronic Fatigue Syndrome that has an entirely different symptom characterization.

In any event, insureds and claimants should not be “shocked” to find their disability claims are denied when diagnosed with the above medical impairments. Although it is not impossible to support and defend disability for all of the above, great care must be taken to work with physicians to make sure each impairment is properly documented.

Be aware that most attorneys will support efforts to receive benefits for all of the above at much greater costs to you even though insurance outcomes tend to be the same.

Times are indeed changing in liability acceptance rate statistics. Insureds and claimants should have a realistic expectation when filing claims for all of the above-mentioned impairments. It may not be as easy to have benefit approvals as in the past.

Attorney Back and Forward Fee Schedules – What Happens If Your Attorney Dies?

Most attorneys who are willing to accept ERISA cases generally insist on fee schedules collecting up to 30% of past recovered benefits and 40% of future benefits to age 65. An interesting question came up recently with respect to a former client when the attorney she signed a retainer agreement with passed away.

Apparently, disability fee retainer agreements become a part of the attorney’s estate and do not terminate upon the death of the attorney. On some occasions where there are other partners in a firm, the retainer agreement is then owned by the firm and given out to other lawyers. If your attorney was the only “disability” attorney in the firm, it might not be to a client’s advantage to have a partner with a specialty in real estate taking over a disability claim.

If your attorney is a one man shop, your fee agreement becomes part of his estate and the heirs can either sell or farm out the future management of your claim to other attorneys under a split-fee arrangement.

In any event, these types of fee retainer agreements do not nullify upon the death of the attorney unless the agreement specifically states it becomes void when the other party to the agreement dies.

Insureds and claimants who are willing to sign back/future fee agreements may want to have a discussion about what will happen to your 40% to age 65 if he/she dies. Then, amend the fee agreement to stipulate it becomes null and void at the time of death so that you do not have to pay the 40% to your attorney’s estate, or another attorney you didn’t yourself retain.

This may not be the full extent of the legal entanglement upon the death of an attorney, but it should suggest that you need to ask the questions and resolve any issues with your attorney while he’s still alive.

Senate Finance Committee Introduces Bill Adverse to Claimants

On February 12, 2015 Republican members Orrin Hatch and Sam Johnson of the Senate Finance Committee introduced “The Social Security Disability Insurance and Unemployment Benefits Double Dip Elimination Act of 2015″ in both the Senate and the House.

The new law would prevent insureds and claimants from receiving both Social Security Disability benefits and unemployment benefits at the same time. Interestingly, President Obama included a similar proposal in his fiscal year 2016 budget with estimated savings of $2 billion over 10 years.

Chairman Johnson said, “Even though disability benefits are for those who can’t work and unemployment benefits are for those who can work, under current law someone can receive both benefits at the same time. I’m committed to finding real solutions to help the solvency of the Disability Insurance Trust Fund and this bill is a step in the right direction.”

Chairman Hatch added, “By closing his loophole that allows for individuals to qualify for both disability and unemployment, we can reduce duplicative spending, as the President’s Budget recognizes, and preserve benefits for those that need them most.”

Most of the political rhetoric is aimed at saving money and not assisting those with SSDI find work. I find it contraindicated that SSDI law allows claimants to work and earn up to $1,020 per month anyway.

Obviously, the new bill is aimed at saving money and cuts unemployment return to work assistance for those who are disabled in their own occupations. Only rarely do private disability contracts contain offset wording for unemployment.

If the new bill passes claimants will not be allowed to receive SSDI and unemployment simultaneously.

Co-sponsors of this bill are Dan Coats (R-IN), Jim Inhofe (R-OK), James Lankford (R-OK) and Tim Scott (R-SC), — all republicans.

If you oppose this legislation write to the democrats on the committee and let them know.

The Honorable Charles E. Schumer, Committee on Finance, United States Senate, 219 Dirksen Senate Office Building, 219 Dirksen Senate Office Building, Washington, DC 20510.

Or, contact your congressional House and Senate leaders.

Unum’s Bad With Social Security – SSDI Insured’s Need To Pay Attention Here

DCS has received several calls asking questions as to what relationship Unum has with The Social Security Administration. This is a very good question since nearly all callers report getting review requests from SSA after Unum obtains copies of SSDI files including Form 831. Evidence suggests Unum may be influencing SSDI approvals because it doesn’t agree with SSA’s decisions.

“I have NEVER been reviewed by SSA since I started getting SSDI. Unum obtained a copy of my SSDI file and disagreed with SSA’s decision. All of a sudden SSA sends me paperwork for a review. This is all too convenient, Linda, what’s going on?”

Although we don’t know for sure what Unum’s “deal is” with SSA, DCS has been watching the company’s requests for SSA files with great interest. First, Unum is allowed to create its own Authorization form replacing Form-3288. This authorization is valid for two years – why? Why is Unum so interested in Form-831 that lists diagnostic codes and names the DDS (determination specialist)?

It is entirely possible that Unum has been able to make a deal with SSA to feed back information suggesting that Unum insureds and claimants should not be receiving SSDI at all. Unum’s letters to claimants usually communicate that “since subsequent medical information has been obtained by it that wasn’t available to SSA at the time of approval”, it is reasonable to assume the same information is forwarded to the DDS who initially approved SSDI.

If Unum is allowed to exert influence with a federal agency directed by Congress, it could have devastating effects on insureds and claimants who also have private disability claims. Let’s be honest here. Unum denies claims with questionable data, misrepresentations and bad faith. Is Unum now permitted to use that same information to invalidate prior SSDI approvals?

In a way, Unum’s hypothetical attempts to discredit SSDI awards also removes contractual offsets so coveted by the company for profitability. However, this leads me to wonder if Unum’s intent is to deny disability claims when it disagrees with prior SSDI awards in which case Unum wouldn’t care how much devastation it caused for claimants with SSDI to get there.

Most insureds tell me, “While it’s a tragedy Unum denied my SSDI claim, I don’t want them messing around with my SSDI benefit.”

NCDI takes a position of disagreement with the notion that any public for-proft corporation such as Unum should have any role, or influence in the process of benefit determination of any federally mandated US entitlement program. “Entitlement” is significantly different from private disability because US citizens pay for SSR, SSDI, and SSI through FICA taxes paid by workers and their employers with the expectation of getting it back at a certain age or meeting of classification.

This situation is dangerously similar to the manner in which Unum marketed themselves into Great Britain’s health and welfare programs to the point of exerting enough influence to allow the government to deny government disability to thousands of people. Of course, while the Brits define Unum’s influence as “crimes against humanity” and continue to work to oust Unum from their benefit determination system, it seems as though Unum’s rabble rousing with a federal agency is just beginning in the US.

Every Unum insured and claimant who has been awarded SSDI should be concerned here. Why are SSA claims suddenly up for review with SSA after Unum obtains copies of files and disagrees with them?

Although NCDI recommends to all Unum insureds and claimants that they write to their senatorial congressional leaders demanding information as to what agreements, form permissions, and influence Unum is currently permitted to have with SSA, I’ve learned from past experience that since Americans are  scared of their shadows, they probably won’t. It is huge mistake for Unum insureds with private disability claims to ignore this issue.

Like the Brits, Americans should be willing to protest Unum’s ability to influence and nullify decisions made by an agency managing public entitlement funds.

NCDI recommends letters of protest and requests for information from insureds and claimants be faxed to: (202-228-0554).

Letters sent through the mail to the Senate Finance Committee are delayed 7-10 days. Faxed letters are preferred. NCDI also recommends insureds stay away from Republicans such as the Senate Finance Committee Chairman, Orrin Hatch (R-UT) who may be less sympathetic with questions.

The Honorable Ron Wyden, Committee on Finance, United States Senate, 219 Dirksen Senate Office Building, Washington, DC 20510.

Senator Wyden is a Democrat as are Charles E. Schumer (NY), Bill Nelson (FL) and Robert Casey Jr. (PA).

Insureds need to find out exactly what influence Unum has with the Social Security Administration. In the meantime claimants might want to consider whether it’s wise to sign Authorizations for Unum to obtain copies of SSDI files when information of disagreement can be forwarded back to SSA resulting in increased numbers of SSA reviews.

The Brits learned the hard way, and only too late, to keep Unum’s unfair practices out of government entitlement programs. Let’s not allow Unum to do the same here in the U.S.