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Silly MeIn 2015 CIGNA was slapped with a Multi-State Settlement Agreement very similar to that of Unum Life Insurance. The CIGNA investigation resulted in discovery indicating the company engages in unfair claims tactics, and it was fined.

Here we are three years later, and the company is still engaging in unfair tactics to deny payable claims. Case in point is CIGNA’s denial of a Life Waiver of Premium based on its own IME wherein the examining physician said the insured was unable to work. From the IME report CIGNA alleges it was able to abstract restrictions and limitations that lead to the finding of alternative occupations, and the Life Waiver was denied.

Next step is to deny the disability claim at the change in definition. Without allowing the insured’s physician to write a rebuttal, CIGNA denied the claim most assuredly to recapture a $2M financial reserve prior to year-end. It’s mind-boggling!

I also begin to wonder about the CIGNA people, who by the way, are so paranoid they don’t include their last names to identify themselves on letters. Claims handlers know exactly what’s going on, but usually choose to hurt people in order to protect their jobs.

Because of the very large monthly benefit, this case may very well wind up in court. In my book CIGNA remains one of the “bottom feeders” in the disability world of unfair insurance companies. Disbelieving its own IME is a new low even for CIGNA.

Friday Q & A

Q&A6Unum really messed me up with my 1099 and the IRS. Is this happening to other people?

DCS, Inc. is indeed receiving calls about Unum and how they are sending out 1099s for non-taxable benefits to the IRS. One caller reported possibly owing the IRS as much as $30,000 because of Unum’s mistake.

Although this type of error seems to epitomize Unum’s internal disintegration the error is easy enough to fix with the IRS. Insureds need only produce proof of payment of premium to the IRS, possibly through the local regional offices where appointments can be made to provide the proof.

This is just another example of how Unum’s internal disorganization is affecting insureds and claimants. Reports of missing benefit and payrolls checks, along with mismanagement of “paper” documents received seems to top off the company’s inability to take control of its claims process. In combination with Unum’s unfair claims decisions, the company is regarded as the “monster” no one wants to deal with.

Does the Social Security Administration conduct surveillance?

Yes they do! But, not as a commonplace activity. SSA’s surveillance activities usually occur when individuals are reported by neighbors, ex-spouses, family and friends as engaging in fraud, or when other evidence exists individuals have submitted fraudulent claims. Since SSA is a federal agency it would not be able to absorb the cost of routine surveillance and hence only requests it when fraud is reported along with sufficient evidence to prove fraudulent claims.

What is Navilink?

Navilink is Unum’s second generation diary system particularly chosen to limit the amount of documentation that is placed in the record. The prior diary system, Genesis, allowed for a great deal of narrative documentation that regulators found fault with during the Multi-State Conduct Market Examination. Before Genesis, everything that went into the file was paper – and lots of it!

Eventually, Tim Arnold dropped Genesis (it was getting the company into too much trouble) and Navilink was added as a company diary system supposedly to keep track of actions taken on files during the claims review process.

While Unum Life’s motto was, “If it’s not documented, it didn’t happen,” Unum Group’s philosophy seems to be, “if it’s not documented, they can’t prove it.” Therefore, Navilink is not entirely used to document claims and most of what happens in the claims process is undocumented such as roundtables, team reviews, manager audits etc. Anyone who has ever seriously reviewed Navilink found a bare bones chronology of claims activity.

What is “prejudice?”

The concept of “prejudice” presumes that IDI insureds wait so long to file claims that they actually “prejudice” the insurance company’s ability to investigate claims. The most popular stereotypical insurance saying related to prejudice is: “An IME today is not the same as an IME 4 years ago.” And, it really isn’t.

Although most IDI policies actually contain provisions about how long insureds have to file claims, most states require insurers to investigate claims and actually prove “prejudice” before denying claims. If it is still possible to obtain old medical records and required proof of claim, insurers may not enforce “prejudice” and render claims decisions anyway.

In my opinion, IDI insureds are often misguided by not filing timely claims as indicated in the policy, namely within 90 days of any claimed period of disability, or within one year if mentally incapacitated. “Late filing” can also become an issue separate from prejudice depending on the actual wording in the policy contract.

Going back and filing IDI claims after as much as 10 years, particularly when there was a return to work in the mix is fool hardy, and the prior period probably won’t be paid. IDI insureds have a responsibility to follow the guidelines and provisions in their policies with regard to timely filing of claims.

Does Unum have a Claim Benefits Manual?

Yes, it does, but it’s for PR purposes only. I never did believe that Unum’s Benefit Manual, hurriedly put together during the Multi-State Conduct Market Examination, was of any value to insureds and their attorneys. The Manual basically tells you what the company wants you to know and hides everything else by omission.

I suppose attorneys could hold Unum to what’s written in the manual, but it’s really chasing ghosts when there is so much more about the claims process that ISN’T in the Manual that could be asked during a deposition.

On the other hand, you can’t ask what you don’t know.

Does Unum still have an “Independent Assessment Network?”

I suppose you could still call it that (IAN), but instead of the IME Network being a part of Unum Group, it is outsourced to third-party facilities who arrange for IMEs. Most insurers now employ third-party facilities to arrange and perform IMEs. In my opinion, attorneys are remiss by not insisting disclosure of IME network files. There are some organizations who train their IME physicians to write reports in certain ways and actually give them a grade. That kind of information should be discoverable. Still, many attorneys are “ho-hum” when it comes to asking for IME files particularly in ERISA cases.

 

deceptionYesterday, one of my callers said, “I don’t know if you know this or not but most of the attorneys in Illinois read your blog!” Well, I sincerely hope so. I’ve been writing blog posts since 2001, as I said back then, “to provide information at least equal to that of the insurance companies making decisions to pay/deny claims.”

In the last 17 years or so I’ve posted many articles attempting to convince and persuade private disability insureds that private disability products should NOT be trusted or relied upon for long-term financial security. And yet, everyday I have a new caller say to me, “If my insurer denies my claim I don’t know what I’m going to do.” Unfortunately, these are mostly ERISA folks relying on employer-provided benefits that provide the least protection of any insurance product out there.

I think the word “skulduggery” perfectly describes the business of private disability and here’s why.

  • Employer Plans and policies are contracts of adhesion meaning the insured or claimant has no say in what the policy says or means.
  • There are provisions limiting maximum duration payouts and benefits for mental health and “self-reported illnesses.”
  • Disability insurers target and devise strategies to “stack the deck” against insureds to limit their overall liability for claims. (In other words, they deliberately reduce their risk and liability acceptance rates.)
  • The overall profitability focus is to identify legitimately payable claims and deny them in order to increase profitability. This is done via internal strategies that focus on various elements of the claims process.
  • Insurers spend very little for training of claims management staff.
  • Claims handlers are forced to sign template letters they do not write and/or do not agree with.
  • Employer Plans “offset” other income to help finance their overall liability for claims, therefore, there is always a threat to estimate SSDI if claimants do not immediately apply.
  • Claims handlers do not have the autonomy to make claims decisions. They are the lowest rung of administrative review and act as a buffer to protect managers who DO make claims decisions, but do not present to the general public.
  • Insurers manage claims to deny rather than to pay. This is a direct indication of a “conflict of interest” as both payers and reviewers of claims.
  • Insurer strategies include deception, trickery and invasions of privacy to document work capacity when no work capacity exists.
  • Insurers deliberately encourage fear and anxiety to convince insureds they should do whatever the insurance company requests even when it is an out of contract demand.
  • Insurers place frequent unexpected phone calls in an effort to require insureds to respond spontaneously rather than providing questions in writing and allowing them time to actually think about their responses.
  • Insurance physicians contact treating physicians by phone to convince and persuade treating docs that patients can return to work.  There is always a deceptive element in documenting doc-to-doc calls.
  • Insurers always offer low lump sum settlements representing only a percentage of net present value. At least a 20% profit is realized on settlement claims.
  • Insurers “target” various impairments for denial, such as CFS, FMS, chronic pain, HIV, depression, Lupus and MS.
  • Insurers “target” various occupations for denial such as RNs, Attorneys, Physicians,  Anesthesiologists, and others where the occupation is defined in the national economy.
  • Insurers often recalculate claims and arrive at outrageous overpayments in order to curb cash flow problems.
  • Insures use “reservation of rights status” to engage in “off-Balance Sheet financing” to reduce liabilities and maximize profits.
  • Insurers do not know much about actual “disability”, but center only on removing the financial reserve for profit at the expense of insured or claimant.

While I could go on and on about how the internal review process really works, I think you get the idea. None of the disability insurance products sold today are reviewed fairly and objectively which is why those who have these policies should never put all of their eggs in the private disability basket that’s likely to remain empty.

The private disability industry operates as a fear instilled means of selling disability policies insurers have no intention of paying, if they can help it. Nearly all group employers today hire third-party medical providers who are paid to discredit claims. These organizations consist of highly qualified medical doctors who are able to act as expert witnesses in matters of litigation. This is just another layer of “stacking the deck” against insureds and claimants.

I realize when I write articles such as this one, I generally scare the heck out of people. However, the reality of private disability insurance is that it should be realistically viewed as short-term compensation supplemented by your own Plan B, or other sources of future income. To rely on, or trust the “skulduggery” of the disability insurance industry guarantees a very complex and frustration-filled claims process that never ends.

Those who rely on the long-term income from private disability will be disappointed when the insurance company gets around to targeting them. Although I am well-known for my frank and accurate reporting of private disability, DCS, Inc. dedicates itself to a more positive perspective of managing claims successfully rather than continuously focusing on the “skulduggery” of insurers. It is far more important to know how to identify the deceptions and how to manage them.

In my view, it is always better to have a realistic picture of your financial future rather than a sudden fire bell in the night you can’t manage or put out. Furthermore, the future of private disability in the age of merger and consolidation appears to be disadvantageous to those who invest and trust in the products sold to them. Insurance in general can no longer be trusted to provide what it is that was promised and paid for.

And, by the way, Lindanee’s Blog is open to everyone with an interest in private disability, in particular attorneys searching for accurate information to the hard questions about private disability claims. You’ve certainly come to the right place!

 

 

 

 

 

 

 

Evil SantaHere is an email I received from one of my clients. She wanted to share her experience, feelings and emotions about being watched and surveilled.

Tonight, I was followed. I thought I would share it with you to give your readers insight on how it can happen, and how it makes a person feel.

I live in a middle upper-class neighborhood that is not easy to sit around the corner and do surveillance. At the entrance to my neighborhood, as I was leaving, I noticed a small white car sitting there on the side of the road. The only reason I thought it was odd, is because it looked like it had decal stickers with three numbers and the word “news” something like 632 NEWS. The sticker or decals clearly looked like something someone could buy at Walmart and stick on their car. It also did not advertise any of the local news stations company names that obviously I would know.

Still, I didn’t think too much of it because we have many college students that come home and attempt to use models from our neighborhood or experiences people have had from our neighborhood for their news or art. I probably got about 5 miles down the road when my daughter, who was at dance practice, called and said she had the wrong pants at dance. So I turned around and went home. I got my daughters pants and proceeded to leave again.

I came up to another neighborhood and noticed that same car was sitting at my building entrance and observed it quickly do a U-turn almost causing an accident trying to turn around so fast once the car saw me. Now, the surveillance is starting to get my attention. And no, I wasn’t being paranoid because I wasn’t even thinking about that. Those of us  with long-term disability insurance all have paranoia to some degree, but I truly didn’t think it was something I had to worry about at this time.

You see, I have been home all day taking two naps, eating my healthy meals, and conserving energy so that I could attend my sons first 45 minute flag football game.  I was very excited because he was so excited and couldn’t wait for me to see him. Now even though this has my attention I’m still not too concerned until I pull into EarthFare  to meet my mother and hand off my daughters pants for her to take to my daughter’s dance class. Guess who’s 4 or 5 cars down.  The same car!

When I left EarthFare, I decided to take a back road that I knew would dead end and had lots of construction. I then took multiple different routes until I finally ended up in the parking lot of my son’s flag football game. The car continued to follow me the whole time. To be honest with you, I took all those alternate routes because it took quite a few jags and turns before I could believe I was actually being surveilled.

It’s in the evening and for some reason, I think many of us don’t expect it in the evening. So I get out and start walking towards my sons flag football game. I then stopped and waited.  Guess who finally came through the gate – the person I saw in the white car. He was wearing a sports like shirt with blue, and I think gray or white, or maybe all three colors that almost looked like a coaches type shirt. He had a big camera bag and a hard clip board, trying very hard to look like a news reporter.

I would go a little ways and he would go a little ways then stop and quickly act like he was writing something as he was staring at all the different flag football games. I made eye contact with him a few times as I was texting my husband to please hurry up and come meet me. My husband arrived.  I purposely walked past this man and told him to please not follow me anymore and I proceeded to continue to my son‘s flag football game on field four. He continued to follow me. I would walk 3 steps and stop, he would walk 3 steps and stop. Now it was very obvious. I purposely pointed at him and my husband who was fed up turned around and started rushing towards him to confront him. I’ve never seen anyone move so fast. He quickly ran away and disappeared. I am sure he just hid somewhere else to watch me. I wasn’t going to let it completely ruin my excitement to watch my son’s first game. I sat in a chair and focused on him.

I was gone from my house for approximately 1 to 1 1/2 hours. I did nothing out of my restrictions or anything that I’ve ever claimed I couldn’t do so the peeper investigator did not get anything on me. Nor will he ever.


I want to thank my client for sharing this experience with me. Here we are heading into the holidays and claimants are forced to deal with being followed by their insurers making them feel guilty, uncomfortable and angry at disturbing their privacy. Most investigators today are pushy, arrogant and often do not care if they are confronted.

In the past, investigators slid down in their cars trying not to be seen, but today they stand right in front of you with video cameras daring you to get into a car and drive away. The simplest of things, like watching a son’s football game, is turned into a peep show for the purpose of denying legitimate, payable benefits.

I do know that Unum’s surveillance investigators are out in full force. Please do not exceed your reported medical restrictions and limitations.

Thanks again to my client for sharing with others. I do welcome emails from others who wish to share their thoughts and case stories. I will post them, if you send them to me in an email.


working more than one jobERISA Plans generally include a “change in definition” after a period of time such as 12, 24, 36, or 60 months, with 24 being the most common. The “definition” referred to relates to a change of disability from one’s OWN occupation to a definition of disability requiring claimants be unable to do ANY occupation for which they have training education or experience.

To begin, the key word here is “occupation”. Although most claimants would define “occupation” and “job” as the same thing they definitely are not the same when it comes to private disability Group Plans. A “job” refers to material and substantial duties that a claimant is actually performing for an employer for money, while an “occupation” is a more generalized description for a type of work claimants would seek employment in that encapsulates all similar jobs.

All occupational assessments should be thorough and comprehensive. However, many insurers do not take into account all of the variables necessary making the process of the TSA (Transferable Skills Analysis) a GIGO (garbage-in, garbage-out) process. Despite the fact that insurers put all of their eggs in the “change in definition basket”, the process of investigation is most often flawed, incomplete and misleading.

A Transferable Skills Analysis is the insurer’s process used to identify alternative gainful occupations disabled persons can do given their previous training, education and experience. In order to perform the TSA accurately, claims handlers must update medical information and use current restrictions and limitations. Unfortunately, this is not done and old or assumed R&Ls are used in the process, hence garbage-in, garbage-out.

Now we come to the “change in definition” from one’s own occupation to any occupation in group Plans. The use of the word “occupation” is deliberate in ERISA Plans to ensure that claimants understand that the Group Plan does NOT insure jobs, but only occupations, which is a much broader definition.

For example, although the job of a Retail Manager of a Rite Aid store may be required to lift, carry and shelve inventory, and frequently walk, stand, and lift, the “occupation” of a Retail Store Manager in the DOT ( extremely outdated Dictionary of Occupational Titles) classifies the occupation as “sedentary” in functional capacity. So, private group disability does NOT insure the claimant’s job, but only the occupation. (In contrast, IDI policies actually insure jobs.)

When claimants are notified that insurers are starting the TSA (Transferable Skills Analysis), claimants have a great deal of work to do beginning with a clear understanding of why the insurance company is doing the investigation. For the first 24 months the burden of proof is that claimants are unable to perform their OWN occupation.

After 24 months, claimants must prove they are unable to perform ANY occupation in the national economy. Often the disability insurer applies the “national standard”, but the outdated DOT falls short in evaluating the actual duties performed.

It’s been my experience that most claimants are unaware of the importance of the “change in definition” investigation and just allow the process to take place from the insurance company’s point of view, and hope for the best. This is clearly wrong thinking because most claimants either do not have a copy of their Plan, or don’t understand the significance of the “change in definition”.

The change in definition of disability from OWN to ANY occupation is an insurance company’s last hope of terminating claims, therefore, they put some emphasis on the process. Claimants should do the same.

All medical “proof of claim” should be updated. Physician’s need to document “totally disabled from performing any occupation in a competitive workforce, etc.” Patient notes should be obtained and provided to the insurance company. New medical update forms should be completed.

In other words, it is up to the claimants to make sure their claims are up to date and support total and permanent disability. Claimants should also request proof that “indexing of pre-disability earnings” has taken place in order to determine what a “gainful occupation” would be.

Those who allow the TSA process to take place without putting additional information into the file may regret not doing that. A change in definition investigation should ideally be managed by the claimant, not decided arbitrarily by an insurance company.

If you have been notified that your insurer will be conducting an investigation “to determine if you are eligible for benefits beyond 24 months” and need assistance, please feel free to contact me.

The worst thing you can do is ignore it, and allow the process to play out without current input from you or your doctors.

 

 

 

Surveillance1Unum’s attempts to discredit and deny claims based on surveillance are finally seen as not credible evidence for terminating claims. A good case in point is Fleming vs. Unum Life Insurance Company, SACV 17-01576-CJC, November 20, 2018.

In this case, an attorney by the name of Fleming was involved in a serious car accident and very badly injured. Following the accident, she was forced to scale down her hours, and ultimately became unable to work in 2005 when she applied for and was granted LTD benefits. Unum paid her benefits for 11 years before terminating her coverage in 2016 on the basis on “inconsistency of report” for 15 minutes of video surveillance.

From the opinion:

“Despite Fleming’s voluminous file of medical records cataloguing her chronic pain and physical restrictions, Unum and its reviewing physicians chose to assign immense weight to 15 minutes of surveillance footage. Although Fleming can be seen for only brief periods from a distance, each of the individuals Unum designated to review both Fleming’s claim and her appeal characterize this footage as clear proof of the “inconsistencies” between Fleming’s actual functional capacity and her treating physicians’ reports.

The Court assigns little to no weight to this surveillance footage. First, it is unclear from the record whether Unum’s reviewers actually watched the surveillance footage or only read the accompanying report issued by the surveillance company. That report, which selectively describes Fleming’s actions, fails to paint a complete picture. For instance, the report notes that Fleming lifted a trash bag “upwards over her shoulders” and “bent at the waist” twice. (AR 1984.) Indeed, Fleming can be seen throwing a trash bag away and bending near her vehicle to place a cooler in the backseat. But these actions, even in light of Fleming’s medical conditions, are unremarkable. As Fleming informed Unum during her appeal and as can be seen on the footage, the bag of trash contains empty plastic bottles. Lifting the bag over her head was no feat of strength or indication of recovery.

Further, bending at the waist and leaning into a car do not relate to Fleming’s restrictions and limitations. Fleming suffers from degenerative disc disease of her cervical spine—i.e., her neck. Although she was diagnosed in recent years with adult onset scoliosis, her neck pain is her primary disabling condition. The fact that Fleming took out the trash or bent down to place a one-pound cooler in her car does not render her capable of full-time employment as a litigation attorney. See Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001) (“This court has repeatedly asserted that the mere fact that a plaintiff has carried on certain daily activities . . . does not in any way detract from her credibility as to her overall disability. One does not need to be ‘utterly incapacitated’ in order to be disabled.” (citation omitted)). That footage shows Fleming leaving her apartment once—for a doctor’s appointment—over the course of two days. Both coming and going from her apartment, Fleming walked gingerly down and up a flight of stairs, one step at a time, while holding onto the handrail for support. If anything, the surveillance footage confirms that Fleming spent the majority of her time at home and had to utilize extreme care when leaving her apartment.”

“Even if the surveillance footage was somehow inconsistent with Fleming’s medical records and self-reported pain, the Ninth Circuit is understandably skeptical of insurers’ reliance on brief surveillance footage as proof of a claimant’s capacity to work full-time. See Grosz Salomon v. Paul Revere Life Ins. Co., 237 F.3d 1154, 1162 n.36 (9th Cir. 2001) (affirming district court’s rejection of video surveillance as proof of work capacity and noting that it “did not shed much light on whether she could function full-time as a trial attorney”); see also Wagner v. Am. United Life Ins. Co., 731 Fed. App’x 495, 497– 98 (6th

Cir. 2018) (“[T]he surveillance video captured [plaintiff] for 20 minutes over a two-hour period, and only for a few minutes at a time. It is weak evidence of anything beyond those minutes, given that (according to [plaintiff] and his doctors) his pain would come and go. And [plaintiff’s] ability to live alone and to engage in sporadic activities says little about his ability to go to work.”). The Court sees no reason to credit Unum’s 15 minutes of surveillance footage from one day here, especially when it is contradicted by over ten years of medical records.

Without the surveillance footage, Unum’s determination that Fleming no longer qualified as disabled rested entirely on cherry-picked statements from Fleming’s physicians and a paper-only review of Fleming’s claim. First, Unum asserts that according to a person in Dr. Kerr’s office, Dr. Kerr was “not advising” as to any work capacity restrictions or

limitations. (Dkt. 31 at 11.) However, as noted above, the notes that were actually written by Dr. Kerr consistently confirmed Fleming’s inability to lift more than 10 pounds, her tenderness and decreased range of motion, and chronic pain. Next, Unum argues that Dr. Kohli, Plaintiff’s endocrinologist, was not issuing any restrictions and limitations. (Id. at 25.) But Plaintiff visited Dr. Kohli to determine the cause of her weight gain—not for any conditions related to her disability. (AR 2057.) Finally, Unum emphasizes that in 2016, Dr. Carden would no longer complete Fleming’s disability forms. (Dkt. 31 at 25.) Dr. Carden was not completing her forms because she stopped seeing him. Accordingly, Dr. Granlund, Fleming’s new treating physician, began completing her forms. (AR 1615–17.) As noted above, Dr. Granlund, like Dr. Kerr, confirmed Fleming’s symptoms after comprehensive in-person visits, a review of her medications, and lab testing.”

The court found in favor of the plaintiff.

Carrot & Stick Awards

Carrot and StickNot surprisingly DCS, Inc. is giving its top “Stick” to Unum Group for its overwhelmingly deliberate chaotic claims review process where there is every indication the company is managing claims to “deny” rather than “to pay.”

It has become increasingly evident that Unum lost control of its claims process by outsourcing and indiscriminate firings to save costs. Unfortunately, Unum’s regular firings have resulted in a highly negligent claims process using old technology and ill trained claims personnel. Therefore, Unum remains DCS’ “top stick” for unfair claims review based on its own ignorance and mismanagement.

During the last year Reliance Standard’s hands have been slapped by the courts for engaging in unfair claims practices. Having worked through Reliance’s claims process on many occasions, and having written several consultant’s reports for attorneys on appeal, I can reliably state that Reliance is not a company that should ever be “relied upon” to say the least. The company seems to have and make up its own rules particularly when ERISA disclosures are required. Reliance Standard is definitely our second pick for a DCS stick award.

Mass Mutual, a formerly “not so bad” claims reviewer, is leaving a bad taste in the mouths of insureds looking for timely decisions. The company’s misrepresentations of its own policies in combination with untimely decisions makes Mass Mutual a top “stick” when it comes to paying its own stockholders. It is sad to watch a “mutual” company treat its owners the way it does.

In addition, Mass Mutual is using the IME process to “stack the deck” against legitimately impaired insureds. It is not uncharacteristic for insurers to hire top medical hacks to discredit claims. Mass Mutual is our top pick for using IMEs bought and paid for to deny claims.

Although there are no real “carrots” in the private disability industry anymore, baby carrots are awarded to Northwestern Mutual and Principal for at least trying to pay claims fairly. These are the only two carrots among the sticks that seem to stand out from the packs of wolves circling the forest.

In fact, DCS, Inc. is still recommending Northwestern Mutual and Principal over Berkshire/Guardian for those searching for IDI professional disability coverage.

Sadly, there are no group STD/LTD insurers that are recommended for group insurance at this time. They are all equally bad.