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Never leave it up to Unum to ignore the opportunity of denying or limiting benefits for alleged “self-reported” impairments such as Fibromyalgia and Chronic Fatigue.

New information suggests Unum Group is testing the legality of denying FMS claims under the “self-reported” language in its group ERISA Plans. This is the same company that has petitioned the U.S. Department of Labor NOT to adopt the new proposed ERISA guidelines in 2018 that would be extremely supportive and beneficial to many claimants.

Unum Group’s history of targeting and denying legitimate claims continues to contribute to its poor public perception of unfair claims practices. However, when it comes to the classification of FMS and CFS, Unum has had a great deal of help in discrediting FMS as totally impairing for disability purposes.

In October 2015 the new Diagnostic Manual, or DSM 5, created a new category  called, “Somatic Disorder Syndrome” that describes impairment symptoms of “imagined” etiology, or exaggerated syndromes literally that are all in one’s head. While Unum, and other disability insurers, were already screaming “it’s all in your head”, in 2015 a new validation of imagined syndromes emerged on the scene.

 To make matters worse, in ICD-10, the latest version of the International Statistical Classification of Diseases and Related Health Problems, somatization syndrome is described as:

“The main features are multiple, recurrent and frequently changing physical symptoms of at least two years duration. Most patients have a long and complicated history of contact with both primary and specialist medical care services, during which many negative investigations or fruitless exploratory operations may have been carried out. Symptoms may be referred to any part or system of the body. The course of the disorder is chronic and fluctuating, and is often associated with disruption of social, interpersonal, and family behaviour.”

In effect, the DSM 5 removed any possibility of defending FMS and CFS as “physical impairments” since all insurers were more than happy to jump on the “mental and nervous bandwagon” to limit benefits to 24 months.

In fact, thanks to the DSM 5, insurers now have defensible arguments for defending FMS as a purely mental disease. Therefore in my opinion, insurers may have a point in limiting FMS claims to 24 months under the mental and nervous provisions of group ERISA Plans.

“Self-reported” might be too large a denial jump, however. “Self-reported” means the so-called impairment is reported solely by the patient since there are no objective tests to confirm the existence of disease other than what is reported by the patient.

While lawyers are defending that there are no objective evidence standards in employer Plans, in my opinion, “self-reported” provisions are actually back-door descriptions of “objective evidence standards.” If Unum can deny claims for impairments it alleges are “self-reported”, it is also logically reasonable to say the company pays claims for which there is objective evidence. Alas, a definition of “objective evidence” by default, and in the back door.

However, the DSM 5 is the real culprit. Are insurers prepared to deny claims for all of the “syndromes” identified in the DSM 5? You bet they are. In any event, it’s been noted that Unum is once again hell-bent to deny and/or limit benefits using the “self-reported” language in their Plans.

Unum never misses an opportunity to deny claims, but the DSM 5 and ICD-10 were not helpful to claimants in supporting FMS as a credible physical impairment.

Today, it’s just “all in your head.”

Information overloadMost people who have a disability claim have a tendency to provide insurers with as much information they possibly can.

Although the idea that the more information provided to an insurance company is the right thing to do, it is in fact, providing insurers with its next question, or area of investigation.

I have actually heard insureds say, more times than I care to mention,” It doesn’t matter what I tell my insurer, I didn’t do anything wrong.” In reality, while insureds are NOT doing anything wrong, insurers are working diligently to misrepresent what they hear, what they see and what they investigate.

Perhaps you’ve read in my articles my use of the term, “stacking the deck” to describe private insurance investigations. Needless to say, the more information insureds provide to insurance representatives, the more insurance jokers are added to insure more claims are not paid, particularly prior to profitability reporting periods.

A good case in point is that of a woman insured who lost her house during the hurricanes this past summer. In attempting to persuade Unum she is legitimately disabled she wrote lengthy letters describing the victimization of herself and her family during and after the hurricane occurred. She did this because Unum asked her to fill out the normal update forms.

Insurance companies that request “update forms” should receive competed “update forms” providing exactly the information it asked for. However, there are insureds who take this opportunity to add pages to the forms disclosing  information about family and activity that is not part of a disability claim. Insurance companies should always be provided with the information it asks for, and nothing else.

The idea that insureds MUST provide every piece of information about themselves stems from the fear that claims won’t get paid even though the exact opposite is true. How many times have you filled out your disability forms and realized there were no empty spaces on the form at all? That’s too much information!

I know from experience that on those occasions when insureds submit old information, it is placed swiftly in the trash (not legally, mind you), but it isn’t paid attention to. When there is INFORMATION OVERLOAD insurance companies tend not to pay attention to anything submitted even though there may be valuable, supportable evidence included among the paperwork.

Writing long defensible letters to insurance companies may also result in denied claims. Insurance managers view such letters as evidence of work capacity. While I understand insureds’ needs to “defend, defend, defend”, letters more than a few paragraphs are considered evidence of work capacity.

The message here is that insureds and claimants should provide answers to only the questions asked and nothing more. These answers need to be truthful and to the point. Insureds should not speak verbally to representatives on the phone, but ask for all communications is writing. Those who are taking opiate, or depression drugs should never be giving information on the phone anyway.

Finally, insureds should immediately restrict themselves from social media. Insurers are tuned in to Facebook, Twitter, LinkedIn, MySpace and many other chat rooms and are using investigative software. Most insureds and claimants have no idea how in-depth Internet investigations are. It’s best not to be on social media at all when you have a disability claim.

Remember, no insurance company can hold against you what you do not say or write. Refrain from overloading insurers with personal information it could care less about, or could use against you in the future to deny your claim. If you are calling your claims handlers often, you need to stop – frequent calls are considered red flags.

Also, this is not the time of year to be chatty with any disability insurance company. Answer only the questions you are asked and nothing more.

 

Christmas Surveillance?

This is just a reminder that Christmas insurance surveillance teams are likely peeping through your fir trees. It’s at this time of year that some insureds and claimants aren’t where they should be and more active than at any other time of the year.

DCS, Inc. always recommended that insureds never exceed their reported medical restrictions and limitations for their own health’s sake. However, Christmas often seems to take over with a spirit of its own when insureds find themselves walking miles in the Mall, or taking grandchildren to sit on Santa’s lap.

I’ve also always been a firm believer in Murphy’s law since the one time you’ve pushed the envelope was at the Christmas dance-athon when you were recorded on an insurance CD doing your thing with Alvin and the Chipmunks. OK, so that’s silly, but I think you get the picture.

Disability insurers are aware that insureds engage in increased activity during the holidays. Please abide by your medical restrictions and limitations and avoid any issues with surveillance.

I would also like to remind you that insurance surveillance now includes social media, postings and other dialog that takes place on the Internet. I recommend staying off of social media, but if you insist on it, the holidays are NOT the time to show pictures and engage family in your activities.

Insurance companies ARE watching and listening. Don’t become a holiday casualty at your insurer’s banquet table.

Christmas GrinchThis time of year is extremely stressful for those who work in the disability claim areas of major insurance companies. Claims managers visit cubicles of employees armed with named targeted hit lists of those whose claims won’t be paid in the new year.

Already, CIGNA has emerged as the major harbinger of doom as the company continues to deny claims indiscriminately without investigation, cause or reason.

Obviously,  CIGNA’s 2013 Multi-State Settlement did nothing to improve the inefficient and negligent claims process that is earmarked by untrained, lazy and inefficient claims handlers. But, that doesn’t help claimants who are depending on benefit income for the Christmas season.

Unfortunately, MetLife, The Hartford and Mass Mutual are also pushing the boundaries of “claim target management” by requesting more IMEs, surveillance, field visits, questionnaires, and repetitive requests for patient files. If you’ve received multiple requests for the above since October, you are most likely a victim of year-end targeting schemes designed to deny claims when profits are most needed.

Reducing financial reserves and accumulating multiple profitability hits is a major objective of every disability insurer in the United States. For example, claims with over 1M in financial reserve will immediately contribute 1M to Balance Sheet profitability when they are denied.

You may have noticed I haven’t mentioned Unum Group thus far in this article and, well, in my opinion, Unum is still the Village looking for its idiot. Apparently, the company is lurching forward with Lucens requests for SSDI financial information in order to find a dollar here, and a dollar there, in overpayments it can recover.

Unfortunately, I’m still getting the impression that Unum is a company searching for its Leader who has gone off with an Atlantean alien to discover the ultimate Gnome on another planet. Outsourcing its operations to “black matter” in the universe doesn’t seem to be working all that well for Unum – at least so far.

Lately, playing “bad cop, good cop”, Unum tends to bend with the wind in its denials and doesn’t seem to have a distinct direction on anything. I’m sure Jim Orr III’s perception of his  former Unum accomplishments as CEO also agrees with mine in that Unum has gone from the “Lighthouse” to the “Outhouse” in a little more than a decade.

Still, Unum’s end of the year profitability targets continues to appear in the form of repeated questionnaires and doc-to-doc calls. Insureds and claimants should be wary of insurance doctors communicating denial agenda to treating physicians, who sometimes agree when pressured.

All in all, December is the primary “target” month for private disability  insurance leading insureds and claimants in “watchful mode” to prevent claims review abuse.

All insurance companies earn profit by NOT paying claims. And, I’s sure no one wants a claim denial delivered by their particular insurance Grinch during the coming holidays. If you need help, please give me a call.

 

Settlement2There are many questions on the Blog recently concerning private disability settlements because from October through December insurers offer more settlements than at any other time of the year.

In fact, making settlement offers prior to profitability reporting AND holidays is a predetermined and intentional insurance company activity.

Insurance companies make intelligent presumptions and then act upon them. For example, in the past (and while I was a Lead Specialist), Unum taught the claims handlers to be aware of certain, let’s say, characteristics relative to insureds and claimants.

We were instructed to be aware of or identify:

  • Claimants who did not graduate high school and have a third grade reading level.
  • Claimants who through telephone conversations make reference to financial problems and not having enough money.
  • Foreign or non-English speaking claimants.
  • Claimants who appear to be afraid and fearful of losing benefits.
  • Insureds and claimants with more than one child.
  • Claimants that would be more susceptible to the threat of losing benefits.
  • Identify claimants from the “South” because they “are a bit slower.”

Most honest insureds and claimants should be thinking, “Boy, this sounds pretty shady to me”, and of course it is. Conversations at the manager level actually took place at Unum concerning the above and the fact that we (the claims handlers) should offer more settlements to insureds in these categories. (This was at a time when Unum permitted claims specialists to offer settlements and Advance Pay and Close.)

Unum’s rationale behind placing insureds and claimants into categories is that historically these types of people would be more likely to accept low-ball settlement offers because they were either incapable of understanding them, or needed money so badly they would accept nearly any amount offered.

Let me put this into context. A claimant with three children in Atlanta, GA would be offered settlement prior to Thanksgiving because it is possible the family would need money for the holidays.

Another example might be an insured who mentioned financial difficulties frequently to the claims specialist in his letters and phone calls. Finally, another claimant, afraid of losing benefits anyway would be more inclined to accept an Advance Pay and Close when threatened with future work capacity.

This was pretty awful don’t you think? I don’t know whether Unum, or any other insurer is still doing this 15 years later, but it clearly was a pattern of practice and could be still happening to some lesser extent.

In my opinion, no insured or claimant should accept a private disability settlement “because they need money for the holidays”. Insurance companies will presume that certain “profiled” groups would be more inclined to accept offers than others at certain times of the year.

I think the most shady practice is a combination of Unum’s profiling with claimants who think they can outsmart the company. For example, in September, just before the holidays, Unum offers an Advance Pay and Close because Unum expects the claimant to be able to return to work in December.

Unum’s AP&C letters state that if the claimant is unable to return to work in December they will be put back on claim. Hum….says the claimant, I can get get three months of benefits up front and in December I won’t be able to return to work and Unum will put me back on claim.

Think again. After shutting down a substantial financial reserve, how quickly will the company be in reinstating your claim? Unum’s current practice is to state that “its internal medical resources concludes you have work capacity and can return to work.” Therefore, in December the claimant no longer has a claim.

Profiling and group identification does take place in the private disability industry, even if it is just a directive given by one or more claims managers to their direct reports. Settlements offered at this time of the year are lower, and do not benefit insureds and claimants who are persuaded to go along with unfair low-ball offers.

Insureds and claimants should be very careful about “Holiday Handout Settlements”. It’s always best to wait until January when insurers may have a different motive and perspective in offering settlements in the first place.

 

 

 

Just when I think I’ve heard of about every thing an insurance company can possibly pull, one or more insurers come out the woodwork with another questionable, in this case, settlement   practice.

In a recent phone call an insured described Met Life’s settlement offer that included a 15% “surcharge” for administrative handling and processing of the settlement.

Upon examination, it appeared the insured would be paid 85% of the Net Present Value and according to actual letter would be charged 15% for the so-called “surcharges.” Although Met Life is not generally known as a settlement company, this certainly is the time of year for settlement offers. Still, insurers cannot engage in unfair settlement claims practices at any time.

Met Life is well aware of the fact that when the financial reserve is removed, the company will receive a profitability hit for any amount of settlement paid less than 100% of the reserve. In addition, “settlement lump sums” represent the present value of benefits owed. Reducing the present value by a surcharge in this particular case would cost the insured an additional $15,000 – for administrative costs and processing?

I am almost tempted to say that Met Life is just not saying what it means. Unum, for example offers a percentage of net present value not to exceed 80% of financial reserve. The company gets a profitability hit of at least 20% for each settlement. If Met Life’s intention was to offer 85% of the net present value it should be more direct and say so rather than concocting a “surcharge” of 15% explanation.

As indicated, October through December are “settlement months” for private disability claims. The 15% surcharge should be challenged to find out why it costs $15,000 worth of  benefit due to process a settlement.

In my opinion, a settlement surcharge is an Unfair Claims Settlement Practice.

 

Attorney feesDCS, Inc. received six phone and email inquires this week from insureds and claimants WITH attorneys who have issues and questions concerning how their claims and/or appeals are progressing. Although I usually refer these callers back to the attorneys they pay fees to, when the third call came in I realized there might be a problem.

DCS, Inc. maintains a list of what I consider to be aggressive, experienced, and successful ERISA insurance litigators, including settlement negotiation. Beyond those on my list to whom I am very complimentary, I am most unflattering to attorneys in my articles because they are part of the problem, not the solution.

It is often difficult to find an attorney who will agree to take a case when monthly benefits are less than, let’s say $4,000/month. Some attorneys refuse ERISA cases altogether. Therefore, a large part of the ERISA population is usually denied assistance by the legal profession because there’s no money in it.

In addition, those attorneys who do accept the non-wealthy cases are usually unknowledgeable when it comes to disability claims, ERISA, and claim management. After all personal injury law is very different from disability appeals and ERISA.

Let’s face it, attorneys do what they do best – litigate, but when it comes to claims management they either do nothing, waiting for the claim to be denied, or do the wrong things. In my experience most attorneys are more concerned about lining their own pockets than they are managing disability claims – there just isn’t enough money in it for them.

Thus, when insureds call me asking questions because their attorneys do not seem to know the answers I have to ask the question, “How is it that an attorney could file 5 unsuccessful ERISA appeals and not know the policy was not preempted by ERISA? Or, an attorney doesn’t know the statute of limitations for torts in their own state? Why is this attorney accepting an ERISA appeal when their specialty is Social Security applications? Do I need to ask? It’s all about the fees.

Most insureds and claimants just want to have their benefits paid, not go to court. In fact, no one should want to be IN court with a disability matter since the odds of winning are less than 50%, resolutions are untimely, and attorneys can walk away with most of the monetary award.

Still, I’ve encountered several attorneys who forgo offers of reasonable settlement so they can litigate potential bad faith in the hopes of being awarded large punitive damages. What they are NOT telling you is that bad faith is hard to prove since it involves “intent” – the case could go on forever.

I really feel awful for those insureds and claimants who tell me they have already handed over large sums of money to their attorneys with little to nothing to show for it. To be clear, there are attorneys who are fair and work hard for their clients, but unfortunately they are few and far between. I am not referring to them, but to the hordes of attorneys who take cases and have absolutely no idea what to do with them.

The objective of disability case management is always to help clients maintain their benefits. It requires specific knowledge about the claims process and when and how to respond to make it more difficult for insurers to deny claims.

Those attorneys who choose to “sit on” claims until they are denied are, in my opinion, engaging in unethical conduct. And, those attorneys who don’t know what they’re doing shouldn’t take the cases in the first place.

One attorney I know of in New Jersey took the majority of the ERISA 180 days to review a claim file and then two weeks before the deadline told the claimant she wasn’t taking the case. Yes, attorneys are permitted to refuse cases but only when they have notified the insured within a reasonable period of time.

Another Boston attorney charges clients $600/hour for claim management. (This attorney should be able to prove a considerable success rate for $600/hour.)

Still another attorney tells clients, “You can’t afford me.” Finally, another attorney deliberately did nothing during the 180 day ERISA appeal period so he could go to court where he found most of his money. I could go on and on, but I’ll stop here.

Although I take no pleasure in holding the legal profession accountable for what they do, it is still important for insureds and claimants not to allow themselves to sign back/forward fee agreements that are outlandish for no work actually performed.

Thank you to the attorneys on my short-list of referrals for doing such a great job with the clients I refer to them. As for the attorneys out there who are taking insurance litigation or ERISA appeals and have no idea what they’re doing, please reconsider what is best for the insured or claimant in lieu of your bank account.

I guess I’m just funny like that……I consider what is best for the insured/claimant in providing them with assistance for the continuation of payment of their claims.

Revelation! No one really wants to go to court with a disability claim; insureds just want to get paid the legitimate benefits they are entitled to and are sometimes willing to give up nearly half of their monthly benefit in order to receive it.

 

 

 

 

 

 

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