On This week's episode of Winning Isn't Easy learn How Disability Insurance Carriers Cherry-pick Claims For Justifications For Denial from Nationwide Long Term Disability ERISA Attorney Nancy L. Cavey.
On This week's episode of Winning Isn't Easy learn How Disability Insurance Carriers Cherry-pick Claims For Justifications For Denial from Nationwide Long Term Disability ERISA Attorney Nancy L. Cavey.
Hey, I'm Nancy Cavey, National ERISA and Individual Disability Attorney. Welcome to Winning Isn't Easy. Before we get started, I've gotta give you a legal disclaimer. This podcast is not legal advice. The Florida Bar Association tells me that I've gotta say this, but once I've said it, nothing prevents me from giving you an easy to understand overview of the disability insurance world, the games the disability carriers play, and what you need to know to get the disability benefits you deserve. So, off we go. With today's episode, disability carriers can be excessively sneaky. In fact, they often will cherry pick medical records and scrape evidence from files that supports their claim denial, all while ignoring the mountains of evidence that suggest you are indeed disabled. In this episode, I'm gonna be talking about three things. First, how reliance standards doctors cherry pick medical evidence to justify the denial of a colitis and Crohn's disease disability claim. Unum's cherry picking medical records to justify a claims denial in an ankylosing spondylitis case and how Hartford Cherry picked the medical records. When the policy holder doctor said that he was hopeful that the policy holder could return to work in six months. You can see that this is a strategy that every disability carrier and employees in creating reasons to deny claims. And it doesn't matter who your disability carrier is, there are lessons to be learned from these cases. So let's take a break for a moment before we get started in this week's episode,
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Nationwide ERISA Attorney Nancy L. Cavey:We'll go back to Winning Isn't Easy. Ready to get started. How Reliance Standards Doctors Cherry Pick medical Evidence to justify the denial of a Colitis and Crohn's disease disability claim. Disability carriers like Reliance Standard routinely have your medical records reviewed by a liar for hire peer review physician. Now that peer review physician is paid to find reasons to justify a claim to denial, and one of the ways they will do this is to cherry pick the medical records. And that's exactly what happened in the case of Bke versus Reliance Standard Life. Now, Ms. Bke was a clinical manager and she had gastro and intestinal problems. They were chronic, um, and she had, uh, colitis and she even had Crohn's disease. Now, her problems got so bad that she had six inches of her colon removed in 2018, and you can imagine that, uh, by 2019 she couldn't work. So she applied for her disability insurance benefits and Reliant Standard who's notorious for claims denial said no. The medical records documented that during the relevant 10 month period, Bki saw her doctors or got emergency care 11 times. There was a brief period when medication helped her GI symptoms, but just a month later, she was hospitalized. On an emergency basis, she was diagnosed with prednisone induced diabetes. Now, reliance noted that Billie's urgency and bloody stools had improved with Humira for a period of time. Her abdominal examination findings were normal, and during this period of time, her doctors didn't place any restrictions or limitations on her ability to work. However, after this very brief period of improvement, her symptoms clearly became disabling and they were severe enough to prevent her from working. So what did the liar for Hire doctor, uh, that Reliant standard hire to do review the medical records do well, guess what? He cherry picked the medical records for that one month period where there was a temporary improvement in her gastrointestinal illness. That was enough to justify a claims denial. And you can imagine that this case made its way to federal court and the judge weighed in. So what did the court say about cherry picking the medical records? The court noted that a reviewing physician is not required to agree with the opinions of a treating physician, but they can't ex simply ignore the treating physician's conclusions or other medical evidence in the record without explanation. So the liar for hire review or opinions were found to be fundamentally flawed and the judge criticized reliance standard on the basis that they couldn't ignore or discount the severity of the policy holder's symptoms. So in other words, what the court said is, Look, you don't have to agree with the fact, uh, that she may or may not be disabled. Um, but you can't ignore the fact that the treating physicians' opinions and conclusions, um, supported a claim of disability after this temporary period of improvement. And you, disability doctor, disability carrier just can't cherry pick or ignore that evidence without explaining why it is you are focusing on this particular period of time, and in this case, the one month period of time to justify a claims denial. Because when you look prior to this one month improvement and you look after this one month improvement, she was clearly disabled. So in this particular case, the court criticized Reliance standard for cherry picking the medical records and relying on the opinion of their liar for hire doctor without an adequate explanation as to why this medical provider rejected the opinions of the treating physician and just focused on that little narrow period of improvement. Got it. Let's take a break. Welcome back to a Winning Isn't Easy. Unum Cherry picks medical records to justify a claim denial and an ankylosing spondylotic as case anky, spondylitis as is a type of arthritis where there is long term inflammation of the joints of the spine, shoulder, or the hips. Now, disability carriers like Unum will play games with ankylosing spondylitis cases based on the progression of the disease, the progression of the symptoms and or the lack of improvement with treatment back pain is characteristic of as, and it often will come and go, This come and going nature of symptoms will often lead a disability insurance carrier to cherry pick the medical records. And what they'll do is they'll seize on these times of improvement where the symptoms are either gone or the symptoms are reduced. Now, we know that treatment for, as consists of nonsteroidal anti-inflammatory drugs, immunosuppressive drugs, physical therapy, and even surgery. And I think that the lack of change in this treatment over time or the lack of change over improve, uh, uh, uh, for improvement over time can play into a disability carrier's denial of a claim. So how does this all add up? Well, let me give you an example. This is the case of Willard versus Unum Life, and Willard was a production supervisor at Amcor Flexibles until March of 2019. He became unable to work as a result of as now he had been diagnosed with, as in 2004. He had had chronic pain for 15 years. By 2019, he had pain in all of his joints in his low back. He got treatment from his rheumatologist, uh, in April of 2015 and complained of persistent pain in his back and his joints, particularly his hips and his knees. Now, the treating physician noted that Willard had decreased range of motion in his hips and spine, and that was confirmed by objective testing. Now, Willard's pain would increase or decrease in severity, and it did over the course of the years, and there were, uh, pain level scales that were used that he was asked, uh, to rate his pain with. Uh, and that's a whole different issue for another podcast. But using a scale of one to 10, 10 being, you know, you're hospitalized, one being no pain, um, he would rate at his pain three out of 10 in severity in April of 2016. It was as high as nine out of 10 in April and December of 2017. Now, despite him taking medications and receiving cortisone injections, his pain persisted. Um, but the pain level, as I've said, varied. There weren't any other treatment options that his physicians were presenting to him. On March 8th, 2019, he visits his treating physician. He complains of pain in his hips and his knees, and he describes this pain as sharp and, and, um, burning. And it as a, a, um, six out of 10 on this scale of one to 10. Now, his treating doctor's note that his pain is relieved with rest and with intravenous administration of Remicade that he gets every six weeks. At that visit, Willard got a steroid injection in both knees and the Remicade, um, uh, dosage, uh, was uh, increased. Now physically on examination, he had a normal range of motion and strengthen his upper extremities, but he had profoundly decreased internal range of motion of the right hip, the left hip, and he had grinding in his knees bilaterally. There was also a decrease in the range of motion of his spine that was confirmed by objective testing. So his doctor suggested that he might want to apply for his short and long term disability benefits as a result of his ongoing problems. So Willard did just that and he applied for his Unum disability benefits, uh, that were provided by his employer. So what did Unum do? Now here's some lessons for you to learn regardless of whether or not your disability insurance policy is through Unum, because this is the game that disability carriers will play in reviewing records and cherry picking medical records. So Unum had this forum discussion. That's a discussion that disability carriers have. They'll have their claims staff, their medical director, maybe their vocational rehabilitation counselor, and they'll all kind of sit around a a round table and discuss, uh, the case. And the issue is going to be whether or not you have medical support for your diagnosis, medical support for your restrictions and limitations, and whether you can perform the functional demands of your occupation. Now, when Unum looked at his records, Willard's uh, records were under the microscope. Uh, they noted that he had only seen his treating physician once since March 18th, 2019. So there was a gap of about six months that his treatment plan hadn't changed any over a year, that his symptoms and complaints were not necessarily being documented as worsening, but we kind of had this, you know, waxing and waning. Um, his physical exam findings had changed for a, uh, had not changed for over a year, and he hadn't made any new requests for medication. So Unum had its onsite physician review the file and of course, Unum's liar for hire Dr. Op Pine that the medical evidence did not support a finding that Willard was disabled. And by the way, the, um, the doctor suggested, um, that, um, he was, you know, able to work notwithstanding the opinion of his treating physician, uh, otherwise. Now, Unum had the liar for hire, uh, opinion reviewed by Willard's treating physician and his treating physician said, Look, you know, I disagree with your liar for hire opinion. I'm the treating physician and I think you need to go get an ime, which of course, Unum didn't do. Now Unum denied the claim on the basis that, um, he had the ability to perform activities of daily living. He could laundry, he could do the grocery shopping, he could drive, and allegedly that was inconsistent with his ability to perform his own occupation. And of course, they cited the fact that his treatment hadn't changed over a year. That, um, that he hadn't seen his treating doctor in six months, that his symptoms and complaints weren't documented as worsening. They had made any new requests for medication under the physical exam. Findings had remained the same, but they weren't done here, uh, creating reasons to create the claims denial. So they had day beating, Unum had the file reviewed, but this time they had it reviewed by a rheumatologist and the rheumatologist, of course, another liar for hire said, I, I agree with this denial. And look, Willard was able to work full time prior to his last day. There's no evidence of a flare up around the time of his claims denial. There's no reason that I can see looking at these medical records that would justify his doctor's instruction that he stopped work and apply for benefits. Now, this case obviously ended up in federal court, and Willard argued before the judge that the denial was what's known as arbitrary Andres, because Unum had failed to have Willard physically examined that they had relied on its in-house file reviewers credibility determinations about his activities of data living and whether they were consistent with his vocational activities that they had relied solely on their liar for higher doctors, uh, and that they had failed to meaningly evaluate the medical evidence. So ultimately the question that a federal judge has to face in these cases is, one, what's the standard of review? And two, what am I gonna do with this case and view that standard of review. There are two possible standards of review. There's what's called the de novo standard of review, and there is what's called the arbitrary and capricious standard of review. A de novo standard of review gives the federal judge the opportunity to re-review the evidence and not be bound by the carriers the decision to deny or terminate benefits. So they bring their own independent judgment to the case and the facts of the case and reach their own independent decision. In the case of arbitrary and capricious, the issue is not so much whether or not the uh, decision is right or wrong, but whether or not the decision to deny the claim is what's called arbitrary and capricious. And what you and I think as being arbitrary and capricious is not always the case. So in this particular issue, the federal judge was faced with a question as to whether or not Unum's decision was arbitrary and capricious because that was the applicable standard of review in this case. So Willard argued, Look, the failure to have an independent medical evaluation is arbitrary and caprices, what did the judge do with that? Well, the judge noted that that was certainly a factor in the deciding whether or not this decision was arbitrary and capricious. It doesn't necessarily mean, uh, that the decision to deny the claim and not to get to the IME wasn't right. Um, doing a file review is just one way of making a decision. And while the carrier has the right to have an ime, they don't have to have an ime. But the judge said, Look, I think this raises questions about the thoroughness and accuracy of the claims denial. Now, the other argument that Willard made was, look, this medical review that Unum did was arbitrary and capricious. The court said, Look, a file review can be arbitrary and capricious when there's significant objective evidence in the records that supports disability, and the reviewer hasn't adequately considered the record in this case. However, Unum's liar for higher doctors had looked at the treating physician's opinions, uh, and ultimately, um, um, decided that they were going to accept, uh, their own opinions and reject the opinions of the physician. Now, in this case, the judge said, No, no, I don't quite get that here because I think that they have arbitrarily, uh, credited the filing, the, the, the reviewing doctor's opinions over the treating physicians, and they ignored the treating opinions, uh, physicians' opinions about getting the ime, uh, and also ignored the treating physicians rebuttal of the peer review physician. They just sort of blew past it. So the judge said, Look, I think that's arbitrary and capricious. The third thing that Willard argue was that, Look, there's objective and subjective medical evidence that supports this claim. And the court agreed. Look, they said there was subjective medical evidence concerning the disability. There was positive physical testing. There were years of medical records documenting his chronic pain. There was the history of the treatment becoming less effective over time or providing only short periods of relief, and there was on physical examination a worsening of the range of motion of his hips and his his spine. Now, in light of that evidence, the court said, Look, it's arbitrary for Unum to deny this claim without a physical examination to determine the severity of the symptoms and the extent of his disability. And so we agreed that that's arbitrary and capricious. The fourth thing that Willard argue was, Look, the Unum Life hire doctors really made a credibility determination that's not supported by the evidence. The court said. You know, we agree and we agree that there was arbitrary and capricious in determining that Willard's subjective complaints were credible and rejecting the rationales for the treatment plan, not changing as of the last day of work. Um, the judge just didn't buy the fact that he hadn't only been seen once in the last six months, uh, that his symptoms, uh, were worsening and that he ability to do work was, um, uh, not inability to do work was not supported by the medical records. So the court took sort of a, a longer view of this case and looked at the medical records and said, Look, this guy's been complaining of subjective complaints for years. Um, his treatment plan has been, uh, implemented. It was effective over time, its effectiveness declined. Um, he, uh, the frequency with which he was seeing the doctor hadn't necessarily changed. Clearly his symptoms were worsening based on, uh, the description and the physical examination and the inability to do the activities of daily living was, um, was irrelevant. And so, um, the court said, Look, again, you didn't have Willard examined and you're relying on your doctor's liar for hire's subjective analysis of these, uh, complaints. And ultimately, what the court did was agree with Willard that this denial was arbitrary and capricious. I want you to understand that disability carriers like Unum and other disability carriers aren't in the business of paying benefits. They'll come up with these bogus reasons like you've worked the day before and nothing's changed, or there was no change in your symptoms when you stop working. Your treatment was the same for years. What you do in your daily life is just what you do at work or what you do in your daily life is inconsistent with what you told your doctor you could do. I see these reasons in denial letters every day and they go on and on with even more ridiculous basis for claims denial. The bottom line in my view is that you deserve your arisa disability insurance benefits. And if you get a denial letter like this, it's time for you to reach out to an experienced arisa disability attorney and take on disability carriers like Unum, who are in the business of denying claims and terminating benefits so that they can increase their bottom line at your expense. Let's take a break.
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Nationwide ERISA Attorney Nancy L. Cavey:Welcome back to Winning Isn't Easy. Let's talk about how har Cherry pick medical records. When the policyholder's doctor said he was hopeful that the policy holder could return to work in six months, nothing's gonna stop a disability insurance carrier from looking for re looking for reasons to terminate a long term disability claim, even if the policy holder's been receiving benefits for over 20 years. One of the games that disability carriers play is to cherry pick a doctor's statements and then take those statements outta context to justify a claim termination betting that they can win in federal court. So let me tell you the story of, uh, Mr. Carelli who worked as a vice president for Bear Stearns until December of 1999. Unfortunately, he was injured in a catastrophic car accident. He was left permanently disabled, he underwent many surgeries, sustained, um, or had problems with side effects of medication. He had a stroke. He began to suffer from depression. He was a mess, and, um, Hartford paid him his long-term disability benefits through 2019. In 2019, one of his treating physicians, Dr. Francis, said he was hopeful that Carelli could return to work in six months if certain treatments and changes in medication proved effective. That's a lot of ifs that did not deter Hartford from terminating benefits after the change in treatment in medication were not successful. Ultimately, the court got involved and it was Judge sessions of the United States District Court of Vermont. And I'll tell you Judge Sessions was not impressed. I think this case is a classic textbook, uh, example of claims denial tactics and let's talk about that. One of the basic principles in Aris is that a disability carrier has to justify a claims termination based on a change in medical condition. Now, Hartford seized on these comments in the treating provider's records and how the, uh, provider completed the attending physician's statement form. Uh, and they claimed of course that there was improvement. Now, if a, if Corelli had been represented by an experienced or is a disability attorney who was monitoring his claim, the attorney I'm sure would've picked this up and would've dealt with this, But Corelli was not represented, uh, at, at this point in the claim. Now in this case, the medical records continued to document that he suffered from significant pain because of an L three to L five fusion, and he had a limited ability to sit, stand, bend at the waist, neo crouch, and reach above his shoulders. The trouble obviously began when Dr. Francis noted in May of 2018 that notwithstanding this difficulties, it would be a good idea to reassess car's medical condition. Since his treatment and medication, uh, were were going to be changed, um, he suggested a return to work date in six months and Hartford Gleefully seized on this language to justify a claims denial. Now, if I had been car's attorney, I would've read that record and I would've been on the phone with Dr. Francis saying, Whoa, wait a second here. Um, you need to clarify that this is just a recommendation. It's, it's a hope, it's a speculative hope, and I'm not changing the opinion that he's disabled, but I'm willing to, you know, try to give him this additional treatment to see if it will improve his functionality. Now, Francis had made these treatment recommendations primarily based on developments in medical literature and attitudes towards the use of opioid medication. In other words, he wasn't really wild about the level of medication that Carelli was taking or how long he'd been taking, and this was a way, in my view, to cover his rear end. That's just my personal opinion. But after Francis made this comment, Carelli suffered a stroke and then obviously he became depressed and that just compounded all of his medical problems, but that didn't her Hartford seizing on Dr. Francis's recommendation. Now, Francis subsequently noted he had planned on evaluating Corellis ability to return to work once it ha was determined if Corellis pain level had improved with the change in medication and treatment. Of course, Corelli advised that the, that the, um, pain hadn't worsened, but it hadn't improved. So it was, it was stable, but it was still disabling. As a result, Francis confirmed that Kelli's level of disability hadn't changed and his condition was permanent with no hope of improvement. But not to be undeterred, Hartford sent Francis a letter in October of 2018 inquiring whether Corelli could engage in sedentary work that involves sitting most of the time. That could also involve walking or standing for brief periods of time. Dr. Francis took the bait again and opined that Carelli could do sedentary work on a full-time basis. He also completed an additional attending physician statement for him, documenting that Carelli could sit, stand or walk one hour at a time or sit for four out of eight hours out of a day. Now, if Carelli had been represented, his attorney would've headed this off at the past, would've had Francis clarify his opinion and maybe recommend a functional capacity evaluation, but make it clear that Carelli couldn't work. So what ultimately happened was Hartford justify the claims denial based on Dr. Francis' notes and the APS form. And quite frankly, Dr. Francis would did not do Corelli any favors in this case. Fortunately, um, Corelli became represented. Corelli appealed and UN also underwent a functional capacity evaluation in January of 2020 that found that he could sit only one hour a day for a total of three hours to four hours in an eight hour workday. He could stand or walk 10 minutes at a time for a total of one hour during an eight hour day, and he could only, uh, occasionally, um, do lifting and bending. He had the stamina to only do work two to three hours per day. And during the functional capacity evaluation, his pain level fluctuated between five and seven that was submitted. And then of course, Hartford said, Ha, we're not gonna give up this denial so easily. They attacked the functional capacity evaluation and they were critical of the FCE carrier's, uh, methods of evaluating, um, uh, kelli's, uh, um, conduct during the course of the fce. Now, why was that important? Corelli had received two failing scores on the grip strength test, and Hartford noted that the in consistency of effort was poor. So what Hartford was arguing was, Look, this FCE is invalid, and it's based on the self reports which were not validated via testing. Now, it should be noted that this F C E was less than sedentary, which means that, um, Carelli couldn't perform the sedentary work that Francis had suggested he could do. Fortunately, Francis signed off on this fce, but then as I've said, Hartford hired a liar for hire who disagreed with the FCE and agreed with Dr. Francis's October, 2018 confirmation that he could do sedentary work on a full-time basis. So Hartford refused to change its position. Ultimately, this case ends up in federal court. This is the case of Carelli versus Hartford Life. The judge noted that Dr. Francis had revoked his opinion that Carelli might improve, and it had informed Hartford that Carelli was still disabled from all professions. Despite his earlier optimism, the court rejected Hartford's arguments regarding the FC noting that while the validity testing and objective measures would've been desirable, the court couldn't suggest dismiss rather the subjective self reporting as presumptively invalid. In a dig to Hartford, the court noted that if Hartford was using the grip strength testing to suggest that the FCE providers methods were flawed or that Carelli was incredible or both, that that was a very, um, crappy way to attack the validity of the fce because the court also noted that the FCE reflected a thorough examination performed over four to five hours. There were a variety of assessment methods and the consistency of effort was evaluated by several means. And I will tell you that grip strength testing is in my view and based on my experience, not a really valid measure of a person's, uh, effort. During the course of a functional capacity evaluation, you can do heart rate monitoring testing, which I think is quite frankly, more effective and I think shows consistency of effort. Now, the court wasn't done with Hartford. Um, the court looked at the consistency of reporting over 20 years and said, Look, there's no evidence or suggestion of lingering in these 20 years of records, so I am not gonna buy your attack On his credibility. The court concluded that Hartford had abused its discretion because Kelli's medical history clearly established that since the car accident, his treating physicians had all maintained, he was unable to perform full-time work, his condition was permanent, and records did not justify a claims denial on the basis that there was any change in his medical condition. And taking that little slice of, Well, geez, I'm gonna change his, uh, is treatment and changes medication, and I think there might be some improvement, was it best speculative? Fortunately for Corelli, the judge reversed the claims to now and awarded benefits. But here's the corrupt. It took years to correct what could have been corrected if Corelli had an ERISA attorney on retainer to monitor not only his swarms, his medical records and work with his physicians to clarify and clean up these misleading statements that, that an experienced attorney knows that disability carriers like Hartford or Unum, you name it, are gonna seize on. To justify a claims denial, it's cherry picking 1 0 1. I hope you've enjoyed this week's episode of Winning Isn't Easy. If you've enjoyed this episode, please consider liking our page, leaving a review, or sharing it with your friends and family. Please subscribe to this podcast. That way you're gonna be notified every time a new episode comes out. Please tune in to next week's insightful episode of Winning Isn't Easy. Thanks.