WIE Season 2: Job Status, Situational Factors, & More What Disability Carriers Do With These to Determine Your Occupation, and How That Can Impact Your Disability Case with Nationwide ERISA Disability Attorney Nancy L. Cavey.
WIE Season 2: Job Status, Situational Factors, & More What Disability Carriers Do With These to Determine Your Occupation, and How That Can Impact Your Disability Case with Nationwide ERISA Disability Attorney Nancy L. Cavey.
Hey, I'm Nancy Cavy. I'm an Rissa, an individual disability attorney, and I wanna welcome you to Winning Isn't Easy. Before we get started, I've gotta give you a legal disclaimer. The Florida Bar tells me that I have to tell you that this podcast is not legal advice. However, I will tell you that nothing will ever stop me from giving you an easy to understand overview of the disability insurance world, the games that disability carriers play, and what you need to know to get the disability benefits you deserve. Ready? Now, I know making the decision to reduce your hours and apply for residual disability benefits or to make the difficult decision to stop work completely and apply for total disability benefits could be tough. I watched my dad make this decision many years, and he agonized over it. It took him a couple years to finally decide that he was gonna stop work and apply for his benefits. Now, you may think that once you've made that decision and you filed your disability insurance application, that your first disability check is going to be FedEx to you overnight, just within hours of you applying for your benefits. Well, I know your doctor supports your claim and maybe your employer supports your claim, but I will tell you that's not the way it happens. Disability carriers are going to be reviewing your application from three different perspectives. The first is, what are the terms of your policy or plan that are applicable to your claim? Secondly, what's the sufficiency of the medical proof that establishes that you're disabled as that term is defined by your policy or plan and your occupation as that term is also defined by your policy or plan and whether or not you're unable to perform the material and substantial duties of that occupation. In this multipart series, I have been talking about occupational factors. I've already covered the topics of what your specific occupational duties were prior to the onset of disability. What were the specific, uh, mental and physical requirements associated with each and every duty, How long you performed each one of these duties in the course of an average day or week. How the disability carrier goes about verifying your occupational duties, how important the date of onset is as it relates to what your occupation was, the status of your license, the results of those data base and social media searches that the disability carrier and plan are going to do, The results of the criminal background checks that they are going to do and the results of their unemployment, uh, background check that they have done on you. Lot of background work, isn't it? But today I wanna switch, um, topics a little bit, a little focus difference. What we're gonna talk about today is do you have a job to return to? Are there situational factors that impact your motivation to return to work? And these are the kind of stupid questions that the carrier's gonna ask you when you apply for benefits. And I wanted to give you an example of how one disability carrier rejected a claim and was ultimately overturned by a disability carrier. And this disability disabled policy holder had scheduled electro shock treatments, and the disability carrier claimed that that was to bolster their claim when the position was eliminated. So we've got some great topics to talk about today. Before we start in, let's take a short break.
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Speaker 1:Welcome back to Winning Isn't Easy. All right, You may be asked by the disability carrier this question, Do you have a job to return to? Now, the disability carrier or plan administrator is gonna contact you at regular intervals and have you fill out activity of daily living forms. One of the questions you're gonna get on these forms is, do you have a job to return to? So why do are they asking you that question? Some policies say that if your employer can make reasonable accommodations for your disability, you have to try to go back to work or your claim's gonna be denied. Now, policies may also provide vocational services to assist you in returning to work. Obviously, the disability carrier wants to pay you as little as possible. And if the disability carrier understands that there, uh, is an opportunity to return you to work either with your employer or some other employer, they want to make sure that you are offered this opportunity and take advantage of it. Now, I also want you to remember that many disability policies or plans have recurrent disability policy provisions and say, if you become disabled again from the same medical condition in a specific period of time, generally six months, you can claim disability again without having to satisfy the elimination period. Now, that can make any attempt to return to work more like a trial work period rather than one that can result in your ultimate claims denial. I think that the policy language, I, or plan language is key. I want you to read it, cover to cover, and I want you to pay particular attention to whether or not there are any reasonable accommodation provisions in the planner policy. Because if there is, then you, um, might want to say that in response to this question that you're unaware of whether you have a job to return to, but that if the employer could accommodate your restrictions and limitations of X, Y, and Z, that you would be more than happy to attempt a return to work, um, and to do so consistent with your physician's restrictions and limitations. Now, again, I also want you to pay particular attention to that recurrent disability provision because if ultimately you do go back to work, well, we wanted to take a hard look at that provision because I treat these as trial work periods. If you go back to work and you're beginning to have problems, then we wanna make sure that they're documented in your medical records because if you, if you're having trouble and you can't do it, we wanna make sure that your doctor's taking you back out of work again, and certainly well before that recurrent disability provision kicks in. Got it. Now, do you have a job to return to? Now you know how to answer that question. Let's take a break. Welcome back to Winning Isn't Easy. Now, many times disability carriers are going to ask you stupid questions. And one of the stupid questions that I think are there on these forms that you have to fill out is, are there situational factors that impact your motivation to return to work? Okay? So the disability carrier is looking for a reason to dispute and to deny a disability insurance claim. And stupid questions are just part of this whole process. Now, this question goes to your motivation. I know you've worked hard in your occupation. I know you've taken great pride in what you do and how you help people, and you're probably good at your job, but now you're facing physical, cognitive, or psychological challenges that make it difficult, if not impossible to work. And I think the last thing you need to be questioned about is your motivation, but you're going to get bull crap questions, and I'm going to go through these questions. And the purpose of these questions is to basically create a reason, quote unquote, for you to be unmotivated, to go back to work, and to remain on the roles of the disability insurance, uh, policy, uh, um, gravy train wagon, if you will. So what are some of the questions? Are you taking care of a parent? Why is that important? Well, if you're taking care of a parent and your, uh, disabling condition, for example, limit your ability to sit, stand, walk, bender, uh, lift, and you're taking care of a parent, that kind of activity can be inconsistent with your claim. Disability. Do you have a disabled child? Same thing. They're looking for inconsistencies between your reported restrictions and limitations and, um, your physical capabilities as it relates to, uh, taking care of that disabled child. Now, of course, taking care of a parent or a disabled child is, I believe, you know, our obligation, uh, as members of a family. Uh, that doesn't mean that the disability carrier isn't going to, uh, conclude that you're really motivated to take care of your family, uh, and are looking for an alternative source of income, which is the disability benefits as opposed to really, really, really being disabled. Another question I'm gonna ask is, are you having childcare issues? Well, certainly, uh, having childcare issues can be a problem working for those of us who have or had children. We know what it's like. Uh, but again, I think that's another bull crap question to try to question your motivation for applying for disability benefits. Are you having problems at work? Don't you hate your supervisors or coworkers? Have you been written up? All of those are workplace, uh, setting type questions. Uh, and the purpose of this again, is to show that you are just claiming disability benefits because you're unhappy at work or they're unhappy with you. And this is just a way for you to sit home and collect these, uh, benefits without having to deal with all the hassle of work and the commute and dealing with your unhappy or disgruntled or nasty coworkers or supervisors. Another question is going to be, is your job being eliminated? And I'm gonna talk about that in greater detail. Are you afraid, uh, you're gonna be terminated or laid off? Are you a member of a union that's striking? Again, these are all, uh, work related issues that allegedly can I, uh, you know, result in them questioning your motivation? Cuz if your job's being eliminated, they're thinking, ah, they're going to be looking for a reason, uh, to file a claim. Um, a and they're looking at that as a way to question your motivation and ultimately to question your doctor about your motivation or your presentation. Is your job being eliminated? Are you afraid of being terminated, laid off? You know, those are the all all sorts of questions that I think you, again, have to be very careful of answering. If you don't know if your job's being eliminated, say, you know, I'm not aware of my job being eliminated. No, I'm not afraid of being terminated. I'm not afraid of being laid off. I'm a valuable employee who's contributed many years of service to this company. Are you a member of a union that's striking? Well, if you're a member of a union, that's great. Um, but um, you might say that I'm not currently aware of any plans that our union has to strike. The next set of questions, I I really take a lot of offense to, um, are you separated? Are you getting a divorce? Now, why is that important? Well, because depending on the nature of this divorce or even childcare or custody issues, um, they're gonna be looking to that, that soon to be expo or the ex spouse as a source of information. And I put that word in quotes, dirt, I really mean, uh, about you and whether or not you're disabled or not, because your disability potentially is going to be an issue as part of any divorce. In custody. Um, you wanna obviously establish that you do have a disability that may el make you entitled to a greater amount of child support or alimony, but you don't wanna be so disabled that you lose custody. So, uh, those are particular issues and when I have those come up in my uh, cases, I'm always talking to the divorce attorney about what's going on and what we're doing and how that might impact both the divorce case and the disability case. Another ca question is going to be, is your ex spouse paying child support or alimony and are they current? In my view, that's none of their business. Um, will the alimony or child support be increased? If you're disabled, again, you know none of your business. Um, if it is, then certainly that will be part of any, uh, court finding or agreement, but that's, you know, after the fact. Again, if that's going to be happening, you should be working closely, not only with your divorce attorney, but with your arisa disability attorney or IDI attorney to make sure that this information, if it's discoverable, is not going to adversely impact your LTD claim. And I promise you, they're gonna be doing, uh, searches on LinkedIn and they're going to be, as we've talked about before, looking for issues involving criminal violations. And that's particularly true if you're a professional. If you're a medical doctor and you're having, uh, potential criminal issues associated, for example, with Medicare billing issues, um, or malpractice issues, that's always going to be fair game for the uh, disability carrier. Now you've got a duty to cooperate, and if you're asked those questions, I think it's time for you to stop being asked those questions, uh, by calling and experience to risk a disability attorney. As I said, some of these questions I think are beyond the pale and I think you need assistance of an experienced attorney to help, uh, navigate through these questions and how to formulate a proper and accurate answer. Got any questions, send us an email and I would love to answer the questions, questions associated with these questions that you get from disability insurance carriers or plan providers ready for a break.
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Speaker 1:Welcome back to Winning Isn't Easy. In the last segment I mentioned that one of the questions you might get is, is your job being eliminated? I'm gonna tell you the story about how a disability carrier denied benefits on the basis that the disabled policy holder scheduled purposely scheduled electro shock treatments to bolster their disability claim because they knew their position was being eliminated. This is the case of Cheryl versus Sun Life. It's a case out of, uh, Chicago area and it's literally shocking. Cheryl suffered from depression, anxiety, panic disorder, and a agoraphobia throughout her career as a research coordinator at the University of Chicago and in early 2020 her psychiatric problems worsened to the point where electroconvulsive therapy E c t was recommended. Simultaneously with this, um, she was advised that her position was being terminated in several months due the lack of funding. She, of course, filed a claim for her disability insurance benefits based on her psychiatric condition and scheduled the E c T treatment as recommended by her physicians. Now, Sun Life who was a disability carrier denied the claim and this case ultimately ended up in front of a federal judge. Some life took the position that she wasn't totally disabled because she had managed her psychiatric condition for the last 10 years and she would've likely, in their estimation, continued her job had her position not been terminated. And the court took issue with the idea that sunlight floated that the timing of this claim was based on an ulterior motive. I mean, doesn't everybody have electroconvulsive therapy treatment just to file a claim for disability benefits? Now the judge, as I, if it is indicated, was not happy with some life. They cherry picked the medical records and fortunately for Cheryl, the judge was able to review this case under a Denovo standard of review, which means that they got to review the record and, and, uh, could substitute their own judgment from that of the of, uh, son life. Now, um, the judge said, Look, I'm looking at these medical records and I can see that her psychiatric condition was clearly deteriorating in the months prior to the announcement of the position being terminated and agreed with the assessment of her treating physicians that she was disabled, uh, and needed to undergo those electric convulsive therapy treatments. The court commented that it would be extraordinarily improbable that Cheryl's physician physicians perceived and recommended perceived that she needed them and recommended the EC treatment solely for the purposes of bolstering her disability claim. That kind of treatment the court noted is only reserved for severe psychiatric editions when less effective treatments have been, uh, uh, tried and have been unsuccessful. So this is a pretty darn significant type of treatment, and the judge recognized that the judge awarded her benefits and dismiss Sun Life's bogus reasons for the claims denial. So can you see now how a disability carrier or a plan is gonna use any reason to deny a claim? I hope you've enjoyed this week's episode of Winning Isn't Easy. If you've enjoyed this episode, consider liking our page, leaving a review, or sharing it with your friends and family, please subscribe to the podcast. That way you're gonna be notified every time that a new episode comes out. I hope you tune in next week for another insightful episode of Winning Isn't Easy.