Two Mistakes Your Doctor Can Make That Can Kill Your ERISA Claim

Welcome to Season 3, Episode 19 of Winning Isn't Easy, the podcast hosted by attorney Nancy Cavey, that explores the complexities of disability insurance claims. In this eye-opening episode, we delve into the critical topic: "Two Mistakes Your Doctor Can Make That Can Kill Your ERISA Claim."

As a disability attorney with extensive experience, Nancy Cavey shares her expertise on the pivotal role of medical evidence in ERISA disability claims. In this episode, she uncovers the two common mistakes made by doctors that can significantly impact the outcome of your disability claim under ERISA.

Understanding these potential mistakes is crucial for claimants, as it empowers them to take proactive steps to protect their rights and secure the benefits they deserve.

Throughout the episode, Nancy provides practical tips on how to effectively communicate with your healthcare provider to ensure the accuracy and completeness of your medical records. Her insights will equip you with the knowledge needed to navigate the complexities of disability insurance claims with confidence.

Whether you're currently pursuing an ERISA disability claim, or seeking to deepen your knowledge on the topic, this episode offers valuable information to help you strengthen your claim and advocate for your rights effectively.

Tune in and join Nancy Cavey on this informative journey to secure the benefits you deserve.


Resources Mentioned In This Episode:

LINK TO ROBBED OF YOUR PEACE OF MIND: https://caveylaw.com/get-free-reports/get-disability-book/

LINK TO THE DISABILITY INSURANCE CLAIM SURVIVAL GUIDE FOR PROFESSIONALS: https://caveylaw.com/get-free-reports/disability-insurance-claim-survival-guide-professionals/

FREE CONSULT LINK: https://caveylaw.com/contact-us/


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Transcript

Disability Attorney Nancy Cavey: 0:11

Hey, I'm Nancy Cavey , national Arissa and Individual Disability attorney, and welcome to this week's episode of Winning Isn't Easy. Now, before we get started, I have to give you a legal disclaimer. The Florida Bar says that I have to tell you that this podcast is not legal advice. So I've said it, I've complied with the Florida Bar rules, but nothing will ever prevent me from giving you easy to understand insights and information about ERISA disability claims or medical claims. I want you to have an overview of the disability insurance world and the games that disability carriers and medical carriers play, and what you need to know to get the benefits you deserve. So off we go. Now, today I'm going to be talking about the common mistakes that you or your doctor can make that can kill your disability claim. And I see these all the time, and we're gonna specifically cover four topics today. One, the 10 mistakes that you can make that can destroy your Arisa disability claim. Two, what Hartford did when a policy holder's doctor said he was hopeful that the policy holder could return to work in six months. Next, a lesson on what not to do when your doctor no longer supports your claim or won't comment on your ability to work. And how one court dealt with the disability policy holders , Sergeant Schultz claim that they didn't know they had to appeal and exhaust their administrative remedies before they could file a lawsuit. Got it. Well, let's take a quick break before we come back to this insightful episode about the mistakes that you and your doctor can make that can destroy your claim.

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Disability Attorney Nancy Cavey: 2:31

Welcome back to Winning Isn't Easy. Let's talk about the 10 common mistakes that you can make in your arisa disability claim. Now, in the course of my practice, I have found that these are 10 common but avoidable problems, and you should be aware of these before you stop work and apply for your benefits. And I'm gonna use a case to illustrate this. This is a case of Adams Runyon versus Union Unum Life. It's a case outta California and I think it illustrates all of these problems. Now, Adams Runyon was the director of the laboratory services at Doctor's Hospital of Manteca , uh, which required her to sit at least six hours per day. Her job was very, very stressful and she had undergone heart surgery in 2015, she successfully returned to work. Adams Runyon was hospitalized again on May 8th, 2018. And after her discharge, she once again went back to work. Her post-hospitalization cardiac examinations were normal. There was no evidence that she was having any accelerated medical treatment or symptoms for her cardiac condition. Now, she stopped working , uh, and of course, carrie's gonna scratch their head, but she was having some complaints of dizziness, fatigue, and shortness of breath with chest pain. And it happened about twice a week, not withstanding that she wasn't getting treatment, but she'd undergone a left ha heart catheterization that showed multiple vessel , uh, coronary artery disease. So clearly when she has these diagnostic studies, she has the catheterization. She continues to report chest pain with emotional stress and fatigue. But after she undergoes this catheterization, her physical examination was normal. And as of January 9th, 2019, she advised and the doctor noted that she planned to retire in March of 2019. Now, this wasn't helpful because she had , uh, originally , uh, had the surgery. She had returned to work without symptoms, had , um, you know, began to have some symptoms, went in, got a cath cath, apparently was successfully even though she was continuing to have some symptoms, but she wasn't necessarily getting a lot of care or consistent care. Now, here's where the problems have already started. She told her doctor that she was going to retire , uh, and she last worked on March 14th, 2019, and she worked a full day. The following day she posted on Facebook that she had a new job and it was retired. Boy, that's another problem. Retroactively. Her doctor said, oh, you know, you were outta work as of March 15th. And it certainly was on a temporary basis. And then ultimately she asked the doctor to continue her in the no work status because of the stress of her position. Another set of problems, she told her doctor she wasn't gonna die at her desk. She didn't discuss symptoms, she just said she wasn't gonna die. Now, according to the terms of the policy, she had the burden of proof. She had to prove that she had restrictions and limitations that prevented her from performing the material and substantial duties of her occupation. And stress generally is not going to be sufficient. Obviously, she applied for her disability benefits and in that process she had a call with Unum , the disability carrier. And what did she tell them? She told them that she had been at her Oregon home for at least three months. She could drive a car and a boat and she could use her computer and she could go out to dinner. She claimed that she couldn't work because she was on call 24 7 and her job was very stressful. Now, there were no symptoms tied to any of this. Unum denies her claim because of the normal examination findings, the lack of consistency in her complaints, the lack of , uh, documentation in her medical records, the Facebook comments she made, and the inconsistency between her activities and her allegations of fatigue. Now, Unum also rejected the opinions of her primary doctor because Adams Runyon's records did not record some of the claimed subjective disabling symptoms. And it's , and the records didn't explain the basis of the doctor's opinion that she was unable to work. The primary care doctor just accepted Adam's Runyon's claim that she couldn't work because of exhaustion and stress. And as a matter of law, that's not going to work. ERISA claims administrators and disability carriers are not required to give any special deference to the opinions of treating physicians. So when a federal court evaluates the credibility and weight to be given , uh, to a treating physician's opinion, the court is going to look to a number of things. They're gonna look at the extent of the patient's treatment history, the doctor's specialization, if any, and how much detail the doctor provides in, in supporting their conclusions that the person couldn't work or have restrictions, limitations. Now, the more detail a physician provides for the basis of the opinion, the more weight a court is likely to give to the treating physician's opinion. And this was a huge problem in the case of Adams Runyon . And the federal judge ultimately upholds the denial of the benefits. So let's review here. Did you spot the mistakes? Let's go through them and I'm gonna talk about what should have been done. Well , number one, the policy's medical records don't document the nature of the symptoms and functionality prior to the decision to stop work. Two, the policy holder was working full-time up and until the date they stopped working. Number three, there's no explanation as to why the policy holder could work one day and not the next four. The restrictions and limitations come only after the policy holder stops working. Five, the policy holder makes Facebook postings that are inconsistent with a claim. I'm retired. Six. The policy holders post-retirement activities are inconsistent with acclaimed symptoms. Seven. The policy holders examination and diagnostic studies are normal. And number eight, there's no medical support for the or explanation for the subjective complaints, and there is a lack of medical treatment. And number nine, the treating physician doesn't explain why the policy holder can't work and just kind of repeats and endorses the policy holder's claim that they can't work. And number 10, there, there really was no planning on her. On on the part of , uh, Runyon . She filed failed to hire and experienced a risk of disability attorney who would have reviewed her policy or plan, reviewed her medical records, and would've supplemented the records to provide documentation of her symptoms and functionality. Picked the right date to claim for disability and had an objective correlation between the symptoms and her inability to work as of the date she stopped working. And of course, the attorney would've advised her never ever to do any posting on , uh, Facebook. Um, in this situation, I would've said, stay off Facebook. I want you to go get regular treatment. I want you to document your symptoms. I wanna doc you to document how they impact your ability to do the material and substantial duties of your occupation. I want your doctor to provide support and detailed explanations as to why you can't work. And if need be, let's go get an IME or a functional capacity evaluation to establish what in fact your functional capacity was and the impact of fatigue. Now you can see why she lost and I don't want you to make those mistakes. Think about those 10 things before you stop work. Got it. Let's take a break. Welcome back to winning isn't easy. So what did Hartford do when a doctor said that he was hopeful that the policy holder could return to work in six months? I will tell you, nothing will stop a disability insurance company for looking for reasons to terminate a long-term disability claim, even if the policy holder has been receiving those long-term disability benefits for over 20 years. Now, one of the games that disability carriers will play is to cherry pick a doctor's statements and they will also cherry pick the medical records. They'll take these statements out of context to justify a wrongful claim termination, and they're gonna bet that they're gonna win in federal court. So this is a real story. Let me tell you the story of Anthony Carelli , who worked as the Vice President of Bear Stearns until December of 1999. He was injured in a catastrophic motor vehicle accident and he was left permanently disabled. He underwent many surgeries. Uh, he had negative side effects of , uh, the doctor prescribed pain medication. He suffered a stroke. Um, he began to suffer from depression. Um, and clearly he was disabled Hartford Pain benefits through 2019. And at that point the games began and it began because one of his physicians didn't help him. In 2019, the treating physician Dr. Francis, said that he was hopeful that Carli would could return to work in six months if certain treatments and changes in medication proved effective. That's a heck of a lot of ifs, isn't it ? But that didn't deter Hartford from terminating his benefits after the, the change in treatment and medication. And it didn't matter that it wasn't successful. They denied his claim. And ultimately, of course, this goes to federal court judge sessions of the United States District Court in Vermont was not impressed with Hartford. Now, in my view, this case is a classic textbook claims denial. It's it's textbook 1 0 1. One of the basic principles in an arisa case is that a disability carrier has to justify a claims determin uh , termination based on a change in medical condition. So what did Harford do? They seized on comments in the treating physician providers records and how the provider completed the attending physician statement form, or alleged perhaps that there had been some improvement. This is classic textbook claim denial 1 0 1, and I think it illustrates why you should be having an experienced of disability attorney monitoring and managing your claim, even if it's being paid, even if it's been paid for 20 years. In this case, the medical records continued to document that Carelli suffered from significant pain because of an L three to L five , uh, fusion of the back. He had limited ability to sit, stand, and bend at the waist. He had difficulty kneeling and crouching or reaching above his shoulders. The trouble began when Dr. Francis made that note. And again, the carrier is going to seize on that. I hate it when a doctor says, well, if we change the treatment, there might be , uh, a reassessment of the medical condition if there's been improvement and we're gonna try this and try that, there's no problem doing any of that. But to predict that potentially there's going to be improvement that just makes for problems. Now France is well , well intentioned because he was on , uh, uh, curly was on a lot of medication and we know that physicians are not all that wild about the use of, of , uh, narcotic medication. Um, and so he, Dr. Francis was trying to , uh, to address this ongoing use of pain medication to see if there were al alternative uh , treatments. Um, but that doesn't mean that you're necessarily gonna improve and that you're necessarily are going to be able to , uh, return to work. And in this particular case, after Dr. Francis changed the treatment, there wasn't any change in his condition. And Francis said, look, I think this condition is permanent. Well, guess what? Hartford said, well, we're gonna send a letter to Dr. Francis and we're gonna ask him whether or not Carelli could engage in sedentary work that involves sitting most of the time, but could do a little walking and a little standing for brief periods of time. Dr. Francis didn't do correl a favor here. He took the bait and he opined that Carli could do sedentary work on a full-time basis. He completed an additional attending physician statement form documenting that Carli could sit, stand , or walk for an hour at a time and could sit for four hours out of an eight hour day. Now, if Carli had been represented, his attorney would've headed this off at the pass and had Francis clarify his opinion and make it clear that Carelli couldn't work , um, or even have Carelli undergo a functional capacity evaluation to document that. Now, Hartford said, Hey, we're gonna deny this claim because of his notes. And Dr. Francis' a p s forms, obviously Carelli appeals. And guess what? He had that functional capacity evaluation in January of 2020 and it found that he could only sit for one hour at a time for a total of three to four hours in an eight hour day. He could only stand for 10 minutes at a time, and he could only do that for a total of one hour in an eight hour day. He only had the stamina for two to three hours of work per day. And during that functional capacity evaluation, Carell's pain level was between a five and a seven. What does Hartford do? Well , Hartford attacks the functional capacity evaluation and it was critical of the FCE provider's Evaluation methods had two failing scores on the group strength test . And Hartford noted that , uh, that consistency of effort was poor and therefore the results of the functional capacity evaluation was invalid . They argued that the FC provider should have done a third test of validity and that the F c E results were based on Carell's self-report, which were not validity tested. Now, it also should be noted that the APS forms and the FCE documented restrictions and limitations that were really less than sedentary. Fortunately, Dr. Francis signed off on the January, 2020 F C E and of course, Hartford was not going to change its opinion. So they retained a medical reviewer who disagreed with the FCE and agreed with Dr. Francis's original opinion on October of 2018 that Carli could do a sedentary job on a full-time basis. You can see how the doctor really screwed this case up. So what did the federal judge do? Well, this is the case of Corelli versus Hartford Life as out of Vermont. And as I noted, the judge closely reviewed the medical records and realized that Dr. Francis had revoked his opinion that Carelli might improve and had informed Hartford that Carelli was still disabled from all professions despite Dr. Francis's earlier optimism. And the court rejected fortunately Hartford's arguments about the fce. They noted that while the validity testing and the objective measures were desirable, that the court couldn't and shouldn't dismiss subjective self-reporting as presumptively invalid. And in a dig at Hartford, the court noted that if Hartford was using the grip test to suggest that the FCE providers methods were flawed, where the Carelli wasn't credible or both those attacks were thin, like thin ice . The f c e report reflected a thorough examination that was performed over four to five hours, and there were a number of variety of assessment tools and the consistency of effort was evaluated by several means. And so the court said, I'm , I'm not buying this. And the court also looked at Carley's credibility. They , he, the judge looked at the consistency of the reporting for over 20 years and the judge said, look, there's no malingering , uh, suggestion of malingering in any of these records. And the court therefore concluded that Hartford abused its discretion. Carley's medical history clearly established that since the car accident, his treating physicians had all maintained that he was unable to perform full-time work and that his condition was permanent. The records didn't show any evidence of any change in Carley's medical condition to justify claims denial despite Dr. Francis's wishful thinking. Fortunately, the judge reversed the denial and awarded benefits, but it took years, years to correct what could have been corrected if Corelli only had an ERISA disability attorney on retainer monitoring his forms and the medical records. Got it. Let's take a break.

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Disability Attorney Nancy Cavey: 20:42

Welcome back to Winning Isn't Easy. Let's talk about a lesson of what not to do when your doctor no longer supports your claim or won't comment on your ability to work. Now, when a disability insurance carrier plan puts you on claim or what's called diary, you're gonna be sent on a regular basis attending physician statement forms for your doctors to complete. These forms are gonna ask your doctor to comment on your restrictions and limitations and your ability to work on a full-time basis. If your doctor won't comment or no longer supports your claim, you are setting yourself up for a claim denial or termination. You've got big problems. And let me tell you how it worked for Mr. Messi who lived up to his name and messed up his disability insurance claim big time when his doctor wouldn't support any longer his ability inability to work. It's the lack of medical support that can do your arisa disability insurance claim. Now, Messi claimed in 1998 that he was disabled because of depression and was unable to handle the stress of being a trial lawyer. Unum Provident accepted the claim and they paid him benefits until 2018 when they found that he was able to work for as a lawyer cause in fact, he was doing some part-time work and they terminated his benefits, his training physi psychiatrist had opined in 2017 that he was unable to work. But by 2018, the same psychiatrist refuses to express an opinion about his ability to work. You've gotta wonder, did the doctor know what was going on? Why was the doctor no longer willing to support the claim? Now you gotta remember that you, and in this case, Mr. Messing , had the burden to prove that you meet the definition of disability. Surprisingly, for a trial lawyer, he wasn't particularly smart. He didn't find a new provider to treat and to confirm his inability to work as a lawyer. So Unum got an I m e . Guess what? The Im e doctor said he could work as a lawyer and that his depression was in remission. And as a result, Unum Provident terminated the claim and messing ultimately files a lawsuit in federal court. And in the this particular case, the IM e is gonna win the day. When messing submitted a rebuttal report to counter the I M E , the rebuttal opinion was long on conclusions, but short on factual or medical basis to support the conclusion that he couldn't work. And as a result, the judge saw through this and rejected the rebuttal. The judge noted that the longtime treating psychiatrist refused to render an updated opinion about messing's inability to work as an attorney, and the light bulbs were going off in the judge's mind. And so the judge said, Hmm , there must be some reason here . I'm gonna rule that the i e was correct and upheld the claims denial. So what are the lessons learned in this case? Number one, if your doctor no longer supports your claim or refuses to render an opinion about your restrictions and limitations, find a new doctor immediately, not tomorrow. Now two, if you're sent for an i e hire a lawyer because you're getting set up for claims denial number three, if you have that situation, you wanna undergo your own i e . And then number four, you want your IME doctor to write a strong factually and medically supported rebuttal of the carrier's IME point by point. You don't wanna leave any weasel room in this rebuttal. Got it. Take a break. Welcome back to Winning Isn't Easy. Let's talk about the Sergeant Schultz defense and what one claimant argued to a judge , uh, about the fact that they didn't know they had to appeal and exhaust their administrative remedies before filing a lawsuit. Now, I am sure that you , uh, understand that one of the hallmark features of the ERISA law is that if you're going to file a claim for disability benefits and it's denied or terminated, you have to file an appeal that's called an exhaustion of administrative remedies. And most denial letters will make it fairly clear that you have to exhaust the administrative remedies , uh, before filing a lawsuit. There are a few exceptions, but they didn't apply in this case though . Do you remember the Sergeant Schultz's character in the TV series? Hogan's Heroes? I love that Sergeant Schultz defense in the recent case of Constantine versus Hartford Life, this case out in New York , Ms . Constantine became disabled in January of 2018 . She filed a long-term disability claim. It was denied. She got a denial letter and it didn't necessarily state that filing an appeal had to be done before she could file a lawsuit. But it was clear that that action had to be taken. She argued that she was not unaware of the requirement to file an appeal , and she admitted that she didn't file an appeal before she filed a lawsuit. That is the kiss of death. The denial letter did say that in quotes , should the claim decision be upheld on appeal, you will then have the right to bring a civil action at section 5 0 2 of the ERISA statute. And the court didn't buy that. The , that this I know nothing, nothing at all argument that she made. And the court granted Hartford's motion to dismiss the lawsuit for failure to exhaust the administrative remedies. Um, obviously the time in which to file an appeal long passed. And as much as you know, you would like to get to court as soon as possible, you under the ERISA statute have to exhaust the appeal process. The ERISA law generally gives you , uh, up to 180 days in which to file an appeal. And the appeal is the trial of your case. If you don't file the , uh, appeal , um, and try to go into federal court, the , you know, you , the judge is gonna say you haven't exhausted your administrative remedy. Now remember, once the appeal process is completed, there's no evidence that can be added to the file and there's no trial and cases are decided on a motion for summary judgment. So if for some reason you, you were to get past the argument that you didn't , uh, uh, exhaust your administrative remedies, the judge is only gonna see what was in the carrier file and generally that's not going to be in your favor. What Carelli should have done when she got the denial letter was to hire an experienced arisa disability attorney who would explain to her, we've got 180 days in which to file an appeal. We need to get the carrier's file. We need to develop the medical and vocational evidence that will establish that you meet the definition of disability. And I'm gonna write a , um, appeal letter, 25 to 65 pages long that will go through the facts both medically , um, and , um, and legally make legal arguments as to why that denial was wrong, timely file that appeal, and then if the appeal , uh, is denied, file a lawsuit. That's exhaustion of administrative remedies. So you need to remember that the Sergeant Schultz defense is not going to work and an ERISA disability claim. I hope you've enjoyed this week's episode of Winning Isn't Easy. If you have liked this , uh, uh, episode, I would ask that you please share it with your family or friends. Please subscribe, please like it because this is an educational , uh, podcast for those who are involved in ERISA disability claims. I want you to understand the disability carriers games, the rights that you have and what you need to do to protect yourself. So I look forward to talking with you in our next podcast. Thanks.