Winning Isn't Easy Season 3 Episode 29: Communicating During Your ERISA Disability Claim

Welcome to Season 3, Episode 29 of "Winning Isn't Easy"! 🎙️

In this episode, we tackle a critical aspect of ERISA disability claims: "Communicating During Your ERISA Disability Claim." Join your host, Nancy L. Cavey, a seasoned ERISA Disability Attorney, as she unravels the intricacies of effective communication throughout the ERISA disability claim process.

We'll explore:

📝 The importance of clear and transparent communication with your insurance company.
📞 How to effectively communicate your disability and medical condition.
🤝 Building a strong line of communication with your legal team to strengthen your claim.

Whether you're currently navigating an ERISA disability claim or are seeking to better understand the communication aspects of these claims, this episode provides valuable insights to help you on your journey.

Tune in to Season 3, Episode 29 of "Winning Isn't Easy" for expert guidance on communicating during your ERISA disability claim. 📻🗂️

Resources Mentioned In This Episode:

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

Greg's website link: https://www.tencap.com/

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Please note that the content shared is based on general knowledge and should not replace personalized advice from a qualified attorney or legal professional.

Transcript

ERISA Disability Attorney Nancy Cavey: 0:14

Hey, I'm Nancy Cavey, national ERISA and I D I 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 says I have to say this, so I've said it, but 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. In today's episode, I'm gonna be exploring how you should be communicating with the various parties who will all have a role and a hand in your disability insurance claim. I'm gonna talk about four things. First, I'm gonna talk about the methods of communication. Two, I'm gonna talk about communicating with a disability carrier plan about developments in your claim. I'm gonna talk about communications with the carrier about va, social security and unemployment decisions, and I'm going to be talking about whether you should send your long-term display carrier plan, your pre-disability medical records, lots to cover today. But before we get started, let's take a quick break.

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ERISA Disability Attorney Nancy Cavey: 1:46

Welcome back to Winning Isn't Easy. I'm first gonna be talking about methods of communication. Now, there are all sorts of different ways to communicate with a long-term disability carrier or a plan, and I'm first gonna talk about why using snail mail to communicate with your ERISA disability carrier can be a mistake. So the question is, should you use regular US mail or should you use email to communicate with a disability carrier or plan? I suggest both, but with some specific instructions on how to interact with a disability carrier or plan . So email, if you communicate with the carrier, I want you to CC yourself and I want to make sure that you copy all of your attachments. I want you to run them off hard copy for your records. Yeah, you can make a file folder, but I also want you to send an email , uh, receipt requested. Um, I want you to have a digital record. I want you to have a hard copy record if you have a conversation with the adjuster or the claims examiner, I want you to write a summary of who said what and what was agreed on. I've seen too many adjusting claims notes that were incomplete, inaccurate, or outright lies. So I want you to protect yourself by writing a contemporaneous summary of what happened. Uh, and I want you to be following up with sending to them any documentation that they asked, any forms or other documentation they may ask. And you want to ask that they confirm the receipt of those documents and ask them, do you need any additional information? A heap of hard copy of that. If they say they didn't get it, then it's time for you to use certified mail return receipt requested. I know that it's expensive, but it's there for your protection. Now, certified mail return receipt requested is something that I do use, and of course I keep a hard copy of what I sent certified mail, and that's particularly true if I'm sending in information or records. I do a cover letter, as you should saying, here is what I'm sending you. 1, 2, 3, 4. And at the bottom I'm showing the list and I'm obviously making a hard copy of the letter and the attachments. Now, the certified mail return receipt requested technique, I think limits the disability carriers plan or, or , or plans excuse or we didn't get it or it got lost in the mail. I think that that one way to fix that is that certified mail return receipt requested. And if they say they didn't get it, I send it a second time. And if they say, Hey, we didn't get it a second time, then it's like really, really? If that ultimately becomes an issue, you can show the court what you sent, all the attachments, you know, the cover letter, return receipt requested one and the receipt return receipt requested two and the signature on that. And so you've got all the proof you need that the disability carrier was playing games violated ERISA regulations , uh, and that potentially that the standard of review should actually change from arbitrary and capricious to de novo. In other words, violation of the ERISA rules or regulations can change the standard of review and that can help you. So I think that's a really great way to protect yourself. Otherwise, they're going to play the, we didn't get it snail mail, email delay or deny game. And that's a game that you are gonna lose unless you've got a proof. So they're hoping that if they play that game, by the way, that you'll just go away and you don't want to go away. But of course you're gonna get frustrated. And at that point, if they're playing the delay in denial game, it's time for you to get help from an experienced disability attorney who knows how to play that game back. Got it. Communication is key. We're gonna take a break and then we're gonna talk about some more communication tips that you need to know. Welcome back to Winning Isn't Easy. I'm gonna talk about communicating with a carrier about developments in your case. Now, your case isn't a static claim, it's a claim that will develop over time as things change, particularly in your medical condition or things happen in your life that they need to know about because it impacts your , uh, disability insurance claim. And let's talk a about some of the things that are, IM important for them to understand in terms of the developments of your case. But before we do that, you might be tempted to say, well, I don't wanna just have an off the record discussion with them about this new development that's happening in my life. Look, the process from beginning, Dan, is adversarial in nature and the carrier plan is not in the business being nice, paying the legitimate claims. And the sooner you understand that, the better. If they wanted to speak with you , uh, you should be telling them that all communications should be in writing so that there is no confusion about who said what and what you were instructed to do or what they said. I find many times that the claims examiner, the nurse or other representatives of the carrier will call you asking for information. You know, I'm so concerned I have questions. You know. They're looking for information that they can use to deny or terminate your claim. Now they may tell you, as I said, they're there for you. They have your best interests at heart or caulking with them can expedite the process. If you would just confirm or clarify this or that, don't believe them. None of that in my experience is true. So if you call them up and say, I wanna have an off the record discussion so you can tell them about your problems with your employer, your family, your financial situation, how you're really a great person, how you're really disabled, how you would never file a claim if you could work anywhere . That works both ways. Everything you say is gonna be part of that claims file, and there's no such thing as an off the record discussion. Where should I find that? Off the record? Discussion will be used directly against you. In fact, it could be used indirectly against you. What do I mean by that? The claims examiner can speculate about your motivation to have that off the record discussion. They'll even speculate whether or not your social activities that you put on your activity of daily living forms are inconsistent with the questions that they're asking you about or what you're talking about. You may say, I can't even go to my children's baseball games. And they're gonna wonder, well, are you really not going or are you going? And how long are you going? And how does that , uh, coincide with what you put on the activity of daily living form and what you said to your doctor? Even the most innocuous thing that you say or are asked about and reply to, to can and will be used against. You don't think that they won't use this against you. And it gets worse because your claim is going to be reviewed by the medical provider, the visible carrier's, medical in-house provider, maybe even an I M E , they're gonna have access to the claims examiner's notes and the speculation about your activity level, your motivation to remain , remain disabled, your motivation to return to work, all of that speculation gets stacked and it will influence the medical provider. I've seen medical reports where the medical provider takes that speculation and runs with it. That speculation can and will result in a claims denial or termination. And that happens in part because of your off the record discussions with what you told them during what you thought was an innocuous phone call or of course their call asking you for information . So please don't be surprised if all of this speculation is then shared with your treating provider in an attempt to have your doctor say that the opinions they rendered in support of your claim are all based on your discussions , uh, with them, and that you're not telling them the truth. So the Dr. May be asked to assume the carrier or plan speculation is true, and then your doctor's gonna be asked to readdress their opinion about your treatment, your restrictions and limitations and your ability to work. It becomes a tsunami of speculation that is going to swamp and destroy your claim. So never, never generally talk to the claims examiner unless it's a recorded conversation. And I'm not giving you advice about recording or not recording 'cause it depends on your , uh, your state. Never ask them to put the questions in writing so you can respond and not on the spot . And never, never, ever ask for an off the record discussion. Now, I'm off asked , do I have to tell my long-term discipline carrier plan that I got a favorable or unfavorable social security decision? And the answer is yes, both unfavorable and favorable decisions, many policies or plans require that you apply for Social Security disability benefits because they have the right to reduce your long-term disability benefits by the receipt of your social security benefits or by , uh, that of your, of your children. It is a legal right, they have in the terms of the disability policy or plan. And guess what? You have a duty to cooperate with a carrier or the plan and failing or refusing to give the carrier or plan a copy of that decision. Favorable unfavorable can be a breach of the policy. That means they can deny your claim or terminate your benefits because you didn't cooperate regardless of how disabled you might be. Is that fair? Of course not. But there's nothing fair about the long-term disability policy or plan or the claims process. So what are they gonna do with that social security decision? Well, the Supreme Court has ruled that the disability carrier plan is not bound by the decision, but they have to consider it in making their decision as to whether they're gonna pay or deny your claim. The reality is that the carrier plan will do one of two things with a decision. One, they're gonna say, see, we told you that you weren't disabled. Social Security judge agreed . Or they'll cherry pick the decision and say, you know, it's not binding on us because the Social Security Administration uses a different standard of disability. They consider age. We don't. And either way, they're going to whipsaw you with that social security decision. Either it supports our denial or we're going to ignore it. So what else are they gonna do with that favorable decision? Well , they're immediately asked for repayment of any overpayment caused by the receipt of Social security benefits for you and your children. They're gonna reduce your future benefits by the receipt of those benefits, and it's all legal now, if you don't repay them, they just might sue you and ask that you be repaid. So you have to understand the consequences of this. Now that holds true, as I said, even if there is an unfavorable decision , um, they will use that against you Potentially. You might have gone to trial in front of a Social security judge , uh, and the judge has entered a favorable decision. I always , uh, argue that that's a decision they have to pay particular attention to. And if they didn't get the social security file , uh, then I argue that they haven't given you a full fair review. Now, the other reason you have to send it to them is that many times the provision in the policy , uh, says that you have a duty to continue to apply for social security , uh, benefits. So on the one hand, if it's a favorable decision, they want their offset. If it's an unfavorable decision, you have a duty potentially to appeal that social security denial. Uh, and they'll argue that you could have gotten the benefits. And we're gonna act as if you're getting those benefits and we're gonna reduce your benefits. And by the way, because you didn't cooperate in pursuing the appeal of Social security decision, we're gonna deny your claim based on the failure to cooperate. So you can see that they're gonna try to get you coming and going. By that, I mean, if you don't send them the , uh, unfavorable decision, they can say you've breached the the policy terms. If you don't appeal the unfavorable decision, they're gonna say you breached the terms of the policy of the plan. And if you got the benefits , uh, they may very well ignore the decision, but say that they want to have their , uh, money paid back. Now they, they might pay attention to the decision, but I'll assure you that that is not gonna be very long because a year or two years from now, they may do a , a peer review, the definition of disability might change , and what they'll say is , Hey , this decision is stale . You know, the judge considered it, we considered it, we paid benefits, but it's no longer relevant because circumstances have have changed. So be prepared for that argument. The other thing that we need to consider is that at the end of the day, there is going to potentially be a claim for a , an overpayment. And I have found that the timing of that will generally cons can coincide with the denial of a claim because of a change in condition. If that happens to you, you'll have 180 days in which to file an appeal before you decide to try to repay that benefits. I think that's the time to call and experience to risk a disability attorney who will talk with you about your personal circumstances, the policy, what the decision is, the social security decision, whether you're gonna repay the money now, whether you're gonna play out the appeal, whether you're gonna deal with the overpayment, if they grant your benefits, and how you're gonna handle that overpayment. Uh, if the claim is denied and you're filing a lawsuit, don't necessarily send that money back without consulting with an experienced ERISA disability attorney. Got it. Let's take a break.

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ERISA Disability Attorney Nancy Cavey: 16:36

Welcome back to Winning Isn't Easy. Let's talk about communications with the carrier or plan about VA benefits and unemployment , uh, decisions. So the question becomes that I get as a , a VA and social security and a disability attorney is do I have to send the disability , uh, plan or policy , uh, my VA rating or T D I U decisions? Now, there are two considerations at play in answering this question. The first is one that's unique to you based on the policy or the plan. So is there a provision in the policy or plan that requires you to cooperate with the carrier or the plan? And secondly, is there an offset provision or other income provision that allows the carrier plan to reduce your benefits by the receipt of VA benefits or that you might be getting? And of course, the question is, were you getting them before or after this claim? So let's talk about the duty to cooperate. You have a duty to cooperate with the carrier or plan and failing or refusing to give the carrier a plan. A copy of your VA decisions , uh, can be a breach of the policy and that means that they can deny your policy benefits or terminate your benefits because you didn't cooperate regardless of how disabled you might be. And that stinks. But the court will uphold a claims denial or termination of benefits based on a breach of your duty to cooperate. Let's talk about the offset provision. Now , this is much more problematic. Some policies or plans don't have an offset for VA benefits and that's great. Others prohibit any offset for the VA benefits that you might be getting at the time you became disabled, but allow an offset for any increase in , uh, benefits that you get. And it could be an increase in the impairment rating, it could be a T D I U award . Um, so the carrier or plan might be able to claim an offset for those additional benefits. There are some policies or plans that allow for an offset for any VA benefits that you were getting at the time you became disabled under the times that your policy. And it doesn't matter if the medical conditions that you are getting your VA benefits are different and have nothing to do with the medical conditions that are the basis of your , uh, disability insurance claim. I will tell you that different federal circuits around the United States have taken different approaches to the offset in that situation. And it's really gonna depend on where you live and what circuit law is applicable. And certainly if that's the situation, you need to be consulting with an experienced Aris a disability attorney. How about unemployment benefits? Now, while the disability carrier was fooling around deciding your claim, you may have applied for unemployment to keep the money coming in. What's your legal obligation to tell the carrier about that? And again, they're the same Two considerations. Is there that policy provision that you have the duty to cooperate? And is there an offset provision that allows the carrier to reduce your benefits by the receipt of unemployment? Again, if there's a duty to cooperate and they ask you for a copy of your unemployment application, the decision, your job search, a copy of your checks and you don't give it, I think that that could be a breach of the policy or plan. They may even ask you to sign a release that lets them contact your state unemployment office to get unemployment information. And if you fail to do that, that could be your breach of your duty to cooperate. That means that they can deny your claim or terminate your benefits because you didn't cooperate regardless of how disabled you might be. Again, that stinks. But the course you're gonna uphold a claim denial or termination. How about the offset provision? Is there an offset in your policy or plan for the receipt of unemployment benefits? That means there might be a dollar for dollar reduction of your benefits. Every dollar of unemployment benefits will reduce the amount of your long-term debt benefits. And what are they likely to do with that unfavor? That rather favorable decision? What they're gonna say is, look, this is inconsistent. You're claiming on the one hand that you're disabled, but on the other hand, you're claiming that you can work and that's the basis of your unemployment claim. So which is it? And we're going to presume that you're capable of working because you are certifying that you are capable of working when you file for unemployment. So we're gonna deny or terminate your benefits as stinky as that might be. Now, sometimes you might be getting state disability benefits and there are certain states that provide , uh, state benefits like New York, New Jersey, California, there's a state disability system that pays these benefits for a period of time if you become disabled and unable to work. So can you collect both? Um , and what's your legal obligation to tell the carrier that you might be , uh, getting , uh, both. Again, it goes back to the same thing we've talked about. Is there a provision or in the policy or plan that requires you to cooperate and disclose that information? And is there an offset provision in either the shorter the long-term disability policy or plan that would allow them to reduce your benefits by whatever you got in terms of state disability benefits? So I will tell you that many times I see , uh, in the other income provisions of disability policies or plans, that laundry list of other income sources, unemployment is on that list. Social security can be on that list. VA benefits could be on the list, and there can be unemployment benefits. If your policy or plan has those provisions, there is an offset provision. And if you don't address it, if you hide it, ultimately they can come back and say, look, we've overpaid you benefits, we're gonna sue you unless you pay us back. And by the way, we'll reduce any future benefits by the receipt of , uh, this , uh, overpayment. So obviously you need to understand this , uh, interaction between other income benefits when you're applying for benefits , uh, and certainly when you get a favorable or unfavorable decision. Got it. Let's take a break. Welcome to our last segment of , uh, our podcast today. And the thing I'm gonna talk about in closing is sh should I send my long-term disability carrier plan, my pre-disability medical records? Maybe that's a lawyerly answer, isn't it? Now, the disability carrier plan may evaluate whether or not you meet the applicable definition of disability based on the medical condition that you're claiming that prevents you from performing your own or any occupation. So let's say that you claim that you are disabled as a result of a herniated disc for which you've had surgery. You may have had a history of shoulder surgery. I've had back surgery of a shoulder surgery. Now if I'm claiming disability because of my back, why on earth would I wanna send them my medical records regarding my shoulder surgery? It's irrelevant to the current disability claim, but let's say that I've had prior knee surgery, I've had a lot of them, and I'm now claiming that I'm disabled because of my back. Should I be sending them my records regarding my knee surgery? Well , the answer would be maybe, and it might be that they're , that because of my back problem, I'm walking funnier than I normally do, and that's aggravating my knee condition. And now I'm gonna claim that my back and my knee condition is the basis of my disability. My doctor suggests that my knee problems have become activated because of my back problems. And in that case, I think that the records about the prior knee surgery are going to be relevant and an important history to document the progression of the knee problems secondary to the disabling back problems. Uh, so in other words, in my view, this has to be relevant to the conditions that are the basis of your disability claim. Now, if, as I said, your disabling condition is making pre-existing conditions symptomatic or they're progressed, I think that that information is relevant. So let's say that , uh, we are also having new medical conditions that are the product of your underlying disabling medical condition. Obviously, in that case, you're gonna be sending in both the medical records of the disabling medical condition and a new condition that has developed as a result of the consequences of the disabling medical condition. And of course, as you're doing this, you wanna make sure that your physician is willing to document in both instances that either the preexisting condition has been activated and is disabling, or that this new condition that's developed as a result of the underlying disabling condition are in fact disabling and have them comment on the restrictions and limitations , uh, and your ability to work. We've covered a lot of material today about communication. I hope you have enjoyed this week's episode of Winning Isn't Easy. Please, if you've enjoyed this episode, consider liking our page, leaving our review, sharing it with your friends and family. Subscribe to this podcast so you'll be notified every time a new episode drops. I look forward to talking with you in next week's episode of Winning Isn't Easy. Thanks.