Winning Isn't Easy Season 3 Episode 32: Your Obligation To Get Medical Care In an ERISA Disability Claim

Welcome to Season 3, Episode 32 of "Winning Isn't Easy"! 🎙️

In this episode, we're tackling a crucial aspect of ERISA disability claims: "Your Obligation To Get Medical Care." Join your host, Nancy L. Cavey, a seasoned ERISA Disability Attorney, as she sheds light on the importance of seeking and maintaining medical care when pursuing disability benefits under ERISA (Employee Retirement Income Security Act).

We'll explore:

🏥 Why seeking regular medical care is vital for your disability claim.
📝 Your obligations and responsibilities when it comes to medical treatment.
🧐 How your medical records and healthcare provider's opinions impact your claim.

Understanding your obligation to obtain proper medical care is essential to strengthening your ERISA disability claim. Nancy will provide insights and guidance to help you navigate this aspect of the claims process effectively.

Tune in to Season 3, Episode 32 of "Winning Isn't Easy" for valuable information on how your medical care can impact 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 medical professional.

Transcript

ERISA Disability Attorney Nancy Cavey: 0:00

Hey, I'm Nancy Cavey . I'm a national ERISA and individual disability attorney. Welcome to Winning Isn't Easy. Before we get started, I've got to give you a legal disclaimer. The Florida Bar says, I have to say that this isn't legal advice, so I've said it, but nothing will ever prevent 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 benefits you deserve. So, off we go. Today I'm going to be talking about medical care and your obligation to get medical care. What does that mean under the terms of your policy and what you need , uh, based on your medical care? Now, first, we're gonna talk about your obligation to get treatment in an ERISA disability claim and , uh, and a social security disability claim, because they tend to go hand in hand . Two, why you should tell the ERISA disability insurance carrier about the side effects of medication when you apply for your disability benefits? And lastly, I'm gonna answer the question, should I tell my doctor that I'm having good days and bad days after my a disability claim is accepted? All of this information is really crucial to getting and keeping your benefits. Let's take a break though before we get started.

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ERISA Disability Attorney Nancy Cavey: 1:57

Welcome back to winning Isn't Easy, ready to get started. So, let's , uh, talk about your obligation under the ERISA disability policy to get medical treatment. And we're gonna contrast that with getting medical treatment as a Social Security disability claim. Uh, many ERISA disability insurance policies or plans require that you get reasonable and appropriate medical treatment as a condition to getting your disability benefits and as a condition to keeping your , uh, disability benefits. The policies or plans also will require that you apply for Social Security disability benefits. Why? Well , the disability carrier or plan wants the right to reduce your long-term disability benefits by the receipt of your Social security benefits. Now, the question becomes, in my view, is the obligation to get medical treatment in an ERISA disability claim the same as it is in a Social Security disability claim? The Social Security Administration will rarely deny a , a Social Security claim on the basis that the applicant failed to , uh, follow prescribed treatment and is therefore not disabled. However , uh, they do expect compliance with the medical instructions that are given to , uh, a patient, you know , prescribed medical treatment, and the Social Security Administration says, Hey, we expect that you're going to take the medication or you're gonna get the injections, or, you know, potentially you're going to get treatment. What will happen is that the Social Security Administration or a judge , um, will make ultimately credibility decisions about your entitlement to benefits based in part on whether or not you've been compliant with the medical treatment that's being recommended. And what the, the Social Security Administration , uh, claims examiners or the judges will say is, look, if you're not getting the medical treatment, if you're not complying with the medical treatment in terms of the nature of the treatment or the frequency of the treatment, you just are not as disabled as you would have me believe , uh, because otherwise you would be getting the treatment, you would be following the prescribed treatment. And using that reasoning, the Social Security Administration will simply find that you are not believable or credible , uh, and , uh, you know, deny the claim. In fact, social Security has regulations that will address this. It's Regulation 96 7 P and it sets forth in detail , uh, what you have to do , uh, to get your benefits and maintain your benefits. And this ruling says, look, that an applicant's statement about their symptoms and their functionality can be less credible if the level of frequency of treatment is inconsistent with the level of complaints or if the medical reports or records show that the individual is not following , uh, the treatment as prescribed. And there are no good reasons for this failure. Now, this ruling will suggest that a judge or a <inaudible> claims adjudicator should not draw any inferences about an applicant's symptoms and functional effects without first considering any explanation that the applicant might provide or any other information in the case record that could explain this lack of care or this infrequent care or lack of , uh, compliance with care , uh, social Security rule , uh, or rather , regulation 9 6 7 P requires that the claims examiner or the judge inquire as to whether there are good reasons , uh, for this lack of treatment. So what are the acceptable reasons, and are these potentially applicable in the context of an ERISA case? The acceptable reasons recognized by Social Security for not getting medical treatment or be fully compliant are things like , um, uh, like you , um, could not afford the medical care. Uh, now the Social Security Administration will expect to see in your claims file that you have consulted with cost or low cost medical providers. It might be the County Health Department or an organization like the Judea Christian , uh, clinic. Uh , they want to see they meaning social security is gonna wanna see that you've made some effort to get the medical treatment. Uh, and they'll also want to understand, for example, why it is you , uh, may not have fully complied with treatment. So, for example, if there's a recommendation for surgery , uh, there's needs to be something in the medical records that address why it is you didn't have the surgery. It might be that you've had several surgeries before with less than stellar results, and you don't wanna try the surgery again. It might be that you've had a family , uh, or member or a friend who's had the surgery with poor results and had significant issues with disability, or you may have known someone who had the surgery and ultimately committed suicide because of the, the lack of improvement. So if you're, if you're going to try to argue that there's, that you can't afford the care, you've gotta demonstrate that there's an alternative method of care that you've attempted , uh, and that , uh, that , uh, alternatively, you're not accepting all of the medical care because of a well-founded fear of , uh, injury, disability, or death as a result of this proposed treatment. Now, the Social Security Administration and the , the judges will , will generally accept that reason if it's explained and well-founded not all judges or so , uh, social claims examiners won't. But let's compare or contrast that with what the ERISA disability carrier or plan will do. And the answer is they're not gonna take the same approach. This will insurance , uh, claims are month to month , and therefore the disability carrier expects that you're gonna be getting medical treatment with a frequency and level of care that's consistent with your claim disability. So one of the things that you might argue is, look, I I can try to control my pain or difficulty difficulties with structuring my daily activities in such a fashion to minimize my symptoms. Well, the disability carrier might say, if you can structure your daily activities, you can structure your work activities. Um, the, our other argument might be, look, my symptoms are not severe enough to prompt me to seek ongoing medical attention or can be relieved with over-the-counter medication. Now, if you're not getting any treatment at all, you are violating your ERISA disability insurance policy or plan, and they can deny the claim on the basis of the lack of compliance with the terms of the policy. And no judge is going to overturn that. No federal judge is gonna overturn a claims denial and an ERISA case if you're , if you've decided that you're not gonna get treatment. Now, if you say, look, my, my symptoms can be relieved with over-the-counter prescription medication, that's not gonna really fly in a ERISA disability claim because they're gonna say, well, you know, if you can take over the counter prescrip medication, your pain must not be bad. And it certainly isn't disabling, and it certainly isn't disabling to the extent to which you couldn't perform your own or any occupation. You might argue that you're not taking the prescription medication because of side effects, and those side effects are worse potentially than the symptoms. Now, that's not necessarily gonna cut it in either a social security claim or in an ERISA disability claim in the context of a social security claim. The Social Security Administration or the judge is gonna wanna see that you've gone to the doctor and complained about those side effects and that the doctor has prescribed a different kinds of medication, which may or may not work and which may or may not have caused other side effects. And the Social Security administration or the judge is gonna wanna see that there's another attempt at medication trials. So you just walking into a social security hearing saying, you know , I had these side effects and, and I didn't like them so I stopped taking them, is not gonna cut it if it's not in the records. If there's not a trial of multiple medication , uh, attempts including, you know, other medication that has little or no side effects, you know, it's just not going to work. And the same thing is going to be true in the context of the , um, uh, ERISA case. Um, they wanna see, you've tried medications, if you've had side effects, they wanna see multiple trials of medication and what impact that had on your side effects or your pain. You just can't waltz in , uh, in a claim and say, you know, I've got these side effects and that's why I stopped taking the medication. Not gonna work. Now, how about the issue of the lo of the inability to get medical care because of the loss of insurance, or you can't afford it in the context of an ERISA case. It's too bad. So sad. The policy requires that you get medical treatment and you may have been advised on the other hand that there isn't any further effective treatment that can be prescribed that would benefit them. Now, in that situation, what I'm telling my clients is that the ERISA disciplinary carrier or plan is always of the opinion that some form of treatment that you could get would help you , uh, return to work , uh, even if it may not benefit you on a long-term basis. That's kind of, eh , uh, uh, I think that's a , a bit of a , of a crappy reason to deny a claim. But what I do do is, is if we are in a situation where , uh, the doctor is saying, look, there's not a lot more I can offer , uh, I always try to get the disability carrier or the plan to address that and say, look, we understand we'll accept that, but we expect that they , that the person sees the doctor, you know, this frequently, and by the way, we won't require attending physician statement forms every month. We'll just maybe do 'em every six months. That's something that, that I have been successful in negotiating in a risk of disability , uh, claims. Now , um, you might argue that the treatment that is being offered as contrary to the teaching and tenets of your particular religion, that will work potentially in a social security case, but not necessarily in an ERISA disability case. And what they're gonna say in an ERISA case is notwithstanding your religious beliefs or the tenets of your religion, you have an obligation to get medical treatment and you need to get alternative medical treatment that does not violate your particular religious , uh, teachings or, or tenets. Now, you may have undergone surgery with unsuccessful results, and you're reluctant to have that surgery again, that, as I've explained, will work generally with explanation in a social security case. Uh, and that will generally work in an ERISA case, but both social security and the ERISA disability carrier plan is going to be saying, look, there are other conservative forms of treatment that you can get in forms of therapies, medications, or injections, and we expect that you are going to, to get that. Now, the treatment recommendation might be significant, and you're really reluctant to undergo that treatment. So it might be open heart surgery , uh, it might be an organ transplant. You know, those sorts of things that are sort of, if you will, beyond the normal in quotes , form of treatment. Now, in the context of a social security case, again, if well documented in the file, that , um, is generally acceptable in the context of an ERISA disciplinary case. If you're faced with a very risky surgery , uh, or a significant procedure and you're reluctant to undergo it, again, there's several things you have to do. One , you've gotta document the nature of the surgery your doctor has to, the doctor has to explain in the medical records that they've explained to you the risks associated with this particular surgery, and that after a considered discussion that you have chosen not to undergo that surgery. And the doctor agrees in view of your concerns that you should not undergo this particular procedure or surgery. And then the doctor offers alternative care that , um, is at , at best, you know, conservative and palliative. Um , again, all of this is done with , uh, explanation. Now , uh, again , um, we need to talk about a , a, a particular surgery that may jeopardize the function of, of another part of your body. So let's say for example, you have visual issues and you have problems , uh, with both eyes , um, and the surgeon is recommending surgery on one eye, and you could potentially lose the vision in that one eye and have poor vision in just one eye or potentially , uh, you could have a surgical procedure that could result in the loss of, of , uh, vision in one or both eyes. Um, in that situation, again, it should be documented the degree of the visual impairment in the quote unquote good eye, the degree of impairment in the quote unquote bad eye. What impact having surgery on the bad eye, what are the risks associated with that? And then what impact could it have if that surgery wasn't successful on the remaining , uh, good eye, if you will , uh, again, well-documented , uh, explanation as to why that particular surgery would be in inappropriate. Now, in some situations, let's say , um, you have a back that the , that , uh, and a knee condition , um, you've got a total knee, you've got a a back that needs surgery on, you're reluctant to have that back surgery because you don't wanna end up being paralyzed. You don't want to end up having the , the knee get worse, or let's reverse it. You know, you, you , um, have had back surgery and you're having knee problems and you don't wanna make it worse. Again , uh, it's important that your medical records are addressing this particular problem and address why it is you wouldn't potentially need , uh, wouldn't use any assistive devices. So you can see that the ERISA disability carrier plan can be very inflexible when it comes to the policy requirements that you get medical treatment. I know that was a long segment. We need to take a break and we'll be back with our other two , uh, features. Welcome back to Winning Isn't Easy. Why You should tell Your ERISA Disability Carrier about the side effects of medication when you apply for your benefits. Now, when you apply for your ERISA disability benefits, the disability carrier planner is gonna be reviewing your medical records, and they're gonna be determining your functional capa ca capabilities. And whether depending on the definition of the disability, you're able to perform your own or any other occupation. Now, hopefully your doctor has addressed your physical restrictions and limitations in your medical records and completed , uh, the carrier or the plans attending physician statement forms. Now, if you've looked closely at these APS forms, you can see they don't ask the right questions about your physical functioning, and they don't always ask questions about the side effects of any medication that you might be taking as a result of your disabling medical condition. The side effects of medication can impact your functionality, and some of it might cause significant work restrictions and limitations and prevent you from doing your work or any other work. You should be telling your doctor about these side effects so that your doctor can change your medication and try other types or combinations of medications. And if you don't tell your doctor about these side effects, the disability carrier plan may not later accept your argument that your claim shouldn't have been denied or your claim shouldn't have been terminated because of the side effects of medication. If it isn't there and you're now claiming you're having these problems, the disability carrier's gonna go, ah , you know, too bad, so sad. Um, so it's really important that you are documenting with your physician the side effects of medication and that there is a documentation of a trial of different types of medication. You wanna make sure that your doctor is noting that in any attending physician statement forms, but just as important , uh, as important, you are going to be asked to complete on a regular basis various forms , uh, about your , uh, activities of daily living, and you need to document the problems that you're having on those forms with side effects of medication. Um, and you wanna talk about that in terms of your symptoms, the medication, how the medication is changing your symptoms, yes or no , uh, and how the side effects of medication, if there are any, are impacting your symptoms and your functionality. So it might be, for example, you're being prescribed gabapentin. Well, one of the known side effects of gabapentin is it's sedating impact. It makes you sleepy. So you take the gabapentin, helps reduce your pain, maybe improves your functionality so that you can stand at the kitchen sink for 20 minutes and sit for, you know, 30 or 40 minutes, but it knocks you out and you know, you, you, you're out, you know, with a nap because you're foggy and you're tired and you're out for an hour or two. That's important because any of that will impact your functionality. So you need to make sure, again, that it's documented. You might have a medication that requires you to go to the bathroom frequently. That's embarrassing, I know that. But it's important that that's developed in, in terms of your medical records and the forms you're filling out. I mean, if you've gotta use the restroom, if you have to be close to the restroom, that's a problem. If you're, you know, taking these unscheduled breaks and they're lasting five or 10 minutes, all of that is gonna impact your ability to perform your own or any occupation. You won't be able to meet the pace and production requirements. And that, again, is important for you to document in your medical records and in your forms because the disability carrier should be taking those side effects of medication into consideration in deciding your claim and deciding to keep you on diary. Now again, remember, under the ERISA policy or plan, you have an obligation to get medical treatment that's reasonable and appropriate, even if you're having side effects. These tips that I'm giving you will help document those medication side effects, your multiple attempts at addressing those side effects and your compliance with your obligation to get medical care . Hopefully these tips will be helpful and they'll make the difference in getting and keeping your disability benefits. Let's take a break.

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ERISA Disability Attorney Nancy Cavey: 22:45

Welcome back to Winning Isn't Easy. Should I tell my doctor that I'm having good days and bad days after my ERISA disability claim is accepted? Well, the answer is yes. We always want to be truthful with your physician, but you need to remember that just because a disability carrier plan is accepted your claim doesn't mean that they're gonna continue to pay your benefits. Each month is considered a new claim, and you have the burden each month to establish that you're unable to do your own occupation or any occupation. Uh, so how do we go about addressing the issue of , um, you know, good days and bad days? Then how do we balance that with your obligation to get medical care? If you're having, you know, good days and bad days, please remember that under the terms of the disability policy or plan, you have an obligation to get medical care that's reasonable and appropriate. Uh, and they're gonna be looking at your medical records measuring, one, are you getting treatment? Two, what's the nature of that treatment? Three, is that treatment consistent with the level of , uh, dysfunction that you are claiming? Uh, and , uh, they're always, of course, gonna be looking for a reason to deny a claim, including the argument that you're not as disabled as you say you are because there's been medical improvement. Now, in my view, there's a difference between quote unquote improvement and good days and bad days. Once again, your medical records can make or break your claim. You might have a medical condition that results in you having good days and bad days, but it's important that you're explaining to your doctor what a good day looks like and what a bad day looks like. You might be able on a good day to go grocery shopping or to maybe attend your children's, you know, softball game, but the next day you might not be able to get out of bed , uh, or you have to increase your pain medication. Uh , so what we have to do is to explain what the price is that you're paying for having a good day. So on a good day, I can do this and on a and as followed by a bad day. Uh, and this is what happens to me on a bad day. Uh, and this is how it impacts my functionality. You know, let's say for example, you've got a migraine that lasts all day , uh, and , um, you know, the next day you're feeling better, the next day you're feeling even better. So the next day, the third day out, you go grocery shopping, but the lights in the grocery store trigger a another headache. You wanna be explaining this type of episode. Um, I think it's really important that you give a really good interval history at each doctor's visit about your symptoms, how those symptoms have impact your ability to function, and what a good day and a bad day looks like. Now, let's contrast that with improvement. To me, the word improvement is like the word fine . You know, when you , your kids come home from school and you ask them how their day was, they say, fine. Well, fine doesn't mean anything and improvement doesn't mean anything better, doesn't mean anything. You've gotta define these terms in terms of your functionality and your symptoms. So it might be that you're improving because your pain has gone from a 10 to an eight, or that you can stand at the kitchen sink for 30 minutes as opposed to 50 minutes, and then only have to rest 10 minutes. It might be that you're able to cook a light meal while you're alternating sitting and standing, or you might be able to run a grocery, you know, do a grocery run to run in and get some milk because you feel like you're improving. You need to paint a picture of that quote unquote improvement with your words in the medical records. And, and that's why I like to have my clients fill out a symptoms , uh, uh, and functionality sheet to give to the doctor between doctor visits . So you're keeping this kinda log , um, it's not a blow by blow, this is what I did, but it documents the highs, the lows, maybe improvement , um, but it's defining that in terms of symptoms and , uh, functionality. Um , you also should be quantifying good days and bad days. If you only have like one good day, then you know that's one issue. But if you've got seven good days and you're not defining what good days mean, the disability carrier plan will most likely deny your claim. Now, on the other hand, if you only have bad days and horrible days and horrible, or days, if that's even a word, the disability carrier may think that you're exaggerating. So we want to be straight up, honest about your good days and your bad days and explain it in terms of symptoms and functionality. Now , um, again, as you're explaining that one of the most important things I think is, are those good days predictable? Are your bad days predictable? Uh, and that's important because the lack of predictability can impact your ability to go to work, stay at work, or, you know, meet the pace of production , uh, requirements. Um, so telling your story in your medical records about your good days and bad days and quote unquote improvement can make or break your disability claim. And it can make the difference between whether or not you get your benefits, but also whether you keep those benefits. You need to document your compliance with your medical care , uh, the side effects of medication, good days, bad days improvement, and do that again in the form of a story about your symptoms and your functionality. I hope you've enjoyed this episode. We've covered a lot of material in regard to the medical issues that you can see in an ERISA disability claim and that interaction with a Social security disability claim. If you've enjoyed this episode, please consider liking our page, leaving a review or sharing it with friends and family. Please subscribe to this podcast. That way you're gonna get notified every time a new episode comes out. Please tune in next week for another insightful episode of Winning Isn't Easy. Thanks.