Winning Isn't Easy Season 3 Episode 34: Tips For Answering Questions On ERISA ADL Forms

Welcome to Season 3, Episode 34 of "Winning Isn't Easy"! 🎙️

In this informative episode, join your host, Nancy L. Cavey, as she provides invaluable insights and tips for answering questions on ERISA Activities of Daily Living (ADL) Forms.

Navigating ERISA (Employee Retirement Income Security Act) disability claims can be complex, and completing ADL forms accurately is crucial. Whether you're an applicant or a professional helping someone through the process, understanding the nuances of these forms is essential.

In this episode, you'll discover:

📝 Common mistakes people make when filling out ERISA ADL forms.
🔑 Key tips for providing accurate and compelling answers.
💼 The significance of these forms in the disability claims process.

Nancy will draw from her extensive experience in disability law to guide you through the intricacies of ADL forms, helping you maximize your chances of a successful disability claim.

Tune in to Season 3, Episode 34 of "Winning Isn't Easy" to gain the knowledge and confidence needed to tackle ERISA ADL forms effectively. 📻📝

Please remember that the information shared is for general guidance and should not substitute for personalized legal advice from qualified professionals.

Transcript

Nancy L. Cavey: 0:00

Hey, I'm Nancy Cavey , national erisa , an individual disability attorney. Welcome to Winning Isn't Easy. Before we get started, I've got to give you a legal disclaimer. This podcast isn't legal advice. The Florida Bar Association tells me that I have to say this, 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 disability benefits you deserve. So off we go with today's episode. Today, I'm gonna be walking through some of the tips that I give my clients for answering questions on an ERISA activity of Daily Living form. Now, we're going to have three sections in this episode, and I'm gonna be covering number one, tips for how to answer the question. How does your illness or injury or conditions limit your ability to work? Two tips for how to answer the question. What do you do on a typical day? And thirdly, when I apply for my ERISA disability benefits, why do they ask me what I do around the house? Got it. Let's take a break before we get started on these tips for filling out activity of daily living forms that can make or break your eris a disability insurance claim.

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Nancy L. Cavey: 1:53

Welcome back to Winning Isn't Easy. All right , we're gonna talk about tips for how to answer the question. How does your illness, injury, or conditions limit your ability to work in your ERISA disability claim? Applying for Eris a disability benefits involves filling out lots of forms, including a form called the Activity of Daily Living Form. Your responses to that form can make or break your claim, so it pays to take some time to complete the form accurately, truthfully, and in a manner that won't give the disability carrier plan a reason to deny your claim. Now, they're going to be asking you to complete this form and this form and many other forms, but particularly this form many times during the life of your claim. So you should take this seriously. Every time you're asked to complete it, it's a pain, but don't blow this off. What are some of the common questions on the activity of daily living form that I see that can be problematic? Well, we're gonna ask questions about your medical condition, how your illness or injury or condition limits your ability to work, what you do during the course of a typical day. What are your very specific daily activities? And you know, what's your ability to perform? Things like sitting, standing, walking, and lifting. Again, I've said we wanna be truthful in completing this form. We don't wanna exaggerate , uh, we don't want to minimize things. In other words, we don't wanna be on either end of the spectrum. We don't want to make it sound like you are incredible pain 24 7, and we other hand, we don't want you to be a John Wayne silent type. In the middle is the truth. I know that sounds simple to do, but it can hard, it'd be hard to do in practice, particularly the way that these forms are written. So let's talk about tips to how to answer the question. How does your illness, injury or condition limit your ability to work when the standard of disability is your inability to do your own occupation? Now, you might think it's pretty obvious from your medical records that you can't do your own occupation. I will assure you that that information is rarely found in your medical records. There's gonna be a , a history of perhaps your symptoms, but the doctor is going to be you're conducting an examination , um, recording those examination findings, reviewing your , um, diagnostic studies, making a diagnosis and treatment for recommendation. They're really not quite frankly, interested in rendering opinions about your , uh, ability to sit, stand, walk Stu Bend . And quite frankly, they don't always take the best history in terms of your symptoms and functionality. 'cause that's not really what their focus is. That means that you have gotta do a bang up job of giving that information to your physician. And the way that we do it with our clients is to have them use symptoms and functionality sheets that they give to their doctors , uh, uh, at each visit. Now, what is it that the disability carrier is wants to hear from you about in this activity of daily living form in regard to , uh, the difficulties you might be having? What I think you should be doing is you should be getting out a blank piece of paper or call up a a Word document and write out what you think the answers should be and begin to think backwards.

Speaker 3: 5:27

Hmm . What

Nancy L. Cavey: 5:27

Does Nancy cay mean by that? Well, what I mean is you should be writing down each of the material and substantial duties of your occupation. In other words, what is it that you have to do and what couldn't be admitted, omitted in terms of , uh, your job , uh, so that you, that you couldn't do the job with , that the job wouldn't be the same. So for example, if you're a manager , uh, and you can't walk the plant floor because of your back problem, that's a pretty essential element of the job because part of your job is supervision. So you wanna be taking this piece of paper and you wanna be writing on , uh, you know, down the length of the left hand side. What is the material physical duties, standing, walking, bending, stooping, lifting, describe them same way cognitively. What is it that you have to do? Do you have to fill out forms? Do you have to , uh, uh, prepare presentations? Uh, do you have to schedule budget? You know, those sorts of things. And then talk about the , uh, what I call the , the social interaction duties. The psychosocial duties. You gotta interact with your supervisors, coworkers , the public. Now that you've written down all of those duties , um, you might be surprised at all the things you do, but I want you to draw a line across the paper from each of these material and substantial duties. And then , uh, on the right hand side of the paper, I want you to write down what it is from each one of your medical conditions that you would have problems doing. So for example , uh, you might be a , um, project manager. You're required to sit and use a computer all day. So you are , uh, using the computer, how many hours, what is it that you're doing? Um, and , um, you have difficulty sitting because of your back condition. So you can only sit for 45 minutes, and then you have to get up and move around, or you may have to elevate your legs as a project manager. Cognitively, you know, you're responsible for organizing, managing, scheduling , um, the work that is being done on a particular project, and you of course are doing your own work. So if you're having back pain or side effects of medication, you may have problems cognitively dealing with those particular issues. Or it might be that because of your pain, you have fatigue and, and you know , just you're not all there. Or you gotta take a nap and you have difficulty doing this duty, that duty, this duty. As a project manager, you've gotta interact with your team , uh, with your team , uh, uh, uh, supervisors, if you will, or managers. You're probably in lots of meetings. Uh, and if you're g grouching and you're not getting along , um, that's gonna be noticed. If you're depressed and you're not interacting, that's going to be noticed. And so you wanna be correlating, if you will, here on the left hand side on the material and substantial duties of my occupation on the right hand side from my back, I'm having these particular problems that prevent me from doing this duty or interacting to do this duty. So that when you are preparing this document, you have the ability to explain not only what the material and substantial duties of your occupation is, but the impact that your symptoms are having on your functionality. Now what you also need to do is go look at that policy definition of occupation, because sometimes the definition of occupation is your occupation as it's performed in the national economy or pursuant to the DOT, not how it's performed for your particular employer. So when you're writing out your occupational description in the material and substantial duties, you need to also understand that definition you might need to get from your employer of the job description or occupational description. You might have to go on the dictionary of occupational titles and see how this out of date document describes your job duties. Because ultimately the issue is, why is it that you can't perform your occupation as that's defined in the terms of the policy or plan. Now, another tip, you need to make sure that your answers aren't contradicting what , uh, is in your medical records, or that it's not contradicting what you say on the ADL form about your hobbies or social activities. So again, all of this has got to be , uh, consistent , uh, and and consistent with what you internally put on your ADL forms and consistent with what you are telling the doctor. Now, how does any of this change when the standard of disability becomes the inability to do any occupation? Remember, once you've paid , been paid your own occupation benefits, you might be eligible for any occupation benefits if you can't perform any occupation that you're hypothetically capable of doing in view of your education and skill level , uh, and your restrictions and limitations. The reality is if you can do a sedentary occupation, you are going to be losing your any occupation claim. That's the carrier's , uh, game. And one of the tools they're gonna use is to use your ADL forms against you to argue that you can do a sedentary job. Now, when you're approaching the end of your any occupation benefits, the disability carrier plan is gonna send you another activity of daily living form. Do not blow that one off. Understand that the definition of disability is changing from an inability to do your own occupation to an inability to do in essence a sedentary occupation. I want you to be thinking differently. Take out another piece of paper. Write down based on each one of your disabling medical conditions, what problems you would have doing a job on a full-time basis, doing a job on a full-time basis, it will require you to sit down all day doing a full-time job that will require you to use your upper extremities and your hands in a repetitive fashion or twisting or bending what problems you might have with production or pace in doing a sedentary job. So, for example, if you are, if if for example, a sedentary job might involve something as stupid as addressing envelopes all day, what problems would you have with production or pace? Um, if you , uh, are having problems with concentration, you gotta document those problems because again, those can interfere with the ability to meet pace and production requirements. What problems would you have with absenteeism? What problems would you have getting along in a sedentary job with your coworkers , um, the public supervisors, that sort of thing? Again, we are thinking backwards because we wanna make sure as you're filling out that activity of daily living form that you are ex , you know, giving the carrier lots of big clues why you couldn't do a sedentary job. Now, saying you can't do a sedentary occupation isn't good enough. The more specific details about how each one of your medical conditions limit your ability to do a sedentary occupation is much better. Now, you don't wanna write a novel and you don't wanna exaggerate and you don't wanna minimize the issues, but your answers need to be complete. And as I said somewhere in the middle, the way I think about this is, if I were to read this, could I, in my own mind's eye, see why it is you couldn't do a full-time easy job sitting down all day using your upper extremities, using the pace and production requirements. And once again, you need to make sure that what you're saying is consistent with your medical records and the other parts of the activity of daily living forms that you're uh , completing. Got it. I know this is a lot to think about, but this really is crucial to keeping , uh, your own occupation benefits and then to getting those any occupation benefits. Let's take a quick break. Tips for how to answer the question. What do you do on a typical day on that disability carrier or plans activity of daily living form forms, forms more forms. Applying for ERISA disability benefits involves filling out lots of forms, including that pesky activity of daily living form. Now, they're gonna ask you to complete this form when you apply for benefits and at regular intervals during the course of your claim, and they have the right to ask you these stupid questions. And you're responsible under the terms of your plan to cooperate. Don't blow these forms off, but I want you to be careful about how you're answering these questions because what you put on these forms can make or break your claim. So lemme give you some tips on how to answer that stupid question. What do you do on a typical day? Now, you might be tempted to say you really don't do anything, or that you don't have a typical day and leave it at that, that won't work. You most likely have organized your day around what you need to do to take care of your personal needs and what needs to be done around the house and what you're capable of doing on that particular day. So get out that piece of paper. I want you to think about your day from the time you get up to the time you go to bed, write down on the left hand side of this paper, what is it that you have to do to take care of your personal needs? 1, 2, 3, 4, 5. You know, I get up, I take a shower , um, uh, I get dressed. Now why is that important? Because it might be that when you get up, your joints are so stiff that it takes you 30 minutes to be able to get those joints to move before you can get up. It might be that when you get in the shower, you've got grab bars and a seat and you sit down , uh, and it's a struggle for you to get in there. Um, and that, and you know, by the time you get out, your joints hurt or you're in pain or you're exhausted and you've got to dry off with some assistance or get dressed with some assistance and you're back in bed. Uh, or, you know, it might be that you get outta bed and you have, you know , difficulty sharing and you're able to go into the kitchen , uh, but you have difficulty standing at the sink to, you know, make that cup of coffee or, you know, to put the poptart , uh, in the toaster. Uh , and then you've gotta sit down. So we wanna work our way through the personal needs during the course of the day, the problems that you have in terms of symptoms and functionality. And we wanna do the same thing with the house. So what is it that you have to do around the house? Um, are you able to vacuum swifter? Um, are you cleaning the king's castle or are you just cleaning , uh, a little bit of the kitchen calendar ? Do you have somebody come over and assist you with, you know , uh, uh, doing the sheets, doing the laundry, doing the house cleaning? If you do the house cleaning, well , what is it that you do? Do you have to take breaks? If you have to take breaks? Do you ultimately have to increase your pain medication , uh, because of the problems that you're having? Or do you have to spread things out during the, the course of the day , uh, or the next day? Um, have you made any modifications to your house, your bathroom, your shower, the kitchen to accommodate the problems that you are having? And those are the things that you should be writing down as you're thinking about how you're answering the questions. Now, also, I want you to think about , um, driving, because that's always a big activity for the disability carriers. Um, they're gonna wanna know stuff like, you know, do you take your kids to school? Do you pick them up? How far do you drive? Does somebody drive you when you're driving? Do you have to make stops when you're driving? Where are you going? How long are you there? Um, if you're gonna the grocery store, can you pick up that case of water? So you need to be thinking about driving much like you're doing the other activities of the living, bathing, dressing , uh, cleaning the house , uh, because the disability carrier always is interested in comparing and contrasting with what you say you do, you know, with what you're , um, you know, actually doing. Um, so again , uh, you need to be thinking about this in a manner that's , um, consistent , uh, and, and that is consistent internally in what you're putting in terms of your activities of daily living. So for example, you know, if you take your child to school because you're a single parent , uh, and you've gotta take your child to school, that's one thing, but it might be that you have to, you know, go home , uh, and, you know, take pain medication or , um, you know, go back to bed or whatever it is you do, and you've gotta set an alarm to go pick up your child. And it might be that you , um, on a bad day have to have somebody pick up your child. Um, so those are the kinds of things that are important. It's just not, you know, during the course of , uh, my, you know, AAAA good day, bad day, my daily activities, I take my child to school. No, you gotta give some detail. Um, you know, same thing with you running errands. That's another one that the carriers like , um, you know, are you going in there to the grocery store to pick up everything for Thanksgiving dinner? Or are you just running in to get some milk? Or are you having it delivered? Um, how do you feel after you do these activities? So we want to be thinking about that now as we're thinking about the day. Are you taking , uh, naps? Are you sitting in a recliner? Are you using a heating pad? Are you using ice? Are you using elevating your legs? That's important? Do you watch tv? Do you get on a computer? Can you concentrate when you do any of those activities? And can you do them on a sustained basis? Now you can see just with these basic questions , um, that there can be a problem with the way that you answer them. Now, I don't want you to be writing a novel. On the other hand, I don't want you to say you don't do anything during the course of the day because we know that's not true. What the display carrier's looking for is a good description of your daily activities, but not a book with a minute by minute description. And God forbid that you're doing any posting of any of this on social media. So you might be tempted to get on social media and complain about how you're in so much pain, you can't do this or that. Um, because that also tempts the disability carrier to look further into your social media, and I assure you they will. But then they're gonna kind of compare and contrast with what you say maybe about assistance , uh, that you're getting or not getting, and what you say may be contradicted what's on that social media account. So too much detail can be a problem , uh, and it can be a problem because it will can trigger , um, more aggressive social media. Um, but it also can be a problem because it could be inconsistent with what's in your medical records. Um, sometimes it might be appropriate for you to give your doctor that activity of daily living form , uh, so that it's in their medical records , uh, or a symptoms and functionality sheet. Remember, all of this is fodder for them to potentially place surveillance on you to do social media searches, and they're looking for that inconsistency between what you're reporting and what you're actually doing. So right enough so that someone would understand what your life is like on a daily basis, good days, bad days, explaining what you can do on a good day, what you can do on a bad day, how you expl how you pay for a good day. Um, and again, be honest, don't exaggerate. Once you've completed that draft form, set it aside for a day or two, then have somebody close to you. Read it. Does it tell an accurate and complete story about what it's like for you on a daily or a weekly basis? And of course, if you're represented, you want your attorney to review it before it's submitted so that there aren't bad answers, wrong answers, misleading answers or answers that the disability carrier or plan can misconstrue to create a denial or a termination. Remember, there can be bombs in your answers on these forms. We don't want you to be submitting something that's gonna blow up in your face and be grounds for a claims denial or termination. I hope these tips will help you not only in your long-term disability claim, but you also will be filing a Social Security disability application

Promotional Message: 22:50

And

Nancy L. Cavey: 22:50

You're gonna be asked to fill out forms there. Um, you want to use that same approach with those Social Security disability forms. I will tell you that many disability carriers , uh, uh, policies and plans require that you apply for Social Security and the disability carrier plan can get your Social Security disability claim file. If they ask for it, they're entitled to it. And there are many times in the course of an appeal, I want to give them that , um, file. But they're gonna be looking at what you put on those social security forms about your activities of daily living and compare and contrast them with what you put on the activity of daily living forms. Consistency, accuracy are key. Got it. All right , let's take a break.

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Nancy L. Cavey: 24:10

Welcome back to Winning Isn't Easy. When I apply for my ERISA disability benefits, what do they ask me? What I do you do around the house all day? Now, as I've talked about before, when you apply for benefits, you're gonna be asked to complete an activity of daily living form that asks lots of questions, including questions about what you do around the house. What does this have to do with your ability to do your own occupation or any occupation? Well, there are two reasons why Irisa disability carriers ask you what you do around the house. And the first reason really goes to your credibility and consistency and what you're telling your doctor about your functional capabilities. For example, you might have a back problem that you claim prevents you from doing your occupation as a computer programmer. Uh, and you tell your doctor that you were doing work for some neighbors who wanted to set up a website, Hmm , that might be inconsistent physically with what you're claiming you can't do even if you're only sitting for a short period of time. The second reason is that what you do around the house can give the ERISA disability carrier clue as to how you organize your life in view of your disability. For example, if you've got back problems, you have , you may have to sit in a recliner. You may have to get up every 15 to 20 minutes and change positions. You may not be able to sit in a car longer than 30 minutes. You might not be able to stand at a kitchen sink for more than 15 minutes or be unable to take the laundry from the laundry room , uh, to , um, your bedroom , uh, and, you know , um, unload the, the , uh, clothes that have been washed and dried and put them away. You might not be able to take that wet laundry and put it in the , uh, in the, in the dryer. Um, you may have to sit and fold the laundry and take breaks because of your back pain. So all of these kinds of activities are really relevant to your functionality and , uh, give the disability carrier a clue , uh, as to your credibility. So, hmm , you filled out this blasted form. You've tried to tell the truth, you've tried to tell the story about you know, what you can do and what you can't do. What's the disability carrier plan gonna do with those answers? Well, what they're gonna do is they're gonna get your medical records and they're gonna look at your medical records to see what history you gave to your doctor about your activities, and then they're gonna compare that with what you put on the activity of dead living forms. Are they consistent? In fact , um, are they inconsistent? Is there a , a suggestion here that the doctor is relying on your complaints, which are exaggerated , uh, because then they're gonna approach the doctor and say, you know , um, you know, you've said that your patient can, you know, sit for, you know, 15 minutes at a time, but on their activity of daily living form, they said that, you know, they were able to help their neighbor, you know, develop a website and, you know, that requires sitting and they sat for longer than that 30 minutes. Doctor, do you think that your reliance on the patient's history to you about what they're doing and you know what they're saying they're doing on the activity daily living forms is inconsistent? And don't you think you might wanna reconsider your opinion about restrictions and limitations? What they're doing here is trying to determine what your restrictions and limitations are and , uh, and equate what you can do around the house to the equivalency of what potentially you could do at the workplace. Now, I think that's absolutely , absolutely crazy, but that's what they do. Uh, what you do at the house is something that potentially you can control. You modified your day, you modified your house, not so at at the workplace. So to me, they're not the equivalent , uh, or , or there isn't any equivalency. But I want you to understand that they're looking at is this person consistent or inconsistent? Are they exaggerating? Are they not exaggerating? And by the way, is what they're doing around the house consistent with some of the material and substantial duties of their occupations so that we can equate those duties with the ability to do your own occupation? Oh , or any occupation. Lastly, they're looking at these activity of daily living forms and your answers to engage in investigation of you both social media investigations, but potentially surveillance. I will tell you every case that I have, every case I see, you can be assured that the disability carrier plan is doing social media investigation. Very easy to do, and that's a tool that they will use to try to attack your doctor's opinions about your restrictions and limitations. They will try to attack your credibility based on the inconsistency between what you say to your doctor, what you say on those ADL forms and what that Facebook post shows or what's on Twitter or whatever social media you might be on. They will use it against you. And as the next step in the tool box, they'll assign surveillance. Again, if they obtain surveillance that indicates you're doing something more than what you said you could do, they're gonna take that information to your doctor and ask the doctor to reconsider your restrictions and limitations that can lead to a claims denial and termination. Ultimately, if you end up in front of a federal judge in a lawsuit that surveillance, that social media is going to be a tool that is going to be weaponized in your claim and they're gonna be arguing that your answers to what you put on those activity of daily living forms is inconsistent, then in fact, you're a fraud and malingerer and judge, here's the social media proof, here's the surveillance that backs it up. So you can see that completing those forms accurately and correctly , uh, with some degree of detail can make all the difference in your claim. Better yet, having an experienced or risk a disability attorney can make all the difference in how those forms are completed so that there isn't any inconsistency. And that's particularly true once your claim has been denied because disability carriers are, are plans are not in the business of paying benefits , uh, on a long-term basis. So remember, the first tool in that carrier or plan denial toolbox is that activity of daily living forms and the answers that you give. I hope you've enjoyed this week's episode of Winning Isn't Easy. If you've enjoyed this episode, please like it, please leave a review, please share it with your family or friends, and please consider subscribing to this podcast. That way you'll get notified every time a new episode comes out. Please tune in next week for another insightful episode of Winning Isn't Easy. Thanks.