Winning Isn't Easy Season 4 Episode 1: Medical Proof and Long Term Disability Claims

Welcome to Season 4, Episode 1 of "Winning Isn't Easy." In this episode, we dive into the crucial topic of "Medical Proof and Long Term Disability Claims." 

Host Nancy L. Cavey, a seasoned attorney with extensive experience in disability claims, discusses the essential role of medical evidence in securing long-term disability benefits. Tune in as she breaks down the importance of proper documentation, the types of medical proof needed, and how to navigate the complexities of the claims process. Whether you're a claimant or simply seeking valuable insights into the disability claims landscape, this episode provides essential guidance to help you succeed in your journey. Don't miss it!

Resources Mentioned In This Episode:

LINK TO ROBBED: https://caveylaw.com/get-free-reports/get-disability-book/

LINK TO PROFESSIONAL BOOK: 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

ERISA Attorney Nancy L. Cavey: 0:16

Hey, I'm Nancy Cavey, national ERISA Individual Disability attorney. Welcome to Winning Isn't Easy. Before we get started today, I've gotta give you a legal disclaimer. This podcast isn't legal advice, but nothing will prevent me from giving you an easy to understand overview of the disability insurance world, the games the disability insurance carriers play , and what you need to know to get the disability benefits you deserve. So off we go. Today I'm gonna be talking about medical proof that you need in order to justify and prove your long-term disability claim. And I'm gonna be talking about four important things. First, having a supportive doctor as the key to getting your short and long-term disability benefits. Two, whether or not your disability carrier has to consider your subjective complaints of pain before denying your claim. And I'm gonna give you some examples. I'm gonna talk about why a financial analyst, long-term disability claim denial was upheld for lack of medical proof of ongoing disability. And lastly, I'm gonna conclude with a lesson on what not to do when your doctor no longer supports your claim or won't comment on your ability to work. This is a really important topic because the lack of medical proof will doom your claim from the very beginning. Let's take a break before we come back to this exciting topic.

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ERISA Attorney Nancy L. Cavey: 2:01

Welcome back to Winning Isn't Easy. Ready to get Started. Let's talk about having a supportive doctor being the key to getting your short and long-term disability benefits. Look, when you file a claim for short and long-term disability benefits, you have the burden to prove that you're, I'm gonna start this over. Okay. Okay. Ready. Welcome back to Winning Isn't Easy. Ready to get started . Having a supportive doctor is the key to getting your short and long-term disability benefits. When you file a claim for short and long-term disability benefits, you've got the burden to prove that you're disabled and unable to perform the material and substantial duties of your occupation as those terms are defined by your policy. The way to prove this is with medical proof. The disability carrier or plan is gonna get a copy of your medical records, and you need to know what those records say before you stop work and apply for your benefits. What do your medical records say about your symptoms, your functionality at home and work? What problems do you have with your work duties, whether or not you've got problems with your employers, your diagnosis, your restrictions and limitations, your treatment plan and your response to that treatment plan, your attempts to work with accommodations or reduced hours. And whether you're exaggerating your problems, you also need to know one crucial fact, and that is, does your doctor support your claim? And secondly, will they be willing to fill out forms for your disability claim? And if not, before you stop work and apply for benefits, you darn well better find another doctor who supports your claim and will be helping you do all that paperwork. Now, how do we help your doctor help you? I always want my clients to explain in writing to the doctor what the material and substantial duties are of their occupation and what problems they have doing those duties. Now, before you do that, you need to understand how your policy defines your occupation. Is it as your occupation is performed in the national economy, the local economy for your employer or the dictionary of occupational titles? Once you know what your occupation is based on the policy, you should be outlining the material and substantial duties of your occupation. I think you should take a piece of paper and on the left hand side of that piece of paper, write the first material duty, second, third, fourth, fifth. Same way with the substantial duties. And after each one of those listed or bulleted items, you draw a line and you talk about the symptoms that you have that impact your ability to function. Give the doctor an example. So for example, you might have problems with migraine headaches that cause you visual difficulties looking at the computer screen. So you would say migraine headache one. Um, visual problems draw a line and say, cannot look at computer screen dash. If I look at computer screen more than 15 minutes, when I have a migraine, I start vomiting. Got it. Why is that important? Because your doctor is going to be asked to complete these attending physician statement forms. Now, the statement, the attending physician statement forms don't always ask the right questions. So we wanna supplement that a PS form with the right questions. But clearly, clearly you have to give your doctor a truthful , uh, and complete explanation of your symptoms and your functionality and your job duties. And I think you should be doing that at every interval visit. In other words, you're gonna give them a history of what your symptoms have been between each visit and examples of how those symptoms impact your functionality, either at work or at home. I think that helps the doctor , uh, take a better history and helps them complete the attending physician statement forms. Now, I think there's some other ways you can help your doctor. Some doctors want your assistance in filling out the a PS forms, and they may ask you to do them in draft. I have no problem with that, but if I'm representing you, I assure you I'm gonna be looking at those really closely. You may wanna take those to the doctor or set up an appointment and review them with, with them , uh, and see if they agree with those restrictions and limitations or difficulties. If they don't, then I think you gotta talk it out. It's important that you and your doctor be on the same page, and if they don't find this helpful, ask the doctor how you can help them fill out the forms. The the issue here is to make sure your doctor has an adequate fund of information as to what your occupational duties are as symptoms, how those symptoms impact your ability to function at work or home. And all of that's consistent in your medical records and consistent with your activity of daily living form. Let's talk about another issue. Does your disability carrier have to consider your subjective complaints? What happens if your doctor doesn't support your claim or won't support your claim anymore? You need to know the answers to these questions, and I'll take those on in our next session. But let's take a break. First, Welcome back to Winning Isn't Easy. Let's answer the question. Does a disability insurance carrier have to consider my subjective complaints of pain before they ultimately deny my claim? Now, there's no law that requires an employer to offer any type of benefits like group health benefits, life insurance, or pension. And the employer who decides to offer the benefits calls the shots, they get to decide what benefits to offer, the eligibility requirements for those benefits and what you have to prove to get those benefits. The details, the definitions in your eris of disability policy or plan can make or break your case. So before you stop work and apply for your benefits or even appeal the denial or termination of your benefits, you must get out the disability policy or plan. You wanna look at the definition of disability and whether there's an objective requirement of proof of disability, you have to objectively prove the diagnosis, objectively prove your restrictions and limitations, and objectively prove why you can't do the material and substantial duties of your occupation. And that's what Ms . Nasif should have done in her disability claim . Now , she had severe lumbar problems and she applied for disability benefits because she had to lay down every 20 to 30 minutes every hour, and that would help prevent her severe and disabling back pain. The carrier , uh, for Aurora Healthcare paid 24 months of own occupation benefits based on an inability to do her own occupation. But guess what? After 24 months, the definition of disability changed from an inability to perform her own occupation to an inability to perform any occupation. And guess what? Aurora Health determined that she could perform sedentary work and they denied her any occupation claim. Now, this case ended up in federal court in Wisconsin and the judge had to decide whether or not the denial was arbitrary and capricious. So what did the judge do? The judge turned to the disability plan and started reading, and it said, if you become disabled, you will be required to furnish objective medical evidence which supports your disability. As often as the claim administrator requires, your disability must be supported by current objective medical evidence. And guess what? The disability plan defined objective medical evidence. Are you ready for this definition? The definition was a measurably independently observable abnormality, which is , uh, evidenced by one or more standard medical diagnostic procedures, including tests, clinical examinations or procedures that support the presence of a disability or indicate a functional limitation. Not all tests or test results will meet the criteria of objective medical evidence. Self-reported symptoms are not considered objective and they don't establish eligibility for benefits under this plan. Objective medical evidence may consist of records from your licensed physician, narrative reports x-rays and other medical records, and it has to correlate to clinical findings of disability. That's a mouthful, and that was an incredibly difficult standard for her to meet. The plan clearly states the self-reported symptoms of pain aren't objective and they don't establish eligibility for any occupation. Long-term di uh, disability benefits because there was no objective medical evidence that , uh, corresponded to this definition. Her subjective complaints of pain and dysfunction weren't enough to overcome the wrong, the , the claims denial. In fact, it wasn't wrong. It was right based on the terms of this definition. And then you can see that how your policy defines , um, disability and objective medical evidence can be the key to getting your benefits or it can blow up your disability claim. Got it. Alright , let's take a break.

Speaker 4: 11:52

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ERISA Attorney Nancy L. Cavey: 12:29

Welcome back to Winning Isn't Easy. We've been talking about the evidence that you need to , uh, establish your disability claim and your benefits. It's crucial that you have the necessary medical proof that's consistent with the policy terms and definitions. I'm gonna give you an example of how this blew up and why a financial analyst's long-term disability claim that I was upheld for the lack of medical proof of ongoing disability, you have the burden of proof throughout the life of your claim that you meet the policy or plan definition of disability. Now, this proof is primarily medical proof and it's in the form generally of objective medical evidence of a diagnosis objective, evidence of restrictions and limitations and objective evidence that the restrictions and limitations prevent you from performing the material and substantial duties of your occupation or any occupation depending on what stage of the case you're at, the disability carrier's gonna ask your treating physician to complete an attending physician statement form. And generally you'll see that the a PS form doesn't ask the right questions about your medical condition or the right questions about your restrictions and limitations. But nonetheless, you still have the burden of proof. Now, ideally, you should be represented by an attorney such as myself, and you want to supplement the a PS form with other documents. What do I mean by that? I'm a Social Security disability attorney and I will always supplement the a PS form the carrier's AP PS form that asks the wrong questions with an appropriate social security residual functional capacity form. I want the doctor to ask the answer the right questions about your restrictions and limitations based on your specific medical condition. But the starting point here is what are your occupational duties? Because we have to prove that you can't do the material and substantial duties of your occupation as that's defined by the policy. And we want your doctor to understand what your occupation is as defined by the policy. And we want the doctor to address your medical condition and the right restrictions, limitations being asked the right questions about those particular problems. And ultimately, we want the doctor to support your claim. Now that can be problematic because your Dr. May retire , um, leave the practice, or your Dr. May simply say, I'm sick and tired of filling out these forms. Or worse yet, the Dr. May say, I don't support your claim anymore. So let me give you an example of two cases with the same problem. I call it trouble in paradise. The first is the case of Klon Carr versus Hartford Life. And Klon Carr had been a financial analysis for Robert Bosch steering LLC, and he stopped working because of a stroke. Now, his occupation had a high degree of cognitive functioning that clearly could be impaired by a stroke. He was paid short and long-term disability benefits, but over time, his physicians no longer supported his claim. In fact, some refused to fill out a PS forms and only one of them remained of the opinion he could not perform on the material and substantial duties of his occupation. Now the other case is the case of Mr. Bus bus debter . Uh, bus debter was a tank driver, a tank truck driver, and he developed a transverse mellitus , which is an inflammatory disorder of the spinal cord. He had numbness and tingling of his legs. As a result, he was paid his own occupation benefits. But when his definition of disability changed to an inability to perform at any occupation, it turned out that none of his physicians or therapists felt that he was unable to perform , uh, the material and substantial duties of any occupation. And as a result, he's, his claim was denied and he filed a lawsuit. Both of these cases ended up in , uh, court with federal judges who were looking at the medical records and looking for support of the restrictions and limitations because ultimately the judge has to apply what's called an abuse of discretion standard unless there's a de novo standard of review. The abuse of standard , uh, review basically says that the judge has to accept the , uh, denial or termination of benefits unless that denial termination was unreasonable. If your physicians don't support your claim, or if your physicians indicate that you're capable of working in some capacity, clearly you don't have the medical proof to establish that you're unable to perform the material and substantial duties of either your own or any occupation. And as a result, this lack of medical support in both cases , uh, was fatal. It takes teamwork to win an ERISA disability claim and you can lose your case when your physicians let you down. But as I've explained in earlier episodes , uh, there are ways to get physicians to cooperate and there are ways to find other physicians who can support your claim. So just because your doctor doesn't support your claim anymore doesn't mean your case is lost. But you really do need the assistance of an experienced disability attorney on the team to help develop the necessary medical proof to help you continue to get or get the disability benefits you deserve. We don't want trouble in paradise, right? Okay, let's take a break. Welcome back to Winning Isn't Easy. I'm gonna give you a lesson on what not to do when your doctor says, I don't support your claim anymore, or they won't comment on your ability to work with suggestions about what it is you need to do. Now, when the disability insurance carrier accepts your claim, they put it on diary and they will want you to have your physician complete on a regular basis attending physician statement forms. These forms are gonna ask your doctor to comment on your restrictions, limitations, and your ability to work. If your doctor says, I don't want any part of this disability process, I'm tired of filling out forms, or I don't think you're disabled, you're in trouble and you're gonna be set up for a claims denial, I wanna tell you the story of Mr. Messing who lived up to his name and messed up his disability claim big time when his doctors would no longer comment on his ability to work. Now the lack of medical support will doom your ERISA disability claim. And in Messing's case, he claimed in 1998 he was disabled because of depression. He said he was unable to handle the stress of being a trial lawyer. Unum accepted that claim and they paid benefits until 2018. And at that point they said, I think you're able to work as a lawyer. And they terminated his benefits. Now, his treating physician had opined in 2017 that he was unable to work. But by 2018, the same psychiatrist refused to express an opinion as to his ability to work. Now you just like missing , had the burden to prove that you meet the definition of disability. Now, despite the fact that messing was a trial lawyer, he screwed it up. He didn't find a new provider to treat with and he didn't have any medical provider to confirm his inability to work as a lawyer. So what did Unum do? They pulled out one of their key tools from their disability denial , uh, toolbox. They requested an insurance medical evaluation. Now, disability carriers will call it an independent medical evaluation. That's bull . There's nothing independent about an insurance medical evaluation as expected, the insurance medical evaluation doctor opined that messing could work as a trial lawyer and that his depression was in remission. As a result, his benefits were terminated and messing ultimately filed a lawsuit. But here's the problem. The IME won the Dane when messing submitted a rebuttal report to counter the IME, the report was long on conclusions, but short on a factual or medical basis, the rebuttal opinion that he obtained just didn't explain the factual basis for why he couldn't work as a trial attorney didn't talk about the problems that he had with depression or anxiety, the frequency of his depression or anxiety, how he would have panic attacks, how he would have difficulty interacting with others in his own family, how he isolated himself, how he would deal with stressful situations. None of those factual bits of information were , were ever developed. And, you know, worse yet , uh, there was no medical explanation as to why he couldn't work as a trial attorney. So there was no connection or there was no development of the symptoms and ultimately there was no connection between the symptoms and his inability to do his occupational duties as a trial lawyer. So you would've hoped that that rebuttal letter would've gone through the material and substantial duties of his occupation as a trial lawyer and explained why isolating oneself or not really caring about what happened in a case or the fact that he would have panic attacks a couple times a day that lasted 20 to 30 minutes might actually interfere with his ability to be a trial lawyer. So as a result, the judge had no choice but to accept the liar for hire not so independent medical evaluation. That isn't to say that messing shouldn't have submitted a rebuttal report, but the quality of report of the report and the lack of support just doomed this claim . So what are the practical lessons that you need to learn here? The first lesson is if your doctor no longer supports your claim or refuses to render an opinion, you gotta find a new doctor immediately. Got it? Number two, if you are set up for a insurance medical evaluation, you darn well better get your own and you darn well better have your own IME doctor review the testing, if any, that the carrier IME has you undergo. Next, you wanna have your IME doctor write a strong factually and medically supported rebuttal point by point, and hopefully your new doctor will endorse the opinion of your um, IME doctor. And lastly, don't leave any weasel room in that rebuttal. You've got the burden of proof. You've got the burden of proof and meet the burden of proof to get your disability benefits. I hope you've enjoyed this week's episode of Winning Isn't Easy. If you've enjoyed this episode, consider liking our page, leaving a review and sharing it with your friends or family. And I would love it if you would subscribe to this podcast. Now, I also, before I close, wanna tell you that we have just launched our 2022 KV Law Scholarship. It's up and running it, it is open until August. And I want you to go over to kv law.com/scholarships and enter, enter your FA family or , or friends or, or kids that you know that are looking for a college scholarship. Obviously they're gonna be having to complete the application , uh, but I would urge you to get involved in the scholarship opportunity. I hope you tune in next week for another insightful episode of Winning Isn't Easy, and I look forward to reading the essays of people that you suggest apply for our scholarship. Thanks.