Speaker A [00:00:11]:
Hi, I'm national ERISA disability attorney Nancy Cavey, and welcome to winning isn't easy before we get started, I'm required to give you a legal disclaimer. The Florida Bar association says I have to tell you that this podcast isn't legal advice, but nothing is going to 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. Over the last several episodes, I've been talking about the application process, what you need to know about the application, the work history form, the activities of daily living form that you'll fill out as part of the application, and that attending physician statement form that your doctor has been asked to complete. Now I'm going to switch gears and we're going to talk about issues concerning notice getting the disability claims form, filing your proof of claim form, because these are integral parts of the application claims process. But before we get started, let's take a quick break. Be back in a second.
Speaker B [00:01:21]:
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Speaker A [00:01:42]:
Welcome back to winning isn't easy. You ready to get started? Let's first talk about giving notice to your disability insurance carrier. Look, the initial claims process is daunting, and it's easy to make an inadvertent mistake. Then it can delay or destroy your claim. Most policies require that you give notice to the disability carrier within a fixed period of time. Get out your disability policy. What's the amount of time that you have in which to give the disability carrier notice of your claim? Now, giving notice of a claim late does not necessarily have to be fatal, but I will tell you that the longer the time period is from the date you're claiming you're disabled until you actually file the notice of claim, the more likely the carrier is going to deny your claim on the basis of late notice. Ultimately, if this case ends up in federal court, there are some federal circuits that have held that the disability carrier has to prove that they were prejudiced by the late notice before the court will rule in their favor.
Speaker A [00:02:46]:
Other federal circuits say, if you're late, too bad, so sad. So you need to know what your time limits are in your disability insurance policy. Now let's talk about the practicalities and the strategy behind the timing of the notice. And I think there are at least eight things that you should be considering that will impact this notice. Issue number one is whether or not you have had a discrete date of disability. In other words, have you had an accident, or is this the progression of a disabling medical condition? If you've had an accident, it's pretty clear that the date of the accident is probably going to be the date of your disability. But let's say you have a progressive medical condition like Parkinson's or you have Ms. Now, you have been working, perhaps while you've been disabled.
Speaker A [00:03:41]:
You haven't lost any time, but as your symptoms are progressing, you have now begun to have difficulty doing certain duties where your days may have been changed. I think the timing of the notice is a product of eight different factors. So let's talk about each of these. The first factor is whether or not you have a discrete date of disability. In other words, did you have an accident? If you were involved in a motor vehicle accident, it's pretty clear that that's the date you have become disabled. But let's say you have a progressively disabling medical condition like Ms or Parkinson's. You've been working while you are disabled, but as time is progressing, you're beginning to have problems with your occupational duties. You might reduce your hours, which can be a problem with coverage.
Speaker A [00:04:33]:
And it's becoming clear that at some point in the near future, you're going to have to stop work and apply for your disability benefits. And so for me, an accident is pretty clear. If it's a progression of a disabling medical condition, it's not so clear as I'll explain in a minute. Number two, how well do your medical records document your symptoms and impact on your functionality? Is it necessary, particularly in a progressive medical condition case, to clean up your medical records so that they accurately tell the story of the progression of your disability? And that is going to play into number three, if you have a progressive disability situation, the carrier is always going to question, well, why did you work yesterday? But all of a sudden you can't work today? So let me give you an example. I represent a dentist who has a herniated cervical disc. He's having tingling and numbness into his dominant extremity, which means that he is also having trouble doing different types of dental procedures and the number of procedures that he was doing on a regular basis. He's also had to reduce the number of patients he is seeing. Now, I have been asked to help him determine the date of disability.
Speaker A [00:05:48]:
When I look at his medical records, there's nothing, not one thing in his medical records about what his disabling symptoms are, how they're impacting his ability to practice, whether he's made any modifications. All it talks about is he presents with tingling and numbness in his hand into certain fingers. He's got muscle spasm, but not a blasted thing about his symptoms and functionality. If we were to apply for benefits today, the disability carrier would look at those records and say, why is it that doctor x was able to work yesterday but he can't work today? There's nothing in those medical records that explain what's happened. So we aren't going to be applying for disability benefits for a couple months because we have to cure the medical records. I call it document deficiency disease, DDD. We need to make sure that his medical records are documenting his symptoms and functionality and show a progressive slide out. And that's particularly true in his case because he has a residual disability claim and we want to claim those benefits based on his lost income.
Speaker A [00:06:51]:
Before we say, hey, there's a specific date we want to claim. Now that's important again, because there are some residual disability policies that require that you be totally disabled first and then collect your residual disability benefits. And that policy provision is going to impact when we pull the plug, if you will. Now, the fourth factor is whether or not your doctor supports your claim. If your doctor doesn't support your claim, isn't willing to document the symptoms and functionality, it's time to find another doctor. In the case of the dentist, I was able to conference with his doctors and explain why it is. It's important that the doctor take a better history about my client's symptoms and the specific occupational problems he's having performing dentistry. The fifth factor, and one of the major factors in picking the date of disability is the status of your employment and whether or not you think you might be terminated or laid off.
Speaker A [00:07:49]:
Why is that important? Well, remember I said that one of the considerations is why you worked yesterday and not today. If you think that you are going to be terminated or laid off, I want you in your doctor's office being proactive and have you taken out of work before the inevitable happens to you. You can't explain, based on your medical records why you worked yesterday and not today. So we do want to get that documentation. But more importantly, if your employment is terminated or you're laid off, you potentially are going to lose your coverage. The date of that termination, if the doctor hasn't taken you out of work or you're not losing appropriate wages, that's going to be an issue because the carrier is going to say, hey, you weren't disabled the last day you worked because there's nothing in your medical records taking you out. You only became disabled after you were terminated. And guess what? You have no insurance coverage.
Speaker A [00:08:45]:
Too bad, so sad. The 6th factor is going to be dealing with your health insurance coverage. Now, if you are able to go out on FMLA, you will continue to have your insurance benefits so long as you continue to pay those benefits. But at some point your employment is probably going to be terminated. So you need to have an alternative for your group health coverage. Now, there are some employers who, whose policy allows for you to continue the coverage while you're disabled. But if for some reason your disability insurance claim is denied by the disability carrier, your employer is going to terminate their group insurance, your group insurance benefits. So it's important to have a plan b for your health coverage.
Speaker A [00:09:25]:
The next factor is coordination with other benefits, such as state disability benefits, and this plays into factor number eight, which is your financial situation and the elimination period. Many disability policies will provide that you have to go through an elimination period, a period of time in which you get no benefits, but of course your bills continue. So the question is, financially, can you deal with this period of non compensation for your disability benefits? And then that plays into, well, if you live in a state where there are state disability benefits, you might be able to be paid those state disability benefits during that elimination period or longer. So we always have to look at coordination of benefits, the financial situation you find you're in, the elimination period, and how we can maximize all these other benefits. And the last factor is how long you've had the policy and whether or not we have any pre existing condition issues. Let's say you just got hired by Company A and that policy says, hey, listen, we'll offer you disability insurance, but if you got treatment within a 90 day period of time prior to this coverage becoming effective, we are going to take the position that whatever that treatment got, whatever that condition is that you got treatment for, that's not going to be one of the disabling conditions that we consider that is going to certainly impact any claim for disability benefits and a notice. You can see that there are a number of factors that go into picking the right date to be disabled and the right day to give notice. In my view, it takes a team approach to pick the right date and to maximize your benefits and to cure any deficiencies that there might exist in your medical records.
Speaker A [00:11:14]:
So take that all into consideration. I think it's time to take a break so you can digest this information. So we'll be back in a minute. Welcome back to winning isn't easy. Let's talk about getting a disability insurance claim form. Why don't you get out your disability policy and look at it? But provision says something like this under the heading of claim form, we'll send a claim form within ten working days of receiving the notice of claim. If the claim form isn't received within 15 days after notice of the claim is sent to us, you, the owner, should write us a letter about the claim describing the cause and the extent of your loss in detail. All right, so let's break this down.
Speaker A [00:12:16]:
First, I will tell you that we are starting to see issues with filing or requesting short term disability claim forms. We used to be able to download these or just write and ask for a copy of the claim form. Now disability carriers want the policyholder on the line to take some basic information, and sometimes they go even further and try to take a statement. The way that this is set up doesn't allow us to be on the phone with our client. So we absolutely hate that. If you have to get on the phone with a short term disability carrier to get the claim form, all I want you to give is your name, rank and serial number. No more than that. If they want to talk with you and take a statement, you can tell them that you're represented and that we can arrange that at a later date.
Speaker A [00:13:09]:
You just in that phone call want to do one thing, and that's to get the claim form. Now let's talk about long term disability claim forms for a minute, and it depends on the employer and the carrier. If you're on short term disability and it's the same carrier who offers both a short and long term disability, generally we'll see a rollover. In other words, we don't have to file a claim, but there are instances of which we do have to file a claim. Now, that's particularly true if your short term disability claim is formed, is denied. We want to file a long term disability claim and then see if they'll pay and if not, file an appeal, and then if not, file a lawsuit. Because when we file a lawsuit, I want to sue them for both your short and long term disability benefits. I don't want to cherry pick your claim and I don't want to wait forever for us to get a decision or the payment of your benefits.
Speaker A [00:14:05]:
So if I have a situation where the carrier refuses to give me the long term disability claim. I say nuts to them. I will take an limited claim form, a blank one from another case that we've had involving that carrier, and I will use that, or I'll use a generic one and I will send it to them, certified mail, return receipt requested. And we'll follow up, of course, to make sure that they got both the short term disability and long term disability claim form requests. Now let's break down another part of this standard insurance language. It says, we'll send you the form within ten days. If they don't, I'm on the phone calling or yelling or even actually on the phone with their defense attorney saying, where is it now? They say, look, if we don't send you the claims form, we want you to send us a love letter and tell us about why you're disabled and the extent of your loss in detail. To me, that's like, that's an open ended invitation to give you enough, enough rope to trip yourself and really delay or destroy your claim.
Speaker A [00:15:16]:
So I simply tell them, my clients write them a letter that says, I'm Sam. I work for this corporation. I'm insured under a short term disability plan or policy. I'm disabled as a result of an ex condition and my date of disability is blank. If you want further information, send me a letter. And I would send that certified mail, return receipt requested, because I don't want the carrier to say, hey, we never got it. And unfortunately, in the day of problems with our post office sending it, certified mail, return receipt requested, at least documents that they got it. All right? So you can see that sometimes filing a claim form or asking to get the claims for it can be a battle in and of itself before we actually get to filing the actual form.
Speaker A [00:16:07]:
So let's take a break for a moment, and when we come back, I'm going to talk generally about filing your proof of loss form. This is a minefield where lots of mistakes can be made. So I'll be back in a second.
Speaker B [00:16:21]:
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Speaker A [00:16:53]:
Dot welcome back to winning isn't easy. Let's talk about filing your proof of loss form. Now the first thing I want to make clear to you is that the policy requirements for a proof of loss are not the same requirements as providing notice. Let's get out your disability policy once again and find the provisions for proof of loss. Got it? Okay. Now, for those of you who don't have your policy, let me give you a general idea of what this provision says. It might say that you have to complete and return the claim form or submit a letter described in the notice of claims section, and that will serve as a proper filing of the proof of loss. The filing has to be received no later than 90 days after the end of the period for which the benefits are claimed.
Speaker A [00:17:45]:
Benefits won't be reduced due to delay and filing of the proof of loss if it's filed as soon as reasonably possible. No definition for that term. In no event, however, we accept the filing of proof of loss for more than a year after it's due, and the only exception is going to be made for you if you were not competent to make the claim. So now we are going to break this down. If you have an actual claim form, take a look at the claim form because it can be hard to understand, and I'll talk about that in greater detail, but I would suggest you make a copy of it and then do a separate sheet of paper, and we'll talk about the things that you should be considering in a second. Now, the filing has to be received no later than 90 days after the end of the period for which benefits are claimed. So let's say you've had an accident on January 1. Obviously you've got January, February, March.
Speaker A [00:18:50]:
They want it by April 1. But if for some reason you can't do it by then, then that's okay, so long as you file it within a year. So let's say you've been in a coma for 90 days. Obviously you can't submit it. Let's say you've had surgery. So long as there's a reasonable basis for the delay, most carriers are not going to be denying a claim. Now, if you file it after a year, I will tell you, depending on the company and the state, there might be a fight about that. And again, that goes to notice.
Speaker A [00:19:25]:
And another reason why you want to be consulting with an experienced or risked disability attorney. Now, I think that you need to also understand that one of the most crucial sections of the long term disability policy is the section of the policy that describes what you have to submit to the company as proof of claim. I want you to read this provision. Read it again. Read it a third time. I want you to take a highlighter and highlight the provisions that are applicable so you thoroughly understand it before you file your claim, because I will tell you the common reasons for claims. Denial is an incomplete or insufficient proof of claim. Now, my applications that I do for my client is submitted in a shock and all box and we submit anything and everything we think needs to be in this claim, including medical records, attending physician statement forms, AP's forms with residual functional capacities, any evaluations that we think are needed, a job description, an occupational description, sometimes a vocational report, financial information in the claim situation of a residual claim.
Speaker A [00:20:36]:
I've gotten all the income tax returns or financial documents. I've done an analysis of them and I'm telling them in a spreadsheet exactly the penny how much they should be. So just sending in your proof of claim form in an envelope, in my view, isn't going to cut it. Let's talk about the typical proof of claim provision and what it asks for. Now, this is going to be a laundry list and I'm going to break this down. What information is needed as proof of your claim that you're under the regular care of a doctor. Appropriate documentation of your monthly earnings the date your disability began the cause of your disability the extent that your disability impacts your ability to function, including restrictions and limitations that prevent you from performing the material and substantial duties of your occupation the names and addresses of any hospitals or institutions where you got treatment, including all the doctors. Now, the policy provision is going to go on and say something like, we may request that you send proof of continuing disability indicating that you are under the regular care of a doctor.
Speaker A [00:21:42]:
The proof provided is to be at your expense and it has to be sent back to us within 30 days of the request by us. And there's another provision that will give Dewey, Cheatham and Howe Disability insurance company authorization to obtain additional medical information and to provide non medical information as part of your proof of claim. We will deny your claim or stop sending you payments if the appropriate information isn't received. Now, we're going to talk about the medical proof and this financial proof in greater detail, but let me make some comments about generally the proof you do need to be under the regular care of a doctor, and what's regular is going to depend on where you're at in terms of your diagnosis and your treatment. You're going to have to pick a date that your disability began, and in many instances I'm helping my clients pick that right date of disability. If you have a residual claim, I'm going to pick a date that corresponds not only with your medical records, but in the applicable decline in your finances. The cause of your disability is another issue that we have to address, and I don't leave it to chance. I raise every medical condition that could individually result in your disability, or collectively in combination result in your disability and the extent of your disability, including restrictions and limitations in my view, is key.
Speaker A [00:23:14]:
Your doctor's gonna be asked to complete an attending physician statement form and if you've looked at these forms, you'll see they don't ask the right questions. They don't ask the right questions on purpose because the carrier doesn't want to pay your benefits. So I always make sure that the treating physician has an occupational description of your duties so they understand what the question is. And then I generally will supplement an attending physician statement form with the applicable Social Security disability residual functional capacity form. And I can assure you that the Social Security RFC form asks all the right and relevant questions that have never been asked or won't be asked in the AP's form. So you can see that there's a laundry list of things that need to be submitted, and this is just not necessarily a complete list. Now, you also have to be under provide proof of continuing disability, and again, I'll talk about that in more detail. But just because you're disabled today doesn't mean that you're going to be disabled next month.
Speaker A [00:24:12]:
In the world of disability, your claim is a month by month claim, and of course you're going to be asked to sign releases which can be a minefield, particularly requests for non medical information which we want to closely scrutinize and closely control. Wow, that's a lot of information that I've provided to you today. You can see that there can be mistakes that can be made at any stage of this process. If you have any questions, please contact my office, particularly if you're having employment issues or a question about the timing of filing a claim with a progressively disabling condition. I don't want you to make a mistake that could result in a delay or denial of your benefits. Well, we're done for today. I hope you've enjoyed this episode. Please like our page, leave a review and share it with your family and friends.
Speaker A [00:25:01]:
Remember, this podcast comes out weekly, so stay tuned next week for another great episode of Winning isn't easy.