Winning Isn't Easy: Long Term Disability ERISA Claims

Episode 30: The Mistakes Made During A Field Interview That Can Ruin Your LTD Claim, Part 1

May 03, 2021 Nancy L. Cavey Season 1 Episode 30
Winning Isn't Easy: Long Term Disability ERISA Claims
Episode 30: The Mistakes Made During A Field Interview That Can Ruin Your LTD Claim, Part 1
Show Notes Transcript

In this week's episode learn about: "The Mistakes Made During A Field Interview That Can Ruin Your LTD Claim, Part 1." and much more from Nationwide ERISA Long Term Disability Attorney Nancy L. Cavey.  Field Interviews are crucial to your LTD Disability claim and Nancy goes in depth about these in this episode.

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Nancy L. Cavey:

Hi, I'm Nancy Cavey , national ERISA and individual disability attorney. Welcome to winning. Isn't easy. Before we get started today, I have to give you a legal disclaimer required by the Florida bar. This podcast is not 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 away we go , we've been talking about the disability insurance application process and all the forms that have to be filled out the application form, the attending physician statement form the work history form your occupational forms that you're going to be filling out. And those blasted activity of daily living forms and the next four episodes. I'm going to be talking about the field interview. There are 24 types of questions you could be asked during a field interview, and I'm going to cover six each week. If you get a call for a field interview, you are being set up for a claims denial. You need protection from yourself and from the disability carrier. So are you ready to learn more about the field interview and here the first six mistakes that you can make? Great. So here are our copies number one and the introduction to the not so social friendly visit from the disability carrier, but overview of the field interview, number two is going to be traps one through six that are waiting for you in that field statement and how you can avoid making mistakes that will destroy your claim. So before we get started, we're going to take a quick break and I want you to stay tuned and join me back in a minute.

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Nancy L. Cavey:

Welcome back to winning. Isn't easy. I'm going to first give you an introduction of the not so friendly social visit from the disability carrier. Your claim in my view is in trouble. If the long-term disability carrier or the RSC carrier calls you and asks to take your statement or arrange for a field visit in my experience, disability claims are generally denied for three reasons. First there's no objective evidence of your diagnosis. Two , there's no objective evidence of your disability. And thirdly, there's no causal relationship between your disability and your inability to engage in your primary or any other occupation. So the carrier wants to take your statement or arrange for the field visit because they're questioning what your doctor has said about your restrictions or limitations and what you're reporting on your activities of daily living forms. They're questioning your credibility, your honesty, and they're questioning your inability to engage in your primary occupation or any other occupation. Now, unfortunately by the time the long-term disability carrier has asked to take your statement or arrange for a field visit, they've probably done surveillance on you, but I'm going to talk about surveillance in some later episodes. They want to interview you and have you describe your activity. And once you've done that, they'll have you sign a statement about your activities. And as soon as you've signed that statement, they're going to spring that surveillance tape on you. And then they're going to ask you to comment on the tape. They want you to acknowledge the difference between the statements you just gave. What shown on the tape, what you've told the doctor, and what's on your activity of daily living forms. They're then going to take that information to your doctors and say, look, you doctor relied on what they had to say in rendering opinions, regarding restrictions and limitations. And obviously what's shown in the surveillance and what they're saying is not consistent. So don't you agree that your patient is capable of engaging in at least sedentary work. And in fact could go back to their own work. They've sprung a trap on you for the purposes of portraying you as a Mullingar or a fraud. And the sole purpose is to deny and terminate your benefits. It's my strong recommendation that if you've been asked to give a statement or the carrier wants to have a field visit, that you immediately immediately retained an experienced , uh , disability attorney. Now, why you need to be prepared. You need to have someone who will discuss with you the questions that are going to be asked, prepare you and be present because you don't want to be asked open-ended questions. You want to make sure you've practiced this and that your answers ultimately are accurate and truthful. And you want this statement to be done in a neutral location. I never ever, ever allow for a statement to be taken or a field visit done at my client's home. Why I often see statements on race with questions and comments about how the house looks so clean and beautiful, how the yard looks, how the cars are clean and what kind of cars there they are now seemingly innocently. You might be asked how you keep up with your housework , how you keep up with the yard work. And you may give an information, a question or an answer to that question that can be interpreted very broadly and in a way that the carrier is going to use that information to draw conclusions about your ability to work. So we've set the playing field. If you will, before we get started talking about the first six traps, let's take a quick break. All right . All right . Welcome back to winning . Isn't easy. We're going to talk about the first six traps that are waiting for you in your field statement and how you can avoid making a mistake that will destroy your claim. Now, mistake number one is giving a statement without representation. Hmm . Do you know what's in your medical records? Have you compared your medical records to what you put on your ADL responses? Do you know what questions you're going to be asked and how to answer those questions? Probably no , you need to be prepared for this statement. Now it involves me or another attorney reviewing all your records so that we know what the doctor has said about your complaints, what your symptoms are, what you've told them about your activities of daily living. And we want to know what the doctor has said about your physical abilities. That also means that we get to review your activity of daily living forms. Cause we're looking for in consistencies. Now I have a video and a book that I asked my clients to review about statement preparation. So they understand the process, what they're going to be asked and how to properly answer the questions. And I always insist that this statement be taken in a neutral place because mistake number two is letting the disability rats visit your house. Now this is not a social call. They're not coming to wish you well, they're not coming to offer you any assistance in returning to work. Um, what they're doing is setting you up, as I've said for a claims denial , uh, I've seen lots of summers where insurance companies , uh , are, are taking the statements and the summary is self serving and completely inaccurate. And what that means of course, is that they are going to be making observations about you , um, your home, your car, your yard , uh, things that are going to potentially lead them to conclude that based on the appearance of your house, what might be , uh , cooking on the stove , uh , the , uh , appearance of your yard, how clean your cars are that somehow you are able to work. And as I've said before, they probably are going to have surveillance on you probably several days before and several days after, because they want to catch you doing something outside of your house, carrying in groceries , uh , stopping , um, making , uh , numerous stops , uh, as you're coming back to the doctor's office, going to the grocery store, going to the gas station, doing activities that are inconsistent with what it is you've had to say or worse yet they may actually catch you doing something outside, like building a porch. Like one of my clients recently did like really. So , um, we want to make sure that this is situation where we are , uh , in a neutral location , uh , and that you are prepared for the state . And now you are going to get questions about your medical condition. They're going to be asking you about what you're disabling medical condition and what are your symptoms. I think this is silly. You've been filling out statements about your condition on a regular basis. The carrier has had your doctor fill out attending physician statement forms. At least probably once every three months. Can't the adjuster read . Now you probably haven't seen what your physician has said in your medical records or how they completed out the forms. And what this is about is to try to catch you in a discrepancies discrepancies about what your symptoms are, how their symptoms impact your ability to function. You complaining of different conditions that you then than you've been claiming as being disabled or even different medical conditions that are discussed in your medical records. So again, you are going to be asked about what your symptoms are and they're going to compare those symptoms to what it is that's reported in your medical records. And that question is a prelude to asking you what you can and cannot do. So the insurance company wants to see whether your complaints about your symptoms and your physical activity are consistent with what's in the doctor's notes, what you've put on the activity of daily living forms. And of course, any surveillance that they've done on you. So if you say my symptoms prevent me from lifting, bending, or stooping, because I have constant back pain and they have videotape of you building a porch or a deck you're in trouble as you should be. But that's an extreme example. I've seen many times where disability carriers will, will go to unnatural extremes. What do I mean? Well, if you say your symptoms prevent you from , uh , lifting and they have a picture of you lifting a case of soda out of the back of your trunk, does that really mean that you can engage in lifting of something that weighs more than a case of Cokes or a case of beer and that you could do it on a repetitive basis and that, that you don't have to alternate sitting and standing or have to take a break. So we want to make sure that the disability carrier isn't taking innocuous statements and blowing them up into a, an ability to work. Now that's a lot of crazy mistakes that we've covered so far. So I want you to take a few seconds to think about this, and we're going to take a quick break because we're going to come back and talk about the next three mistakes. So stay tuned.

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Nancy L. Cavey:

Welcome back while you're ready to cover the next mistakes. You didn't know that there were so many mistakes that you could make. Well, mistake number four is making mistakes in answering questions about why you can't work. Now, the disability carrier is going to ask you questions that sound familiar. How much can you lift? Can you bend at the waist and how frequently now look everybody bends at the waist. How long can you stand? Well, of course, that varies from day to day. And depending on your symptoms, how long can you sit at one time? Well, I've got to sit up and I've got to move around every 20 minutes. How long can you walk? At one time, I might be able to walk an aisle in the grocery store, but I've got to sit down or hold onto the cart. How much can you pull? Well, do you have problems with your memory or your concentration? You have to keep a list. Um, these questions are designed to establish that you're physically capable of doing at least full-time sedentary or light work. Now remember the game years for the carrier to prove that if you are in a sedentary occupation, that you can, that you're functioning at least the sedentary level, or if you're at the, any occupation stage that you can do at least sedentary work. And they're going to take your answers to these questions and say, look, we know that you said that the patient couldn't go back to their work and that they had restrictions and limitations of , uh, no more than , uh , sitting 30 minutes at a time , uh, no more than , um , lifting 10 pounds. But doctor , in the course of taking the statement, they said something clearly different than what they told you or what they've said in their activity of daily living form or worse. Yet doctor we've got a picture of them doing what they said they couldn't do. And they're going to ask your doctor to confirm that you can do your own occupation if it's sedentary , uh, or that you can do any other occupation in the based on the sedentary work capacity. Now, another mistake they've commonly made is to make broad and sweeping generic statements about your ability. Now, I gave you some specific examples of answers to some of these questions as I ran through this laundry list, but I prefer that my clients give specific examples of difficulties they're having, how their abilities change based on their level of pain, whether they're having good days or bad days, the side effects of medication. So I like to give ranges with specific examples and I make sure that they carry understands. It's just one example. It's not the only example. And then by flying can do more on a good day, then they can do on a bad day, but they pay for it the next day. Now another mistake that uh , is made in answering these questions is to just focus on the physicality, sitting, standing, walking, stooping, bending, lifting, but carriers rarely will ask in these types of questions , uh, whether you have to change positions, how long you can sit, whether you have to get up and move around what position you're in, how long you have to be in that position before you return, do you have to elevate your legs? Do you have to take naps because of , uh , problems with the key or pain or side effects of medication? What's the level of functioning on a good day versus a bad day? Um, how long does it take you to recover from a bad day? So I want you to make sure that you just don't stop the, answering the question by talking about your physical issues, but you talk about what we call the non exertional limitations that you have, the things that I just ran through. All right, mistake number five is mistakes in answering questions about your treatment and medication. Well, disability, adjusters can read and they should be held to their ability to read. They have access to your medical records. They know what you said on your activities of daily living forms. And yet you're going to be asked questions about your treatment and medication. Now, hopefully you have a copy of your medical records in your reviewed them, but if you're asked to tell them about your treatment politely tell them to, and then tell them to review your records. No , I don't mean tell them to , I'm just joking there. We always need to be polite with , uh , adjusters because ultimately , uh , they make the decision and there's no reason to be rude or to be disrespectful of them. But what they're after is information about how your condition has progressed, changed, impacted by treatment, including medication and how you're doing generally, but they don't really ask the question that way you have the burden to show that you , uh, have an objective basis of your diagnosis and your disability. If you're not recuperating fast enough, the carrier is going to refer to your statements that you've made about your condition. They're going to argue that your doctor is relying on your subjective complaints just to prolong your disability. And that carriers doctor that liar for hire physician who probably isn't a treating physician, is going to refer to a practice manual that says, if you have a herniated disc, the average recovery is X long. And of course you've gone past that. And of course, you're not average, are you the long term disability carrier may ask about medication and you need to explain the side effects of medication and the impact it's having on your functioning. So you might have problems with dizziness, fatigue, nauseousness, frequent urination, fuzziness, confusion, irritability, and a host of other side effects. Now I think that you probably need to make sure that those complaints about your medication side effects are in the medical records, because if they aren't the carrier and the carrier's doctor is not going to believe that you actually have those side effects. Now I can assure you that you're going to be asked about other activities. Are you exercising? Are you swimming in the pool? Or are you walking? Make sure that the doctor goes what it is you're doing and that you've got the doctor's blessing to do those activities. You don't want the them to question whether those activities that your doctor told you to do are within the range of your physical abilities as documented by your doctor. Now, you also may be asked about any special equipment, such as a cane or scooter if you use them fine, but please do not exaggerate the frequency with which you use them. Those say that you use the cane all the time, every day, 24 hours , seven days a week, because I promise you, I have a picture of you when you're not using the cane and they will portray you as a liar, a Mullingar as a fraud. So remember ranges, good days, bad days now, less obvious and often forgotten is questions about how you sleep, how much sleep you get at one time, whether you have to take naps , uh, and how sleepy you are during the course of the day. And the same thing holds true with , uh , questions of, of the use of a bathroom. Um, they just don't ask those questions, but those are not exertional impairments that are relevant. So clearly you can see that you need to be probably prepared , be prepared before giving a statement to answer those questions. All right, mistake number six, failing to properly answer questions about your restrictions . So limitations, as I've said, what are the key reasons for taking your statement is to compare what you said on activities of daily living forms, with what you've told the doctor and with any surveillance and the investigator who's taking your statement is going to be asking you questions about what you can and cannot do if you don't fully explain, but, and don't exaggerate you are. We're going to be in a situation where there's a gotcha , uh , because the carrier is going to say, look, you know, you, you said that you can't lift more than 10 pounds. Um, but we have a picture of you putting that case of beer in the back of your, of your vehicle. Uh, and if you haven't fully explained how you're able to do that, that day or how you paid the price of doing that , um, that might be a gotcha, because then as I've said, the investigator is going to ask you to sign a statement of testing to your physical abilities. Once you sign that form, they're going to pull out that surveillance, pop it into the computer , uh, and , uh, confront you with the alleged discrepancy between what you said you could do and what the tape shows. So remember, this is not a social visit to see how you're doing. They're not there with flowers and candy to wish you well. I've seen too many cases destroyed by the lack of preparation and the lack of representation. During this interview, people think that they don't need representation and they only learn the hard way once they've helped themselves destroy their claim. So please, please don't do that. So to recap, six of the 24 mistakes that you should not make. Number one, don't give a statement without representation. Two , don't let the rats visit your house. Three don't mishandle questions about your medical condition. Four don't answer questions about why you can't work improperly by being overly broad or exaggerating, and don't make mistakes in answering questions about your treatment and your response to that treatment and medication. And don't blow it. By answering questions about your restrictions and limitations incorrectly, because there's an inconsistency that you aren't aware of, or that you decide to exaggerate to impress the disability carrier. Okay, we're done for today's episode. Wow. Lot of mistakes, but guess what? We're not done in the next episode, I'm going to be talking about mistakes seven through 12 that you can make in your field statement. And these mistakes are going to be a continuation of our discussion about restrictions and limitations. Got it. If you liked this podcast, consider liking our page, leaving a review and or sharing it with your friends and family. Remember this podcast comes out weekly. So tune in next week for another episode of winning isn't easy. Thanks!