Tools in the Disability Carrier's Claim Denial Toolbox - Be Aware of These Deadly Pitfalls

Welcome to Season 4, Episode 10 of Winning Isn't Easy.  In this episode, we'll dive into the complicated topic of "Tools in the Disability Carrier's Claim Denial Toolbox" 

Host Nancy L. Cavey, a seasoned attorney with extensive experience in disability claims, discusses the various tools disability carriers will use to deny your claim. As you live your life during the process of your disability claim, disability carriers will use every trick in the book to attempt justifying a claim's denial. What you say in official documents, what you do in your day-to-day life, and even what you do or do not include in your medical records (down to minutia such as how terms are phrased or worded) can all be used against you. In this episode of Winning Isn't Easy, host Nancy L. Cavey walks through these traps in detail, giving examples of what not to due in the process of your disability claim.

In this episode, we'll cover the following topics:

1 - Don’t Have Regrets When You Talk with the Short- Or Long-Term Disability Insurance Carrier - How Your Words Can and Will Be Used against You

2 - One Court Rules That Disability Insurance Carriers Need to Think Twice before Using Four of Their Favorite Tools in Their Termination Toolbox  

3 - What You Say to the Disability Carrier Can Come Back and Bite You - Eleventh Circuit Rejects FCE Because of the Policyholder’s Reported Activity

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 OF YOUR PEACE OF MIND: https://caveylaw.com/get-free-reports/get-disability-book/

LINK TO THE DISABILITY INSURANCE CLAIM SURVIVAL GUIDE FOR PROFESSIONALS: https://caveylaw.com/get-free-reports/disability-insurance-claim-survival-guide-professionals/

FREE CONSULT LINK: https://caveylaw.com/contact-us/


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Please remember that the content shared is for informational purposes only, and should not replace personalized legal advice or guidance from qualified professionals.

Transcript

Speaker A [00:00:15]:
 Hey, I'm Nancy KB, national or resident and 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 says, I've got 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. Disability carriers will do just about anything to deny a claim, even a legitimate one. They'll play craftily, they'll play dirty.
 
 Speaker A [00:00:53]:
 They'll pay mean and nasty. I often say that they have a denial termination toolbox much like a gardener has a toolbox. In this episode today, I'm going to walk you through some of the strategies that disability carriers employ to deny your disability benefits. I'm going to talk about three things. One, don't have regrets when you talk with a shorter long term disability insurance carrier, how your words can and will be used against you. Two one, court rules that disability insurance carriers need to think twice before using four of their favorite tools in the termination toolbox. And last, what you say to the disability insurance carrier can come back and fight you. Eleven circuit rejects functional capacity evaluation because of the policyholders reported activity.
 
 Speaker A [00:01:44]:
 So let's take a break for a moment before we get started with this week's episode.
 
 Speaker B [00:01:49]:
 Have you been robbed of your peace of mind from your disability insurance carrier? You owe it to yourself to get a copy of robbed of your peace of mind, which provides you with everything you need to know about the long term disability claim process. Request your free copy of the book@kvlaw.com today.
 
 Speaker A [00:02:08]:
 Welcome back to winning isn't easy. You ready to get started? All right, let's not have regrets. When you talk with a short or long term disability insurance carrier, how your words can and will be used against you. Disability carrier representatives are gonna call you when you apply for your benefits and they're gonna renew your initial application and they're gonna call you during your claim when you're on diary. These calls are not social visits like you're talking to your mom. These calls, which are normally recorded, are to get you to say something that will give them a reason to deny a claim. Now, I don't allow disability carrier representatives to speak with my clients unless I'm present and I record the conversation. I never let them come to my clients houses or even to their doctor's office.
 
 Speaker A [00:02:54]:
 I've been told by EriSa Short and long term disability policyholders who have talked with the disability carriers that they have several regrets about that conversation. So let's talk about the talking too much during a discussion with a disability carrier. Just like the Megan Trainor song, you talk too much, you probably will be saying too much. They'll ask all sorts of questions and you want to impress them with your honesty by telling them way too much information. Just answer the blasted questions and don't volunteer any information. For example, they may ask you about your activities and confront you with Facebook posts or even surveillance. And what you say not only on your activity of daily living forms and what you say during this phone call, and what you say during this phone call in response to the Facebook posts or even the surveillance, if they're showing it to you, will be used against you, guaranteed. The second mistake is that you can be too friendly.
 
 Speaker A [00:04:01]:
 Now, they're not your friends and I don't want them to be calling you randomly. You wouldn't let them in your house and you wouldn't let them meet you in your doctor's office. And while you do have a duty to cooperate with them, I prefer that these calls be scheduled if they're going to have a call. The reason is that they're trying to catch you and you might say, oh, well, you know, I'm out and about doing X, Y and Z. Can I call you back? Well, that activity may be inconsistent with what you've told your doctor or what you've reported or maybe inconsistent with, with what you claim you're unable to do. So the other thing I want to point out is that you don't want to accept friend requests from people or organizations that you don't know. While it's not legal to send friend requests, that hasn't stopped disability insurance carriers or their investigators to do just that and then use your post as a reason to deny your claim. I want you to also assume that they have surveillance on you.
 
 Speaker A [00:05:03]:
 Follow your doctor's advice about your restrictions and limitations and don't exaggerate what you're doing. And specifically, don't exaggerate what you're telling your doctor that you're doing. The carrier will use these exaggerations to then get surveillance, and then they will go to the doctor and say, look, you're relying on these representations and look what they're doing on video and what they said they could do. Now, doctor, don't you agree with me that all this activity is inconsistent with what they're saying to you? That they can do. And you're relying on this. You're just nothing more than an echo chamber. But here's the facts. Now, doctors will buy that.
 
 Speaker A [00:05:46]:
 They'll take that hook, line and sinker and they will change their mind about your restrictions and limitations. So please don't give the carrier ammunition to deny your claim. And the third trick is going to be discussing your medical records. So the disability carrier is going to call you up and they're going to say, we know we have questions about your medical records. You know, how about this? How about that? And my response is, if you have a question about my client's medical records, put it in writing and we will respond to this. And certainly if you've got questions about what the doctor has said, we don't want you to have a phone call with them. You got to write a letter. And by the way, that letter's got to be copied to me, okay? So make sure that any discussion of your medical records, either with you or with your doctor is done in writing.
 
 Speaker A [00:06:37]:
 And please, please don't suggest that your doctor is not a good doctor or they're not handling your case properly, or they don't understand you or any other very odd excuses, because I know the disability carrier will make sure that your doctor knows exactly what you think about them. And you think that's going to help your disability claim? Nope, I don't think so. Let's take a break. Welcome back to winning isn't easy. Now let's talk about our second topic. One, court rules that a disability insurance carrier needs to think twice, maybe three times, maybe a couple more times before they use four of their favorite tools in their termination toolbox. Now disability carriers are not in the business of paying disability benefits for any length of time, particularly if you have a long term and expensive claim. Insurers are not obligated to pay your benefits just because it's an accepted claim.
 
 Speaker A [00:07:49]:
 Every month is a new month and they get to look at your claim again. And if there's a change in the definition of disability, they get to look at your claim again. So I want you to understand that this is an ongoing monthly process. I want you to be sure that the carrier isn't being given reasons to terminate benefits. They've got many tools in their termination toolbox. And I want to give you an example of how one disability carrier terminated disability benefits after paying benefits for years. This is the case of Rohrer versus sun life. It's a case out of the 8th Circuit.
 
 Speaker A [00:08:27]:
 Now Doctor Rohrer was a board certified anesthesiologist who began experiencing intermittent tremors in his hands and fingers. That can be a problem if you're an anesthesiologist. He stopped work and he applied for his benefits and sun life paid him for ten years. So when sun life decided that they didn't want to pay benefits anymore because it was an expensive claim and it lasted a while, they used four tools in their termination toolbox. They justified the denial on the basis that, one, there was no concrete diagnosis even though paid benefits for ten years. Two, his condition was psychogenic all in his head, that his condition had improved even though it was all in his head, and that his condition wasn't sufficiently impairing even though they had paid benefits for ten years. Now, ultimately this case is denied. An appeal is filed, it goes to the federal district court, and it goes on appeal to the 8th Circuit.
 
 Speaker A [00:09:26]:
 Now, the court noted that Rohr had the burden of proving his entitlement to benefits, but I will tell you, they weren't happy that sun life had relied on the same evidence to find both. That Rohr was disabled and then later discredited and rejected it. With the same evidence either. The ride on the same horse, where you don't ride on the same horse, you don't switch horses in the middle of a claim denial. And they were unhappy that because an unbiased review of medical evidence showed that both his training physician and sunlight's own doctors were uncertain about the disabling nature of the medical condition, and it appeared that the improvement was just temporary. So what the court said was, look, this termination of benefits is nothing more than a sudden change of heart on a record that it had accepted for almost a decade. So you need to understand that the lack of a concrete diagnosis, particularly when there's been a longstanding payment of benefits, is not a sufficient reason for denial. Secondly, labeling something psychogenic when you're paid benefits for a while isn't going to cut it.
 
 Speaker A [00:10:34]:
 Now, the argument that the condition has improved is a more challenging argument. If your medical records are showing improvement, the question, of course, is going to be what's the nature of that improvement? And is that improvement sufficient to allow you to go back to work in your own occupation or any other occupation you could potentially do in view of your experience, training and education? The other argument that we'll get is the condition isn't significantly impairing. If there's nothing that's changed over the course of the ten years, then obviously the 8th circuit was right. But let's say he had improved and his functionality had improved and that was objectively established not in their imagination, but by diagnostic studies or physical exam findings. Those two reasons condition had improved and the conditions not significantly impairing can be great tools in the disability carrier toolbox. But again, it comes back to the facts and the medical records, statements that you have made regarding your activity of the daily living and the nature of the medical condition that you have. Got it? All right, let's take a break.
 
 Speaker B [00:11:49]:
 Are you a professional with questions about your individual disability policy? You need the disability insurance claim survival guide for professionals. This book gives you a comprehensive understanding of your disability policy with tips and to dos regarding your disability application that will assist you in submitting a winning disability application. This is one you won't want to miss. For the next 24 hours. We are giving away free copies of the disability insurance claims survival guide for professionals. Order yours Today@disabilityclaimsforprofessionals.com.
 
 Speaker A [00:12:22]:
 Dot welcome back to winning isn't easy. I think this should be the bite me episode because, because the next topic is going to be what you say the disability carrier can come back and bite you. The 11th Circuit rejects a functional capacity evaluation because of the policyholders reported activity. Now, we talked about how part of the claims process your disability carrier is going to have a representative speak with you and what you say can come back and bite you. That's exactly what happened in the case of Sisong versus unum. This is an 11th circuit case and the 11th Circuit covers the state of Florida, Georgia and Alabama. So it's in my backyard. Miss Sisong was a pharmacist and she had an on the job back injury that left her in tremendous pain.
 
 Speaker A [00:13:10]:
 She applied for her unit of disability benefits and was paid own occupation benefits for 24 months. Now in this timeframe, she was treated with medication, physical therapy, medial branch blocks, steroid injections and she didn't have any significant or long lasting relief. She underwent a radio frequency ablation procedure and that did provide her with significant pain relief and improvement in her physical exam findings. Her doctor released her to go back to work even though she told the doctor that the radiofrequency ablation had stopped working. Now, Susung started to take gabapentin and in the fall of 2017, as a result of seeing a new neurologist that was prescribed because she is having back and leg pain. And this neurologist, Doctor Lifton, said that she couldn't work. Now, what did Unum do in response to all of this? Well, as the initial 24 month period of time, her own occupation benefits neared its end. Unum gathered information to determine and establish that Sison could engage in any gainful occupation based on her education and experience.
 
 Speaker A [00:14:19]:
 That's called the any occupation standard. Now, basically, if they can establish you can do at least sedentary work, for the most part, there's going to be a compelling argument that you are no longer disabled and unable to work in any occupation. So what happened? What did Unum do? Well, as part of the any occupation review, Unum's representative spoke with her about her daily activities. What did she tell them? She said that she was able to ride a stationary bicycle, exercise with her exercise ball, do yoga, walk up to a quarter of a mile, cook and clean, shop on her phone, engaging crafts like basket making while sitting on a couch. Now, all of that is going to come back to haunt her. First off, she never should have talked with the unum folks without representation. And secondly, there is a way to tell the truth, which obviously we always want to do, but in a way that explains what the import or impact of doing those activities, how long she did them, the price that she paid for doing them, good days, bad days, how the medical condition impacted her ability to sit and stand, and how she needed to alternate sitting and standing. So there's all sorts of ways to address the level of physical activity, but to do it in a way that accurately demonstrates an inability even to do sedentary work.
 
 Speaker A [00:15:46]:
 So Unum said, ah, well, based on all that, you can do sedentary work, and there are three pharmacy jobs in your labor market that you can perform, and as a result, we're not going to pay any occupation benefits at the end of 24 months. Well, Sasung didn't give up and she appealed. And as part of her appeal, she did what she should have done. I always want my clients to have a functional capacity evaluation. That's the gold standard to determine the objective basis of your physical restrictions, limitations. But there is always a bit of a subjective component in the FCE testing. The FCE results came back saying she couldn't do sedentary work because she couldn't safely lift more than an edgeable amount of weight from floor to waist. She couldn't lift more than five pounds from waist to overhead, she couldn't safely carry more than five pounds.
 
 Speaker A [00:16:39]:
 She would need breaks to lie down during her day, and she was unable to work a full eight hour shift. Now, Unm said, nah, we're not going to buy that. And she appealed to the federal district court. That federal district court upheld the denial. She didn't give up, and she ends up in the 11th Circuit in Atlanta. So what did the 11th Circuit Court of Appeals do? Well, let's first talk about the standard of review and how the 11th Circuit deals with whether or not Sasan could do sedentary work. Each federal circuit has its own different way of reviewing a risk acclaim and the denial or a termination. And that's called the standard of review.
 
 Speaker A [00:17:20]:
 Remember, you've got the burden of proof. And in applying the standard of review, the 11th Circuit first reviews an administrator or carrier's decision using what's called a de novo standard of review. So the court can look at this whole file, which is the trial of your case, and the court can say, look, I'm not going to give any deference to anybody. What is it that I think? And if the court agrees with a decision to deny or terminate benefits, bingo, you're done. The court has to affirm the denial. Now, if the court doesn't agree and the policy or plan vests the administrator or the carrier with discretion to make the decision or interpret the plan's terms, the court has to review the decision using what's called the arbitrary and capricious standard of review. They don't teach this in law school. This is a differential standard of review.
 
 Speaker A [00:18:07]:
 It gives deference to the discretion of the plan administrator or the carrier. So the court has to next really determine whether there are, quote unquote, reasonable grounds for the decision, and if so, uphold the denial. If the decision is unreasonable, then the court has to potentially reverse the decision. If that decision has been influenced by, by the carrier or plan administrator's bias and conflict. In other words, they're the decider and they're the payer. There's certainly got to be a conflict, and that's a factor in whether or not the decision gets overturned. Now, in determining that Siskang was capable of sedentary work, Unum relied in part on what's called the Dictionary of occupational Titles. It's an old department of labor manual, still, unfortunately in use.
 
 Speaker A [00:18:54]:
 Hasn't been updated in a million years. But the definition of sedentary work requires the ability to push, pull, lift, and carry ten pounds occasionally. Well, the FCE showed that she could push, or although she could push or pull more than 40 pounds, she couldn't safely lift more than ten pounds. Now, what's important here is that none of her daily activities showed that she did any of that. And the, the court agreed that the functional capacity evaluation was perhaps accurate, but said, look, under the arbitrary and capricious standard of review. Their rejection of the FCE was not arbitrary and capricious. What? That's kind of confusing, isn't it? Well, you're absolutely right, it is confusing. But what the court said was that several members of the unums in house medical staff had reviewed the records and concluded that the FC limitations were inconsistent with the reported mechanism of injury and the relative innocuous findings in an MRI four years earlier, that she had been released to full duty in 2017, and that her description of her daily activities appeared to exceed the requirements for sedentary work.
 
 Speaker A [00:20:10]:
 So the court reviewed this decision on a de novo basis as step one, and the court said, look, there's substantial, reliable evidence to support Unum's determination that she could perform sedentary work. And because that decision survived the review, the court upheld the denial. Now, with all due respect to the court, I think the court was wrong. The MRI in 2016 and the decision to release her to full duty in 2017 were, in my view, irrelevant to her functional capacity at the time. Unim evaluated her ability to do other work because at that point in time, she was being paid own occupation benefits. Now, in my mind, the real question was whether Sasam's reported activity level really was of at least a sedentary level. I think that the court clearly thought it was, but I still think that's problematic. Now, it's unclear from the decision whether she had a second level appeal and whether there was any new reasons offered up by Unum to justify the claims denial.
 
 Speaker A [00:21:15]:
 In either case, she should have had the functional capacity evaluator and physician address whether her reported activities were the equivalent of an ability to engage in sedentary work. But I think the other lesson to be learned here is that if you're going to get a functional capacity evaluation, you should also be giving the FCE vendor or provider a copy of the activity of daily living statements and any summary of statements that you, the policyholder or plan beneficiary, have given to the disability carrier. The FCA provider should be explicitly asked, as part of the FCE to address whether or not these reported activities of daily living, be they reported to the doctor, be they reported in the activity of daily living forms, or in conversations with the carrier, were the equivalent of sedentary work. Then I think that the issue of the level activity and whether it was the equivalent of sedentary work should be clear. Now, I don't agree with the court's decision, but nonetheless, this decision shows how the court applies the arbitrary and capricious standard of review. And can defer to what I believe was a wrong decision in terminating her benefits. You've got the burden of proof the FC will help, but you got to anticipate that they're going to argue that there are subjective issues associated with the FC and that the activities of daily living, as reported, are just inconsistent with the results of the FCE. Got it? All right, don't talk too much, and preferably don't talk with a disability insurance carrier, adjuster, or investigator unless you're represented by an experienced ERISA disability attorney.
 
 Speaker A [00:23:02]:
 Thanks. Hope you enjoyed this week's episode, and I look forward to talking with you next week. If you liked this episode, please hit like and would you also please share it with your friends and family. Better yet, how about you subscribe to our podcast? Thanks. Talk to you next week.