Return to Work and Disability Duration Guidelines

Welcome to Season 4, Episode 34 of Winning Isn't Easy.  In this episode, we'll dive into the complicated topic of "Return to Work and Disability Duration Guidelines."

Host Nancy L. Cavey, a seasoned attorney with extensive experience in disability claims, discusses return to work and disability duration guidelines. During the course of a disability claim, carriers may attempt to contact a policyholder or claimant regarding possible return to work dates. It is vital to understand how to handle these propositions, and how they may impact a claim. Host Nancy L. Cavey will also discuss carrier's secret disability duration guidelines.

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

1 -  Disability Insurance Companies Return to Work Guidelines, and What You Need to Know about Their Call to You about a Return to Work

2 - Your Claim Has Lasted Way Too Long, and How Do ERISA Disability Carriers or Plans Use a Comorbid Claim Guideline if I Have Multiple Medical Conditions?

3 - Cigna Improperly Using Disability Guidelines in Denying a Claim

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/


Need Help Today?:

Need help with your Long-Term Disability or ERISA claim? Have questions? Please feel welcome to reach out to use for a FREE consultation. Just mention you listened to our podcast.

Review, like, and give us a thumbs up wherever you are listening to Winning Isn't Easy. We love to see your feedback about our podcast, and it helps us grow and improve.

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

Transcript

Nancy Cavey [00:00:15]:
 Hey, I'm Nancy Cavey, national ERISA 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 is not legal advice. The Florida Bar association says, I have to say this, so I've said it. 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 now. Disability claims also come with disability guidelines. Do you know that disability carriers or plans have guidelines for returning to work and others for duration of disability? No.
 
 Nancy Cavey [00:00:58]:
 Well, today I'm going to talk about how those guidelines work, how to watch out for them, and how we go about attacking a disability carrier plan's use of disability guidelines or duration guidelines. I'm going to talk about three things today. Number one, disability insurance companies return to work guidelines and what you need to know about their call to you about a return to work. Two, your claim has lasted way, way, way too long. And how does an arrested disability carrier plan use a comorbid claim guideline if you have multiple conditions? And let me give you an example in our last segment of Cigna, improperly using disability guidelines to deny a claim. So we're going to put it all together in these three episodes. Let's take a break before we get started.
 
 Speaker B [00:01:49]:
 Robbed of your peace of mind by 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 claims process. Request your free copy of the book@kvlaw.com. today.
 
 Nancy Cavey [00:02:13]:
 Welcome back to winning isn't easy. Ready to get started? Let's talk about disability insurance companies return to work guidelines and what you need to know about their call to you about a return to work. Disability carriers or plans are not in the business of paying benefits. Are you surprised? Their goal is to get you off disability as quickly as possible. And one of the ways they do that is to continually review your medical records, have their medical consultant determine whether you're able to return to work and if possible, get your buy in for a return to work date. Now, do you remember when you filled out forms called activity of daily living forms, ADL forms? They asked you all sorts of questions and the carrier's use of return to work discipline duration guidelines will start with what you put on the ADL form. Now, what's the common question that will lead us to this issue? The question about how does your illness, injury or condition limit your ability to work when the standard of disability is an inability to do your own occupation. Now that question sort of is a stupid question, isn't it? Because you would think that based on what you've told the carrier, what you have put in your medical records, what your doctor's recorded about you would make it obvious.
 
 Nancy Cavey [00:03:34]:
 But I assure you that unfortunately, what you tell your physician isn't always found in the medical records. Or physicians may not always comment on the issues that you have that limit your ability to work. And I assure you that the ERISA disability carrier plan is looking for it, but they often aren't going to find it. So what I want you to do is to take out a piece of paper, and I want you to think backwards. And what do I mean by that? So what you should be doing is writing down the material and substantial duties of your occupation, and you should draw a line from each one of these duties across the piece of paper and write down what it is about your illness, injury or condition that limits or prevents you from performing each one of these duties. So let me give you an example. Let's say that you have a back condition that limits your ability to sit. And so what you want to write down is back pain, burning pain down my leg and draw a line.
 
 Nancy Cavey [00:04:41]:
 And you want to put that I have to change positions every 30 minutes or I have to elevate my legs every hour, or you have to put ice packs on your back for three times a day for 30 minutes at a time. So you want to try to start by writing down the material and substantial duties of your occupation, the symptoms in the next column, the symptoms that you have, and then connect it with what impact your symptoms have with your inability to do each one of those material and substantial duties of your occupation. Is it a pain? Yes. But this is how I think you should go about doing it. Now, I'm often asked, well, how do I answer the question? How does your illness, injury, or condition limit your ability to work when the standard changes to an inability to do any occupation? Now, once you're paid your own occupation benefits, you may be eligible for any occupation benefits if your disability prevents you from performing, hypothetically, any other occupation that you're capable of doing in view of your education, skills, and whatever your restrictions are. Now remember, you did not insure your job. You insured an occupation. And the game here is, is the disability carrier wants to get you at a sedentary level of functioning and then have their vocational evaluators identify sedentary occupations that you could do because bingo, they're going to say, hey, you can do any other occupation.
 
 Nancy Cavey [00:06:17]:
 Now, one of the tools that disability carriers are going to use is your ADL forms. They're going to argue that you can do a sedentary job based on what you put on the forms. When you are approaching the end of that own occupation period, you're going to be asked to fill out some new forms, and you're always asked to fill out these ADL forms. And I want you to think differently because the standard of disability has changed. I want you to be thinking about why you can't do a sedentary job. So take out another piece of paper and write down each one of your disabling medical conditions. I have a herniated disc in my low back. Write down what your symptoms are.
 
 Nancy Cavey [00:06:58]:
 I have tingling and numbness that radiates down my right leg to my toes. Twenty four seven. And I have to get up and move every 45 minutes. So that's the baseline for what you want to write down for each one of your disabling medical conditions or symptoms. Then you're going to think in that last column why it is, and I want you to address this, what problems would you have doing a job full time? Well, I can't sit for 45 minutes, and then when I sit for that, I can only sit 30. And my ability to sit reduces over time. Why you couldn't do a full time job that will require you only to sit down all day. Why you couldn't do a full time job that would require you to use your upper extremities and hands in a repetitive basis.
 
 Nancy Cavey [00:07:47]:
 Why? Well, because every sedentary job requires you not only to sit on your rear end, but to use your arms and hands in a repetitive basis. You want to think about what problems you might have with production or pace, what problems you might have with concentration, what problems you might have with absenteeism. So you've got this all on one page. You can do it on an excel spreadsheet or just a piece of line paper or in my case, a legal pad. Okay? Saying you can't do a sedentary occupation isn't good enough. And having your physician say you can't do a sedentary occupation isn't good enough. You ultimately want your doctor to opine that you have restrictions and limitations that are sedentary or less. And in doing so, I think it's helpful that you give your doctor this kind of information.
 
 Nancy Cavey [00:08:35]:
 Now, what the disability carrier is going to do with this, in part, also is to say, look, yeah, you have a herniated disc. Yeah, you had surgery, but your disability has lasted, like, way, way too long. And we're going to use the disability advisor guidelines, and you should be able to return to work in a specific number of days based on what they say in this disability advisor guidelines. So I will tell you that either exceeding the disability duration guideline approaching a change in definition of disability is going to trigger a disability carrier review. And that's true regardless of whether or not you're in the own occupation or any occupation stage, because that's game two, if you will. They want their doctor to say that you can return to work in a sedentary capacity. They want to try to get your doctors to buy in. They'll often have their medical consultant speak with your doctor and agree that you can go back to work.
 
 Nancy Cavey [00:09:32]:
 Now, once your physician agrees that you can return to work, you're then going to get a telephone call from a claims examiner. Don't be surprised if you get a call, even if your physician doesn't think you can return to work. And if you get that call, you should tell them to put their questions in writing so you have time to give them a considered answer and consider the exercise I just outlined and certainly have a meeting with your physician. The call here is a clear indication that the carrier or plan is creating evidence to justify a claims denial or termination. And it's time, if you don't already have one, to get an ERisA lawyer before your benefits are terminated. And if you decide on your own to talk with the carrier or plan, which I don't recommend, I want you to be aware of three things that they're going to discuss with you. First, they're going to tell you that the purpose, well, they're not going to tell you that the purpose of the call is to get you to agree with their physician's opinion that you can return to work, your physician's agreement that you can return to work, and the date you can return to work. So they're gonna talk about three things.
 
 Nancy Cavey [00:10:38]:
 Number one, whether you agree with the medical or behavioral health impairments that allow you to go back to work. In other words, you had the herniated disc, you have surgery, and you can go back to work. Right? Secondly, whether you agree with the date of return to work assigned by their physician or your physician, you know, our doctor or your doctor says you can go back to work next week. Don't you agree with that? And then the third thing they're going to say is, or ask, are there any vocational issues that need to be addressed regarding this estimated return to work? Now that presumes that you can go back to work. But again, some of the vocational issues might be, well, you know, it would be nice if my employer accommodated me by getting me a different chair or getting, or changing my hours or doing this or that. That might be helpful or not helpful because many times there is no accommodation requirement in the disability insurance plan or policy. So you can see that that also then might be followed up with the next logical question. Oh, you don't think you're able to go back to work or you think you could go back to work with some form of accommodations? Can we provide you with any vocational assistance in returning you to work? So what's the phone call template? Now you kind of know what the overview is.
 
 Nancy Cavey [00:12:01]:
 The phone call may start like this. I'm your disability claims examiner. I want to talk with you about the date. Your attending physician indicates that you're physically or emotionally able to return to work. And at this point you're shocked because your doctor may have not even returned you to work. And this is news to you. The adjuster or claims examiner will go on and say, I want to make sure that we're on the same page, like right, so that we can best understand your needs and support your return to work on this date. Obviously, that's bull.
 
 Nancy Cavey [00:12:29]:
 Your physician suggested a return to work date of x. Do you, what do you think about this date? Or that disability duration guideline indicates that you should be ready to return to work on x date. What do you think about that date? Or our physician has suggested a return to work date of XDev. What do you think about that? Now, again, this might be the first time you've ever heard this, that you've been released to return to work. And if that's the case, I suggest that you advise the claims examiner that you want those questions in writing and you would like to discuss it with your physician before continuing the discussion. How you answer these questions are going to determine what happens next in your disability claim. So let's say you foolishly say, I agree with the return to work date. What's going to happen next? The phone call template requires the claims examiner to discuss whether there are any vocational issues that they could, they need to know about and help you with a return to work scenario.
 
 Nancy Cavey [00:13:32]:
 So these questions can include, do you have a job to return to? In other words, is your employer going to take you back? Do you have transportation issues. Do you need accommodation? Do you think you could return to work full time or part time? What would have to happen for you to go back to work full time? Do you have any vocational issues that you would love to discuss with our vocational counselor? Now, again, this is the time when you say, would you put all these questions in writing and could you send me the documentation that says I can go back to work? Don't agree with what they have to say. Better yet, hire a lawyer at this point. Now, if you answer all these questions, you know, yes, I have a job to return to. No, I don't have any transportation issues. No, I don't need any accommodation. Yes, I could work full time. You've just screwed yourself because the disability carrier is going to note that you're in agreement with a return to work day.
 
 Nancy Cavey [00:14:30]:
 And next the claims examiner is going to reach out to your employer to see if there's a job available that they can offer you so that you can return to work. Now, your employer doesn't have to offer you a job and the disability carrier doesn't have to provide you with any vocational services to assist you in returning to work or finding other work. The issue is whether or not you can work, not whether or not, and that's hypothetically, by the way, mythically, not in the real world national economy. But if you say, hey, I can go back to work, the disability carrier is going to say, ha ha, we got you. You're able to return to work in your own occupation or any occupation. Too bad, so sad. We are denying your claim. Now, what happens if, in the course of this discussion, you disagree with a return to work? The claims examiner doesn't want to hear that, so they're going to ask some more questions.
 
 Nancy Cavey [00:15:23]:
 Your perception of your medical or emotional status, the symptoms that, in your opinion, prevent you from returning to work, whether you've discussed with your physician your understanding of your prognosis for further recovery, whether you've discussed with your doctor a return to work day, whether you've discussed your functional restrictions and limitations. Now, they're trying to catch you and your doctor in a trap here, and what they will do is to try to take this information back to your physician and get them to agree about a return to work, even if the doctor hasn't agreed with that at that point in time. Now I suggest again that all this be in writing, that you do the exercises that I've talked about and that you schedule a conference with your doctor to discuss a return to work. You should get documentation from your physician concerning these issues, and your physician should obviously understand the definition of your own occupation or any occupation in your occupational duties. What they are probably going to do is then schedule another conversation with you once you've had an opportunity to discuss this with your physician. And they're going to document this call in their claims, adjusting notes which aren't always accurate. And when they call you again, they're going to go through the same questions that they asked you before. What are your symptoms, your functionality, your activities of daily living, side effects of medication? Looking for inconsistencies between what you put in your ADL forms and what you told your doctor.
 
 Nancy Cavey [00:16:56]:
 And then they're going to be again questioning why you can't work in a full time capacity and go back to work on x date. These return to work calls are a wake up call for you. They're just another reason why you should have an experienced risk of disability attorney representing you in your disability insurance claim. Now I've given you a lot of food for thought here. I want you to consider this and we're going to take a break and when we come back we're going to talk about the disability carriers use of comorbid claim guidelines. Got it? Let's take a break. Welcome back to winning isn't easy. Your claim has lasted way too long.
 
 Nancy Cavey [00:18:16]:
 How do ERISA disability carriers or plans use comorbid claim guidelines? If you have multiple medical conditions and try to deny or terminate your benefits? So do you have one or more medical problem that causes you to be disabled or a combination of problems? If you file a claim and you've got more than one medical condition, diagnoses or medical mental disorders, I think that the carrier and plan have to consider the merits of the claim based on each one of those claimed medical conditions and then the totality of your medical conditions and then the associated restrictions and limitations based on the total situation. So let me give you an example. Let's say you're a 55 year old marketing director and you claim that you're disabled as a result of fibromyalgia, mild cognitive impairment and gastroenterological issues. A review of your medical records indicate you have a herniated disc at l five s one and you're a diabetic. So what happens is that your medical records are going to be reviewed by the disability carrier plan's medical consultant. I call them liar for hires to determine whether each of the medical conditions supports a medical impairment and is disabling as that term is defined. They may request additional attending physician statement forms from your physicians to address the medical impairment and obtain any additional medical records. The claims adjuster who's handling your claim is going to consult with a in house or outhouse liar for hire medical peer review provider.
 
 Nancy Cavey [00:19:46]:
 If there are behavioral issues, they're going to consult with a behavioral health peer review provider, and they're going to have these providers review your medical records. They're going to ask, hey, do each one of these medical conditions support medical impairment? And if so, what's the level of impairment? Now, if the impairment is supported, the claimed adjuster may decide to pay the benefits based on the claimed impairment. But if the impairment is not supported, and often they will say it's not supported, the condition will be denied on the basis of as being a disabling cause of your inability to perform your own or any occupation. Now, it's a bit like the sorting hat. Once the claim adjuster is sorted through the claim conditions, they are going to say, well, we think this is a severe impairment that causes functional restrictions, limitations that impact a person's ability to perform their own or any occupation. These five aren't, and we're going to throw them out. So then they're going to look at any remaining impairments that they have opined are significant, and they're going to then look at the combination of those together. That's called comorbid medical conditions, and they're going to look at the impact or interaction between each one of these comorbid conditions and your restrictions and limitations.
 
 Nancy Cavey [00:21:13]:
 Again, they're trying to determine whether these rise to a level of impairment that impacts your ability to perform your own occupation or any occupation. Now, I will tell you that many disability policies have mental nervous policy limitations that will limit the payment of benefits to just two years. There are also subjective medical conditional limitations for pain, migraines. There's a laundry list you have to look at your policy or plan that limit benefits to just two years. Sometimes there are musculoskeletal policy limitations for strains, sprains, muscle spasm, post surgery pain syndromes. Any one of those three policy limitations, if they are in your policy, will be used because they're going to take all these comorbid situations that they think really result in significant impairment, and then they're going to throw out the ones that are subject to policy limitations. So if, for example, one of your comorbid conditions is depression and anxiety, and you're in the any occupation stage, you've already been paid two years of benefits. So they're going to throw out that depression or anxiety as a basis for evaluating your claim for any occupation benefits.
 
 Nancy Cavey [00:22:34]:
 So if that happens and we get a claims denial, I always want to know whether the disability carrier plan has a comorbid disability guideline. And if so, I want to look at it. I want to see what it says. I want to see how they applied it. I want to see what directions this guideline gives for them to evaluate each one of the medical conditions and then the comorbid conditions. This parsed analysis often results in a claims denial or termination, since they're looking for a reason to do just that. And if you've got a claims denial termination where you see this sorting analysis, go on. Most likely it's wrong.
 
 Nancy Cavey [00:23:12]:
 It could be the basis for an appeal of your denied or terminated benefits. And I don't want you to let that disability carrier plan improperly deny or terminate your benefits as a result of a comorbid analysis. Got it? Let's take a break.
 
 Speaker B [00:23:28]:
 Professional with questions about your individual disability policy. You need the disability insurance claims survival guide for professionals. This book gives you a comprehensive understanding of your disability policy with tips and to dos that will assist you in submitting a winning disability application. This is one you don't want to miss. For the next 24 hours, we are giving away free copies of the Disability insurance claim survival Guide for professionals. Order yours today@disabilityclaimsforprofessionals.com.
 
 Nancy Cavey [00:24:27]:
 Welcome back to winning isn't easy Cigna's improper use of disability guidelines denying a claim I'm going to bring this analysis to you so you can see what disability carriers do and how they improperly use these guidelines in denying a claim or terminating benefits. Now, disability guidelines can't be blindly accepted or considered to be sacred. If that was the case, there would cease to be guidelines and there would be standards or mandates. Guidelines are just that. They're guidelines and they have to be based on appropriate data and research. They should reflect outcomes and should be constantly monitored, evaluated and updated. The purpose of guidelines is to serve as guides in promoting the education of healthcare providers and in applying guidelines to determining entitlement to benefits really is not necessarily the purpose of guidelines. It's really guidelines are designed primarily for the well being of the patient.
 
 Nancy Cavey [00:25:34]:
 But of course, disability carriers or plans use them for nefarious purposes in creating reasons to deny or terminate benefits. So let me give you an example. I'm going to tell you the story of Miss Monroe, who suffered from a number of medical conditions. Now, one of the things we see in guidelines is that guidelines don't encompass every diagnosis or the treatment of all diseases. And they don't really consider variations because each one of us are individuals. And in this instance, the court ultimately found that Monroe's medical conditions had to be considered individually and in conjunction with each other. Again, the purpose of these guidelines is really to be a benefit for the patient, not to be used as a weapon in a disability insurance claim. But organizations and carriers like Cigna use these guidelines as a trip wire to trigger increased efforts or other activities such as claim denials.
 
 Nancy Cavey [00:26:35]:
 In other words, they may say, look, based on the guidelines, this person should be able to go back to work. At this point, we're going to contact, and that trips our tripwire, and they send you an activity of daily living form, or they contact your physician, or they put surveillance on you, or they call you. And so these increased efforts are really in an effort to create a reason to deny or terminate your benefits. Now, one of the disability guidelines that is used is something called webbility. And this web ability is an industry wide standard who basically will reward case managers who take risks in lowering the disability duration claims in guidelines. And ultimately, they use these as a way to establish goals for denial and termination and to create ways to recognize and reward this kind of behavior. And in fact, the president of webability in 2005 really admitted to that being the purpose of that particular guideline. Well, why is that? Because it's cost savings.
 
 Nancy Cavey [00:27:49]:
 It's cost savings because there are ways that they're going to terminate benefits that will save them money. And this use of duration guidelines is just one of them. Now, there are complications resulting from the use of disability guidelines. Guidelines are based on like, this is the actual date of the event, and this is x number of days after that that they should be recovered and able to go back to work. And what we find is that there's a mismatch in the disability durations based on the nature of the person's recovery, their response to treatment, their functional abilities, and the demands of their own occupation or any occupation. And obviously, these guidelines do not consider variations in injured or disabled people based on the same kind of circumstances. In other words, I may react differently to total knee replacement than somebody else, and my recovery period may be quicker, or I may have complications that prevent me from going back to work. The guidelines do not, in my view, adequately address complications.
 
 Nancy Cavey [00:29:04]:
 They basically are using hard numbers. If you had surgery on this date, you should be recovered. By this date, you should be able to go back to work. So the disability duration guidelines really are not, I think, appropriate. And there are disability duration guidelines that are used in workers comp in personal injury cases. But one of the favorite ones that's used in ErISA litigation is the medical disability advisor by the Reed group. Now, the reed group, by the way, is also a servicing company for disability carriers and work closely with employers in return to work issues. And I want to quote from for you part of the introduction, and this is the Medical Disability Advisor, fifth edition, 2005, by regroup in its introduction, page twelve to 14, and it says that disability is a relational concept and it doesn't equal functional impairment, though many times disability carriers will stop the payment of benefits because they'll say the person isn't functionally impaired.
 
 Nancy Cavey [00:30:16]:
 Now regroup, who, as I said, services, disability policies and plans, also misapplies the concept of functional impairment, even though their own guideline says something different. So the introduction notes that the vast majority of people with disability have minimal objective findings on careful medical evaluation. That's bull. And the introduction continues to say pain is the most common disabling condition, which is impossible for another person to observe or measure directly. Managing medical disability by utilizing disability duration guidelines is admittedly an imperfect approach. And if it's imperfect, then why on earth are you using it? That's my response. These guidelines are not intended to be used as a device to course workers back to work when they're unable to perform their normal duties. Well, of course, that's bull, too, because they use disability duration guidelines all the time, and they get you to try to admit that you can go back to work or get your physician to admit that you can go back to work even though you still may be recovering.
 
 Nancy Cavey [00:31:20]:
 The introduction goes on to say, the use of a tool has to be this tool, disability duration guidelines, has to be done with prudence, compassion, and thoughtfulness, and in doing so, treat everyone the way you and yourself would like to be treated. Now, this is the golden rule that we were raised by, but I assure you that it doesn't work that way. So I started out by saying I was going to tell you the story of Miss Monroe. And this is the case of Vorbah versus continental. And the court ruled that the disability duration guidelines used by continental had qualifications in it that invalidated the whole use of the guidelines. And in this particular case, Reliance, who was the administrator, failed to supply the guidelines to her in the appeal process. And the court said, look, this deprives her of a full and fair review, and the guidelines are just guidelines. They fail to take into account her individual presentation and her multiple medical conditions.
 
 Nancy Cavey [00:32:19]:
 And the court said look, the use of guidelines in a case like this is just de novo wrong. It's wrong, it's wrong. It's wrong. So you can see that disability carriers and plans will use comorbid disability guidelines return to work guidelines, not in the spirit in which the Reed group suggested. They do use these guidelines to coerce disabled policyholders to give up their disability claim and try to convince them that they really have to return to work when in fact they are still entitled to their disability benefits. I hope that you have learned a lot in this episode of winning isn't easy. If this game is being played in your case, you're only going to have 180 days in which to file an appeal, and the appeal is a trial of your case. If you are not represented, you need to get an attorney right away so that they get a copy of the claims file and find out what disability duration guidelines or comorbid disability guidelines were used to improperly deny or terminate your benefits.
 
 Nancy Cavey [00:33:24]:
 Got it? If you've enjoyed this episode, please like our page, leave a review, share it with your family or friends, and please subscribe to our podcast. That way, you're going to get notification of when a next episode drops. I hope you've enjoyed this episode, as I said, and I look forward to speaking with you in our next episode.