What Every ERISA Policyholder or Plan Beneficiary Must Know About How the Carrier or Plan Uses Their Nurse Reviewer, Paper Medical Reviews, or Independent Medical Examinations To Create Reasons for the Denial or Termination of Your Disability Claim

Welcome to Season 5, Episode 6 of Winning Isn't Easy. In this episode, we'll dive into the complicated topic of "What Every ERISA Policyholder or Plan Beneficiary Must Know About How the Carrier or Plan Uses Their Nurse Reviewer, Paper Medical Reviews, or Independent Medical Examinations To Create Reasons for the Denial or Termination of Your Disability Claim."

Join attorney Nancy L. Cavey, a leading expert in disability claims, for an insightful discussion on the tactics disability carriers use to deny or terminate benefits. These tactics often include relying on nurse reviewers instead of specialized medical experts and conducting so-called "independent" medical examinations that are anything but. In this episode of Winning Isn’t Easy, Nancy breaks down each of these strategies, explaining how they work and what you need to watch out for to protect your claim. Don’t miss this essential information.

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

1 - Can an ERISA Disability Carrier Use a Nurse-Only Review to Deny or Terminate My Disability Insurance Benefits?

2 - Can an ERISA Disability Carrier Use a Physician Peer Review to Deny or Terminate My Disability Insurance Benefits?

3 - The Not-So-Independent Medical Evaluation Games

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.


Listen to Our Sister Podcast:

We have a sister podcast - Winning Isn't Easy: Navigating Your Social Security Disability Claim. Give it a listen: https://wiessdpodcast.buzzsprout.com/


Resources Mentioned in This Episode:

LINK TO ROBBED OF YOUR PEACE OF MIND: https://mailchi.mp/caveylaw/ltd-robbed-of-your-piece-of-mind

LINK TO THE DISABILITY INSURANCE CLAIM SURVIVAL GUIDE FOR PROFESSIONALS: https://mailchi.mp/caveylaw/professionals-guide-to-ltd-benefits

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

Nancy Cavey [00:00:00]:
 Foreign national, ERISA and IDI disability attorney and I want to welcome you to Winning Isn't Easy. Before we get started, I have to give you a legal disclaimer. The Florida Bar association says I have to tell you that this podcast is not legal advice. But I will tell you that nothing will ever prevent me from giving you an easy to understand overview of the disability insurance world, the games that disability carriers and plans play, and what you need to know to get the disability benefits you deserve. So off we go. One of the most common calls I get in the course of my practice go something like this Help my ERISA disability carrier plan used a nurse or a peer review provider to review my medical records and they denied or terminated my benefits. Can they do this? Well, I have to tell you that ERISA disability carriers or plans are not in the business of paying disability insurance benefits. When you submit a claim for your disability benefits, one of the first things the adjuster is going to do is to get a copy of all of your medical records.
 
 Nancy Cavey [00:01:15]:
 They're going to give those medical records to their in house nurse case manager or their in house liar for hire peer review doctors who may not even be qualified to render an opinion about your particular medical condition. What they are going to do is to look at the basis of the diagnosis, what objective evidence supports the diagnosis, what treatment you've gotten, your response to the treatment, what your doctor has to say about your restrictions and limitations. So they're going to be cherry picking these medical records to do an analysis a as to whether or not you are capable of doing your own occupation and they'll do the same thing at the any occupation stage. Now what will happen is there will be times when they'll even ask you to undergo an independent medical evaluation or a functional capacity evaluation because these are tools in the carrier's denial or termination toolbox. And so they're going to pull out each of these tools as appropriate to your case to create a reason to deny benefits. So what do you need to know about these denial or termination tactics? Today I'm going to talk about three things. The first is can an ERISA disability carrier use a nurse only review to deny or terminate your benefits? 2 Can an ERISA disability carrier plan use a physician to review your claim to deny or terminate benefits? And what's the not so independent medical evaluation game? I need to know. Let's take a break for a moment before we get into this episode.
 
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 Nancy Cavey [00:03:18]:
 Welcome back to Winning Isn't Easy can an ERISA Disability Carrier Use a Nurse only review to Deny or Terminate My Disability Insurance Benefits? Now I will tell you that it's not uncommon for a disability carrier to use a nurse to review the claim to determine eligibility for your benefits, to determine the nature of the restrictions and limitations that have been assigned, the appropriateness of the treatment that you've gotten, and whether you your complaints of pain and dysfunction are consistent with the examination, finding or diagnosis. Often they are going to have an in house nurse answer those questions for them and then create a reason to deny or terminate benefits. Are you surprised? Well, you shouldn't be surprised, but if you've gotten a denial or termination letter, you might be surprised to find that the denial letter does not accurately or completely summarize your medical records. It excludes relevant information and generally mischaracterizes your medical records. You might be surprised that if you google the name of the nurse case manager, you might find that the nurse has no experience in the nature of your disabling medical condition. And you might be surprised to learn that rarely if ever, has the nurse ever contacted your physician to request additional information or clarification for input. So what's next? Well, unfortunately you're going to have to file an appeal and that appeal is a trial of your case. And that appeal has to be submitted within 180 days of the date of the denial, where you can lose out.
 
 Nancy Cavey [00:04:53]:
 Let's talk about how the ERISA regulations can help you with that appeal letter. Now, under the ERISA statute, the disability carrier plan has to provide a policyholder with a reasonable opportunity for full and fair review of the claim and an adverse benefit benefit determination that's found in 29 CFR section 2560 503. 1 parens h parens a 3 parent the section requires that the disability carrier plan provide that when you are your claim has been denied that if it's been based in part on a medical judgment, including a determination with regard to a particular treatment, drug or other item is experimental, investigational or not medically necessary, they have to consult with a healthcare professional that has the appropriate training and experience in the field of medicine involved in this particular medical judgment. So there's some key phrases in this ERISA regulation. The key phrase that's applicable to a review by A nurse consultant is whether or not there's a medical judgment being made by a nurse. Unfortunately, the ERISA regulations don't define what the term medical judgment means. So let's look at how one court decided if a review by a nurse consultant was a medical judgment. And this is the case of Carl Metchi v.
 
 Nancy Cavey [00:06:18]:
 Metlife. It's a Louisiana court decision. And in this case, the nurse concluded that Metche's neck and shoulder pain fell within a pre existing condition exclusion. That's one of the policy defenses that disability carriers can raise. The nurse had thoroughly reviewed the records and didn't have to resolve any conflict or difference of opinions between the two physicians involved. One was the treating physician, one was the peer reviewed doctor. And the court felt that it was really important that why in this case, the nurse consultant's review did not violate the ERISA regulations. So the court said, look, it's undisputed that Mechi had undergone a spinal fusion at L405.
 
 Nancy Cavey [00:07:02]:
 It was undisputed that he had had medical treatment for his back condition in the time frame that would be applicable for the pre existing condition exclusion to be invoked. That the nurse consultant made no medical judgments and the nurse didn't comment on the appropriateness of any medical care and didn't disagree with any of the diagnoses. And as a matter of course, the nurse consultant didn't have to resolve any difference of opinion. And, and in that instance, the court said, well, this use of a nurse is okay because there wasn't the exercise of medical judgment. Ultimately, the question is, can a nurse only denial be upheld in the court? Now, ERISA legally allows a qualified nurse consultant to review a claim. And one of the key issues is are they qualified. And that's particularly true if the medical condition involves something like chronic fatigue, pots, Ehlers, Danlos, migraines, complex medical conditions. If we suspect that the nurse consultant isn't qualified, you through your attorney, should be attacking the review as insufficient.
 
 Nancy Cavey [00:08:11]:
 But I also want you to understand that the courts have accepted the opinions of nurse consultants who have reviewed X rays, MRIs, doctor's notes and concluded that there was no objective evidence of medical impairment. That, of course, will lead to a claims denial. And courts will look at the material documents in the records that would prove that this particular issue is something that a nurse may not understand, but that a doctor would. And in that particular case, a nurse consultant's review is not a violation of ERISA if it's something that they would commonly understand in the course of their practice as a nurse. When you get into court and you're arguing about this. There is what's called the substantial compliance standard in determining whether or not the nurse has substantially complied and their activities have complied with ERISA regulations. So the federal judge will use this substantial compliance test in determining if the failure to consult a specialist contributed to a finding that the administrator didn't substantially comply with the ERISA procedures and regulations. So they're going to look at the record at the, as a whole and say, okay, we will find that there can be substantial compliance if the policyholder or plan beneficiary knew that the, that the, what evidence that the decision maker relied on denying the claim.
 
 Nancy Cavey [00:09:36]:
 So in other words, as part of the appeal process, they have to give us everything that the, that the nurse had and considered in rendering their opinion. And if we don't get that, or if we see that the nurse didn't consider all of the relevant material, obviously that is a ground for attack. Now, the court may also find that there was substantial compliance if we had the opportunity to address the accuracy and the reliability of the evidence. So one of the things that we want to attack, and we ask for, by the way, is the CV of any medical provider that's involved in the carrier plans the decision to deny or terminate benefits. We also ask if they used any kind of policy or procedure manual, because carriers or plans do in fact, have policy or plan manuals that tell their employees how to evaluate certain medical conditions. So we want to use these as a way to argue that the opinion is not accurate and it's not reliable. And certainly whatever the policy or procedure manual is, is not consistent with accepted medical practices in evaluating this particular medical condition. Now, the court may say, look, if the decision maker considered the evidence presented by both parties prior to reaching and rendering the decision, there may be substantial compliance with the rules or regulations.
 
 Nancy Cavey [00:11:02]:
 So we always want to attack this again by looking at the claims notes and the nurse's report to see what evidence did they consider? Did they consider all the medical evidence? Did they cherry pick the medical records? Did they ignore what your physician had to say? So we want to obviously be able to attack this, and it can be a crapshoot depending on what's in the claims file, the professional background of the nurse, and the methodology or lack of methodology that was used by the nurse and ultimately by the carrier and the plan in creating this denial or termination letter. Now, remember that the denial letter will invite you to file appeal within 180 days, which, which you should do, and you should do it with the assistance of an experienced service and disability attorney. You only have 180 days in which to do this appeal and it is the trial of your case. So you or your lawyer want to point out in the appeal that the denial was based on the insufficient nurses review and challenge the basis of that denial. It's only then I will tell you that the disability carrier wakes up and what they'll then do is they'll obtain an in house or external liar for higher peer review or or maybe even an IME to justify the claims denial. Then they'll have the nurse's opinion reviewed by their physician who of course is going to endorse and rubber stamp the nurse's opinion. Wow. Now they fixed that unreasonable denial.
 
 Nancy Cavey [00:12:24]:
 But you still have the right to rebut the new liar for hire doctor or nurse's opinion for the basis of the denial. And you can see that this is a game that does really require the assistance of an experienced ERISA disability attorney. We need to take on the liar for hire nurse doctors qualifications, what they have looked at, what they've cherry picked and how they have used medical reasoning in quotes if you will, to reach their conclusion. And we're not afraid, as you shouldn't be afraid to use perhaps an FCE or your own IME to attack the basis of the nurses or liar for higher doctor's opinion. Got it. Well in our next segment I'm going to talk about the use of those liar for hire peer review doctors in greater detail. Let's take a break. Welcome back to Winning Isn't Easy.
 
 Nancy Cavey [00:13:37]:
 Can an ERISA disability carrier plan use a physician peer review doctor to deny or terminate my benefits? Well, the answer is yes. It's not uncommon for disability insurance carriers to use nurses or physicians to review claims to determine eligibility for disability benefits, determine the nature of your restrictions and limitations, the appropriateness of the treatment that you've gotten, whether your complaints of dysfunction pain are consistent with the examination findings or diagnosis the whether you're making appropriate progress with your treatment. And I will tell you that this is particularly true when the definition of disability in your policy or plan changes from an inability to do your own occupation to an inability to do any occupation. The carrier or the plan is looking for a reason to limit their exposure to pay benefits. They don't want to pay benefits for the life of the claim. And I will tell you even if you're on claim and you're being paid benefits, they're still looking for a way to deny or terminate benefits. I've had cases where the Claimant has been on a diary of being paid benefits for 10, 12 years and all of a sudden the disability carrier says, enough, we don't want to pay benefits anymore. Let's just create a reason to deny or terminate these benefits.
 
 Nancy Cavey [00:14:53]:
 And one of those key players is the liar for hire physician reviewer. Now this can be done internally or by a physician hired by a third party vendor. The third party vendor supplies carriers or plans with doctors who are well known to be disability denial or termination tools. Let's start out looking at the ground rules. Let's look at the rules and regulations founded 29 CFR section 2560, 5031 through H that requires the disability carrier a plan to consult with a healthcare professional who has appropriate training and experience involved in the medical issue at hand and to use their medical judgment. And what will happen of course is internally what a carrier will do is they were going to rely on their own in house doctors or nurses to perform a review of the medical records. They have a fancy title called medical director or medical consultant. They're owned by the carrier of the plan, and they are expected to tell the disability carrier plan reasons why it should deny or terminate benefits.
 
 Nancy Cavey [00:16:01]:
 It's not their job to explain why benefits should continue. Now courts do look at these types of opinions unfavorably, especially if this claimant has or policyholder has an unusual disease that this particular provider may not have any experience with. But, but I will tell you, using a garden variety in house physician with no experience or expertise can be a mistake. Now more often than not, they will use the right medical provider to evaluate the medical condition, but that provider obviously is captive and biased. These opinions that the carrier gets are called peer review opinions or paper review opinions. Most courts will criticize reliance of these types of opinions over the opinions of treating physicians. But you have to remember that there is no treating physician rule. So ultimately for the court the question becomes what is the expertise of the peer review doctor? What did they review? Did they make any careless mistakes in summarizing or cherry picking your medical records? Did they make any careless or, well, careless mistakes in summarizing any forms or statements that you made? Did they stack inferences like pancakes? In creating a reason to disagree with your physician? Did they explain why they rejected all or part of your doctor's opinions? Did they focus on the wrong condition and did they note each medical condition you have individually and in combination? So those are just some of the mistakes that we find and courts can find in attacking the internal peer review report.
 
 Nancy Cavey [00:17:42]:
 There are also external Peer reviewers. These external peer reviewers are hired by companies who have been created for the sole purpose of providing a stable of doctors to carriers or plans to create denial or termination letters or reasons. Many of these companies have been formed by former internal peer review providers. They decided that they can make even more money by setting up peer review companies that supply the carriers of the plans with a stable of peer review providers at a price. So the carrier of the plan will tell them what type of evaluation they're looking for, gives them a summary of the medical records with questions that they want answered. The reality, of course, is that these peer review providers are captives and they make a very good living by by doing peer reviews or supplementing their income. For example, I know one doctor who did peer review evaluations because he wanted to send his kids to a private school and he liked to have fancy cars and take exotic vacations. That's the way he funded his lifestyle.
 
 Nancy Cavey [00:18:50]:
 It's a game that benefits the peer review company, the peer review provider, and of course your disability carrier or plan. So let's take a break and when I come back I'm going to talk about the games that carriers will play with not so independent medical evaluators. Let's take a break.
 
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 Nancy Cavey [00:19:49]:
 Welcome back to Winning Isn't Easy, the not so independent Medical Evaluation game played by ERISA disability carriers and plans and what you need to know. One of the tools that disability carriers use is the not so independent medical evaluation. Now, practically speaking, most disability carriers policies or plans have provisions in them that allow them to have you evaluated by a physician of their choice, not your choice. Why? Well, they may want to know, is there an objective basis of the diagnosis? Are there any objective basis for your symptoms? Do you have any restrictions and limitations? Why are your doctor's restrictions and limitations wrong? Why are your doctor's opinions wrong about everything? In your case, why is the treatment that your doctor is recommending inappropriate? Why is your response to the treatment inappropriate? So don't be surprised if you are sent to an independent medical evaluation and what will happen? Is the IME provider is going to issue a report that gives them a reason to deny or terminate benefits. You will only have 180 days in which to file an appeal and that appeal is the trial of your case. You have got to take on not only the liar for hire internal peer review nurse, the external peer review reviewer, and maybe even the ime. In my view, this is not for the faint of heart and one of the many reasons why you should have an ERISA disability attorney. And in our practice, we write appeal letters that are 25 to 65 pages long and we take apart that denial.
 
 Nancy Cavey [00:21:29]:
 The way we do it is we get a copy of the claims file, we review it from COVID to cover, we review the medical reports that have been prepared by their staff, the peer review doctor and the IME doctor, and we investigate each provider looking at their background. One of the ways that we will attack an FCE provider, I'm sorry, an IME provider, is to go get a functional capacity evaluation. In other words, we want to attack the conclusions of the IME provider, particularly if they're commenting on restrictions and limitations. And in turn, we then want to have our own IME endorse not only the FCE that we had you undergo, but also to take apart the IME doctor. And so we understand exactly what needs to be done. But we also anticipate that when we file the appeal that they're going to have their same doctors re review the file. They may even get a new liar for hire peer review doctor, or they may even get a new ime. Under the ERISA rules and regulations, they have a duty to engage in a full and fair dialogue with us and give us an opportunity to present the new evidence.
 
 Nancy Cavey [00:22:37]:
 In fact, the rules and regulations provide that before a plan can issue an adverse benefit determination on a review of a disability claim, the plan administrator has to provide you free of charge the evidence considered relied on or generated by the plan insurer or other person making the benefit determination. In other words, the results of the ime, the updated peer review reports, the peer review report commenting on our IME or fce, that's all going to be considered new and additional evidence. We're entitled to be notified and given a chance to respond. So this has got to be a full fair and review, which means they've got to disclose the information. We have an opportunity to respond and they can't hold the ball. Got it? Now, I hope that you have enjoyed this week's episode of Winning Isn't Easy. If you've enjoyed this episode, please like our page leave a review, share it with your family or friends, and subscribe to this podcast. That way, you're going to get notified every time a new episode comes out.
 
 Nancy Cavey [00:23:45]:
 Please tune in next week for another insightful episode of Winning Isn't Easy.