Nancy Cavey [00:00:00]:
Foreign hey, I'm Nancy Cavy, 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've got to say this and now I've said it. I want to 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 play, and what you need to know to get the disability benefits you deserve. So off we go. Now.
Nancy Cavey [00:00:45]:
In the course of this podcast over many years, we've discussed the delay, denial and termination tactics that disability carriers use. Today I'm going to revisit and expand on some of these strategies and in doing so, I'm going to share with you some case examples that show how disability carriers will try anything to see what sticks if they believe it could lead to a successful claim, denial or termination. So we're going to talk about three things today. Number one, should my ERISA disability attorney hire a vocational expert in my ERISA disability appeal, the Vocational evaluation game? Number two, the sedentary work game the disability carriers will play at the any occupation stage of an arrested disability claim. And lastly, Guardian's untimely production of new evidence used to deny a claim and what one court did about that. Let's take a break before we get started and I look forward to having you come back with a pen and and a pad so you can be taking some notes because this information is timely regardless of how old your disability claim might be or how long you've been on claim. These games are the games that you may face in a claim denial or termination.
Speaker B [00:02:06]:
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Nancy Cavey [00:02:29]:
Welcome back to Winning Isn't Easy. Should my ERISA Disability attorney hire a vocational expert in my ERISA disability Appeal? Let's talk about the vocational evaluation game. Now, as a rule, I would say the answer to that question is yes. And that's particularly true if you are at the own occupation stage and the disability carrier plan misclassifies your own occupation. That's really crucial because we've got to start out with a definition of disability in the terms of your disability policy or plan and what that definition of occupation might be. Remember, you have ensured your occupation, not a job. And so it's really important that you understand, one, that definition, and then two, you understand the games that are played at the own occupation stage. Now, many times disability carriers will take the information that you have provided to them in your initial application material.
Nancy Cavey [00:03:34]:
Remember that work history form that you completed? They're going to take a look at that, they're going to contact your employer, and they're going to get information from them about your occupational duties that might be in the form of a job description, if you will. But more often than not, what I find is that they don't get the correct information, either because the employer isn't telling them the truth or if they're using an occupational description from your employer, it's not necessarily accurate. Why is all of this important? Because, again, when we look at the definition of occupation, we need to understand whether it's your occupation as performed for your employer or performed in the local economy, performed in the national economy, or performed pursuant to the old, outdated Dictionary of Occupational Titles. It's important because they're going to be looking at what the physical requirements of your occupation would be and then measure, if you will, based on what your physician has to say, whether you're able to go back to those occupational duties. Now, many times when they're trying to determine this, the vocational evaluator will be playing a role in this. What is a vocational evaluator? A vocational evaluator is an expert in the world of work, but in the context of an ERISA disability claim, they're basically liar for hires who are being asked to create a reason or reasons why you can do your own occupation. Now, they also play a role when the definition of disability changes from an inability to do your own occupation to an inability to do any occupation, when what the VE is looking for at that point are transferable skills, skills that you've learned in your past work. For example, if you are a nurse, you have the ability to engage in patient care.
Nancy Cavey [00:05:25]:
You have the ability to listen, you have the ability to chart, you have the ability to do math, you have the ability to make informed decisions. And so what they're looking for is to determine whether or not your physical or cognitive restrictions and limitations, as they determine them, will allow you to take your skills unimpeded to some other occupation, or if there has been a reduction in your ability to take those transferable skills to another occupation, the extent of that. Now, the game here, obviously, at this stage, is to prove that you can engage in at least sedentary work and that you've got skills that you could take to a sedentary type occupation. There are times, however, when the definition of disability also requires that any other work that they identify or the occupations they identify have significant numbers in the local or national economy or potentially that they pay a certain wage. And again, that's a different game for a different day. But if what has happened is typical, the VE will say that, hey, you have skills that you can take to other occupations by virtue of what our physicians have to say about your restrictions, limitations. And here are these jobs. And by the way, this is how much they pay or don't pay.
Nancy Cavey [00:06:47]:
Now, when that occurs, I, as a ERISA disability attorney, get a copy of the claims file and I want to analyze it from beginning to end, looking for all the reasons to challenge a wrongful denial or termination. And one of the things it does involve is looking at these vocational reports prepared by the carrier or plans in house. Vocational evaluators, clearly they're often biased in favor of the carrier or the plan. So I want you to understand that this is a part of their toolbox of the denial tools, if you will. They will provide to the ve, maybe an accurate summary of your medical records. They may provide them with a summary of the restrictions limitations assigned by their peer review doctors. They'll never tell the VE what your physician's opinion was about your restrictions limitations. And then of course, they'll go about doing this vocational analysis.
Nancy Cavey [00:07:47]:
Part of it does require that they understand your former occupation so that they understand what skills you've learned and in the course of your employment history. And again, that's a common mistake. Carriers will misclassify the occupation and they'll do that through their ve, and they'll maintain that mistake through the entire claims denial or termination process. And again, at the any occupation stage, the VE is going to use some computer programs to determine your transferable skills, which you've learned in the past, work that could be applied to other hypothetical situations. Once they've identified a number of occupations, and normally it's three, they will do a labor market survey. Now, allegedly this is done to determine what work is available either in the local economy or the national economy, depending on the terms of the policy. And they potentially will confirm job availability. They don't have to.
Nancy Cavey [00:08:54]:
And potentially they will confirm wages, and again, they don't have to, depending on the terms of the policy or the plan. But I want you to understand that these are just some of the tactics that they use. And these tactics can be rebutted and if unchallenged, a judge is going to rely on the opinion of that vocational evaluator, regardless of how faulty it might be, regardless of how shaky the foundation might be, and regardless of how invalid the the conclusions are in view of what your physician has to say about your abilities. What I do, of course, is to hire a vocational expert to counter all of the errors that I see in the vocational report. I'm not going to leave them unchallenged. And normally we will argue that the carrier has failed to properly determine your restrictions and limitations, both physically and cognitively. They've misclassified your occupation. They have performed an invalid transferable skills analysis.
Nancy Cavey [00:09:57]:
They haven't considered exertional and non exertional issues in determining what skills you might have that could go to other work. They've done a faulty labor market survey. The wages that they have found are inaccurate and are not consistent with the terms of the policy. So you can see there's just a laundry list of ways to rebut these common mistakes. You can also understand that this is something that you can't do. You're not a vocational expert. And that's why at KV Law we hire a vocational expert to take apart that faulty vocational evaluation report that is the basis of a claims denial or termination. Got it.
Nancy Cavey [00:10:39]:
Let's take a break. Welcome back to Winning Isn't Easy. Let's talk about the sedentary work game that disability carriers or plans play at the any occupation stage of an ERISA disability claim. Now, generally what you will see is that after two years of being paid your own occupation benefits, the definition of disability will change from an inability to do your own occupation to an inability to do any occupation. And often that means a job at what's called a sedentary level, which is basically sitting down all day. Now, some policies will require that the new occupation generate at least 80% of your pre disability earnings, but many don't. And so one of the things that we need to understand here is what's the definition of any occupation? We need to understand whether the definition has a new occupation disability income threshold. In other words, that 80% of your pre disability earnings.
Nancy Cavey [00:11:59]:
Because we've got to understand the parameters of what it is we have to prove. But before we take that apart, let's talk about what sedentary means. Sedentary typically means sitting for up to six hours in an eight hour workday, walking or standing for no more than two hours per day, lifting no more than ten pounds, and the use of both hands. That's called bilateral manual dexterity and sufficient vision for small object tasks. It also requires the ability to maintain pace and production throughout the workday. The game that occurs is that the disability carrier or plan is going to have your medical records reviewed by their liar for hire peer review doctors who are going to conclude, notwithstanding what your doctor has to say, that you can engage in some form of sedentary work. Then their in house vocational rehabilitation counselor ve will identify sedentary jobs that they claim you can do, regardless of whether those jobs are available in your local labor market and even pay a living wage. Many times that's not a factor.
Nancy Cavey [00:13:04]:
It's not a factor of whether you like the job, whether it pays a living wage, whether it's necessarily even available. That's not the clue. It's in this hypothetical mythical world, is there some other work that you could do? Now part of what the vocational evaluator is doing is determining what skills you have that might transfer to a sedentary job. So they do a transferable skills analysis and say, okay, they've got these 10 transferable skills, but now let's put it in the sedentary work bucket, occupation bucket, if you will. And that will help kind of filter out jobs, if you will, that are not either sedentary in nature or consistent with your level of skills. I see all sorts of stupid jobs that disability carriers, vocational evaluators will come up with. But here's the game. You've got to attack this opinion.
Nancy Cavey [00:14:06]:
If your claim has been denied or terminated, there are two things you have to do at a minimum. First, you've got to rebut the physician, the liar for hire physician's opinion about your restrictions limitations. One of the ways we go about doing that is to have a functional capacity evaluation, which is an objective measure of a person's functionality. I want to measure objectively your ability to do those sedentary type duties that we enumerated at the beginning of this segment. Can you sit? How long can you sit? Do you have to change positions? How much can you lift? Do you have to alternate sitting, standing or other postural changes? Do you in fact have postural issues with moving your head side to side or up and down? Do you have difficulties using your hands in a bilateral fashion? Would you have problems with pace and attendance? We generally will try to take that back to the treating physician and say, hey, do you agree with this functional capacity evaluation? And by the way, do you disagree with what the liar for hire doctor has to say? Now, what's important also here in the course of this case is that you're giving your doctor an accurate history of your symptoms and functionality, how long you can sit, stoop, walk, stand, that sort of stuff. And also giving your doctor an accurate history of how your symptoms impact concentration, pace, the ability to stay on task, the need for breaks, repetitive limitation issues. That's crucial because all of this needs to be consistent, has to be consistent with what you're telling the carrier, consistent with what you're telling the doctor, and consistent with that functional capacity evaluation. Then in turn, we want to have our vocational evaluator take apart this whole notion that either you can engage in sedentary occupations by virtue of your physical restrictions limitations, or attack the transferable skills analysis that the VE did and argue that your restrictions and limitations have eroded or reduced your ability to do even the stupid sedentary occupations that the carrier or plan has come up with.
Nancy Cavey [00:16:18]:
You can see that this is very strategic and it's individualized based on what's happening in your particular case. Please don't let disability carriers or plans wrongfully deny your benefits. You should be seeking legal guidance to challenge these wrongful vocational assessments. You're only going to have basically 180 days in which to file an appeal in an ERISA case. That's the trial of your case. That's when all of this evidence gets developed. Because once the appeals process is ended and the claim potentially is, denial is upheld, there's no new evidence that can be added before you file a lawsuit. So you've got to develop this during, preferably before your claim is denied or terminated, but certainly during the appeal process and the failure to do so can be fatal to the outcome of your case.
Nancy Cavey [00:17:12]:
Got it. Let's take a break.
Speaker B [00:17:17]:
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Nancy Cavey [00:17:57]:
Welcome back to Winning Isn't Easy. Guardian's untimely production of new evidence is used which was used to deny a claim is overturned by a court. Now, we have been talking about the games that disability carriers or plans play in coming up with a reason to deny or terminate benefits. Under the ERISA regulations, the carrier has to provide you with a Full and fair review of any claim, denial or termination. And that includes supplying with you any new evidence that's considered, relied upon or generated in connection with the claim in advance of the final decision to allow you to respond. Now, what I see is that many carriers use delay tactics. They'll send new reports at the last possible moment. They'll make it impossible for you to respond before a decision is issued.
Nancy Cavey [00:18:50]:
So they'll create all these reasons to deny or terminate benefits. You file an appeal, you've got 180 days to do so. They've got two 45 day periods in which to consider the denial, and they have to ask for the second extension. But what they'll do is they'll creep up to that first 45 day deadline and say, oh, wait a second, we've got some new information here for you to respond to. And by the way, don't you want an extension to give us an extension so that you can submit more information and then we can consider it? Those are the kinds of games that courts really frown upon. So let me tell you the story of Sammy versus Guardian Life. It's a case out of the Southern District of Florida, and in this particular case, Sami's benefits were terminated in the appeal. In response, Guardian got two new medical reports and a vocational report addressing the transferable skills.
Nancy Cavey [00:19:49]:
And they gave that to Samy with the reports the same day they denied his claim, attempting to justify their actions by claiming that they provided the reports as soon as possible and arguing that Samy had objected to their request for an extension, implying that he couldn't have it both ways. Now, what they also argued is, look, that failure to provide timely evidence is just not no big deal. These are common excuses that we hear all the time in the ERISA world. So what did the federal judge do? Well, fortunately, the judge said, nuts to you guys. The judge rejected Guardian's excuses, ruling that ERISA regulations require that new evidence be provided sufficiently in advance, not on the day of the denial. It was Guardian's responsibility, not Sami's, to ensure a full and fair review within the prescribed period of time. And Guardian's claim that the late evidence was insignificant was absurd because that was the basis of the denial. The judge found that the record was incomplete and refused to rule on the correctness of the termination, instead remanding the case back to Guardian to do what they should have done.
Nancy Cavey [00:21:04]:
Now, I don't like that. I like the idea that the judge recognized that they were playing games. The judge should have said, too bad. So sad. You screwed up, I'm awarding benefits. But what the judge did is he gave guardian a second chance to justify the benefit terminations. Games that they play are recognized by the court. Hopefully some of these courts will understand that that's just it.
Nancy Cavey [00:21:31]:
It's a game and they are hoping that the court gives them. Well, one that you go away and if you don't, that the court gives them a second bite at getting it right. I don't think that's right. Do you? Now, please don't let disability carriers or plans manipulate or risks or regulations. You should be fighting back with an experienced attorney. Thank you for tuning in to this week's episode of Winning Isn't Easy. If you found this episode helpful, please take a moment to like our page, leave a review, share it with your family and friends, and subscribe to this podcast so you'll be notified when our next episode comes comes out. And by the way, I'd love to hear from you.
Nancy Cavey [00:22:11]:
At the beginning of each episode description, you're going to find a link where you can send us your questions or comments. I might even feature them in a future episode. So please join us next week for another insightful episode of Winning Isn't Easy. Thanks.
