Medical Treatment and Your Long-Term Disability Claim

Welcome to Season 5, Episode 17 of Winning Isn't Easy. In this episode, we'll dive into the complicated topic of "Medical Treatment and Your Long-Term Disability Claim."

Join attorney Nancy L. Cavey, a leading expert in disability claims, for a revealing conversation about three critical - and often underestimated - medical treatment issues that can make or break your Long-Term Disability case. Whether you're applying for coverage, actively filing a claim, or facing a denial, these overlooked factors can have serious consequences for your financial future. In today’s episode, we’ll explore why your disability application may be your biggest legal vulnerability, how “independent” medical evaluations are often anything but - especially with subjective conditions - and the surprising reality that insurance companies don’t need to match medical specialties when denying your claim. These behind-the-scenes tactics derail countless legitimate claims, but with the right knowledge, you can protect yourself. We’ll show you what to watch for, how to respond, and how to strengthen your case from the start. Let’s get into it.

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

One - Lessons Learned About Applying for Disability Insurance: Why Your Pre-Existing or Asymptomatic Conditions Matter

Two - Not-So-Independent Medical Evaluation by Lincoln National Dooms Policyholder’s Fibromyalgia Claim

Three - Do ERISA Regulations Require a Reviewing Physician to Match Your Treating Doctor’s Specialty?

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/


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.

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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 hey, I'm Nancy Cavey, national ERISA and individual disability attorney. Welcome to Winning Isn't Easy. Now, 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. Now that 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 carriers play, and what you need to know to get the disability benefits you deserve. So off we go. Now, in today's episode, we're going to cover critical and often overlooked medical treatment topics.
 
 Nancy Cavey [00:00:46]:
 And these topics that we're going to cover and what we're going to talk about can make the difference between getting your claim approved or losing your coverage altogether. Now we're going to talk about why your disability application, even before you filed a claim, can be your biggest legal vulnerability. We're going to talk about how insurance companies don't need to match specialties when using doctors to deny claims, how independent medical evaluations are not as independent as you think, especially in subjective medical conditions. And we're going to talk about why these insights are are important at the initial application stage when you're on claim, or whether you're facing a denial or termination. So specifically as we drill down today, we're going to talk about lessons that you can learn about applying for your disability insurance, why pre existing or asymptomatic conditions can matter in the application process. We're going to talk about an example of a not so independent medical evaluation by Lincoln Nationals doctors in a fibromyalgia claim was important on the basis of a claims denial. And then thirdly, we're going to talk about whether ERISA regulations require that a reviewing physician of a liar for hire peer review doctor matches your treating doctor's specialty. So before we get started with this, we're going to take a break, but when you come back, please bring a pad and pencil because we're going to cover some things that that are material at every stage of your ERISA disability claim, from making the decision to stop work and apply for benefits, the application itself, what games can be played while you're on claim, and when the definition of your disability changes from any occupation to, I'm sorry, from your own occupation to any occupation, and then, of course, how to deal with a claim denial or termination.
 
 Nancy Cavey [00:02:43]:
 Got it. Let's take a quick break.
 
 Speaker B [00:02:47]:
 Have you been 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 [00:03:12]:
 Welcome back to Winning Isn't Easy. Let's talk about lessons learned when you're applying for disability insurance. Why pre existing and asymptomatic Conditions Can Matter so first off, I want to congratulate you on the decision to buy a disability insurance policy or plan. It's one of the smartest financial moves that you can make. My father, who fought in World War II, saw firsthand how life can change in an instance and after the war, he purchased a disability insurance policy not thinking he would ever need it. And when he was diagnosed with leukemia, that policy saved our family's finances. But here's a catch. Even if you have a policy, it doesn't mean anything if it can be rescinded or voided because how you filled out that application, or because of a clause called the pre existing condition clause.
 
 Nancy Cavey [00:04:05]:
 So let's talk about the disability insurance application process. When you apply for a disability insurance, your insurance agent will conduct a prescreening interview to look for health issues that might lead to a denial or require exclusions of certain conditions. And you're legally required to disclose your complete and accurate medical history. If you leave something out, whether by accident or on purpose, the insurance company can deny your coverage, rescind your policy after it's been issued, refuse to pay you any future benefits or any benefits at all, and refund your premium and act like your policy never existed. And that's even after the contestability period has ended. A misrepresentation can get your policy canceled. The carrier will say, look, we never would have issued this policy if we had known the truth. And and part of this involves the inner underwriting process.
 
 Nancy Cavey [00:05:00]:
 They aren't going to take your word for it. They might order your medical records, schedule a physical exam, even do a third party database search for prescriptions, diagnoses and past claims. They're evaluating the risk of you filing a claim, the potential for a preexisting condition to worsen. They may be considering your job demands and how they might relate to your injury and and their findings will determine whether they accept your application, issue an exclusion rider, increase your premium, or flat out deny your coverage. Now let's think about this in the context of fraud. If you aren't telling the truth on your application for insurance and you subsequently file a claim and have not been truthful about the disabling medical condition or anything else on that application, they very well may not only rescind the claim, refund your premium, but refer it to the Department of Insurance for a fraud investigation. And you don't want to be there, do you? Now, let's say your application is airtight, the policy is effective, the battle isn't necessarily over. When you apply for a disability benefit, you are going to potentially have to deal with a preexisting condition clause.
 
 Nancy Cavey [00:06:21]:
 And by that I mean there is something in a policy called a look back period. And what they will say is, hey, look, if you purchase this policy and within, you know, 90 days of the purchase of this policy, you file a claim for a medical condition that you got treated for in the past year, you know, we're going to deny that medical condition as being the basis of the claim. That's called a pre existing condition clause. So you need to understand that picking the right date to be disabled is really important because when you file for your disability insurance benefits, they are going to do, as a matter of course, a pre existing condition clause analysis. They're going to look at, when was this policy purchased? When is the look back period? Oh, well, it's expired, we don't have an issue or oh no, no, it hasn't expired. And they're going to get your medical records, they're going to do a pharmacy sweep, they're going to be looking for a reason to deny the claim on the basis that your medical condition or disabling medical condition is excluded out of the preexisting condition clause. So you can see that there are two particularly crucial areas of an application. The first is the application for coverage.
 
 Nancy Cavey [00:07:42]:
 You need to be truthful and honest so that the claim isn't subsequently denied on the basis of fraud and, and you know, potentially be referred for prosecution for fraud. And the second thing you need to understand in that application for benefits is the pre existing condition clause. And so that clause can impact the timing of when you file the claim for your disability insurance benefits. You're insured, but you name may not necessarily be covered for that pre existing condition clause. So you might have to wait longer, not get treatment for a while. And obviously in those situations, you need to be consulting with an experienced disability attorney to guide you through. Well, when should I be filing a claim? When should I allege my date of disability? What do my medical records say? What does the policy say? So obviously accuracy and honesty are key at every stage of the case. But there are some things that you can do if you're facing this preexisting condition clause that can help you get around, if you will legally get around that particular clause.
 
 Nancy Cavey [00:08:55]:
 Now, we've talked about the application for coverage, we've talked about the application for benefits, and we've talked about the impact of mistakes that can be made at this stage. So even if your application is airtight, even if your policy is active, the battle isn't over. Once you file a claim, you might run into another major hurdle, and that's called a not so independent medical examination. So let's talk about that after we take a break. Okay. Welcome back to Winning Isn't Easy. Let's talk about the not so independent medical evaluations. And we're going to talk about it specifically in the context of of a Lincoln national case that ultimately resulted in a denial of a fibromyalgia claim.
 
 Nancy Cavey [00:09:57]:
 Now, when you apply for your disability insurance benefits, you need to understand that many disability insurance policies or plans have a provision that allow the disability carrier plan to have what's called an independent medical evaluation by a physician of their choice and at a frequency that they decide depending on the nature of your medical condition. It is not always common for the carrier to have an independent medical evaluation when you apply for your disability insurance benefits. Often this comes after you have been paid benefits for a while or your medical condition changes or doesn't change, or when the definition of disability changes from an inability to do your own occupation to an inability to do any occupation. And those are the situations in which I see carriers generally exercise their rights to the not so independent ime. So let me give you an example. Let's say you have fibromyalgia. One of the most common complaints of fibromyalgia is brain fog, forgetfulness and cognitive issues. And the problem with those kinds of complaints is that they're subjective symptoms.
 
 Nancy Cavey [00:11:14]:
 They're hard to verify with testing. And in many cases, a person's medical records will show a normal, what's called a mini mental status exam. That means that they're oriented to time and place. So what data is it? Where are you at? Who's the president? Now, what we will see is that disability insurance carriers or plans will say, ah, there's no brain fog here. They knew where they were, when they were, and who the President was can't be disabled. We're going to deny the claim. Now, what they also may do is to supplement the basis of that denial by a not so independent medical evaluation. And again, the insurance companies are going to stack the deck.
 
 Nancy Cavey [00:11:57]:
 They're not going to use a physician who is going to render a truthful opinion. What they're trying to do is to set up this claim for claims denial. Now, it doesn't matter if you've got fibromyalgia. It doesn't matter if you've got back pain. The game is the same. The IME doctor is being hired to render an opinion that you don't meet the disability terms of the policy or that your restrictions and limitations are such that you can go back to your past occupation, your own occupation, or do other occupations, or even to disagree with your doctor's opinion about restrictions and limitations and treatment. They use IMEs for all sorts of purposes, but the underlying reason is to either deny the claim or to support that denial or termination. So let me give you an example.
 
 Nancy Cavey [00:12:46]:
 This is a case of Copeland versus the Lincoln National Insurance Company. It's a case out of the Western District of Michigan in 2024. Ms. Copeland was a former software analyst and she stopped working in 2016 due to to epilepsy, fibromyalgia, depression, degenerative back disease and medication side effects. So in the course of the claim, Lincoln arranged for cognitive and neurological testing. As to be expected, their neuropsychologists found no significant deficits. She was alert, oriented, had no speech issues. She remained on task.
 
 Nancy Cavey [00:13:20]:
 So what Lincoln did is say, hey, look, there's no objective evidence to support your complaints of brain fog and probably problems with comprehension or staying on task. They also said, look, there's not a lot of objective evidence in terms of contemporaneous medical records that show that you have a cognitive decline that would prevent you from doing your job. So in other words, you were doing your job. There was no reason why you stopped working. You were unhappy. Let's make up a reason as to why you stopped working. But that reason has nothing to do with the progression of your disease or symptoms. Typically what we see, they're going to have a peer review doctor internally cherry pick the medical records and create a reason to justify a claims denial.
 
 Nancy Cavey [00:14:04]:
 No objective evidence, Complaints are out of proportion to the exam findings. I think the restrictions limitations are X and we disagree with a doctor treating doctor for Y reasons. We've looked at the social media. We think that the activity is inconsistent with what they reported to their doctors and their complaints are out of proportion. By the way, we've got surveillance film and even as poor as it might be, showing limited activity, we still think that that's justification for our liar for hire peer review opinions that the claimant's not disabled and can do their own or any occupation. Now, in this particular case, the case went to federal court and the judge acknowledged that she had multiple health issues, but but found that her treating doctors opinions were based on subjective complaints without objective support. The problem here in a case like this is her doctors didn't dispute the test results and didn't explain why her symptoms prevented her from performing her own occupation. Now, the court said, look, we're very sympathetic.
 
 Nancy Cavey [00:15:13]:
 We know that the symptoms are real, but they don't rise, rise, rise to the level of preventing her from performing her occupation. And the denial was upheld. So as soon as this case was set for an ime, the bell should have gone off. And the lessons learned are that your records have to document your symptoms, be they physical, be they cognitive, be they psychiatrically. And they have to document the nature, extent, frequency and duration of the symptoms. The medical records also have to document how those symptoms impact your ability to function, your ability to do your own or any occupation. And any testing should demonstrate measurable deficits. There needs to be objective evidence.
 
 Nancy Cavey [00:16:03]:
 And in that respect, you need to understand that ERISA doesn't have a treating physician role. You, your doctor's opinion isn't necessarily superior to the peer review doctors or the IME doctor. So as a result, you need to submit rebuttals from qualified experts. And in doing so, you might want to actually have what's called a functional capacity evaluation, which is an objective measurement of your physical abilities. You might want to have a CPET exam, which is an objective measure of the impact of fatigue. You might want to have neuropsychological testing. In any event, you want to be developing the evidence that rebuts the liar for hire peer review doctor and the liar for hire IME doctor. In fact, you may want to get your own ime, but you also need to understand that this has to be done, I think, very strategically, based on an understanding of the terms of the policy, based on what's in the medical records, based on what's in those denial letters and what we as lawyers anticipate the grounds for that appeal are going to be.
 
 Nancy Cavey [00:17:10]:
 How are we going to develop the necessary evidence to rebut this? Now, let's talk about those reviewing doctors, those liar for hire doctors who rubber stamp claims denial, you might assume that the insurance company would use somebody in the same specialty. So in the case of fibromyalgia, you might expect that peer review doctor would be a rheumatologist. Well, that's not always the case, and I'm going to talk about that. In our next segment. In the meantime, let's take a break.
 
 Speaker B [00:17:43]:
 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 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 [00:18:23]:
 Welcome back to Winning Isn't Easy. Do ERISA regulations require that a reviewing liar for hire physician match your treating doctor's specialty in rendering an opinion about your case? Now, disability carriers will always use reviewing physicians during a claim assessment. These doctors are going to evaluate things like is this diagnosis accurate? Are your symptoms aligning with the test results? Do your restrictions and limitations match the objective findings on examination and diagnostic studies? Is your treatment and medication appropriate? Is the frequency and nature of that treatment correlate with the level of the complaints that you have about your pain or dysfunction? How functional are you really? Those are the kinds of questions that I see commonly asked of the adjuster of the peer reviewed doctors. Now the question becomes, does the doctor that is doing the peer review have to match your doctor's specialty? And the short answer is no, as dumb as that may sound. Under the ERISA statute and regulations, the reviewing physician doesn't have to match your doctor's exact specialty. They only need the appropriate training and experience in the relevant area of medicine. And quite frankly, I think that's bull. And I'm going to explain and give you an example of why I think that's bull.
 
 Nancy Cavey [00:19:49]:
 This is the case of Black versus Unum Life and it's a case out of Texas and Ms. Black had thoracic outlet syndrome. She had injections surgery and she continued to report pain, particularly using her right arm. Of course, Unum had her case reviewed by a vascular specialist and not a thoracic outlet specialist like her treating provider. And I will tell you, I have represented people who have thoracic outlet syndrome and and I don't think vascular surgeons are competent or qualified to render opinions. In fact, they will often refer their patients to a thoracic atlas specialist. And those doctors can be really hard to find because they are super specialists. Now Ms.
 
 Nancy Cavey [00:20:32]:
 Black challenged the denial partially on that basis and ridiculously, in my opinion, the court upheld that denial and and according to them, a vascular surgeon was close enough. Now I think that's dangerous in A complex case like fibromyalgia, long Covid CFS or pots, and even thoracic outlet syndrome, I don't think close enough is good enough. Unfortunately, ERISA allows for this gray area. So you might see a fibromyalgia claim being reviewed by a family doctor, while your diagnosis can came from a rheumatologist with years of specialized experience. That's why I think the challenging and providing rebuttal evidence from physicians of equal or greater expertise is so important, particularly if they are an expert. I think that this decision, this Black decision, is a bit of an outlier. As I read the case laws I do weekly, I think courts are very sympathetic to this argument, particularly if you have a super complex medical condition and the peer review doctor doesn't have any training, expertise or any specialty in this particular area. So this is something that we hammer knowing of course that there are cases like Black versus Unum that's out there.
 
 Nancy Cavey [00:21:52]:
 So let's wrap this up. When you apply for disability insurance coverage, you need to be truthful and you need to be thorough because any admission can cost you your policy and your benefits. Also, when you are applying for your disability insurance benefits, which is different than applying for coverage, you need to make sure that there isn't this pre existing condition clause that would impact your ability to get benefits. It's called the look back period or the pre existing condition clause that's going to impact the timing of your stopping work and filing the claim. It might be that you don't, that you shouldn't get medical treatment for a certain period of time or take medication that's been prescribed to try to get around that pre existing condition clause. You should only be doing that, I think in consultation with an experienced ERISA disability attorney. Now, if you've been set for an independent medical evaluation, you should not trust that the word independent means independent. That's a bell that should go off.
 
 Nancy Cavey [00:22:53]:
 And you should be contacting an experienced ERISA disability attorney and hiring them to represent you. If your claim has been denied, you need to understand the medical reasons why that claim has been denied and go about creating rebuttal. Rebuttal that points out what's not only wrong with the opinion, but that how that opinion might be a violation of ERISA rules and regulations. And understand of course that insurance companies don't have to match your doctor's specialty for the most part. So you need to challenge their experts wisely. And again, that should be done with the assistance of an experienced or disability attorney. These are kinds of issues that I see in my practice every day, and they trip up countless claimants every year. But now that you are informed and empowered and ready to stand your ground, you have a better understanding than most people who walk into my office when wondering what on earth happened, why their claim got denied, and what can be done to get the disability benefits they deserve.
 
 Nancy Cavey [00:23:58]:
 So 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 or friends, and subscribe to this podcast. Join us next week for another insightful episode of Winning Isn't Easy. Thanks for listening, Sa.