Should Your Workers’ Compensation Records Be Part of Your ERISA Disability Carrier’s File

Welcome to Season 5, Episode 18 of Winning Isn't Easy. In this episode, we'll dive into the complicated topic of "Should Your Workers’ Compensation Records Be Part of Your ERISA Disability Carrier’s File."

What seems like a routine paperwork decision could quietly sabotage your ERISA Long-Term Disability claim. Join attorney Nancy L. Cavey, a nationally recognized expert in disability law, as she explores a critical - but often misunderstood - question: should your workers’ compensation records be included in your ERISA disability file? It’s not just red tape. When both claims stem from the same injury or illness, what goes into your file - and what stays out - can shape the entire outcome of your case. We’ll examine how the two systems interact, why adding workers’ compensation records might work for you in some cases but backfire in others, and the troubling reality of selective use: when insurers cherry-pick damaging details from your records but leave out the parts that could actually help you. This is one of those behind-the-scenes moves that can define your financial future - and most claimants never see it coming. Tune in to learn how to navigate this legal gray area, avoid common traps, and make informed decisions about what belongs in your disability file.

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

One - The Relationship Between Workers' Compensation and ERISA Disability Claims

Two - When Workers’ Compensation Records Help or Hurt Your ERISA Claim

Three - The Problem of Selective Omission by Disability Carriers

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 hey, I'm Nancy Cavie, 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 that. I've got to tell you that. But now that I've told 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.
 
 Nancy Cavey [00:00:41]:
 Workers compensation record be part of your ERISA disability claim. Now that may sound like an administrative detail, something from the back office to sort out, you know, but the truth is that this decision can influence the what the disability carrier does with your ERISA disability claim. It can make or even break your claim. So we're going to talk about this from three different angles. First, I'm going to talk about how workers compensation and ERISA disability claims relate to each other, especially if they arise from the same injury or illness. Secondly, we're going to talk about what to look at in terms of whether your work comp records are going to help or hurt your short or long term disability claim and why. You know, sometimes submitting them can be a smart move and sometimes it could be a mistake. And lastly, I'm going to talk about the dirty truth about selective admissions.
 
 Nancy Cavey [00:01:34]:
 What do I mean? That's when the workers comp carrier records are used to deny your ERISA disability claim, but the disability carrier will conveniently leave out the helpful parts when it's time to turn your file over to the court. Got it. Well, there's a lot to unpack today and so the three things we're going to talk about relationship between workers comp and ERISA disability claims, when workers comp records can help or hurt your ERISA claim, and the problem of selective admission by disability carriers. Before we get started, we're going to take a quick break. Be sure to come back with a pad and a pencil so you can take some notes. I want you to understand that this relates to workers compensation claims, but this can can also hold true if you've been involved in a personal injury claim because the same games potentially will be played.
 
 Speaker B [00:02:26]:
 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 [00:02:58]:
 Welcome back to winning isn't easy. Let's talk about the relationship between a workers comp claim and an ERISA disability insurance claim. So let's talk about some basics. Workers compensation and ERISA disability cases can be thought of as different highways that are running parallel for a while, but at some point they actually may intersect and there can be a heck of a collision. When that happens, let's talk about what they are and what they aren't. So first off, worker's comp benefits will be paid if you've involved in a compensable industrial accident or injury. There are different types of injuries or conditions that could be compensable. So let's explain the difference because these can be used in a long term disability claim.
 
 Nancy Cavey [00:03:51]:
 What happens, for example, is if you have been involved in an obvious accident and injury, you slipped and fell or something fell on you at work. That is a compensable industrial accident or injury under most workers comp statutes. Now that can also be the basis of an arrested disability claim. You might have a situation where you have a repetitive trauma. In the context of workers comp. Repetitive trauma might be repetitive keyboarding or repetitive use of a body part that results in injury. For example carpal tunnel. That can also be the basis of an ERISA disability claim.
 
 Nancy Cavey [00:04:29]:
 You also may have occupational diseases. Occupational diseases can be caused basically as a result of an exposure to something, be it chemicals or toxins. That can also give rise to a workers compensation claim and both an ERISA disability claim. Now, workers compensation is governed by a state law. Not so with erisa. ERISA disability benefits can be paid as a result of sickness or injury. That's the general definition, unlike in a workers comp case where you have an accident or injury as I've described. But in the world of erisa, the ERISA world is governed by a federal statute and that's called the ERISA rules and regulations.
 
 Nancy Cavey [00:05:17]:
 There's another important distinction here, and that is the type of benefits that you're eligible for. Now in workers compensation, you can be eligible for lost wages that can take the form of what's called temporary total if you're totally disabled, temporary partially disabled, if you are able able to work in some limited capacity. And those two benefits are paid before you reach what's called maximum medical improvement. Once you've reached maximum medical improvement, benefits can be paid based on a percentage of your lost earning capacity, maybe an impairment rating or other forms of wage loss benefits, including permanent total disability benefits in workers comp. You also might be eligible for vocational rehabilitation services and Obviously, you're entitled to medical treatment so long as that compensable medical condition remains related to your accident or injury. And in the state of Florida, where I'm based, the accident and injury has to be the major contributing cause for the need of treatment. Again, in the context of short or long term disability benefits, you are eligible for money benefits based on the amount of benefits you selected, be it 60% or 65% or maybe even 70% of your wages. And what will happen here again is the wages will be based on a definition of your based on your policy of your earnings.
 
 Nancy Cavey [00:06:50]:
 You also may be able to get what's called residual disability benefits, but again, basically it's money benefits. Under the workers comp statute, you're entitled to these benefits by virtue of your employment under the shorter long term disability benefit program. You're eligible for those benefits as part of an employee benefit program. And if your employer doesn't provide that to you, then you don't get your short or long term disability benefits. Now there also is some other important differences that you need to understand and that is in the context of a workers compensation case, most employers have purchased a workers comp policy. Now there are some that are self insured and self administered and so they will actually pay the benefits. In the context of an ERISA disability claim, your employer may be self funded for short term disability and they administer it, or they will self fund the short term disability and hire an administrator. In the context of long term disability, they may actually have an administrator who makes the decision as to whether the benefits are paid and a third party insurance company may pay those benefits.
 
 Nancy Cavey [00:08:05]:
 Or you may have a situation where your employer has purchased a long term disability policy that is administered and paid by the disability carrier. So the setup is different in terms of how these cases are handled, but you need to understand that ultimately at the end of the day, you have to understand that regardless of its workers comp, regardless of its short or long term disability, these folks are not in the business of paying benefits. And that's important because in the context of a workers comp case, you do have the right to have a hearing in front of a judge. And as part of the hearing, you may be able to submit your testimony or testify it live at a trial. You probably have the right to take the deposition of the adjuster for the insurance company. You have the right to take the deposition of doctors or other people and present that testimony in a hearing format in front of the judge. Now, in the context of erisa, it's completely different when you file a claim, and if that claim is denied or terminated at any point, you'll have 180 days in which to file an appeal. The the appeal is the trial of your case, and the judge can only look at what is in that carrier file or plan file at the time of the denial.
 
 Nancy Cavey [00:09:20]:
 There's limited discovery. You might be able to take the deposition of the claims examiner, but what you can ask can be limited. And in some jurisdictions, it's practically impossible to get to take the deposition of the adjuster. So the court only gets to see what's in that carrier file. And that's what leads us to the rest of our discussion. But you need to understand there is no jury trial. Most of these cases are decided on what's called a motion for summary judgment. So again, in the context of workers comp, we litigate like crazy.
 
 Nancy Cavey [00:09:52]:
 I'm a workers compensation attorney in my other life, if you will. And in the context of erisa, we don't have trials and we don't have a lot of discovery. So that's important because if the disability carrier wants to hide the ball, then that can be a problem. And they can hide the ball in the context of your workers compensation file, if that's material to your claim. So what's also here that's important is that you understand ultimately what's discoverable and not discoverable in the context of a ERISA disability claim. By that, I mean you might have a situation where the comp carrier pays for a while and then ultimately decides to deny your claim. They might have had an ime. Your doctor may have said, you're able to go back to work, but they terminate the benefits.
 
 Nancy Cavey [00:10:52]:
 You can litigate that ultimately you might be able to settle the case. But let's say that you also have a ERISA disability claim, and the ERISA disability carrier pays. And then all of a sudden they say, well, we're not going to pay anymore. By the way, we know you were getting workers comp because we have the right to offset those workers comp benefits. And we've got some stuff that we've discovered in the course of your workers comp case that we've used to deny your claim. So you can see that this can be crucial. And not all the records in a comp file are created equal. Some can hurt you, some can help your case.
 
 Nancy Cavey [00:11:33]:
 And that's what we're going to talk about in our next segment. Okay, let's take a break. Welcome back to Winning Isn't Easy. When workers comp records can Help or hurt your ERISA claim. Now, I've set the stage in the first segment of this podcast. So let's talk about when workers comp records can help or hurt your claim. And this can get complicated. It can be complicated because there are things in your workers comp file that can hurt you.
 
 Nancy Cavey [00:12:09]:
 I'm working on a workers comp case right now where we're fighting about money, medical benefits and medical treatment, including whether my clients should undergo a functional capacity evaluation. And we refuse because the carrier is using a liar for hire FCE provider who I know is going to say my client can do things that they now the carrier has denied the claim and I'm looking at the adjusting notes and I'm seeing nasty things about my client, about them having surveillance on her, about communicating with the treating physician, getting that treating physician to agree that there should be a functional capacity evaluation with their liar for higher evaluator. Now, what would happen if this particular case bled into a long term disability case? Ultimately, here, in the context of the COP case, the they're going to take the deposition of my client. I'm going to take the deposition of the adjuster, I'm going to take the deposition of all the doctors involved in the case. So if this case is one in which my client also had an ERISA disability claim, what, if anything, is going to be presented to the long term disability carrier? What would be helpful or not helpful and what should be done to protect yourself? Now, I will tell you that some people think everything should be thrown in like the, you know, into the kitchen sink and it all kind of washes out. Some people say not quite so fast. Now, obviously they're going to have opinions of work comp doctors that are not really favorable because comp doctors don't get paid to give favorable decisions. We're going to have my favorable ime, for example, in my case, and then they're going to have the testimony of any other person that they want to talk about how my client is not a really nice person and shouldn't be listened to.
 
 Nancy Cavey [00:14:02]:
 So as a general rule, I find that unless your claim is denied, you're not going to have access to what's in the disability carrier file or the peer review reports. And as a result, you are not going to be able to understand why they are setting up your claim for denial. So they're going to get peer review reports from wire for hire doctors looking at your medical condition that conclude you're not disabled, that you don't have the restrictions that you can do. Your own occupation, then there's this tension, if you will, back and forth between both the comp carrier and the ERISA carrier because they're all looking for reasons to deny the claim. Now, if your work comp file is full of evaluations that say there are no objective findings on examination, that you can work, that your diagnostic studies are unremarkable, that you're exaggerating, like in this case, potentially, those are kind of things I don't necessarily want the disability carrier to see. Would you? Now, on the flip side, if you've got a doctor who is a good treating doctor and a work comp doctor who says you've got permanent restrictions, conditions unlikely to improve, rather a good IME report, you know, that's the kind of stuff you want to put in your ERISA disability file. So what happens here? Well, my approach is that we have control over what's submitted, at least initially. We do have a duty to cooperate.
 
 Nancy Cavey [00:15:35]:
 And unless they ask for the comp material, I'm not going to supply it to them generally, unless it's particularly favorable. I understand that if I submit stuff, they may ask, well, you know, we want to see the entire file. And at that point, then I have to make a decision about the extent to which I'm going to call and the extent to which I'm not going to call the work comp file. Because obviously, as an officer of the court, I also need to make sure that I'm meeting my ethical duties. And you as the policyholder or plan beneficiary, need to make sure that you are cooperating with pursuant to the terms of the policy. So you can see that there is this tension that goes back and forth. What I try to do is submit documentation in a format that explains why the comp material aligns with what's happening in the long term disability claim. As I said, if it's not favorable, I'm not necessarily submitting it because I don't necessarily have in my view, a duty to submit it to the disability carrier plan unless I'm asked.
 
 Nancy Cavey [00:16:40]:
 Once I'm asked, then obviously I have to require, rather abide by the rules of ethics that govern my conduct to make sure I'm not violating my ethical responsibilities. So what I decide to do is in part a product of what the policy requires, what the carrier is asking for, and what my discussions with the work comp attorney is revealing. They may not have the entire file or I may not have the entire file. So I can potentially produce, you know, what it is I think they want and what I think aligns with the ERISA disability claim and again, consistent with the rules of ethics. So the question as I see it is this. I have never seen a work comp carrier ask for any material from the long term disability carrier. So that's pretty easy. What I do see is it the other way around.
 
 Nancy Cavey [00:17:35]:
 In other words, the comp carrier has, I'm sorry, the ERISA disability policy or plan has the right to an offset for your workers comp benefits. And they may ask, they may be happy that they're paying benefits and they don't really want to see anything because they get the offset. But there are some times that they may say, well, you know, you're not getting the comp benefits anymore because benefits, you know, were terminated. What's going on? We want to see the file and we want to know if the case has been settled because again, we continue to have an offset. Now one of the other things that you need to understand is what is admissible in the context of a workers comp case? There are times when I will supplement or give to the work comp attorney a work comp claim with the attending physician statement forms just to show continuity of of treatment. But that is not necessarily going to be admissible in the context of a workers comp case. So your doctor will say something really nice about you in the APS forms because they're your private treating physician, which is contrary to what the workers comp doctor has to say. Who doesn't, you know, who knows where his bread is buttered in that context? I certainly do try to supply it to the comp attorney to the comp carrier.
 
 Nancy Cavey [00:18:56]:
 But you need to understand, for example, it may not be admissible in the context of a workers comp case. Here in Florida, only the opinions and records of a treating physician, an authorized treating physician, an expert medical advisor or an IME are admissible. So while you might have records from a private doctor potentially admissible for the purposes of history, none of their opinions are going to be admissible in the context of the workers compared to carrier. So in this example where the private treating doctor saying really great things and the comp doctor says nasty things, the opinion of that private treating physician may not even be admissible. So you've got to understand your state workers compensation law. So I guess the bottom line here is to try to figure out what's going on in the context of the ERISA disability claim in that you need to understand what the policy or plan requires that you produce. You need to understand does the carrier have the right to an offset. What kind of information are they asking for? Is this information that obligates me to provide the entire file or are they asking for certain kinds of things? We generally will work with the work comp attorney and trying to figure out and sort this out.
 
 Nancy Cavey [00:20:15]:
 Looking of course at the policy terms and what the carrier is looking for. The ERISA carrier is looking for and kind of sort our way through this. It's a troubling scenario and there really isn't a clean answer. I think it's really fact specific and again one where you want to try to sort of give them what they want, but give them that what they want, if you will, in a fashion that helps your ERISA disability claim. Got it? Now we're going to talk about the flip side, where they hide the ball. Let's take a break.
 
 Speaker B [00:20:48]:
 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 [00:21:36]:
 Welcome back to Winning Isn't Easy. Let's talk about the problem of selective omissions by disability carriers and plans. So let's talk about what happens behind closed doors and even behind closed files. The carrier may have asked you to sign a release to get your workers comp file or ask for other information and you feel as if you're obligated to give them the entire file, including stuff that's not favorable. So here you are. What are you going to do if the policy requires you to produce it or the nature of the request is that you've got to produce the stuff even if it's unfavorable, then I think you have to submit it. By the way, I need to let you know that sometimes they will use a general release that you've signed and go to the comp carrier and try to get it. And heaven knows in that case what the comp carrier has sent to the ERISA disability carrier, which causes another set of problems.
 
 Nancy Cavey [00:22:33]:
 But let's say your comp case has been denied. Your ERISA case looks like it's going to be denied and you are being asked to provide this information. Now remember that you have an obligation, I think depending again on the request, to provide that information. And the disability carrier looks at this and decides that they like those nasty reports from the workers comp doctor or that nasty IME that you had, or the nasty decision from the workers comp judge that says, you know, you're not disabled, you're, you're able to work. And they use that as a grounds to deny the claim, conveniently ignoring anything that's favorable. You have an obligation to file an appeal within 180 days of that denial. And if you don't, you're going to lose your rights to proceed. You have to exhaust your administrative remedies by filing an appeal.
 
 Nancy Cavey [00:23:28]:
 That appeal is the trial of your case in the context of an ERISA case. And so you want to make sure that everything that's favorable is in that case, including any favorable workers comp stuff. Now, if you file the appeal and they deny it, you might have the right to a second level appeal. Or your general option is to give up, which I never recommend people do, or your third option, and the more likely option is, is at that point to file a lawsuit in federal court, because the ERISA disability carrier plan is not necessarily going to change their mind once they've issued a final denial. So when you file a lawsuit in federal court, the court only gets to look at the material that was in the carrier's file for the plans file at the time your claim was denied. And under the federal rules, the carrier has to give you what's called the administrative record, which means this is the record that they relied on in making this decision to deny or terminate your benefits. And guess what? You and your lawyer start looking through this administrative record and you note that something is off. The key reports that were favorable to you, the medical reports, the ime, the vocational report that are in the work comp file or that you supplied are missing.
 
 Nancy Cavey [00:24:40]:
 It might be a physical therapy note that says you couldn't safely return to your past work. It's not there. It could be a favorable IME and it's not there. It could, even though you know it exists, it might even be a deposition that you submitted that was favorable to you, but it's not there. And you're wondering, was this a mistake or did the carrier intentionally remove supportive information? So what I find, regardless of whether it involves a comp case or maybe even a personal injury case, there is a selective omission on the part of the disability insurance carrier plans. They cherry pick the medical records and the evidence to support a claims denial, and they leave out the stuff that, you know doesn't you know, help you. It's just not shady. I think it's potentially illegal.
 
 Nancy Cavey [00:25:23]:
 Under the ERISA statute and regulations, the administrative record is to include all the materials that were relied on in making the benefit decision that were either submitted, considered or generated in the course of making that decision, even if they didn't ultimately rely on it. And they have to demonstrate compliance with the process as required by law. So in English, or in other words, if it was reviewed or created as part of the claims process, it should be in the file, period. But here's the kicker. Most disability carriers or plans know that the claimant is never going to litigate the case. It's a license to steal. And they know as a result that the courts will never see the administrative record. So unless you file a lawsuit and challenge this, they have gotten away with basically cherry picking your workers comp records and using that as a justification to support their denial or termination of benefits.
 
 Nancy Cavey [00:26:17]:
 Unless you challenge them, unless your attorney demands the full record, they can get away with this cherry picking. I will tell you though, when courts catch this behavior, they don't like it. Judges have been known to reverse denials in order carriers to reconsider their decision when, when the records were clearly withheld from the administrative record. And we do that by raising that issue with the court. But obviously that's why we suggest that you keep a log of what records you've submitted to the disability carrier, including any information from your workers comp claim, so that, you know, ultimately, if the claim is denied what you submitted, and then that you can ultimately create an affidavit under oath that will tell the court that this was submitted or your attorney will do an affidavit that says, hey, you know, we're the work comp attorney or we're the ERISA attorney. We got the work comp file pursuant to their request. Here's what we submitted. Here's all this and attach it.
 
 Nancy Cavey [00:27:22]:
 And by the way, this is what was not produced to us in the administrative record or not cited in the appeal letters. And we believe that the carrier of the plan has violated ERISA regulations. And you, the court, should be allowing this in as a supplement to the record and considering it in your decision as to whether or not the claim was properly denied or terminated. You can hear that this is a complex issue. You're dealing with a work comp carrier and an ERISA disability carrier or plan whose profits, depending depend on denying claims and upholding that denial. They're going to be using every weapon in their toolbox, including hiding stuff, cherry picking stuff, misconstruing stuff, and again, this is something that you should not let them get away with. It's something both you and your lawyer need to be working on together, and quite frankly, something you should not be handling. So again, the answer depends as to what should be produced, depending on the policy, their request, what's in the workers comp file, and of course, if the attorney's involved, the rules of ethics.
 
 Nancy Cavey [00:28:35]:
 And again, when you get in a situation where your claim has been denied or benefits are terminated, you need to make sure that all that favorable work comp stuff makes it into the administrative record. If it doesn't, that's one of the great reasons to challenge the denial as a violation of the rules or regulations. Carriers don't play fair and they need to have their feet held to the fire to make sure that you get the benefits you deserve. Got it. Well, thank you for tuning in. Today'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. Thanks for listening and we look forward to joining you again in our next episode of Winning Isn't Easy.