Questions About Disability Insurance, Policies, and Claims

Welcome to Season 5, Episode 20 of Winning Isn't Easy. In this episode, we'll dive into the complicated topic of "Questions About Disability Insurance, Policies, and Claims."

What do you really need to know about disability insurance, policies, and claims – before, during, and after you file? In this episode, disability law expert Nancy L. Cavey answers key questions about how disability insurance works, what your policy actually covers, and why valid claims still get denied. We cover the essentials: Should you supplement your Short-Term Disability? What if you’re not seeing the right kind of doctor? And how can you protect your claim from the start? Nancy also answers listener questions about Long-Term Disability appeals, rare or misunderstood conditions, and how to advocate for yourself when symptoms aren’t easy to document. This isn’t just about fine print - it’s about real strategies for real people navigating a complicated system. Whether you’re in the middle of a claim, planning ahead, or just trying to understand the process, this episode is your guide to making sense of disability insurance. Let’s get started.

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

One - Should I Get Flex DI Insurance to Supplement My Short-Term Disability Benefits?

Two - Can a Disability Insurance Carrier Rightfully Deny a Claim if You Don’t Treat With a Specialist?

Three - Listener-Submitted Questions

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.

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

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

Transcript

Nancy Cavey [00:00:00]:
 Foreign hey, I'm Nancy Cavey, national ERISA and individual disability attorney. Welcome to Winning Isn't Easy. Before we get started, I've got to give you a legal disclaimer. This podcast is not legal advice, the Florida Bar association says. I've got to tell you that. But nothing will ever prevent me from giving you an easy to understand overview of the disability insurance world, the games the carriers play, and what you need to know to get your disability benefits. So off we go. Now, today I'm going to be talking about disability insurance, disability insurance policies and claim questions.
 
 Nancy Cavey [00:00:48]:
 And some of those questions are going to be things like, well, should I supplement my short term disability insurance coverage with with additional insurance? What can happen if you're not seeing the right kind of doctor for your condition and why some claims get denied even though you think you've done everything right. And guess what? We're going to dive into some listener submitted questions about long term dise appeals, dealing with rare medical conditions, and how to advocate for yourself when your symptoms aren't always visible on paper. So so whether you're dealing with a current claim or just trying to better understand how the disability insurance world works, there's something for you in this episode. So let's get started. As I've said, we're going to be talking principally about three things. One of them is going to be should I get flex di insurance to supplement my short term disability benefits? Two, can a disability insurance carrier rightfully deny a claim if you don't treat with a specialist? And and then three, we're going to cover those listener submitted questions. But before we do that, let's take a break and please be sure to come back with a paper and some pen or your phone so you can take notes. Got it.
 
 Speaker B [00:02:04]:
 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 need to know about the long term disability claims process? Request your free copy of the book@kvlaw.com today.
 
 Nancy Cavey [00:02:29]:
 Welcome back to Winning isn't Easy. Should I get flex DI insurance to supplement my short term disability benefits? Now, did you know that your employer has no legal obligation to provide you with short or long term disability insurance, group insurance, life insurance, or even offer a pension? Now, many employees think that these are standard benefits that are legally required to be offered, but in reality, employers aren't required to offer any of this. Now when they do, what I see is it is part of a competitive benefits Package designed to attract and retain talent. Short term disability benefits, if offered, can come in the form of of an employer funded self administered plan or through a third party insurance policy purchased by your employer. So what is that in English? Your employer funds the short term disability, which can be 12 weeks, 26 weeks, whatever they decide. And they self administer it within their payroll department and HR department, making the decision whether to pay benefits and then to pay it out of their own pocket, or if they can basically buy a insurance policy for short term disability benefits and offer it to you as the beneficiary. Now typically these plans will offer 26 weeks of benefits as a max, but as I've said, terms can vary. The benefit amount is usually about 60% of your gross wages, but there could be reductions on what you get paid if you use sick leave, vacation time or pto.
 
 Nancy Cavey [00:04:08]:
 Importantly, you need to understand that most short term disability policies exclude injuries that occur on the job because these are typically covered by workers compensation benefits. Now I know that even if you're not living paycheck to PayCheck, receiving only 60% of your income for up to six months can result in some serious financial strain. But particularly if you have dependents, ongoing debts or unexpected medical expenses. And this is where Flex DI disability insurance comes into play. It's also known as disability flex. This is coverage designed to supplement existing short term disability benefits or to serve as a standalone policy. Now, while employers may offer it as part of a voluntary benefit program, you are probably going to be responsible for paying the premium. In other words, there's a limit to the largesse, if you will, of your employer.
 
 Nancy Cavey [00:05:03]:
 The good news, I think is that disability flex is highly customizable and can be tailored to your needs. Unlike traditional short term disability insurance, when your employer offers you short term or long term disability benefits, you get what they have purchased and you're considered to be the beneficiary of the of whatever that is. Disability flex lets you customize the policy or plan to whatever your specific needs might be. So Flex DI pays a flat amount weekly, generally between 1000 or 2000, regardless of your income level. While short term disability, as we've said, is a percentage of your what's called your before monthly income. And as an aside, let me say to you that the definition of before monthly income in these policies can really surprise you because it may not include bonuses or incentives or production bonuses. It may be just based on your flat salary or a flat hourly rate based on your average earnings. I see all sorts of variations of this before monthly calculation and people are really surprised when they find that out.
 
 Nancy Cavey [00:06:21]:
 But what the benefit of the Flex DI is that it pays that flat weekly benefit, as I said, between $1,000 and $2,000 regardless of your income level. And they it goes directly to you. It doesn't get reduced by Social Security, disability, pto, workers compensation, personal injury protection benefits. So I think that's fantastic. Another customizable feature is going to be when the payment begins. That's called the waiting period. Now traditionally in short term disability world, benefits will begin to be paid after five or seven days. But you could say I want it day one.
 
 Nancy Cavey [00:07:00]:
 You can also customize how long you'll receive the benefits and that's called benefit duration. You might be able to get it longer than those 26 weeks and maybe even up to a year or more. Also you're able to tailor the amount of the weekly benefit that would fit your financial needs. So remember, if you're going to collect short term disability, you only get 60%, you've got to make up that 40% and that might be exactly what you want to do with the Flex di. What's another income benefit, if you will? As I've said, there isn't any income offsets so that you don't have to worry that you've gotten certain amount of money for benefits. So let me give you an example. Let's say you were injured in an auto accident on the way to work. That's not covered by workers comp normally.
 
 Nancy Cavey [00:07:54]:
 So you're eligible for your short and your long term disability benefits. Short term is only 60%. Short term, I'm sorry, sure, yeah, short term is only 60%. But many of these policies will say, look, if you collect something for your PIP benefits, benefits you get because of the auto accident, we get to reduce it. So let's say you have in your PIP coverage a lost wage provision where you get paid 75% of your lost wages. If you have a short term disability policy that says, hey, we get to reduce your short term disability by whatever you get in pip, we probably are not going to get anything in terms of short term disability benefits or a minimum mandatory. So obviously having the flex di, you get a fixed amount of money, 1,000, 2,000, nobody's going to make any deductions for it. But we need to establish some parameters here because there are a few eligibility requirements and limits for the flex.
 
 Nancy Cavey [00:08:56]:
 The I, your employer has to have a minimum of 10 employees to enroll in a group and the rate structure is based on age bands or ranges how many employees are under 35, 35 to 49, 50 to 59 and 60 plus. And so that age of the of the employees can impact the rate structure. Now, many of these policies do contain a preexisting condition clause and that means that certain medical conditions diagnosed or treated before your coverage begins can, can be excluded completely as the basis of a disability claim or limited in terms of how long the benefits can be paid. Now, before you enroll in a Flex DI program, you obviously need to confirm with your employer that they offer it and if so, what your options are, what your benefits levels are, whether there are any limitations or exclusions. I think that if your employer offers this Flex Di, the you should seriously consider it because remember, the short term disability is generally only going to be paying 60% and that is going to result in financial difficulty for you. So you want to have some vehicle by which to make up that difference. So it's a critical tool in protecting your income and reducing financial stress. So what you are going to be doing is to evaluate your short term disability coverage, understand what's being paid, how long it's going to be paid, whether there are any reductions, and then see if your employer offers this Flex di, figuring out then how to make up the difference between what short term disability would pay and what you really need.
 
 Nancy Cavey [00:10:35]:
 It might be that this just a small payroll deduction for this Flex DI will make all the difference and can save you from a major income gap problem if you become disabled and unable to work. Got it. Let's take a break. Welcome back to Winning Isn't Easy. I'm often asked, can a disability insurance carrier or plan legally deny a claim if you're not treating with a specialist? People will ask me if it's a rightful denial. And I say, well, let's talk about legal as opposed to right. Because what's right may not also be legal and what is legal may not be right. Okay.
 
 Nancy Cavey [00:11:32]:
 Now under virtually every disability insurance policy or plan, whether private or employer sponsor or or part of a group plan, there's a requirement that you receive appropriate medical care. And this typically means care from a qualified specialist relevant to your disabling condition. Failing to do so can be a legitimate reason for the carrier to deny the claim. Without even getting to the issue of whether you are disabled. Let me give you an example. Let's talk about the case of Gray versus United of Omaha, and it's a Ninth Circuit case. And in this case, Ms. Gray brought both short and long term disability coverage and she started to collect those benefits because of lumbar radiculopathy.
 
 Nancy Cavey [00:12:16]:
 Now, lumbar radiculopathy involves a bulging or a herniated disc pressing on a spinal nerve root, causing intense burning pain, numbness and weakness normally radiating down one leg. I've had lumbar radiculopathy, and it's excruciating. It's like having a burning match on your foot with pain radiating from your foot up or the other way down. It's incredibly painful. Now, she submitted medical records from her treating physicians, but neither doctors were specialists in spinal or neurological disorders. And the medical records unfortunately last lacked objective diagnostic studies such as an MRI, CT scan or an EMG. And these are the type of studies that are standard in evaluating lumbar radiculopathy carriers, and judges expect to see this sort of stuff in a person's medical records. Now, it's also important that you're getting treatment by the appropriate specialist, but that the specialist is rendering an opinion that's supported by objective evidence, such as the Lumbar MRI, CT scan, or the EMG and nerve conduction study test, so that they can render an opinion based on their physical exam findings of you, the diagnostic studies, and your subjective complaints.
 
 Nancy Cavey [00:13:40]:
 Because doctors will evaluate those three things in rendering a diagnosis and formulating a treatment plan. In this case, her claim was further weakened because the opinions were were provided by the doctors who weren't specialists and were based on her subjective complaints. Now, under the ERISA law, which governs most employer sponsored disability plans, the court noted that the carrier assigned greater weight to their own reviewing physicians. And the court basically said, you know, that's okay if the claimant is not being treated by a specialist and they fail to provide sufficient objective proof. And in this case, United of Omaha made multiple requests for further documentation, offering her several opportunities to submit imaging results or to consult with a specialist, and she failed to do so. The court, as a result, upheld that denial, saying, look, she didn't meet the burden of proof required under her policy. And I will tell you that this scenario isn't uncommon. Disability insurance companies are legally required to to evaluate your claim fairly, but they also legally, by the terms of the policy plan, have the right to insist on evidence that supports your diagnosis, that shows how your diagnosis and your symptoms impair your ability to do your own occupation or any occupation.
 
 Nancy Cavey [00:15:05]:
 And I hear all the time from carriers that having a diagnosis isn't enough. And they're right. You have to have documentation that connects your symptoms objectively to functional limitations that impact your ability to do your own or any occupation. So it's objective documentation correlated by objective physical findings that are consistent with the nature and severity of your condition. Those are the things that carriers are going to be looking for and things that we try to develop as we are representing our clients. So what are some of the key lessons learned here? 1. Always seek care from a specialist appropriate to your condition, a neurologist, an orthopedist, or a rheumatologist. And as part of that, I would say to you, you need to look at your policy or plan closely to see what the policy or plan says about the nature of the care.
 
 Nancy Cavey [00:16:06]:
 I recently had a case where the policy required specialty care and my client was treating with a functional medicine doctor and a chiropractor. And by the terms of the policy or plan, those weren't the right kind of doctors. And so the carrier could legally ignore what the functional medicine doctor had to say and the chiropractor had to say. And that was because of the terms of the policy of the plan. Number two, undergo diagnostic studies such as MRI, CT scans and EMGs, neuropsychological testing to support your claim that provides objective evidence of the basis of the diagnosis, but can also help address the intensity, duration and frequency of your symptoms and how those symptoms impact your ability to do your own or any occupation. And number three, respond properly to requests for information and submit as much supporting evidence as possible that not only supports your claim but addresses whatever it is the disability carrier or plan is asking. That was one of the big problems in this case. Mischel of Omaha invited her repeatedly to give them the documentation, and either she didn't take the clue or she just didn't want to go see the specialty doctors.
 
 Nancy Cavey [00:17:22]:
 Number four, consider getting second or third opinions, especially if your primary doctor doesn't specialize in your condition or refuses to complete the forms. Now you can see if you're filing a disability claim, you've got the burden of proof. You have to be proactive. You need to get specialty care, you need to submit diagnostic evidence, and you need to follow through with every request that your insurance company or plan makes of you in regard to documentation. Clearly, as you can see here, the strength of your documentation makes or breaks your case. Got it? Let's take a break.
 
 Speaker B [00:18:01]:
 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're giving away free copies of the Disability Insurance Claim Survival Guide for Professionals. Order your today@disabilityclaimsforprofessionals.com.
 
 Nancy Cavey [00:18:41]:
 Welcome back to Winning Isn't Easy. I'm excited about this segment of our podcast. Listener submitted questions. Now question number one. Hello. I live in Wisconsin and I have a very rare, degenerative, neurodegenerative genetic disease. And I was also misdiagnosed with Ms. For 16 years after a long career in pharmaceutical sales.
 
 Nancy Cavey [00:19:06]:
 My employer told me on several occasions that I wasn't allowed to drive my company vehicle because I was a liability. Ultimately, they urged me to file for long term disability and I was approved. And then two later, two years later, I was dropped. So I hired a lawyer. We appealed, I won. I was approved for Social Security disability benefits the same year. Now 10 years go by and all of a sudden the disability carrier plan says, hey, you're no longer disabled and this disease has progressed. So my question is, is there any recourse for me to pursue the litigation for the insurance code of violation, breach of contract, bad faith, and how can the average consumer hold an insurance company accountable for their total corruption? So that's a lot of questions, Sarah, and I'm going to try to take these apart now because this is an ERISA disability policy or plan.
 
 Nancy Cavey [00:20:12]:
 The remedies, what you can sue for is governed by the ERISA statute. And you cannot sue, unfortunately, for bad faith violations, for breach of contract, you just can't do that. There's no remedy in the ERISA statute. What ERISA will address is the things you can sue for are basically the payment of your back benefits and potentially the payment of attorney's fees. And so the remedies are limited under the ERISA statute. Now, if you had bought your own disability policy through an agent, it would be governed by state law. In this case, it would be governed by Wisconsin law. You could sue for a breach of contract, you could sue for bad faith, punitive damages, compensatory damages.
 
 Nancy Cavey [00:21:07]:
 You could ask for a declaratory judgment about what your benefits are. And so they're, the remedies are even greater. And you have the right to have a jury trial. You don't have the right to a jury trial in an ERISA disability case. And insurance companies and plans understand that. They understand that the burden of proof is so high in an ERISA disability claim that your remedies are limited, that judges don't like ERISA cases, and that there's no jury trial. So they work that to their advantage. On the other hand, in a state law claim carriers are quick to do the right thing.
 
 Nancy Cavey [00:21:46]:
 And if they deny or terminate benefits, they are even quicker to resolve the issue. Obviously, it really depends on what law governs your case. Now, one of the things that I think is really important is that in erisa, one of the reasons there is an unlevel playing field is this clause called the discretionary clause. The discretionary clause gives the area or the plan the right to decide your benefits and interpret the policy provisions. And it basically says to a judge, your ability to overturn our decision can only be based on what's called arbitrary and capricious behavior or evidence. And I wish arbitrary and capricious really meant what those two words really mean, but judges are really loathe to overturn a decision. Let me give you an example. In the 11th Circuit, the standard of review.
 
 Nancy Cavey [00:22:47]:
 I'm going to sort of reduce arbitrary and capricious to three things. One, the judge has to decide whether the decision was wrong. If they agree with the decision, you lose. If the judge says, number two, no, I don't like this decision, the judge is going to look at the evidence to see if there was enough, quote, unquote evidence that they made up that will explain but not necessarily justify their decision to terminate benefits or deny a claim. So if the judge says, you know, I don't like this decision. There's not enough stuff the carrier created, then we go on to step three. And at step three, the issue is, was that decision influenced by bias they have? The carrier of the plan has a dual role. They decide and they pay.
 
 Nancy Cavey [00:23:37]:
 It is very difficult, quite frankly, in the 11th Circuit to get discovery on this. But you have to prove all of those three things to convince a judge, at least in the 11th Circuit, that the decision is wrong. Why did I go on that rant? Well, one of the things that I think consumers can do is to really lobby their department of insurance commissioner to outlaw and prohibit the use of discretionary clauses in not only disability insurance claims, but group health claims. I know that you'll be fighting the insurance lobby, but that's my best advice to you as to how a consumer can really fight insurance companies and disability policies or plans. I wish I could say that we could sue them in state court, but that's not going to happen. So that's my best advice to you. And thank you, Sarah, for that great question. All right, question two.
 
 Nancy Cavey [00:24:36]:
 What do you recommend to fight the fact that the insurance carrier only asks about physical symptoms as Documented by an fce. When you have a condition that is invisible, the form that they send. My neurologist asks nothing about cognition, neuropathy, fatigue, and weakness. I've had repeated neuropsychological testing, but the carrier doesn't ask about the neurological symptoms in the annual review. All right, so I'm going to break that question up into parts. You're right that there are many conditions that are not necessarily observable or have physical symptoms that could impact a person's ability to do their own or any occupation. And when I have a case like that, I try to supplement the forms that disability carriers use, attending physician statement forms, with a applicable Social Security disability form. Because I'm also a Social Security disability attorney, and I find that the Social Security forms we lawyers have created really do ask the right kinds of questions about cognition, neuropathy, fatigue, and weakness.
 
 Nancy Cavey [00:25:48]:
 Let's take a condition, for example, like fibromyalgia. Fibromyalgia is a disease where the disability carrier plan wants to see generally a number of tender points on physical examination that are consistent with the diagnostic criteria for fibromyalgia. But it's very hard to document the symptoms, the cognition, the fatigue, the weakness, the neuropathy, because the neuropathy may not actually be consistent with the dermatomal pattern that can be seen in an EMG and nerve conduction study test. And so what I try to do in those cases is to make sure that my client is giving a really good interval history of their symptoms, with examples, word finding difficulties, for example, memory, having to use phone alerts or sticky notes, the fatigue, the need to take naps. And I try to have that documented in terms of symptoms and functionality by having that documented in the medical records. So my clients will fill out what we call symptoms and functionality worksheets to supplement the medical records to make sure that they are complete. We also, in that particular case, we would have the doctor fill out a fatigue. I'm sorry, dad.
 
 Nancy Cavey [00:27:08]:
 A fibromyalgia residual functional capacity form that addresses all these things. The fatigue, the weakness, the cognition issues, perhaps the neuropathy. And so we want to make sure that we're giving the doctor the right information with which to render an opinion. I can't answer specifically why, in this particular case, why they're not asking about neurological symptoms, but if they're accepting that whatever symptoms you're presenting with are the cause of your disability, I wouldn't necessarily be raising my hand saying, well, you didn't think about this one. If they've thought about enough to say that you're disabled. Don't rock the boat. If they are on the other hand saying we don't think you're disabled, then obviously you, you need to address this timely in terms of an appeal. Part of that is to get the doctor's reports that were the basis of the denial.
 
 Nancy Cavey [00:28:09]:
 I call them liar for hires. The liar for hire peer review report can and must be attacked. They may have cherry picked the medical records. They may not have had all the medical records. They may not be competent and qualified to even render an opinion about your particular medical condition. So we go about attacking that and taking it apart. We may have your doctor address that. We may have an ime.
 
 Nancy Cavey [00:28:32]:
 We want to address the basis of that opinion and why it is they felt that you no longer were disabled or didn't meet the disability test. It may be that we also have your doctors or the IME provider comment on why you wouldn't necessarily see objective findings on examination, but that the symptoms are consistent. So what's an example of that? A migraine? There is no gold. There's. There really isn't a gold standard test for a diagnosis of a migraine. It's based on history, pain diaries, and clearly a migraine is, quote unquote, invisible for diagnostic purposes, but it's really visible when you've got one. So in those instances, I like photos, I like videos of a person having a migraine or even having, and better yet, the migraine log. So I hope I answered those questions.
 
 Nancy Cavey [00:29:34]:
 And I want to 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, and share it with your family and friends. Of course, subscribe. And also please note that at the beginning of each episode description you'll find a link where you can send us questions or comments. And I love answering questions. Got it. So join us please next week for another insightful episode of Winning Isn't Easy. Thanks for listening.