When Insurance Company Surveillance Runs Amok

Possibly one of the most well known and intimidating methods used by insurance carriers to “disprove” the legitimacy of disability claims is video surveillance. In fact, the image of a “private-eye” type of insurance investigator holed up in a sedan with a camcorder almost has become a cliche. And, this tactic of trying to catch disabled claimants doing things the insurance carrier believes they shouldn’t be able to do (given their disabilities) often results in termination of benefits – many times, unjustly.

Take The Guy Caught Eating A Chip, For Example . . .
Last month, Good Morning America reported that Jack Whitten, receiving disability benefits from The Hartford for pain and memory loss resulting from a broken neck, was caught on video eating a chip. The private investigator for The Hartford videotaped Whitten getting out of a van, entering a bookstore, and of course, chipping and dipping. The doctor employed by The Hartford, who had neither met nor examined Mr. Whitten said, he “was physically capable of performing full-time sedentary occupations.” However, Whitten’s three doctors reported that Jack Whitten was permanently disabled. The Social Security Administration concurred.

Based on this “chip and dip evidence,” The Hartford cut off Whitten’s benefits. No, really, they did. The Hartford claimed, Whitten “had no difficulty dipping chips at a restaurant . . . he could shop, reach, bend, enter and exit a vehicle.” Eventually, Whitten’s benefits were reinstated, but not before the family suffered tremendous financial crisis.

What happened to Jack Whitten might seem unbelievable, but as plaintiff’s attorneys, we see this kind of evidence manipulation on a regular basis.

A Client of Ours . . .
Recently, one of our clients had his benefits cut off based upon an insurance carrier’s surveillance report. The man has been diagnosed with a permanent, debilitating disease and his doctors confirm that he is permanently disabled and unable to work. Yet, despite all of the medical documentation supporting his diagnosis and prognosis, the insurance carrier made our client the target of a surveillance investigation.

In this case, though, our client may have made an innocent mistake. When he first filed his disability claim, he apparently overstated his physical limitations – this is something that many legitimately disabled people do, sometimes feeling insecure or uncomfortable about making a claim in the first place. Or, when first filing for disability, some people may be in the midst of a serious exacerbation of their illness which often affects how they report their perceived limitations.

Our client’s condition was and is more than serious enough to fit the definition of permanently disabled. By overstating his physical limitations at the outset, he raised a red flag for the insurance carrier, and led the carrier to use surveillance in order to disprove his disability.

It is important to understand that when you are permanently disabled, you do not have to embellish on or overstate your physical limitations. We continually tell our clients that being disabled does not mean confined to a bed or a wheelchair. Rather, disabled means that you cannot perform your job as you had always performed it, or as it is performed in the national economy. Sticking to the pertinent facts at the beginning of the claims process will go a long way towards both obtaining and keeping the benefits you have worked for and deserve.

On the other hand, insurance carriers being what they are, there never is any way to guarantee that after you have begun to receive your disability benefits, your carrier will not decide to investigate you with the goal of terminating your benefits. Remember, in most cases, insurance carriers are in business to make money and keep as much of it as they can. That often means finding ways and reasons to deny and cut off benefits. While the case of Jack Whitten losing his benefits due to a “chip and dip” incident may seem extreme, that kind of manipulation of evidence occurs on a daily basis.

Your Best Defense . . .
When it comes to filing for disability and maintaining your benefits, the best course of action is to seek the advice of an attorney experienced in disability law. Remember, video surveillance is merely a snapshot, and not a complete picture, of your disability. An experienced attorney will know how to respond to your carrier if they have been “spying” on you.

Contact DeHaan Busse LLP for a free evaluation: www.dehaanbusse.com

What You Should Know About Business Overhead Policies

According to the U.S. Census Bureau, approximately one in five Americans will experience a disability that prevents them from working for at least six months. 30% of workers between the ages of 35 and 65 will suffer a disability for up to 90 days; and one-fifth of that age group will be disabled for five years or more. Given these statistics, it is not surprising that most business owners and professionals with their own practices believe that purchasing a Business Overhead Policy is a necessity. For the most part, they are correct.

Business Overhead Policies pay a monthly benefit to cover expenses if the business owner is unable to work due to disability. These can include rent or mortgage, salaries, office equipment and supplies, malpractice insurance, and utilities, among other expenses. The assumption is that by purchasing a Business Overhead Policy you will protect your business and will be able to meet your monthly business obligations. That way your business still will be there when you recover; or, if you don't get better, you still will have something worth selling.

Although policies differ depending upon the coverage you purchase and the insurance company you purchase from, as with other insurance claims, most insurance companies are not anxious to pay out the benefits you've paid for, even when your disability is obvious. Also, keep in mind that Business Overhead Policies were not created to keep your business running without you forever. Rather, they were created to help you meet your monthly expenses during the time of your disability and/or until you are able to sell your business or practice. Think of a Business Overhead Policy as a temporary safety net and nothing more; a necessity but not a panacea. If you are permanently disabled and cannot run your business or practice, a Business Overhead Policy will not solve all of your problems.

And, just because you have purchased a Business Overhead Policy does not necessarily mean you will receive the maximum allowed by that policy every month. For example, if you purchased a policy that pays up to $20,000 a month, and your expenses for one month are only $15,000, the insurance carrier will only pay you $15,000. On the other hand, if the next month your expenses are $35,000, the insurance carrier will only pay you the maximum allowed in your policy - $20,000.

For the professional or business owner, Business Overhead Policies are an essential part of life. However, be aware of their limitations, select your policy carefully, and consult with a disability attorney or financial expert before making a final decision or filing a claim.

For a free consultation, you can contact DeHaan Busse LLP at: info@dehaanbusse.com

CONTINUATION OF YOUR FERS DISABILITY ANNUITY

Federal employees, here’s something you should be aware of. Even after your disability claim has been approved, and after you have been receiving your disability retirement annuity, the Office of Personnel Management (OPM) still may require additional medical reviews from you to determine whether or not you have recovered from your disabling condition. This means that you may need to provide the OPM with updated medical documentation from your treating physician, or OPM may require you to have an annual physical examination, or both. Additionally, you will be responsible for all of the expenses related to your medical reviews.

Just as disability filing deadlines can affect the outcome of your claim, so too can your response or lack of it to the OPM’s request affect your benefits. You must respond. Failure to do so may result in a suspension of your disability annuity. Your disability payments will cease until it is proven that you continue to be disabled, creating a great deal of stress in your personal life. It’s best to avoid this and pay attention to any and all requests from the OPM.

Based upon the results and analysis of your medical review, the OPM may find that you have recovered from your disability. In that event, your disability annuity will be discontinued one (1) year from the date of your medical exam or review, or your annuity will discontinue when and if you return to the federal work-force – which ever comes first.

If and when you recover from your disability, you may be eligible for priority referral under the Interagency Career Transition Assistance Plan for Displaced Employees. Of course, there is no guarantee that you will be able to return to your former job position or that there will be another job position available for you. It simply means that all Federal agencies will consider you for positions you are qualified for. However, to benefit from this policy, you must apply directly to the agency (or agencies) with the specific job vacancy you are interested in. It is important to remain proactive through this entire process.

It also is wise to seek the advice of an attorney who focuses on FERS/CSRS disability law. He or she can help you to file a claim, obtain your annuity, and respond to the OPM when you need to. As with most government programs, the FERS/CSRS disability claims process can be cumbersome. An attorney knowledgeable in FERS/CSRS disability law knows the deadlines, the procedures, and can help to alleviate the stress so that you can concentrate on recovering.

FERS & CSRS Disability Eligibility

For federal employees and civil servants seeking to make a disability claim under the CSRS/FERS disability retirement systems, sometimes just knowing whether you are eligible to make such a claim can be confusing and complicated. And although the terms defined in the CSRS/FERS Disability Manuals are meant to help you determine disability eligibility, sorting through those definitions can be annoying at best, and impossible at worst, especially when you are struggling to deal with an illness or injury.

So, let's examine some of those terms and put them into relevant context; what do they all mean?

For instance, according to the OPM CSRS/FERS Disability Manual on Disability Retirement, one of the criterion for filing a claim states that you must have a deficiency in service with respect to performance, attendance, or conduct, or, in absence of any actual service deficiency, a showing that the medical condition is incompatible with either useful service or retention in the position. Translated, this means that if you are disabled and want to file a claim, you must prove that your disability adversely affects your work. For example, because you are disabled you cannot do your job as well, or you are having to take too much time off and cannot keep up with the work load. Or, your disability, whether physical or psychological, has a negative impact on your overall behavior.

Regardless of whether your job performance already is negatively affected or whether it will be in the future, you always should go to your doctor and obtain detailed medical documentation.

The CSRS/FERS Disability Manual also states that your medical condition is defined as a health impairment from disease or injury, including psychiatric disease. This seems straightforward, however, there may be some gray areas. For example, a person may have been diagnosed with Juvenile Diabetes as a child, and may have been able to manage the disease for many years. Then, at some point, the diabetes becomes much more complicated, and begins to interfere with everyday job performance. When filing for a CSRS/FERS disability claim, the claimant will have to show medical documentation that his diabetes, which he has lived with almost a lifetime, now results in a deficiency in service. You cannot assume that OPM, because they were informed about your pre-existing illness, will simply approve your claim.

According to OPM, you also must prove a relationship between the service deficiency and the medical condition. That is, simply having a medical condition is not enough. The medical condition must cause or contribute to the deficiency in service. And, you must present medical documentation that your disability will continue for at least one full year.

The last two items on the eligibility list deal with accommodation. When you are filing for disability, you have to prove that your employer cannot accommodate your medical condition in the workplace. (The inability of the employing agency to reasonably accommodate the employee's medical condition.) For example, a person with Chronic Fatigue Syndrome might need a reduction in hours. Or, someone with severe allergies might require a dust-free environment. While it sometimes is possible for employers to accommodate these special medical needs, much depends upon the type of work done in the facility, the physical characteristics of the building, the size of the staff, etc. If your employer is unable to accommodate your disability, you then are eligible to file a disability claim.

Finally, when you file a CSRS/FERS disability claim, your employer may be able to reassign you in order to accommodate your disability needs. (The agency's consideration of the employee for reassignment to any vacant position within the employing agency, and commuting area, at the same grade or pay level for which the employee is qualified.) If this is not a reasonable possibility, you are eligible for disability retirement. Conversely, if your employer is able to accommodate your reassignment, and you turn it down, that can adversely affect your disability claim.

Most important, if you are considering filing a CSRS/FERS disability claim, make certain you have read through your CSRS/FERS Disability Retirement Manual, have all of your medical documentation in order, and consult with an attorney knowledgeable in CSRS/FERS disability law.

At our firm, DeHaan Busse LLP, we focus on federal and civil employee disability law, and are available for a free legal evaluation.

You can contact us at: info@fersdisability.net

What Happens When Your UnPaid Leave Is Up?

New York is an "at will" state, meaning your employer can fire you for any reason except an illegal reason (e.g. because you are a member of a protected class -- race, ethnicity, etc.). You can also quit the job at any time.

The Family Medical Leave Act ("FMLA") requires that most employers (small employers -- fewer than 50 employees -- are exempt) provide up to 12 weeks of unpaid leave in a 12 month period if illness renders them unable to work, or if they need to care for an ill family member. You need to apply for the FMLA leave, meaning you must advise your employer you need the leave, and fill out the proper forms, including a doctor's statement. After the 12 weeks are up, the employer has no obligation to hold your job for you unless the employer has a formal policy that provides a greater benefit than the FMLA requires. New York also has mandatory short-term disability coverage of up to 26 weeks of benefits, up to $170/week, but the employer only has to hold the job for the 12 weeks. If you were injured "on the job," then you may also have a workers' compensation claim.

Additionally, be aware that many employers provide long-term disability ("LTD") coverage. LTD coverage for private employers over a certain size is governed by the Employee Retirement Income Security Act of 1974 ("ERISA"). Such coverage often provides a benefit equal to a percentage of pre-disability income (typically 60%), less disability benefits from other sources (e.g., workers' compensation, Social Security disability, etc.) To find out if you have LTD coverage from your employer, you should request your "summary plan description" from the employer. Make this request in writing because the employer only has 30 days to respond and could face penalties of up to $110/day if they are late.

If you have any of the above disability benefits, you should consult with an attorney as soon as possible, and preferably before you apply.

This Guy Bought Disability Insurance . . .

Have you heard the one about the guy who bought disability insurance?  It goes like this . . . A guy goes into an insurance office to purchase a disability policy.  The agent has him sign all of the appropriate paperwork, and the guy assumes the disability policy will be there for him if and when he ever needs it.  He figures if he plays by the rules his insurance company will too. Here's the (unfortunate) punch line: when it comes to paying out benefits, many insurance companies constantly move the goal post.  In other words, there are no rules.  Many times, it's a crap shoot.

Thanks, in large part to the McCarran-Ferguson Act of 1945, insurance companies are not federally regulated.  Rather, your disability policy is governed by the state in which it was issued.  And, each state has wide latitude in regulating insurance companies.  That and the standard by which your claim is judged too often puts you at a disadvantage in disability legal disputes.

The Standard of (Your Case) Review

The Standard of Review is your burden in Court.  Regarding a private/individual policy that you have purchased for yourself, more than 50% of the evidence you present in your disability case must be on your side - or must prove your case.

For ERISA plans (disability plans that are provided by your employer), the Standard of Review is usually far more difficult.  In most ERISA disability cases, claimants' Standard of Review poses the question: Was the insurance company's actions/decisions arbitrary and capricious?

This standard is one of the hardest to prove under our system.  And remember, you are the plaintiff and the burden of proof is on you.  You most often are limited to proving the insurance carrier's actions were arbitrary and capricious solely through the use of their claim file.  That means that you rarely get the opportunity to call a witness or present evidence.

So Insurance Companies Have An Edge At The Outset . . .

One could argue that they do.  And despite the many big budget insurance commercials and marketing campaigns assuring you that they do the responsible thing and that you're in pretty good hands, few insurers, if any, actually live up to these claims.  Rather, for many, denying claims is business as usual - whether those claims are legitimate or not.  Instead of evaluating whether or not the claimant is entitled to benefits, many carriers evaluate whether or not they can avoid paying the claim (a familiar situation exists with health insurance).

Take Unum For Example . . .

Most people are aware that Unum Provident was exposed on 60 Minutes for denying coverage to their disabled customers.  It was so wide-spread that Unum was investigated by 49 state attorney generals, and the U.S. Department of Labor.  Unum quickly settled before the regulators could dig too deeply.  As a result, the regulators never dealt with some of the worst complaints against Unum.

This deny mentality appears to be endemic in the insurance field.  Of course, there are exceptions and there are insurance carriers out there who strive to keep their word.  However, too many do just the opposite.  When it comes to disability policies: Caveat Emptor (let the buyer beware).

Don't Go It Alone . . .

If you have a disability claim, it is prudent to seek the advice of an attorney experienced in disability law to obtain the benefits you paid for and have a legal right to receive.  Again, when dealing with disability insurance, the burden of proof is squarely with you.  Having an experienced attorney on your side can make all the difference.