DB Disability Blog

Why Disabled Clients Should Worry About "Independent" (Insurance) Medical Exams (IME's)

2010-01-26T11:19:00.000-08:00

If you become disabled, one of the things the insurance carrier may demand is that you submit to an Independent Medical Exam, or IME. Most people assume that this examination is impartial because the word independent is used in the title. However, that could not be further from the truth. In fact, it would be a lot more accurate to call the exam an Insurance Medical Exam because it is done by, for, and to benefit the insurance company. Unfortunately, insurance carriers are not looking for an independent evaluation.

If you are disabled and told by your insurance carrier to go for an IME, you should worry because most IME's are conducted by a doctor or another medical professional who depends upon IME's for a significant amount of his or her income. The IME doctor knows that the insurance carrier has no real interest in finding you disabled. Unlike most people, the IME doctor knows that the goal of most insurance carriers is to find reasons to deny, deny, deny your claim - even though you may have paid them hefty premiums through the years, and even though you may have become disabled and are unable to perform your job. Most insurance carriers are in the business to make money, not to protect their customers and make good on disability claims. And, denying claims allows the insurance companies to make more money.

The IME Doctor's Vested Interest
Most medical professionals who perform IME's for insurance carriers usually do so on a regular basis either in a direct relationship with the carrier or with a third-party IME service, and this gives them a vested interest in finding disabled claimants healthy and able-bodied - they consider it job security. These medical professionals seek to tell the insurance carriers (their customers) what the insurance carriers want to hear, i.e., that the patient is medically fine and not entitled to disability benefits. They know that if they perform an independent examination and find the claimant to be disabled, it will lead to less repeat business from the insurance carrier, or carriers. In the end, the IME doctor most often chooses to keep his or her customer happy by giving them what they want - a medical report which supports denying the claim.

What You Can Expect During An IME
Given the IME doctor's biased agenda, it is not surprising that most of these exams are not medically very sound. It usually starts with a record review. Before you have even met the IME doctor, the insurance company already has combed through your medical records, typically cherry-picking which records to provide to the IME doctor for review. The records are frequently taken out of context to make it seem as if the claimant's medical condition isn't too bad, or that the medical evidence is contradictory or ambiguous. As a result, even if the IME doctor may be inclined towards impartiality, he or she only is provided with controlled information.

Another fairly common practice among some IME doctors is to look for "holes" in your medical record. Something as simple as an accidental omission on the part of your treating physician can result in an IME doctor deciding that your medical report does not support your disability claim.

The carrier then provides the IME doctor with specific written questions for him or her to answer. Even if the IME doctor didn't know what the insurance carrier was looking for, these questions provide the guidance he or she needs to come up with the report the insurance carrier wants.

When the exam finally occurs, it usually is quite superficial. Most IME's only last a few minutes - surprising given the length of the IME doctor's report and the extensive list of clinical testing the doctor supposedly performed. Straight leg, Tinel's sign . . . the IME report may contain a litany of physical exam tests which a layperson has never heard of and so would have no idea whether these tests were performed or not. If you're scheduled for an IME, do not expect to receive a thorough exam. One can ask the question: so how can a superficial Independent Medical Exam determine whether or not a claimant is disabled? In my opinion, it can't.

Many IME reports are provided to the insurance company or scheduling company in draft form for review. It is not uncommon for the IME doctor to change the report to cater to the request of the insurance company or its agent because they understand that the insurance carriers are looking for reasons to deny claims. In fact, even after the final report has been provided to the insurance carrier, the IME doctors often will provide the insurance carrier with an addendum to address any additional concern the carrier may have.

Other Potential Problems With IME's
Added to this already unfair system is the fact that many of these IME professionals often have their own preconceptions and biases about the medical conditions the claimants have. Many IME doctors will dismiss - outright - debilitating illnesses and conditions such as chronic fatigue syndrome and fibromyalgia because these conditions are not easily detectible through CT-scans, MRI's, or other diagnostic testing. This is not surprising given the fact that most IME doctors perform a lot of IME's. Unlike a treating physician (your doctor) who tends to examine and treat a patient over an extended period of time, IME doctors essentially see only a snap shot of the claimant's medical condition. The most an IME doctor can do is comment on the claimant's condition on the one occasion that he or she performs the examination on behalf of the insurance carrier.

Unfortunately, many medical conditions only can be observed and diagnosed over long periods of time, over numerous clinical visits tracking the patient's complaints, symptoms and clinical test results. Given their limited clinical interaction with the claimants and their general bias, it is no surprise that most IME doctors tend not to believe claimants and disregard or ignore claimants' self-reported symptoms such as dizziness, headaches and numbness. In general, IME medical professionals are not working for you, and you have every right to distrust their diagnosis and/or prognosis. In most instances, they are working against you.

What Can You Do About This?
You cannot refuse to go to an IME. If you do, there is a high probability that the insurance carrier will deny your claim or cancel your benefits. However, you can be prepared by retaining an attorney knowledgeable in disability law at the outset. Our firm, for example, counsels our clients before they go to their IME's. And, we send a registered nurse from our staff with them to the examinations. That serves two purposes: 1) it tends to relax our clients, and 2) it sends a message to the independent medical professional performing the exam that the client's law firm is paying attention.

In addition, our registered nurse is a seasoned medical professional who will observe and understand what goes on and what is said during the IME, then will provide our firm's attorneys with a comprehensive report. She will know whether or not the IME doctor performed the clinical tests he or she claimed to have performed.

When you're talking about a disability claim, unfortunately IME's are a fact of life. But that doesn't mean you have to feel like a victim. Contact DeHaan Busse LLP for a free case evaluation, assistance with your disability claim, and to arrange for our registered nurse to accompany you to your Independent (insurance) Medical Exam.

Email: jdehaan@dehannbusse.com

How Do Insurance Companies Calculate What To Pay For A Lump Sum Settlement?

2010-01-07T12:35:00.000-08:00

If you have your own individual disability insurance policy, then the insurance carrier decides how much of a monthly benefit they will provide to you during the underwriting process, i.e., when you apply for the policy. Basically, insurance carriers will sell you disability insurance up to about 60% to 70% of your income at the time you apply for the policy. But, each company has its own underwriting guidelines so the actual amount can vary.

If you receive your disability insurance through your employer's long term disability plan, then those plans typically provide a benefit of 50% to 70% (60% and 66.667% being the most common) of your pre-disability income. From this amount, the insurance company then subtracts the benefit amounts you receive from other sources, e.g., Social Security Disability, Workers' Compensation, a disability pension, etc. Of course, all of this depends on the exact terms of your employer's disability plan.

When it comes to New York's statutory short-term disability benefits, those are equal to 50% of your pre-disability income, but the benefit is capped at $170 per week. And, you only get 26 weeks of benefits.

When Insurance Company Surveillance Runs Amok

2009-12-15T11:07:00.000-08:00

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

2009-11-18T10:33:00.000-08:00

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

2009-11-12T10:07:00.000-08:00

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

2009-10-29T11:40:00.000-07:00

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?

2009-10-15T13:21:00.000-07:00

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 . . .

2009-10-06T09:06:00.000-07:00

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.