My disability claim has been denied, but why am I losing my health insurance?

The old saying “when it rains, it pours” frequently comes to mind when dealing with a denial of disability benefits.  When an individual’s disability claim has been denied by the insurance company, this usually results in a trickledown effect resulting in the loss of other benefits the person was previously receiving.  These lost benefits may include health insurance, dental and vision insurance, a previous life waiver of premium benefit, years of service credit for retirement plans, loss of monthly car or loan forgiveness payments, and other benefits.  One of the most popular benefits that is typically affected is an individual’s health insurance.

Frequently, when an individual is unable to work because of a disabling condition, the individual’s employer will continue to retain him or her for a period of time as an employee.  This period of time may be anywhere from a couple of weeks to several years.  Sometimes the individual may be designated by the employer as an “inactive employee” and indefinitely continue to receive employment-related benefits, such as health insurance coverage.  However, once the insurance company denies or terminates the disability claim, which in effect generates a false signal to the employer that the person is no longer disabled; the employer will commonly require the individual to return to work or face being terminated.  Unfortunately, most people are unable to return to work in this scenario, and are terminated by the employer, resulting in the loss of health insurance coverage.  If the individual is not entitled to COBRA, or cannot afford COBRA premiums, this situation creates a huge financial burden on the individual, as they no longer have valid health coverage.  This is compounded even more when the person is ineligible for Medicare or Medicaid.

Individuals should be aware of the direct and indirect financial ramifications that a denial of disability benefits may have on them, underscoring the need to seek competent legal help upon a denial of disability benefits.

Does "Disabled" mean "Totally Incapacitated"?

Many insurance companies attempt to redefine the term “disability,” employing a very subjective and harsh standard contrary to the terms of the policy. Such tactics breed the false notion that a claimant must be an invalid to be eligible for disability benefits. This creates a quandary for claimants who genuinely cannot work due their condition but feel helpless and even guilty about applying for disability. This is often the case with clients who have chronic pain. Some days their pain may be less severe than it is other days. However, continuing to adhere to regimented work schedules and demands tend to exacerbate their pain, often relegating claimants to bed rest for several days at a time to recuperate.

So what renders a claimant disabled?  The answer is simple. The inability to perform the material and substantial duties of one’s job on a consistent basis renders one disabled.  The courts have addressed the failure of insurance companies to account for a claimant’s ability to continue performing his/her job consistently on a full-time basis. Claimants with chronic illnesses will often have to miss a minimum of 2 to 3 days a month from work due to flare-ups with their condition. The accumulation of these missed days from work obviously exceeds the amount of sick leave allowed by most employers.  Therefore, whether a claimant is capable of getting out of bed every day and managing their basic needs is not the threshold requirement for determining disability status. Many claimants can continue caring for their basic needs, but only with significant accommodations and a very flexible schedule with no time demands. As we all know, the ability to complete tasks in a timely manner is vital to job performance. 

ERISA Preemption

Preemption is a word that is often heard in connection with lawsuits involving employee benefits. Basically, preemption means that any claim asserted under state law which relates to matters governed by the federal statute, known as ERISA, are made ineffective as to that particular claim. Federal laws that relate to interstate commerce or tax matters are supreme, or “trump” the state laws.

Congress found that the protection of employee benefit rights was a matter that affected interstate commerce as well as the federal taxing power, and so Congress made the ERISA statute supreme as far as matters relating to employee benefit plans. Under state law, an insurance contract in Alabama is also subject to bad faith law. When a claim for bad faith is established, it may give rise to claims for mental anguish damages and punitive damages. However, as to insurance policy providing, for example, long-term disability benefits through an employer, ERISA will “trump" state law. Only the remedies found in ERISA will be allowed if there is a breach or claim. These remedies do not include claims for mental anguish damages or punitive damages. The only exception to this is the fact that the U.S. Supreme Court has left open the possibility that in some breach of fiduciary claims, punitive damages may be part of a form of equitable relief. However, for typical benefit claims, only explicitly noted ERISA damages are recoverable, which does not include mental anguish damages and (most of the time) punitive damages.

When Mild Doesn't Mean "Mild"

Many of our clients have claims denied because the insurance company will assert that there’s no objective evidence supporting any restrictions and limitations. This is often confusing because often one or two treating doctors are asserting that there are functional restrictions and limitations for the patient, and the patient, as well as co-workers, all have verified restrictions and limitations. Accordingly, it is necessary to look at the claim record to try to figure out what the insurance company is really saying.

Frequently, we find when reviewing the claim record that this boilerplate comment is made when X-rays or other diagnostic tests reflect mild loss of disk space or mild nerve impingement, or some other use of the term “mild” or even “minimal”. For example, if a client had an X-ray that showed mild loss of disk space, the insurance company may take that to mean the loss of disk space in the back is not very significant and so there must be no significant problem. This is a complete misapprehension of what the term “mild” means in the medical context.

“Mild” in the medical context refers to the degree or measurement of the loss or change and does not correlate to the level of pain or loss of functionality. For example, one patient with mild loss of disk space may have much greater levels of pain and loss of function as opposed to another patient with severe loss of disk space. In fact, even the degree or measurement utilized by the person reading the X-ray, usually a radiologist, is not standardized. This means that one radiologist may think that there is a mild loss of this space, and another may call it a minimal loss of this space, and yet a third may call it a moderate loss of disk space. The comments, therefore, are a subjective interpretation as to what is viewed in the film.

So the next time you or someone you know has a claim denied for lack of objective proof, remember that it may well be that “mild” does not mean “mild” in this situation. Obtain an attorney experienced in employee benefit litigation.

Proving Pain

When pain plays a role in a disability claim it is not safe to assume that claimants’ reports of pain will be accepted by the insurance company as proof of disability. After all, two individuals can have the same, exact condition, for example, herniated disks of the L4-5 area of the back, but one may have very little pain and the other may have excruciating pain. It is therefore necessary to prove pain to verify and weed out all those individuals who may seek a disability without having any real restriction or limitations.

Patient credibility is one area where this can be proven. A treating doctor can provide proof of physical findings that corroborate or verify the complaints of pain. The doctor may also comment on the patient’s credibility and cross test the pain complaints with various movements. Other individuals observing this person can also verify patient credibility. For example, a co-worker who sees a grimace or sweat, or signs of fatigue, by an individual in pain when that individual does not readily know he or she is being observed may be useful. Other facts may also help, such as a sudden withdrawal of activities that were previously enjoyable but which cause pain. A position of financial hardship resulting in economic loss, such as having to sell a house, car or boat, etc. can assist in proving pain. Finally a patient diary kept every day may help prove pain.

There may be many other ways unique to the facts of each person’s case. This underscores the need to obtain an experienced ERISA attorney early on in the claim person.

Is an ERISA Peer Review Really a Peer Review?

A peer review is typically a review and critique by one expert of another expert’s opinion. In order for this critique to have any merit, of course, it must explore the basis of the opinion and point out why the expert’s opinion is wrong.

In the world of ERISA, however, a physician peer review is, more often than not, a purchased opinion intended to support a termination or a denial of benefit by an insurance company. For example, if a treating physician provides an opinion as to her patient’s restrictions and limitations, then a peer review of that opinion should point out any problems with the opinion with specific reference to findings in the medical records which point to a different, or contrary, conclusion than the one asserted by the treating doctor. There may also be reference to medical or scientific literature, which might reflect that the treating doctor overlooked something. However, this is not what occurs the overwhelming majority of the time.

Instead, insurance companies will often hire a doctor to espouse a different opinion than the treating doctor without ever having examined the patient, and of course without ever pointing out why the treating doctor was wrong. The purchased opinion is often “boiler-plate” language or conjecture designed to support a prior decision made by the insurance company. Insurance companies do this because the claim procedure regulation requires that they utilize a qualified medical professional on an appeal. The purpose of the regulation, in my opinion, is to require fair evaluation of the treating physician opinions. Buying an opinion to support a preordained decision falls short of this. Nonetheless, this is what occurs in many of the cases we see. We are keeping track of the doctors doing this but their ranks are growing. It is easy money for the doctors, and certainly much easier than treating patients and worrying about reimbursement from health insurance carriers.

Pitfalls with Retirement

Our firm sees many cases in which disabled employees find themselves in difficult circumstances. One example is when an employee is no longer able to perform all of the material duties of his or her own job. Often the employee will be close to early retirement age, and so rather than pursuing the long term disability policy and coverage, the employee considers taking early retirement. Then, after the employee resigns, and is on early retirement benefits, he or she realizes that a long term disability benefit was in place. Now going back and trying to undo the situation is very challenging and difficult.

For example, the insurer may well take the position that the employee merely retired and so, no long term disability benefit is payable notwithstanding the fact that there is proof that there is a disabling condition. An insurer may also take the position that the employee did not become disabled until after leaving employment and so there was no longer coverage at that point in time.

Before making any move as to your employment, it is therefore important to look at the facts of your situation and then look at the employee benefits that are provided. Try to answer the following questions:

1.      Why am I disabled from doing my occupation?

2.      Did the injury disabling me occur while I was on the job? (If so, there could be a worker’s       

         compensation claim as well as a long term disability claim)

3.      Am I disabled from performing just my own occupation, or am I disabled from performing any 

         type of full-time work? (Many policies have a change in the disability definition from

         disability from your own occupation to disability from any occupation.)

4.      Does my pension plan have a disability benefit?

There are many other questions that should be answered at this time as well. Many employers will try to help the employee by accommodating the employee to the extent that the employee is no longer able to do the material duties of the job. This may be an accommodation well above what the law may require. When the employer grows weary of this accommodation, the employer may start looking for reasons to terminate the employee. It’s important to have an honest conversation with your employer when you suffer from a disabling condition on such matters. If your employer does not believe that you can perform your job anymore due to your disabled condition, then the employer should tell you this, rather than look for reasons to terminate you. Otherwise, the long term disability insurer may take the position again that really the person is not disabled but rather just poorly performed and was terminated for the poor performance.

Obviously with all of these different issues that can occur, there are a number of traps that can develop which are readily used by insurers and plan administrators to deny benefits. Before you end up in one of these pitfalls, consult with an experienced ERISA attorney so that you can protect your benefits and thus also protect your own ability to continue to provide support for yourself and your family.

Facebook & Twitter - Cheap Surveillance

It is very common for insurance companies to hire a private investigator to videotape our clients going about their daily lives. For example, an investigator will lay out in bushes videotaping a client walking to a mailbox or driving a car to the store. The investigator will often note in the report that the client was walking smoothly and showing no signs of restrictions and limitations. Then, the report and video is sent to the insurance company and adjuster who ordered it (and caused his company to have to pay for this expensive of surveillance). The adjuster will seize on the report and deny the claim because when the client was secretly videotaped, the client (at least in the subjective opinion of the investigator) showed no signs of any disabling conditions. Some courts have found that such reasons for denying the claim are improper. Courts have observed that the comments made in the report are subjective and, further, that the video does not demonstrate anything at all. You can never know how a court will rule on this however.

Insurance companies have not liked incurring this surveillance expense, of course, because then they have less profit. So they have been searching for a cheaper way to deny our client’s claims. Along comes Facebook, Twitter, Myspace, and other social networking resources. Insurance adjusters have found that many clients have public postings on these social network tools, and they will scour them for anything useful to help in denying a claim. For example, a client who claims that traveling every week is too difficult, because of pain and fatigue, may find his claim to be denied when he posts on Facebook that he traveled in a car for six hours to see his favorite college football team play an away game. What is not noted in such postings is the fact that the next day after travel, the client was too tired to do anything else and it may have taken several days to a week to recuperate.

Another client claimed that typing on a keyboard for several hours made her too tired due to her medical condition, and she could not do that week in and week out in  her occupation any longer. However, she had very lengthy postings on Facebook and Myspace as well as a blog which she seemed to maintain every day. When the insurance company found this, of course, the claim was terminated as the client’s credibility was questioned and challenged. What was not obvious from these postings was the fact that the client would actually only use a keyboard for 15 or 20 minutes at a time and she also requested her daughter to assist in most postings.

When a client is pursuing a disability claim, or they have disability benefits being paid, they should keep in mind that social postings should be kept private. There really is no legitimate reason for them to post information publicly for insurance adjusters to view these matters. If the postings cannot be kept amongst close friends, perhaps they should not be posted at all; they should choose another medium of communication with friends. The social networking resources that have become fairly commonplace in a majority of households have turned out to be a cheap surveillance tool, allowing insurance companies to peer into private lives and misinterpret information. 

Some courts have recognized that a person who meets the definition of disability in the policy is not necessarily incapable of any activity. Usually, a disability policy does not require that a client should relegate himself to a dark secluded room everyday in order to prove disability. A disabled person can and should enjoy many activities, but such persons should be very mindful that their actions can be misinterpreted or misconstrued. Be aware!

Visit one of our websites at www.erisacase.com, www.erisacase.org or www.ltdlawyer.net today for more information.