Yahoo Finance published an article about how insurers try to prevent individuals from obtaining disability benefits. While the article discusses Canadian insurers, our experience is that the tactics described in that article also happen in the United States.
This blog elaborates on some of the points raised in the article, especially as they relate to ERISA insureds. The Yahoo article observed:
“Surveillance is a common tactic. Insurers will hire private investigators to try to catch you in the act of doing something a disabled or injured person couldn’t, like moving a ladder or other heavy objects.
But there often aren’t any visible signs a person is disabled. Disabilities related to pain, flexibility, mobility, and mental health were the most common disability types according to the Canadian Survey on Disability 2017.”
This explanation correctly identifies that disabilities come in many different forms – often subjective symptoms are disabling but will never be “visible.” Indeed, it is unclear how someone disabled from anxiety and depression or other mental health issues should worry about being videotaped carrying a ladder, when their disability is in no way based on physical limitations.
What the article fails to elaborate on is the purpose of surveillance itself. When insurance companies perform surveillance, they are looking for specific contradictions in your case – not necessarily “something a [generic] disabled or injured person couldn’t.”
If you told the insurer you never garden because of chronic back pain, they will try to videotape you gardening. If you claimed to be unable to type due to carpal tunnel, you will have a very hard time explaining video evidence of you playing the piano at a party. If you said you were too depressed to go shopping, video of you going to the pharmacy to fill your prescriptions will provide them with fuel to dispute your credibility and disability.
What does this mean for disabled individuals who have good days and bad days, and don’t want to sacrifice their good days to avoid being adversely surveilled? What does it mean if you are disabled but push yourself in public to do what needs to be done only to later suffer in private? The bad news is if an insurer decides to perform surveillance, there is just about nothing you can do to prevent it. The good news is that you can manage the impact surveillance would have on your claim by taking precautionary steps.
First, make sure not to exaggerate or overstate your limitations. The slightest inconsistency can be utilized against you by an insurer. In general, it is best never to say never, and never say always. Qualify your statements even if you truly “never” do something- you never know when the first time you try something will be the day you are surveilled.
Second, don’t be a superhero in public. If you are having a good or even great day and can’t pass up the chance to do something while you are physically or mentally able, do your best to do so indoors or in private. Insurers will videotape your terrific day, but will certainly not capture the plethora of bad days you had before and after that day, nor will it capture the ramifications of you pushing yourself on that good day.
Third, if you have the energy, keep a daily log. Insurers love taking snippets of your life and turning into a full-blown narrative. If you keep a daily log, you can utilize it to show an insurance company (or Judge) the entire picture of your disability. Make sure your log is honest and accurate. If you are surveilled on Monday and Tuesday taking walks, but your log doesn’t mention the walks, your log will be entirely useless, if not harmful. In contrast, if your log accurately states that you walked on those days, it will be nearly impossible for the insurer to dispute your descriptions of the ramifications from those walks as well as other impairments experienced on other days.
The Yahoo article stated:
“Insurers could also badger you with phone calls, telling you that you should be working.”
While we constantly hear that claimants are badgered by phone calls, rarely do such phone calls contain such “easy” evidence of insurer misconduct as them telling you on the phone that, despite paying your benefits, you should be working.
While this statement may be hyperbolic, it does highlight something long term disability claimants should know – you are only required to speak to insurance companies over the phone if it is necessary to process your claim. While it is within the insurer’s discretion to say what is and isn’t necessary during the claim process, don’t be afraid to insist on written communication. If the insurer pushes back, ask why a telephone conversation is necessary. While you should comply if they provide ANY justification, often they cannot do so, and will agree to communicate in writing.
Also make sure to document the dates and times of the calls, and write letters confirming the content of the conversation, should it be beneficial to you.
The Yahoo article stated:
“They can also have their nurses contact your doctor to fill out forms. Kotak says they know your doctor is likely too busy to keep up with all of the paperwork. They can also mischaracterize brief phone conversations to deny your claim. Again, your doctor may be too busy and won’t correct the nurse’s account.”
It must be stressed that as a long term disability claimant, you must be vigilant in getting the forms the insurer asks for filled properly by your physicians. This isn’t always easy, but the alternative could mean the loss of your major form of income.
While this article characterizes the demand for completed forms as harmful to your claim, if you are vigilant, we find this to be the information most helpful to the claimant, assuming the forms are properly completed. Medical records are not designed to capture disability. We hear it all the time, “I thought the medical records would be enough.” Medical records alone are usually not sufficient to meet your burden of proof under your long term disability insurance policy. This is because medical records are designed to capture treatment. On the other hand, the insurance company forms, flawed or misleading as they may be, will often fill in the gaps that the medical records do not address.
And don’t forget, if the insurance company is asking for one type of information, but not another, point that out. Explain to them why the boilerplate attending physician statement they sent does not fill in the gap to explaining why you are disabled.
Insurers WILL have their medical professionals contact your physicians in most states. The article may have overblown the concern about proof of disability statements, but it is spot on when it comes to the potential that insurers will mischaracterize brief phone conversations. Just as sinister, often these phone calls will simply review what was already said in the forms or medical records (like confirming diagnosis) without any substantive conversations about why you are disabled. The result is a summary of a conversation that is accurate, and agreed to by your doctor, but of no substance.
There is a solution. You want to avoid insurance company medical professionals contacting your doctors directly. From the outset of your claim, consider writing to the insurer and telling them to put any questions for your doctors in writing. While they may not comply, you will at least have documented the request and can point to it should there be issues related to the accuracy of these conversations in the future.
The final item from the Yahoo article we will discuss is:
“Insurance companies might send you to their own doctors or assessors….[T]hey aren’t always independent and could give an opinion that differs from your doctor’s.”
It is safe to assume that any doctor hired by an insurance company is not independent. Most insurers are aware of that perception, so they have formed symbiotic relationships with third party vendors like MLS, NMR, or Maximus. These “independent” third party vendors do the insurance companies’ dirty work and have stables of doctors who know what finding to reach (not disabled). Via this system, the insurer can claim its hands are clean and there was no bias in the selection of the reviewing doctor. In reality, it’s a safe bet the insurers have relied on that “independent” physician’s opinion in the past and liked the outcome. If the long term disability insurance company utilized a physician repeatedly, that physician has probably provided a plethora of adverse reports.
You usually cannot prevent such exams or reviews from taking place without risking your benefits. If you are sent to such an exam, make sure to bring a legal nurse or other observer with you. You may want to ask ahead of time, but you can explain that you do not feel comfortable being alone with a physician you do not know or trust, nor do you trust the Independent Medical Examination (IME) physician to accurately record the examination. Again, they may say you cannot bring an observer, but you’ve documented the request.
Also ask for a copy of the report so that you can correct or clarify any inconsistencies.
If you are concerned about any of these issues or have other questions about your disability claims, please don’t hesitate to give us a call at 800-446-7529 or use our online contact form.