Having disability payments approved is a major positive milestone in the life of any claim. However, that does not automatically mean that your insurer must keep paying your benefits indefinitely. Almost all disability policies provide that benefits end as soon as the insurer determines that you are no longer disabled, and you have a continuing duty to provide proof of your ongoing disability. Even if you “win” your benefits at the outset, Insurers use these provisions in a variety of ways to terminate benefits. Terminations frequently occur even though where your disabling condition has not improved at all.
We want to avoid a termination of your benefits at all costs. Termination results in a much costlier process, a less certain outcome, and, at best, several months without disability income while you are preparing your response and awaiting a decision. A months-long gap in payments is never a good thing, even if you are able to get benefits reinstated.
At Robinson Warncke we strive to be proactive to make sure our clients who are on benefits stay on benefits.
It is never advisable to rely on your insurance company to tell you how to stay on benefits. On the contrary, your insurer has a financial incentive to terminate your benefits. There are far too many pitfalls for the unwary claimant to list them all here, but here are a few common reasons why insurance companies terminate disability benefits:
Changes in Definition of Disability
Most disability policies offered as part of an employee benefit package use a two-step definition of “Disability.” For the first 24 months, “Disability” means you are unable to perform your normal occupation. Once benefits have been paid for 24 months, however, you will need to show that you are unable to perform any other gainful occupations. Some, but not all policies, provide that you must be able to work in another occupation that pays a certain percentage of what you used to earn in your job, but this is usually far less than what you were earning and gives the insurer broad latitude in finding hypothetical jobs it says you can perform. We use the word “hypothetical” because the insurer does not have to find an employer willing to hire you in your current condition – only that a job exists someone in the U.S. that, on paper, you could technically perform. For example, if your former job involved travel, lots of standing or walking, or lifting anything over 10 lbs., you can expect the insurer to consider terminating your benefits after two years by contending that you are qualified for a different job that involves mostly sitting at a desk. By anticipating these types of arguments, we can be proactive in obtaining testing or medical opinions where appropriate before your benefits are terminated to show you cannot tolerate such alternative types of work.
Limitations on Benefits for Mental and Emotional and Other Disorders
Most, but not all, policies impose a 24 month maximum for benefits due to a psychiatric condition. In addition, we have started to see policies that impose maximum benefit periods for conditions such as musculoskeletal conditions, chronic migraines, chronic fatigue, and other conditions. Despite these limitations, most policies will continue to pay benefits if you have other, non-limited conditions that by themselves prevent you from working. It is important to understand your policy provisions and limitations and ensure that you obtain the testing and opinions necessary to document these other conditions before benefits are terminated. It is also important not to solicit medical opinions that walk you right into a policy limitation and cause your benefits to stop.
Insurers looking for a way to stop disability payments often hire private investigators to search online social media and conduct hidden surveillance. You seldom see the video showing you grimacing – only the few minutes of video where you look pretty normal. This information is often taken out of context. Most courts recognize that running a few errands on a good day is very different from showing up to a job and being productive all day long. Many insurers like to pretend that there is no difference between the two.
Increasingly, we see insurers sending people who may have been on benefits for several years to an “independent” evaluation by a physician or psychologist arranged by one of their regular vendors. These physicians and psychologists often perform lots of insurance examinations and make a lot of money doing it. They may be inclined to find that an individual can work so that the insurers keep paying them to do the examinations. We prepare our clients for these examinations and often arrange for a nurse or other third party to accompany the client to ensure that the examination is legitimate, thorough and accurately reported, which can make a world of difference in what gets reported.
“Peer to peer calls” – Secret communications between the insurance company and your doctors
It is worth remembering that, by the federal HIPAA law, your medical information is private. Your doctor cannot release any information about your condition unless you authorize it in writing. That is why every insurance company requires you to sign a written authorization every so often. The problem is that the insurance company authorizations are incredibly broad. They authorize not only getting your medical records, but also allow insurance company doctors to call your doctor in what are euphemistically called “peer to peer” calls. This is a process which is fraught with potential for abuse:
- The insurance company doctor calls your busy doctor without an appointment
- He catches your doctor unprepared, in between patients, often without offering time to let your doctor review your file
- The insurance doctor offers a very one-sided version of the facts, often omitting those facts that support your disability
- The insurance doctor pressures your doctor to release you to work
- The insurance doctor then “confirms” in writing his or her version of the call in way which may or may not reflect what your doctor actually said
- And the letter says if your doctor doesn’t object in writing under some ridiculously short deadline, your doctor will be “presumed to agree”
- Your doctor doesn’t respond within the deadline, and the insurer terminates your benefits based on this exchange
- The insured is usually aware of none of this, unless your doctor mentions it to you – which is rarer than you think.
Fortunately there are ways to minimize this abuse. The simplest, most direct way is to insist that all communications between the insurer and your doctor be conducted in writing, and that you be copied on them in real time. That way there can be no dispute as to what information was requested, how the request was worded, whether your doctor timely responded, and exactly what his or her response was. Copying you (or your attorney) on the request means you can stay on top of the response and ensure your doctor’s response is timely, thorough, and accurate. In order to do this, you have to modify the written authorization the insurance company asked you to sign.
These are but a few examples of the challenges faced by disabled people even after they have “won” their disability benefits. The truth is that you have re-win your benefits claim over and over for the entire duration of your disability. Unfortunately, trying to do that without expert guidance is a recipe for problems at some point in your journey. With the assistance of the disability experts at Robinson Warncke, you can rest easy knowing that we know the process, and that we will be proactive in continually proving your claim so that you can keep supporting your family with the disability benefits to which you are entitled.
Top 5 Mistakes Leading to Termination of Benefits
- Lessening frequency of medical visits. Some people receive a favorable award and stop going to the doctor as often. Even if there is no treatment reason to be seen frequently, you need to have a doctor who can say they are familiar with your current condition to be able to certify continuing disability.
- Surveillance that is inconsistent with claim reporting. A common cause for termination of benefits is allowing yourself to be “caught” running multiple errands in one trip; doing vigorous physical activities outside the home, or doing anything inconsistent with what you have reported to the insurer or your doctors. A big part of neutralizing surveillance is making sure your forms and comments allow for “good days,” where you might be able to be more active, as well as the “bad days” most people equate with questions about disability.
- Allowing insurer to call your doctor/communications outside your presence. We talked about this above. Rarely does anything good come from secret telephone conversations happening without your doctor being prepared and without you being involved or even aware.
- Leaving it to your doctor to document your complaints. Most doctors don’t write down everything you tell them about your symptoms and problems. Insurers have the attitude that “if it’s not in the records it isn’t true.” (Truthfully, insurers often don’t accept what is in the records.) If you want your complaints noted, hand them to the doctor in writing and ask them to be made part of your record. Simple, yet effective.
- Letting your doctor complete forms without your review. Most doctors hate insurance forms. Most don’t give the forms their full attention. Often they ask nurses to review the chart and fill out the forms, and sign without carefully reading. Not surprisingly this can cause all kinds of problems leading to termination of previously accepted benefits. An experienced long term disability or ERISA attorney can monitor this process to make the forms reflect your reality.