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7 Common Long-Term Disability Claim Mistakes

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Mason Waring: Hello, my name is Mason Waring and I’m an attorney and partner at Chisholm Chisholm & Kilpatrick. I’m joined here today with my colleague, Leah Small, who’s also a CCK attorney. We devote much of our law practice to representing individuals with their long-term disability insurance claims. These are individuals who either purchase coverage themselves from an insurance company or the received coverage as a benefit of employment from their employers. Now, they’re disabled and they’re seeking benefits and they’re either making initial claims, they’re appealing a claim denial or need to go to court. If you have a long-term disability claim; if you are going out of work and you may have one and you want to talk to a lawyer, it costs nothing to talk to us to see if we can assist you. Please feel free to reach out. You can reach us online at cck-law.com or on the phone 401-331-6300.

Mason: Today, we’re going to talk about seven common mistakes that people make when handling their own long-term disability claims and it seems a little odd to talk about the mistakes. We usually focus on what you should be doing. But, hopefully, thinking about these things would help individuals handling their own claims do a better job, and avoid some of these common pitfalls. Even if you’re considering contacting a lawyer and getting assistance; thinking about these seven items will help you make your claim as strong as it can be and will allow a lawyer to help you better.

Mason: So, let’s get started here today. Number one, the first common mistake– failing to understand your definition of disability. Leah, could you talk more about that?

Leah Small: So, long-term disability policies typically have two definitions of disability that frequently appear. First is the own occupation definition of disability and that asks whether you’re able to perform the material duties of your own occupation which is traditionally the job you were doing at the time you became disabled. We also frequently see the any-occupation definition of disability which asks whether you’re able to perform the material duties of any occupation. Sometimes, the any-occupation definition includes what we call a gainful component, which means it asks whether you can perform any occupation that earns you a certain percentage of your pre-disability earnings, and sometimes it also includes and takes into account your training and education experience.

Leah: In many disability policies, especially the ones that you get as an Employment Benefit from your employer, it starts as the own occupation definition of disability and then transitions to any occupation after a certain period of time. Oftentimes, though, we encounter claimants who really focus on the job they were doing when they become disabled and why they can’t perform that job, even though that may no longer be the applicable definition of disability. When you’re filing a claim or if you’re already on claiming; you’re doing an update with the insurance company, you need to explain why you meet the applicable definition of disability that matters at that time. So it’s really important for claimants to read their policy and understand what definition of disability currently applies to them so they can do that successfully.

Mason: Leah, if a claimant is trying to figure out what the material duties of their own occupation were, are they restricted to only looking at their job description from their employer?

Leah: No, all that can be a great place to start. It’s also useful to just think about what your day-to-day look like and what was required of you cognitively and physically in performing your job duties. One other thing to be aware of in many disability policies, it looks at your occupation as it’s performed in the national economy rather than how it’s performed for a specific employer. So if you have very specific duties that your employer required but generally someone in that occupation doesn’t have those duties, those may not count towards whether you can perform that job for purposes of your long term disability benefits.

Mason: And sometimes we engage vocational experts to help evaluate the duties of the occupation and really plug the holes where there are holes in the job description or where the job description doesn’t accurately detail the materials’ substantial duties of the job.

Mason: Great! Let’s move on to number two. Common mistake number two– excluding some of your disabling medical conditions.

Leah: So, a lot of times claimants have one main condition that causes them to stop working but they often have additional medical conditions that also negatively impact their ability to work. If you only focus on that primary condition, you’re not providing the insurance company a full picture of your disability. So you want to make sure that you’re including all of your medical conditions in your disability claim and explaining in detail how each of them impacts your ability to work.

Mason: And some claims can be complicated. There could be medical conditions that are part of your picture that maybe are relevant to the disability picture. That can be a good time to contact a lawyer to talk through and get some professional help to understand what to include and what not. But a good rule of thumb is, we are complicated beings and both emotionally and physically, different things can contribute to your ability to work or interfere with your ability to work. And so you want to take all those into consideration when you think about what you’re going to base your claim on.

Mason: Number three. Common mistake number three– using inaccurate language. Leah, tell us about that.

Leah: So, oftentimes claimants will in their disability claims or in their update, will say “I always do this or I never do that”, and a lot of times that stems from the fact that it’s such a departure from how they were prior to their disability. But usually that statement isn’t accurate. Usually, what they really mean is that they usually use something or they rarely do something. Problems arise when claimants use that type of absolute language that’s actually inaccurate. When insurance companies do surveillance on claimants and they might see them engaging in activity that they reported they never do; and the insurance company will then try to use that against them to say “Complainant is not reliable, they’re not honest, can’t trust what they report.” So instead you want to make sure you’re using precise accurate language that correctly describes your conditions, your symptoms, your impairments, and your activities.

Mason: Right, to put it in practical terms, you don’t want to talk to the insurance company or write to the insurance company the way that you would talk or write to your friends. And if you’re talking to your– let’s say you had bad back pain and you’re talking to your friend on the phone, and he said, “You know, I just can’t lift things anymore.”, you probably don’t mean you can’t lift anything. You may be able to lift light weights. You might be able to lift things infrequently, you just can’t lift as much as you did before or as frequently as you did before. So you’re not lying to your friend, that’s just how you express yourself to your friend. You say that to the insurance company, they’re going to take that literally and mean you cannot lift anymore. So, if you are at the grocery store lifting a half-gallon of milk, you’re now lifting something and what you said is not accurate. So, you just really want to be careful to be accurate in what you’re reporting to the insurance company and not communicate with the insurance company the way you would communicate with your friend. Be more precise.

Mason: Number four. Common mistake number four– poor communication with your doctors.

Leah: When we’re dealing with these disability claims, medical records from your treating physicians are the foundation of your claim. The insurance company is going to be looking at those records to see what is documented and determine if disability is supported. You want your records to be detailed and include descriptions of all your symptoms and your resulting limitations from those symptoms. But we often have claimants who tell the doctors, “Oh I’m doing okay. I’m doing fine.”. And that can happen because a lot of you don’t like to complain or because they’ve just accepted what their condition is now and so in their mind, they are OK in the sense of their new normal, even if it’s a large departure from how they work pre-disability. Oftentimes, we all see claimants who assume they told their doctor something before, their doctors still going to note it now so they don’t have to repeat it at each appointment. The problem is, oftentimes, doctors will only record what you report to them during that specific appointment. So you might not have your symptoms limitation noted if you don’t actually report them to your doctor during that appointment. If its initial claim the insurance kind of might look at that and say “Your records don’t document very much so you must not be disabled.” or, if they’re reviewing an existing claim if there’s been a shift where symptoms and limitations aren’t noted anymore, they might say, “Oh, you’ve clearly improved.”, so we’re going to terminate your benefits.

Leah: So, even if it feels repetitive like you’re saying the same things over and over again, each time you go to your doctor, you should accurately and in detail describe your conditions, your symptoms, and how those limit you.

Mason: It might be helpful to keep a symptom diary. If you have a chronic pain or a fatigue or any number of symptoms, it can be really helpful to keep a diary because if you see your doctor once every month, you may forget what happened over the 30 days and also in your appointment you may just not remember all of your symptoms so a symptom log can really be helpful in facilitating that communication and if you can’t do that, at least keeping a checklist of what your symptoms are and you can bring that with you, you can bring your notes to your appointment so that you can just remember what to talk about to your doctor. Not just your symptoms, it’s just a good practice, anyway, what medications you’re on, how you’re sleeping, things like that, those are really good data points for your doctor’s to have and if you have a list you’re going to make sure it’s accurate and complete. So, just a good thing to keep in mind.

Mason: Moving to common mistake number five and that is– relying on the insurance company to gather your evidence of disability. Leah, why is that a mistake?

Leah: So, insurance companies will often request medical records or information from treating physicians on behalf of claimants. But ultimately it’s the claimant’s responsibility to submit evidence of their disability to the insurance company. So you don’t want to assume the insurance company’s taking care of it, I don’t have to worry about it. You want to make sure you’re following up with your doctors; that they’re responding to the insurance companies’ requests in a timely manner to ensure that all necessary information gets the insurance company in order for them to make a decision on your claim. And this is going to apply not only to medical records requests but if your doctors need forms that have to be filled out for the insurance company like you said you won’t be following up and making sure they’re actually doing that even if the insurance company tells you “We requested that information for you.”

Mason: Great! And when we represent claimants, we often gather the evidence ourselves and submit it. So even when the insurance company asks for authorization to collect themselves, we don’t want to just wait and rely on them to gather the information. It may get delayed. They may be busy. The claims handler could be busy or a mistake could be made and so it’s a good idea if you’re helping yourself to collect your own records, gather them, make sure that it’s complete because sometimes the doctors’ offices and hospitals rely on third parties to fulfill the medical record request and sometimes there are errors and you don’t get the complete set of records that you asked for. So you really want to make sure it’s complete. You also don’t want to delay and so when we’re handing a case for someone we like to gather all the records we can ourselves, package them up, and ship them off to the insurance company as efficiently as possible to make sure that the claim’s not held up.

Leah: And one other point related to that is that it’s sometimes easier for doctors offices to kind of push off or a request from a third party like an insurance company, but they may be more likely to respond to make sure it gets done if it’s coming from the patient themselves. That’s why it can also be good for the patient to reach out to try and make sure everything’s getting done appropriately.

Mason: Right and some of you may have access to a patient portal from your doctor’s office. Just be careful to make sure that everything’s in there. I think there are instances where sometimes the patient portal doesn’t have a complete set of the records or sometimes it’s more information you might want and you may need a separate request and you probably could just ask the office administrator, your doctor whether all the records are actually in there. But if you have that access, particularly if things are shut down due to a pandemic, it could be a real efficient way to gather your own medical records that way. So good things to keep in mind.

Mason: Moving on to common mistake number six– ignoring information requests from insurance companies or missing deadlines. I’ll spot that Leah.

Leah: So this seems like a pretty basic point, but if an insurance company asked you to complete forms or provide information to them, you should do that to the best of your ability. And if you’re unable to obtain that information by the deadline, the insurance company gives you, a lot of times claimants might say, “it’ll be fine, I’ll just get to them when I can get to them”, but missing deadlines can result in claim denials or benefit terminations. So if you need additional time because you can’t make the insurance company’s deadline, you should communicate that to the insurance company rather than ignoring the request and get confirmation that you have an extension in writing from the insurance company.

Mason: Sounds super simple but it’s super important to do that. This little nugget of advice really could save a lot of needless claim denial they think because our sense is that a lot of these insurance companies just have checklist items that if they don’t get a response to an information request by a certain day, automatically a termination letter goes out. You can avoid that by just reaching out and getting an extension; communicating that you’re working on responding to the request– that can avoid a lot of hardship and expense of having to deal with an appeal down the road. So, surely keep this in mind.

Mason: Common mistake number seven, last but not least– focusing on your aspirations rather than your reality. This sounds a little obtuse but it makes a lot of sense. Leah, tell us why.

Leah: Yeah, so many of our clients and just many people in general are A hard-working professional and they don’t want to stop working but disability has forced them to, and oftentimes, people have a strong desire to return to work which we all saw our clients great and if you can do that, you absolutely should. But those desires can also negatively impact the disability claim. We have claimants who delay filing a claim because they think they’re going to approve and they can go back so they don’t usually bother spending the time. As we just discussed, there can be strict deadlines involved in these claims and if you missed a deadline, that could mean a claim denial. Alternatively, we have clients, who on their claim would say “I want to try and go back to work.” Again, that’s great if you’re able to and we encourage that. But, a lot of times as we have heard before they’re actually ready, and an insurance company will, unfortunately, try and use whatever you do against you. So if you try and go back to work or receive benefits, that doesn’t mean the insurance company won’t try and say “You’re fine now, so we are going to terminate.” Even if you try and fail the insurance company may have terminated benefits in the meantime and now you have to go through an appeal process to turn your benefits reinstated. So our advice to clients is often “Don’t let your aspirations for the future get in the way of your current reality.” you have to really think about what do you currently capable of doing. Even if you have this very strong desire to return to work, just be realistic with yourself about whether you’re capable of doing so.

Mason: And it’s important if, let’s say you’re on claim now and you want to return to work before you’re ready to return to work. Make a return to work plan with your treatment advisor, with your doctors. Don’t just beg your doctors to clear you to go to work because in some cases that maybe perfectly appropriate but if you have a chronic pain condition or something where symptoms can vary or symptoms can be aggravated by working, by doing a job. You really want to almost have a test period and make sure that you’re having regular touchpoints with your care providers, you’re monitoring how your symptoms are. That way, if you do not succeed, everything is monitored, you can make sure you’re returning to work safely, you don’t want to return to work injured and you want to make sure that all your care providers are on board and providing you the best care that you can have. The benefit to take care of your health in that way, is that you got a good record that can be used for your claim. So if you do return to work and you’re not successful, hopefully, that’s a bridge back onto your benefits. As Leah mentioned, some policies allow you to collect benefits while you work partial disability or residual disability, these are called different things and different policies. But some don’t, and some in certain instances it’s going to result in ending your benefits. So you really want to pay attention to what your policy says, just understand what the ramifications are to making these changes. At the end of the day, if you are able to work, if you’re not disabled, you may very well want to do that and some instances should. But it’s important to take into consideration, what kind of coverage you have, this is looking back to the definition of disability and so you could potentially be able to work in another occupation but occupation and in some instances you could still collect your full benefits and others, your benefits will be reduced by your work earnings. So there’s a lot of factors to consider, you want to read and understand your policy before you do that, you want to have a really good clear communication with your physicians and have a plan and see them regularly and communicate that. I guess the only other thing I’d add to this is, communicate with the insurance company. So after you’ve read your policy, you’ve talked to your physicians, and you have kind of a play. You really want to communicate your return to work effort in many cases to the insurance company. You don’t want them to surveil you or to find out during a review that you’ve been working for a few months. It’s a good idea to make sure everybody’s on the same page, put this plan together, and bring everybody in the loop.  There are exceptions to everything we said here today, which is why it’s a really good idea to talk to a lawyer. We counsel people on these matters everyday and there’s really no one-size-fits-all to these claims. There’s a lot of variability in terms of policy structure where you need help situation. But hopefully, these things– these are good general principle that you should be able to apply here and we hope this helps. Leah, could you recap the seven common mistakes for our viewers.

Leah: So number one is, “Failing to understand your definition of disability”. Number two, “Excluding some of your medical conditions from your disability claim.” Number three is, “Using inaccurate language.” Four, “Poor communication with your doctors.” Number five, “Relying on the insurance company to gather your evidence of disability.” Number six “Ignoring information request or missing deadlines.” and number seven “Focusing on your aspirations rather than your reality.”

Mason: Thank you, Leah, and if you’re watching this and you want to talk to us about making a long-term disability claim. If you need help with an appeal of a denied claim or you need to go to court. Please give us a call 401-331-6300 or reach out to us on the web we’re at cck-law.com. It cost nothing to speak with us to see if we can assist you. Thank you all very much. Have a good day.