Effective Communication & Long-Term Disability Claims
CCK’s insurance litigation team gave some tips for effective communication with your doctors when pursuing long-term disability benefits on this week’s Facebook Live! Looking for more info? Check out our Long-Term Disability Resource Center.
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Scott: Hi. Good afternoon I’m Scott Kilpatrick with Chisholm Chisholm & Kilpatrick. And we’re here to talk about the handling of long-term disability claims. These could be insured claims or claims for long-term disability benefits through your employer’s benefit plan. And with me today is Mason Waring to my far left, your right, he is a Partner in the firm. And Leah Small to my immediate left, and she is a litigation associate in our long-term disability insurance area. Good afternoon, guys.
Mason: Good afternoon, Scott.
Leah: Good afternoon.
Scott: Ready for a few questions?
Mason: Sure am.
Scott: All right. The topic for today that you’ve chosen is the important but sometimes awkward topic of how to communicate with your primary care physician or your treating expert in connection with your long-term disability claim. Can you share with us some initial observations and thoughts about that?
Mason: Sure. It’s important that you have a frank and open discussion with your doctors about your health conditions and how they impact your ability to function. Primarily, it’s important for your own health. It’s important that they assess your condition if they don’t know what’s going on. It’s also really important because if you file your disability claim, it’s often primary evidence that the insurance company considers.
Scott: Okay. You’re talking about this in the context of an initial claim. Is that right?
Scott: All right. How often do you find that the physician with whom the client is communicating is actually the physician who has recommended that they go out of work and – why is that a factor?
Mason: It’s actually- it’s pretty common. The doctors are on the front line of things often and they’re seeing what the person is going through, suffering with the conditions. And it’s pretty common to see clients uncomfortable having the conversation about the disability claim with their clients. A lot of times they feel guilty that they can’t work, they feel like they’re letting their co-workers down and their clients down. And so it’s an uncomfortable subject for clients to broach with their doctors. But it’s really important. And so, when you’re going to your doctor appointments and having those discussions, you want to not exaggerate your symptoms but you don’t want to downplay them either. And we commonly see clients say, “Well, I don’t want to complain.” So I go the doctor and I say, “I’m fine.” Well, fine doesn’t mean you’re not suffering symptoms. That’s just your new baseline, but that doesn’t mean you’re not disabled. And so it’s important to be specific when talking to your doctors so that they can document what’s going on with you.
Scott: Okay. Leah, what do you hear from clients on that issue of documenting in the medical records what’s going on with them?
Leah: We hear a lot that a lot of our clients will say, “Well, I’ve told my doctor that or I told my doctor experiencing those things.” But the doctors don’t always have that noted in the medical records or if they’re reporting similar symptoms as they did their last visit, the doctor might just note, same, no change, which when it comes to a disability claim, often isn’t enough to support a disability claim. So we often recommend our clients, they ask their doctors to specifically note what they’re experiencing, their symptoms and how it’s impacting their daily life in the medical records so that that documentation will be there, if necessary.
Mason: And just to add to that, doctors are busy and they’re busy treating patients, right? And so, their goal in documenting information and medical records is for treatment. And so, for their purposes, they may not need to document every little thing every single visit because they can refer back to the prior notes. And particularly with the advent of electronic medical records where the – a visit record will auto-populate with some previous information. It’s more efficient as you’re going through your day just maybe update a material change, but not to document everything that’s happening every single visit.
Scott: As one of the frankly better established long-term disability practices in New England, do you find that you’re actually having doctors as clients occasionally?
Mason: Yeah. Yes, we – many of our clients are doctors. We see a lot of specialists that have demanding aspects to their job and they could have a particular condition which would prevent them from doing that specialty. Those claims can be challenging because one question that comes up frequently is whether or not the policy protects the doctor from disability from doing their specialty. So if someone is a surgeon or an anesthesiologist, is the question whether you can work in that specialty or as a doctor in general?
Scott: Okay. How does your – Leah, I’ll direct this question to you. How does your representation of doctors and getting to know them not only as professionals but also as clients inform the advice that you give non-doctor clients in dealing with their doctors on disability claims? Does that help you with their get it – master their perspective or understand where the doctors are coming from?
Leah: I would say it does because you hear from them the first-hand experience. I mean we hear a lot – I’ve dealt with this with my patients, didn’t think it would happened to me. But we can get their first-hand knowledge about treating patients and what goes into a documentation and stuff like that. So we can use their experience to direct and tell our clients how they should be talking with their doctors, what’s important to discuss with their doctors, and just how best to document their disability.
Mason: And one tip I think we learned many years ago, a doctor client will say, hey, when I was practicing, I was very busy. And it was really hard to get my attention to fill out a disability form during the day or – and even if I wanted to do it, I didn’t have the time. I was just so flat out just practicing medicine. And so the recommendation was schedule an appointment. And it does at least a couple of things. It gets the doctors…
Scott: So you recommend to the client to schedule an appointment with the doctor?
Mason: That’s right. And it’s a great tip for everyone watching this that if you need your doctor to fill out a claim form or just sit down and have a conversation about what you’re going through in your disability, schedule an appointment. You’re obviously suffering symptoms and not well. So it’s a good idea from that perspective. But also your doctor will be able to focus on you, will be able to perform an updated examination if needed, and can fill out whatever paperwork they need right in front of you.
Scott: And that appointment can be done in the context of an exam as well. It just gives the doctor a heads-up. Is that right?
Mason: Right. And when speaking with doctors, they prefer that because they’d like to be able to assess you in person again to make sure that they’re reporting things accurately to the insurance company.
Scott: Okay. Occasionally, do you find that doctors are just uncooperative? And it’s not because they don’t care or they don’t believe what’s happening or they’re not supportive, it’s just they just can’t make the time with all of their professional obligations. Is there something that you recommend the clients can do to encourage the doctor to make the time to sit down for 30 minutes and fill out the report or to include the details in the record that are necessary to support the claim?
Leah: Well, I think what he just talked about, making an appointment with your doctor helps set aside that time, carves out that time in the doctor’s day to specifically do the updated exam. And we often tell our clients, bring the forms with you so you can go over them while you are there with a doctor and make sure he does it doing that time. So it helps from that aspect. Another thing we’ve advised our clients is, if necessary you can offer to compensate your doctor for their time doing a report filling out forms, if necessary, as well.
Scott: You wouldn’t be in any way suggesting that the client pay the doctor for an opinion. It’s just pay the doctor, compensate the doctor for the time that they’re setting aside, because they may be having to do this after hours or before hours. Correct?
Scott: Okay. Mason, you mentioned something earlier about – and I think you mentioned it in the context of representing a physician who may be – a particular specialist and whether the claim was supported for being disabled as a doctor in general or being disabled from their particular specialty. That applies to other professions as well. Is that right?
Mason: It does.
Scott: And are there actually different definitions of disability that appear in disability insurance policies?
Mason: Yes, some policies have what are called an own occupation definition of disability and the – that protects you from a disability that would prevent you from doing the work that you were doing before you went out. And so the question under those policies is whether or not you’re just prevented from doing that, the prior work you did before. Other policies have what’s called an any occupation definition of disability. And the inquiry often is whether you can do any job reliably or consistently. Most policies, particularly the ones that are provided by employers, they’ll pay or they provide own occupation benefits for a period of time, usually 24 months. And then after that definition changes to any occupation.
Scott: Okay. By way of example, would an own occupation disability be something like a violin player who has a little bit of neuropathy and so they can’t hit those perfect notes and so they can’t make a living playing a violin? But they can do basically anything else so they would be disabled from their own occupation but not disabled under an any occupation definition? Is that what you’re saying?
Mason: That’s right. And if it is a pure own occupation policy and it may allow for them to work in another job so they get the replacement income from not being able to play violin and they could go on to do something differently. Some policies have offsets. So, if you were to do another job, it would reduce the payment you would get. But you’d have to look at the policy for those provisions.
Scott: And one of the things that we sometimes hear is that an insurance carrier will deny a claim under the any occupation definition because they’ve come up with something like parking lot attendant for $8 an hour. You can do that job. Can’t you? Denied. Is there a gainfulness component that applies in many of these any occupation definitions?
Mason: Yeah. Many times there are. You have to look at the policy carefully for that. And when there is, even if – if it’s an any occupation definition of disability with a gainful component, if you could do other work but you can’t earn a certain percentage of your pre-disability earnings, you’re still disabled.
Scott: And so in that context, gainful means you need to be able to make a living similar to what you made before.
Mason: That’s right. And I think most for…
Scott: Pay your bills.
Mason: Yeah, and most frequently you see you have to be able to make 60 or 80% of that- of those pre-disability earnings. But it can vary depending on the policy terms.
Mason: And just going back to the definition of disability piece, it’s important that you let your doctor know what the applicable definition of disability is. And I can think of two reasons offhand, one, it’ll allow them to assess your functionality. So the question, disabled from what? And so, depending on what your job is, the doctor will want to look and assess for different – your ability to do different activities. The other is, if you are disabled only from your own occupation, you want your doctor to know that that’s sufficient to render you disabled under that policy because if your doctor is thinking about the social – for example, if you have an own occupation policy and your doctor’s thinking about the Social Security definition of disability, he may think, well, Mason, you could go be – you can’t be a major league baseball player, living my dream, but you could teach. You could teach. Can’t swing a bat but you could teach. So I’m not going to support a disability claim. But if the doctor is aware that you have an own occupation definition – a definition of disability and he can correlate the two and be supportive.
Scott: Okay. Great. Thank you. And Leah, do you have anything to add to that?
Leah: I think he covered it pretty well. That’s one thing we always tell our clients, and when we’re working with doctors for clients is the one first thing is make sure they understand what the pertinent questions actually are because, like you said, if a doctor is thinking of, you’re completely disabled from any and all occupations, then they might be less likely or less willing to support your claim. So you want to make sure they fully understand that. And that can help when a doctor might be uncooperative too, is making sure that they have that understanding.
Scott: Okay. Let’s talk a little bit about clients who have multiple doctors. They have a primary care physician, and let’s say they have a couple of specialists. Let’s say they have a specialist treating them for a particular illness. It could be MS, it could be anything. But then they also have a related specialist. Maybe they have an orthopedic or rheumatologist or a neurologist who is complementing their treatment. Do you ever find that sometimes it’s a challenge to get all of the doctors to be communicating about the person – they’re obviously communicating as they need to treat the person. Do you find sometimes it’s a challenge to coordinate all of those opinions in support of a client’s disability claim? And if so, what do you do about that?
Mason: Yeah. It’s really the circumstances vary from case to case. Sometimes a person’s primary care doctor serves as the quarterback. And so, they really have their eye on everything happening with respect to the person’s health. They’re referring to various specialists. They’re overseeing management of medications and coordinating the care. Under those circumstances, the primary care physician is often a good place to start. But other times, the primary care physician has more of a backseat role with respect to that claim and they’ll refer the person to a specialist and then that specialist is really in charge. And so, our recommendation is when you approach your doctors, go to the doctor who’s primarily responsible for overseeing your care for your disabling condition. That’s the best place to start. And then you can approach – you can approach them from there. And this is a very, I think, practical reason for that is, if you go to a doctor who is not kind of running the show, they’re going to want to know what the other doctor thinks and they’re going to say, “Well, I’ve sent you to this neurologist for assessment. So I really have to defer to that person for that.” And so start at the top, the person that’s running things for you and then work out from there.
Scott: Okay. Let’s loop back to something that you said with your introductory remarks and that’s talking about not overstating or understating your symptoms and your condition. Unfortunately, we live in a world of ultimate connectivity. We’re all being surveilled in one way or another.
Mason: You mean like Facebook Live?
Scott: Like Facebook Live, exactly. I mean you can’t go to a bank without being videotaped. You can’t buy a gallon of milk without being videotaped and insurance companies, lately, have been much more aggressive in covertly following and videotaping claimants. Talk to us a little bit about how that plays into your earlier comments about not overstating or understating the claim. And if you can give us a couple of specific examples of what people tend to do that is wrong and could damage their claims.
Mason: That’s a good question. When your doctor understands fully your situation what your conditions are and how they impact your daily life and your work, there really shouldn’t be any surprises. And what you don’t want is to say that you wouldn’t want to exaggerate and tell your doctor, I’m in so much pain. I’m in bed all day. I can’t do anything. You probably don’t really mean that. You’re saying that. But that’s not really what you mean. You may mean you’re in a lot of pain. You may need to take a couple of naps or lay down throughout the day. But you are able to do stuff. You’re not bedridden 24 hours a day. So for example, you might go to the grocery store. You might have to change how you grocery shop due to the pain. So maybe you don’t buy gallons of milk. Maybe you buy quarts of milk because gallons are too heavy to carry. So you don’t want to say that you don’t – you can’t do anything and that you’re in bed all day. But if you share with your doctor – I mean if you’re more specific to your doctor and you say, “I have to take naps and lay down. I’m able to take care of myself, go to the store, but I need to – I have to lean on the cart. I don’t buy gallons of milk because they’re too heavy. I have to maybe go shopping twice a week instead of one, so my load is lighter.” That’s important stuff. And if you were caught on surveillance going to the grocery store and the insurance company were to show that to your doctor, you doctor would say, “Yeah, I knew that.” Another example is…
Scott: And so, you’re saying that the surveillance that the insurance company can do if the client is specific and clear with their doctor and in describing their symptoms and in describing their claim to the carrier, the surveillance can actually verify and confirm the claim.
Mason: Correct. Another example is if someone had arthritis or a condition that was aggravated by cold weather. And they went south for the winter every year. And there was surveillance of them going to the airport or being somewhere warm you’d want your doctor to know what you’re doing, why you’re doing it. Maybe you’re flying on an airplane, but you’re saying, “I have to get a first-class seat so I can lie flat. And why am I going down there? And what am I doing down there? Well, I’m resting. I’m in the warmth.” And so if you’re confronted down the road by surveillance or some investigation which reveals you went to Florida for the winter, your doctor would say, “Yeah. I know that. I think it make sense given their medical condition.”
Scott: So Leah, what’s the takeaway from this?
Leah: I mean we always tell our clients, number one, that surveillance is always a possibility. We always tell them you have to do what’s best for your health and you need to live your life. But if you’re going to do things like go to Florida for the winter, make sure your doctor is on board, explain what you’re going to do to make accommodations to get yourself down there and just keep your doctor in the loop every step of the way so they’re not caught off guard down the road.
Scott: And to report accurately.
Scott: The truth will set you free.
Scott: We say that to clients all the time.
Mason: We do.
Mason: One more point, sometimes the insurance company will ask for clarification or information, so you’ll make your initial claim and maybe your doctor fills out an attending physician statement and the insurance is going to ask for that clarification, it’s – to the extent possible, you want to really identify for your doctor what it is the insurance company is looking for. And so, I’m trying to think of an easy example of it. They may want to know specifically about your ability to sit in an eight-hour workday. And occasionally your insurance company will reach out for you- for clarification on that or for some additional medical information. When you go to your doctor, be specific about what you’re – about what you’re looking for and what the insurance company is looking for and don’t just say, “Hey, more generally, I need more information to support my claim.”
Scott: Okay. Thank you. We have a question from Stephen, what should I do if my doctor won’t complete my disability forms?
Mason: Good question, look, it doesn’t happen a lot. I mean our doctors – our clients’ doctors are – they’re usually squarely within their corner. But we do find that occasionally some doctors, they just take the position, “Look, I don’t fill out disability forms.” And whether they’re too busy or they just don’t want to get involved…
Scott: How often does that happen?
Mason: Percentages, right?
Scott: Less than 10%?
Mason: I’d say less than 10% of the time. And it’s really hard – that’s really hard for clients because they say, “Look, I feel like the doctor is not supporting, and they’ve told me I’m disabled. I think I should stop. But their physician is, “I don’t I don’t fill out disability forms,” and they feel kind of abandoned because of it.
Scott: So Leah suggested making an appointment with the doctor before. Is that one of the techniques they can use to help?
Mason: Absolutely. That’ll overcome the “I’m too busy” problem because you’ll have a piece of their day.
Scott: And by the same token offering to compensate the doctor off hours to just sit down and fill out the form. I think we found that that can be very effective and often the doctor won’t take them off up on the offer. But it makes the point to the doctor. This is important and it’s important to the claimant.
Mason: Yeah. Yes.
Scott: Okay. Well, thank you very much.
Mason: Thank you, Scott.
Scott: This has been delightful, our first Facebook Live with the LTD team.
Mason: Thank you all for tuning in.
Scott: Thank you for tuning in.
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