There are several investigative tools used by insurers on disability claims, including IME’s (Independent Medical Examinations), FCE’s (Functional Capacity Evaluations), Peer Reviews, Field Investigations, and Surveillance. The insurer has a contractual right to compel a claimant to undergo an IME, and in most circumstances, a claimant has the obligation to attend an examination. However, certain testing may not be reasonable, and certain evaluators may not be independent.
An FCE is an entirely different scenario. In contrast to an IME, an FCE is not generally contractually required. This test is utilized by insurers to test one’s maximal effort, which is then used to extrapolate whether one can work full time on a sustained basis due to the ability to perform a myriad of tests. Thus, there are numerous grounds upon which to refuse to attend an FCE, and both attorneys and claimants should be vigilant about asserting rights to refuse this test. For additional information about FCE’s please see our August 28, 2008 post or click here.
Insurers often use in house medical staff to contact a claimant’s treating physician to discuss the claimant’s condition, restrictions and limitations. In essence, the insurer’s medical staff seeks to develop evidence from the physician to demonstrate the claimant is not disabled. Often, the insurer sends a letter to the physician “confirming” the conversation and stating that absent a quick reply, they accept the statements in the letter. The letter, however, may either distort the facts, or cast them unfavorably to the claimant. This can doom a claim.
Insurers also conduct peer reviews of claims, relying upon a non-examining physician to address functional abilities. This has inherent problems, because it precludes the claimant from receiving an appropriate evaluation of the claim. Thus, claimants must ensure that their treating physicians provide well developed, organized office notes and/or narrative reports to support the claim.
Field investigations are common techniques employed on claims by medical professionals. An investigator will stop by unannounced to speak to the claimant. Often, the investigator seeks to ascertain the claimant’s activity level, determine whether the claimant is working in another interest, or to develop other information to be used by the insurer. Caution should always be used when speaking to the insurer or its investigator. Providing interviews should be done on the claimant’s terms, whether recorded with witnesses, or by having a confirmation of interview prepared – all to avoid anyone distorting the information provided.
Surveillance is another technique frequently employed in high benefit cases, or where claimants allege disability based upon either subjective type conditions or where the objective support is not indicative of the restrictions or limitations. In high benefit claims, the insurer is willing to invest significant money to terminate or deny a potentially expensive claim. Claimants must be wary not only of their activity levels while on claim, but of any statements made to the insurer about their daily activities. Inconsistencies can be fatal to a claim, as the expression a picture is worth a thousand words holds true with regard to surveillance.
Careful consideration must be given to each aspect of the claim, to ensure that the claim gets approved and remains accepted by the insurer.