Published Articles on Disability Insurance Law

Published Articles on Disability Insurance Law

PROFESSIONAL ADVOCACY BY OBJECTIVE DOCUMENTATION AND ACTIVE INTERVENTION ON BEHALF OF THE CFS PATIENTS IN LONG TERM DISABILITY INSURANCE DISPUTES

Author: Jason A. Newfield, Esq.,

Frankel & Newfield, PC

Note: The following was originally presented before the New Jersey Chronic Fatigue Association’s October 2009 conference. For more information, contact Jason Newfield, Esq., at jan@frankelnewfield.com or call 877-LTD-CLAIM (877-583-2524). ©Frankel & Newfield, P.C. 2009. All Rights Reserved

Abstract: These materials will provide an overview of the process of Physician Advocacy for patients with disability insurance claims, how to properly support the claim to satisfy the requests of the disability insurance companies and an analysis of recent case law addressing CFS cases.

PREPARING INITIAL CLAIM SUPPORT

First, while each claim for disability benefits is unique, a number of general principles apply concerning the process. Every claim is guided by the actual terms of the disability insurance policy.

While many claimants have private disability insurance (a contract with an insurance company), the vast majority of claimants are beneficiaries of group insurance held through their employment. These claims are governed under different laws (ERISA), and the insurers view these claims quite differently. A brief discussion of the important differences follows

A private policy of insurance is a contract held by a claimant with an insurance company. The claimant purchased this coverage on an individual basis, and has a greater array of rights than the group insurance products.

Where a claimant has a claim denied or terminated under a private policy, an immediate right to sue exists, and the potential for success is much greater. Typically, a jury will decide upon the merits of such a claim, and testimony can be provided by experts and witnesses.

In contrast, where a claimant is a beneficiary of a group insurance contract, the claim will be (almost always) governed under ERISA, a federal law that provides limited remedies to a claimant, and where the insurers have developed a strong ability to insulate themselves from wrongful claim decision. There are no jury trials, often no discovery and a judge decides the case on the paper record.

In these group insurance claims, where a claim is denied or terminated, a claimant MUST pursue an administrative remedy first, prior to being permitted to seek judicial relief. This means that a claimant will be forced to submit an appeal to the same entity that has already determined his/her claim.

Moreover, once the administrative process is complete, there will be NO ability to buttress support for the claim while in litigation. Thus, a claimant with an ERISA claim must take all steps to strongly support the claim through the administrative process, or essentially be forever foreclosed from advocating the claim.

A CLAIMANT’S DOCTOR IS VITAL TO THE CLAIM

The treating physician is probably the most important participant in the claim process, because the insurer will undoubtedly seek access to the doctor, whether through records or otherwise (telephone peer to peer call), and an unsupportive doctor can severely damage a claim.

Thus, both prior to the claim initiation, and throughout the claim process, it is important for claimants to relate to their treating physicians not only symptoms they are feeling, but restrictions and limitations that one faces due to the symptoms or conditions. Simply carrying a diagnosis of CFS is NOT enough. The insurer does not necessarily care about the condition; what it addresses (or should address) in reviewing the claim are the limitations in functional ability.

Thus, the treating physician must understand the definition of disability in the claimants’ policy. Some policies require a claimant to be disabled from their “own occupation”, while other policies have an “any occupation” definition of disability.

While having the doctor provide objective support for the claim is helpful, but, since many CFS patients do not have such evidence, it should not be mandatory. Clinical findings are sometimes the only support one has (coupled with subjective complaints).

However, where it is a CFS case, the doctor has to offer strong evidence to support the diagnosis, and must work with the claimant to develop the necessary corroboration for the clinical findings. A diary or log identifying the frequency and/or duration of symptoms is one way for a claimant to support the subjective complaints.

Some courts have now determined that it is appropriate for insurers to mandate objective evidence, even in CFS cases.

THE TREATING DOCTOR’S RESPONSES TO THE INSURER

The insurance company will usually seek various materials from the claimant’s treating doctor(s). These include office records, test results, as well as completion of Attending Physician statements and/or Physical Ability Assessment forms.

As a general rule, the insurer is entitled to require all of this material. Sometimes, however, the insurers will attempt to burden the doctors with multiple requests, a technique that often results in the doctor becoming unwilling to further assist the claimant – their patient.

ATTENDING PHYSICIAN STATEMENT

The Attending Physician statement seeks medical information from the treating physician. Unless the physician is effectively supportive and a strong advocate, many times the Attending Physician statement fails to properly document the disability sufficiently to qualify for benefits. Thus, it is often advisable to secure a physician narrative to address areas that the physician statement may not cover. This narrative will cover the areas that the CLAIMANT wants addressed, rather than what the insurer might seek in order to avoid paying the claim.

For example, many of the insurer’s create forms that specifically call for the Attending Physician to identify how often a claimant can perform certain tasks or functions. This can take the form of a list of tasks, such as sitting, standing, walking, bending, lifting, carrying, stooping, etc. The forms often categorize functionality on the basis of occasionally, frequently, and continuously. However, many insurers define occasionally as between 1% and 33%, which is a tremendous variable in functional ability.

While almost everyone can do many things at least 1% of the time, it is not accurate to state “occasionally” in response, where the claimant has such a low level of functionality. That information (a claimant’s occasional ability to perform a task, despite it being de minimis) is then extrapolated by the insurer into work functionality on a sustained basis.

Do NOT permit the treating doctor to fall into that trap, by staying with the insurer’s agenda. Where a claimant has greatly limited functionality, it is best to identify the % of functionality, or to straddle a response by placing between the “NONE” category and the occasional. This way, the insurer cannot misuse the information, in a way to interpret your limited findings and opinions as supporting work functionality, where none exists.

Where possible, it is also important to support a claim by addressing the cognitive impacts upon a claimant, as well as the effects of fatigue, even if not possible to objectively assess. Opining that fatigue or cognitive deficits limit a claimant’s functionality is an important part of the claim support. If testing for cognitive functioning is available, it should be strongly considered, as this can be a valuable piece of “objective” evidence.

THE CLAIM INVESTIGATION

Once is claim is under review, an insurer has a number of tools that it can utilize to consider the claim and investigate whether liability should be accepted or continued. These include the Independent Medical Examination (IME), the Functional Capacity Evaluation (FCE), Peer to Peer and Surveillance.

INDEPENDENT MEDICAL EXAMINATION (IME)

An insurer always has a contractual right to an examination of a claimant. However, in every policy, there are implied terms of good faith and fair dealing which guide the process. Thus, it may be unreasonable for an insurer to require a claimant to undergo invasive testing by the insurer’s paid doctor, or it may be improper to require a claimant to travel significant distance to have an examination performed. In any event, the IME is actually a PME (Paid Medical Examination), and the results are often skewed as such. If the PME physician is being paid by the insurer, it is safe to assume that their objectivity can be questioned. In working with a claimant to prepare for an IME, it is important that the doctor appreciate how to combat the bias the claimant is likely to face.

FUNCTIONAL CAPACITY EVALUATION (FCE)

A Functional Capacity Evaluation (FCE) is an entirely different scenario. An FCE is not generally contractually required under most policies, and is particularly unfair to the CFS and FMS universe of claimants. This test is utilized by insurers to test one’s maximal effort, which is then used to extrapolate that one can work full time on a sustained basis due to the ability to do a myriad of tests one time. We argue that the results are inherently unreliable and the tests lack validity. Insurers utilize these tests in one of two ways.

Either the claimant overexerts themselves, at the demand of the tester (and fall into largely undocumented and completely unconsidered relapse for days/weeks thereafter), or the claimant limits themselves – feeling poorly from the testing – and is accused of “malingering” or “self limiting” behavior. Regardless of which way it turns, the insurer extrapolates the results into a claimant’s functional ability to work a full time, sustained schedule.

PEER TO PEER

When an insurer conducts a peer review of the claim, it relies upon a non-examining, paper reviewing physician to address a claimant’s functional abilities. This has inherent problems, because it precludes the claimant from receiving an appropriate evaluation of the claim. The reviewer has never met the patient, has no history of the patient, and lacks a true “feel” for the patient. Even where an outside physician is used, it is difficult for the non-examining physician to opine properly on the restrictions and limitations other than from a paper review of the records. These paper reviewing doctors often try to reach the busy CFS treating doctor by phone for a brief discussion about the reviewers “findings”.

Surveillance is a common technique used by insurers in cases where claimants allege disability based upon subjective type conditions, such as CFS. Claimants must be wary not only of their activity levels while on claim (including going to the gym - even if physician prescribed), but of the 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.

With the CFS community, it is known that activity, as tolerated, is indicated. However, the insurers take this activity and utilize it against the claimant. Thus, once again, the physician must step in as the advocate for any activity levels and articulate that such activities are recommended for the claimant, but NOT supportive of sustained work activity.

RECENT DECISIONS OF INTEREST

There are a myriad of decisions concerning CFS claimants. Claimants have won and lost on the basis of the support of their treating doctors, on the basis of what surveillance findings have indicated, on the basis of FCE and IME results, and on the basis of whether a claimant has “objective” support.

A brief discussion of some of recent decisions follows. A strong mantra utilized by claimants’ counsel is “It would defeat the legitimate expectations of participants in LTD plans to require those with CFS to make a showing of clinical evidence of such etiology as a condition of eligibility.” citing Mitchell v. Eastman Kodak, 113 F.3d 433, 443 (3d Cir. 1997).

Another recent case where a claimant was successful was Magee v. Met Life, 2009 U.S. Dist. LEXIS 59205 (S.D.N.Y. 2009), where the Court chastised the insurer considering a CFS case for failing to consider the findings of Social Security, rejecting the well supported opinions of the treating physician, and ignored powerful evidence of impairment.

One significant factor that helped Magee was the array of supportive testing that was presented. This included the Krupp Fatigue Severity Scale, the SF-36, blood volume testing and additional materials, which were documented by Dr. David Bell, a leading clinician on CFS issues. The Court was clearly impressed by Dr. Bell’s credentials, and found the reviews performed on behalf of Met Life to be “shoddy”.

Several courts have held, however, that insurers can appropriately require objective proof even where the claim is only subjectively supported. Hunt v. Metropolitan Life Ins. Co., 425 F.3d 489 (8th Cir. 2005); Voight v. Met Life, 28 F.Supp.2d 569 (C.D. Cal. 1998). In these cases, the courts essentially held that it was not compelling that the treating doctors opined disability, since it was not unreasonable for the insurer to conclude that the sole basis of the diagnosis was self report from the claimant.

Courts have also indicated that it is reasonable to insist on some objective evidence of a claimant’s capacity to work, so long as the measure is appropriate. Cook v. N.Y. Times Co. LTD Plan, 2004 U.S. Dist. LEXIS 1259 (S.D.N.Y. 2004); Williams v. Aetna, 509 F.3d 317 (7th Cir. 2007)(holding it was OK to require objective evidence of pain or fatigue’s limitations on functionality).

EXAMPLES OF PAPER REVIEW FINDINGS

It seems as if there is a textbook utilized by paper reviewing doctors that work for insurance companies. All too often, these doctors opine that “a majority of individuals with CFS can work” or “File lacks sufficient medical to support objective evidence of a physical functional capacity impairment“, or "A high percentage of CFS patients have an underlying psychiatric disorder such as depression, anxiety, somatization and malingering as the underlying etiology of their somatic complaints.”

Collectively, these “opinions” have really offered nothing about the claimant at issue, but have provided naked, conclusory assertions. Nonetheless, the insurers bootstrap the claim denial upon such statements.

NO OBJECTIVE EVIDENCE

In many claims, the paper reviewing physician lacks the appropriate qualifications to render an opinion. While rheumatologists, infectious disease doctors and often primary care physicians have the most exposure and insight into a claimant’s condition, insurers often utilize physicians with little or no clinical experience in treating patients with CFS in rendering opinions. Courts have chastised insurers for such conduct, but such conduct still pervades the disability claim arena. See Woo v. Deluxe Corp., 144 F.3d 1157 (8th Cir. 1998); Robinson v. Met Life Ins. Co., 2006 U.S. Dist. LEXIS 29648 (S.D.N.Y. 2006).

It is also significant to appreciate that there is NO obligation upon an insurer to merely accept the opinion of the treating doctor. Black and Decker Disability Plan v. Nord, 538 U.S. 822 (2003).

INSURERS’ COLLATERAL ARGUMENTS

Insurers facing CFS claims often make a number of spurious arguments against a claimant, in an effort to defeat a claim that is well supported. Insurers often argue that the claim is for “secondary gain”. In essence, they contend that the claimant has a financial incentive to become or remain disabled, particularly where the policy is an “own occupation” policy, where the claimant could change careers and potentially collect substantial benefits.

THE “WHAT CHANGED” ARGUMENT.

Insurers are eager to doubt the validity of a disability claim where a claimant was diagnosed with CFS several years earlier but only later alleged disability. The argument asked by insurers is “What changed between having the diagnosis and working and now being disabled?”

The answer will often lie with the treating doctor, who will document the increased severity and frequency of symptoms and the impact upon the claimant’s functionality. Courts have largely embraced the claimant position, finding that we should not fault a claimant for making heroic efforts to continue working. Crespo v. UNUM, 294 F.Supp.2d 980 (N.D. Ill. 2003).

However, insurers readily argue this point (and many others).

MALINGERING

Insurers love to argue claimant malingering. I recently attended a conference where the presenting physician concluded that there is little credible scientific evidence that CFS is due to anything other than psychiatric conditions, socioeconomic circumstances or some combination of the two. This pro-insurer physician criticized all of the medical literature and determined that claimants suffering from these conditions are seeking validation for their self-reported illness that have psychogenic components.

His opinions are largely based upon the fact that research into this condition is still evolving and that the community, research and clinical cannot always agree on the medicine. Thus, according to this physician, it must be made up!

How To Solve This Problem?

Given the difficulties faced by claimants (lack of objective proof, subject to FCE or biased IME’s), what can the physician community do to assist claimants in succeeding through the landmines of the disability process?

First, it is imperative that the doctor be vigilant to the process, and not permit the insurer to sneak information through that could negatively impact the claim. Next, it is important for the doctor to articulate functional limitations, and cite examples of real life daily activities that are impacted. Opining that a claimant is disabled is not enough – we need articulations of functional impairment!

Next, it is crucial for the doctor to provide evidence, objective, clinical or other, to help validate the claimant’s subjective complaints. Delineating the claimant’s history of the illness, addressing the efforts to rule out other diagnoses, and opining that the claimant is not malingering can all further support the claim.

Lastly, it is critical to not lose patience for the patient. They are suffering, they are hurting, and they need and rely upon their doctors. While many patients will not recover, some can regain a modicum or more of meaningful functionality, and should be encouraged.

I tell all of my clients to live their lives, not live for their claims. I trust that most, if not all, would trade to have their lives back to “normal.”

©Frankel & Newfield, P.C. 2009 All Rights Reserved