The Interaction between You, Your Doctor, and the Disability Carrier in Your ERISA Claim

Welcome to Season 4, Episode 18 of Winning Isn't Easy.  In this episode, we'll dive into the complicated topic of "The Interaction between You, Your Doctor, and the Disability Carrier in Your ERISA Claim." 

Host Nancy L. Cavey, a seasoned attorney with extensive experience in disability claims, discusses the interaction between you, your doctor, and the disability carrier in your ERISA claim. There are many players present during the course of an ERISA claim, both major and bit; you (the disabled policyholder), attorneys you've hopefully hired to represent you, doctors who are treating you, the disability carrier who proctors your plan, and others, such as administrative law judges and independent medical examination providers. These players will interact during the course of a claim, either with the goal of bolstering your chances, or the goal of finding any reason to deny your benefits. Today, host Nancy L. Cavey will discuss how three of the major players interact, and outline some of the most common questions asked when they do.

In this episode, we'll cover the following topics:

1 - The Secrets You Must Know about How to Talk with Your Doctor about Your Symptoms and Functionality in Your ERISA Disability Insurance Claim

2 - What Are the Six Things That Your Medical Records Should Address That Can Make or Break Your ERISA Disability Claim?

3 - My Doctor Doesn’t Know the Definition of Disability for Erisa Disability Purposes and Won’t Complete an APS Form. What Should I Do?

4 - Why an ERISA Disability Carrier Doctor’s Opinion Can Make or Break Your ERISA Disability Claim

5 - Should You Let the Disability Carrier or Plan Speak to Your Doctor?

6 - Should I or My Lawyer Hire My Own Consultative Doctor or IME in My ERISA Disability Claim?

Whether you're a claimant, or simply seeking valuable insights into the disability claims landscape, this episode provides essential guidance to help you succeed in your journey. Don't miss it.


Resources Mentioned In This Episode:

LINK TO ROBBED OF YOUR PEACE OF MIND: https://caveylaw.com/get-free-reports/get-disability-book/

LINK TO THE DISABILITY INSURANCE CLAIM SURVIVAL GUIDE FOR PROFESSIONALS: https://caveylaw.com/get-free-reports/disability-insurance-claim-survival-guide-professionals/

FREE CONSULT LINK: https://caveylaw.com/contact-us/


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Need help with your Long-Term Disability or ERISA claim? Have questions? Please feel welcome to reach out to use for a FREE consultation. Just mention you listened to our podcast.

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Please remember that the content shared is for informational purposes only, and should not replace personalized legal advice or guidance from qualified professionals.

Transcript

Speaker A [00:00:11]:
 Hey, I'm Nancy Cavey, national ERISA and individual disability attorney. Welcome to winning isn't easy before we get started, I've got to give you a legal disclaimer. This podcast is not legal advice. The Florida Bar association says I have to say this now that I said it. Nothing will prevent me from giving you an easy to understand overview of the disability insurance world, the games that disability carriers play, and what you need to know to get the disability benefits you deserve. So off we go. Now, today I'm going to be talking about the interactions between you, your doctor, and the carrier in your ERISA disability claim. As you may know, disability carriers often require that policyholders receive reasonable and appropriate medical care.
 
 Speaker A [00:00:57]:
 But did you know that your doctor also has an important role to play in your claim? They should be completing forms called attending physician statement forms. I'm going to cover what those forms are and what can happen when your doctors don't or won't cooperate with you to help you get the disability benefits you deserve. I'm going to be speaking specifically about six things. First, I'm going to talk about the secrets that you have to know about how to talk with your doctor about your symptoms and your functionality in your ERISA disability claim. Second, I'm going to talk about the six things that should be in your medical records or should be addressed that can make or break your ERISA disability claim. Thirdly, I'm going to talk about what you should do if the doctor doesn't know what the definition of disability is for ERISA disability purposes and won't complete an attending physician statement form. Fourth, I'm going to talk about why an ERISA disability carrier doctor opinion can make or break your claim. Fifth, I'm going to talk about whether you should let the disability carrier plan speak with your doctor.
 
 Speaker A [00:02:02]:
 And lastly, I'm going to talk about should you or your lawyer hire your own consultative doctor or undergo your own independent medical evaluation in your EriSA disability claim. Let's take a break before we get started. Welcome back to winning isn't easy. Ready to get started? Let's talk about the secrets that you need to know about how you want to talk with your doctor about your symptoms and functionality in your ERISA disability insurance claim. Do you have teenagers? Well, I had teenagers, and when they would come home I would say to them, well, how did your day go? And most teenagers, including mine, would always reply that they were having an okay day or that everything was just fine. Of course, that wasn't always the case, and it's probably not the case when you see your doctor, it's this casual exchange with your doctor that can destroy your EriSa disability claim. Now, unfortunately, when you see the doctor and the doctor ask you, how you doing, you're probably going to answer like your teenager answered, and that is, oh, I'm okay or I'm just fine, when in fact that's really not the case. You think you're making casual conversation when in fact your doctor's recording that you're doing okay or that you're doing fine, that can destroy your claim because the disability carrier is going to seize on those comments.
 
 Speaker A [00:03:39]:
 They're going to interpret those comments to mean that your medical condition isn't severe, that you don't have any medical impairments, that you can work in your own occupation or any occupation. So how should you be talking to your doctor? Well, let's talk about those secrets. First and foremost, let's skip this casual exchange with your doctor. Tell your doctor about your symptoms from head to toe and how your symptoms impact your ability to do simple things at work or at home. Now, I have my clients complete what I call a symptoms and functionality worksheet that we ultimately give to the doctor at each visit that will memorialize symptoms and functionality. Of course, I asked them to keep a copy for their own records. I want you to remember that you are not Superman or superwoman. You're not even John Wayne or other action actors.
 
 Speaker A [00:04:31]:
 You don't need to present yourself as a strong man or a strong woman. You have to be truthful about your problems. I want you also to make sure that your doctor understands your occupational duties because you've insured your occupation and not a job. And I want you to make sure that you are explaining to the doctor, here's my occupational duties. Here are the problems that I'm having. Here are the symptoms that I'm having that impact my ability to do these occupational duties. It's this history that you're giving, not that I'm fine or okay, that is really important to getting your benefits. Now what you also wanna do is make sure that any restrictions and limitations your doctor assigns are noted in your medical records or alternatively that they're completing these forms called attending physician statement forms.
 
 Speaker A [00:05:18]:
 Now, you may have noticed, by the way, that the forms don't ask the right question and I'll talk about that a little later. Additionally, when you're talking about symptoms and functionality, you also want to address any medication problems that you're having. You might be having side effects. So you want to talk to the doctor about those side effects and make sure that those side effects are noted in your medical records. If the doctor is changing your medication, you want to make sure that that medication change is documented. Also, the key here is to have your medical records tell your story of your disability and why you can't perform the material and substantial duties of your own occupation or any occupation. It's the history of your symptoms and functionality that will win the day. Please don't let your medical records destroy your claim because you don't know how to talk to your doctor.
 
 Speaker A [00:06:12]:
 Let's take a break.
 
 Speaker B [00:06:14]:
 Have you been robbed of your peace of mind by your disability insurance carrier? You owe it to yourself to get a copy of robbed of your peace of mind, which provides you with everything you need to know about the long term disability claims process. Request your free copy of the book@kvlaw.com.
 
 Speaker A [00:06:31]:
 Today welcome back to winning isn't easy what are the six things that your medical records should address that can make or break your ERISA disability claim? Now I'm often asked, should I just get a letter from my doctor saying I'm disabled? Well, that's not what the disability carrier plan is looking for. In deciding whether or not you need meet the definition of disability, you, not the carrier of the plan, have the burden to prove that you're unable to do the material and substantial duties of your own occupation, which is known as the own occupation standard of disability. Now, at some point, the definition of disability is going to change from an inability to do your own occupation to an inability to do any occupation. And that's important because you need to understand exactly what that definition is in your particular policy or plan. Now, sometimes it will be a inability to do your own occupation, or in this case, any occupation based on the national economy in view of your education, your transferable skills, and your restrictions limitations. That's generally what we'll see in an any occupation definition. But regardless of what the standard of disability, be it your own occupation or any occupation, you have, have the burden to prove that you meet the definition of disability. So what are the six things that should be in your medical records that will help you win your claim? I will tell you that Aristotle disability carriers or plans regularly get your medical records and they review them cover to cover.
 
 Speaker A [00:08:06]:
 Most medical records don't contain the necessary information that disability carriers or plans are looking for in determining whether or not you meet that applicable definition of disability. In fact, it's not uncommon for ERISA disability carriers or plans to criticize the medical records and use deficiencies in your medical records as a reason to deny or terminate benefits. So what are those six things? Well, one, your doctor should be providing a longitudinal history of your medically determinable impairments that are the basis of your claim. So that's why it's important that you're giving a good interval history at each of your visits about your symptoms and functionality. Next, the doctor should be commenting on how long your medical condition is expected to last and limit your ability to function. Next, they should explain the nature, severity and duration of your impairments and disabilities that can't necessarily be gleaned from your medical records. They should also be commenting on functionality when performing activities of daily living and work activities. By assigning specific restrictions and limitations on your functionality, they should be commenting on how well you might be able to function while doing these particular activities in view of your restrictions and limitations.
 
 Speaker A [00:09:22]:
 In other words, you might be able to do something for a short period of time, but that's going to impact your ability to function and continue to function. And of course, the doctor should be commenting on the effects of treatment, including the effects or side effects of medication. Now I will tell you, having reviewed thousands and thousands medical records, probably more than hundred thousands of medical records, that information is rarely found or developed in medical records. Which is why it's helpful for you to have your doctor complete a residual functional capacity form. Now, I know that the disability carrier wants your doctor to complete an attending physician statement form, but if you've looked at those, as I'm sure you have, you'll see they don't ask the right questions. They don't ask the right questions on purpose because the carrier plan doesn't really want to know the answer about your restrictions limitations. I will supplement the AP's form with the applicable Social Security disability residual function form, an RFC form. They have them from all sorts of medical conditions.
 
 Speaker A [00:10:22]:
 So I want the doctor to answer the right questions and we have them fill out the AP's form and we attach them and send them both in. Of course, I use that RFC form in the Social Security claim, but I think they go hand in hand to develop your restrictions and limitations. This information should help you prove your entitlement to your risk of disability benefits. Got it? Let's take a break. Welcome back. My doctor doesn't know the definition of disability for Erisa disability purposes and they won't complete an AP's form. What should I do? I hear that question I think every day. Let's start out, let's get the policy or plan and read the definition of disability and occupation.
 
 Speaker A [00:11:19]:
 If your doctor says, I don't understand this, then we can actually take this information out of the policy or plan and say, doctor, here's the definition of disability. Here's how my occupation is defined. And that's important because your doctor needs to know what's the standard of disability under the terms of your particular policy or plan. There's no uniform definition of disability occupation. The reason that that's important is that the disability carrier plan doesn't really want your doctor to address the question of disability or your ability to perform your own occupation or any occupation. And what they're trying to do is to have your doctor use some sort of a generic definition that they've created in their own head and then potentially attack the doctor's application of their own personal definition of definition of disability or occupation. It's your job to prove your claim, and what we want to be able to establish is to have your doctor and you understand what is the definition of disability? Is it the inability to perform the material and substantial duties of your occupation? Well, what's the definition of occupation? So that you can say to the doctor, look, in filling out these forms, I want you to understand the definition of disability and occupation, and then let's talk about what it is you need to say to help me get my benefits. Now, even if your doctor would write a letter saying that you are disabled, the disability carrier, or plan with row in the garbage can, so what's the best thing your doctor can do for you to help you get your benefits? Well, again, they want your physician to complete this attending physician statement for.
 
 Speaker A [00:13:05]:
 And if the doctor just says, well, look at my chart notes, that isn't going to cut it. What the carrier wants to know, in essence, is how long you can sit, stand, walk, stoop, bend, how much can you lift? Do you have to alternate sitting and standing? Do you have problems with your upper extremities? Can you do sustained work activity for 8 hours a day, five days a week? Again, I always supplement the AP's form with the applicable Social Security residual functional capacity form because it asks broader questions and questions that are, I think, more relevant to whether or not you can do your own occupation or any occupational duties, including information about the need to take breaks, concentration, pace, absenteeism. Let's switch gears a moment here. Let's say that you are at any occupation stage of a claim. What will happen is that the burden of proof again remains with you. But the game changes. If you can perform any type of sedentary work the disability carrier plan has a fair reason to deny your claim or terminate benefits. So what is sedentary work? Well, sedentary work requires that you sit for 6 hours out of an eight hour day stand or walk intermittently 2 hours per day, and occasionally lift ten pounds and frequently lift lighter objects.
 
 Speaker A [00:14:28]:
 You want to make sure that your medical records and a properly completed AP's form or RFC form address that sedentary type of limitations. Why can't you do sedentary work? Why do you have problems sitting? Do you have to alternate sitting and standing? Why do you have to take frequent breaks or have problems using your hands in a repetitive fashion? Why? So you want your doctor to address your restrictions and limitations? Obviously, we would prefer that they're less than sedentary, but we want your doctor to address what it is specifically about your medical condition that precludes you from doing sedentary work or even less than sedentary work. So what should you do if your doctor refuses to complete an AP's or residual functional capacity form? Now, I think your physician should be talking to you about your ability to do work related activities and then exercise their professional judgment to determine whether your claimed limitations are consistent with the nature of your medical impairment and what they know about you. Doctors do this every day, and if they say that they can't do it or they won't do it, it's time to change. Physicians. In my view, it's as simple as that. You cannot win one of these cases. You can't stay on claim unless your doctor is willing to cooperate and help you by documenting in your chart your symptoms and functionality and completing these forms.
 
 Speaker A [00:15:56]:
 So it's crucial that you find a physician who's a great treating provider but who's willing to support your claim by filling out these forms. Before you stop work and apply for your benefits, you should have an off the record discussion with your physician to learn whether they support your claim and whether they would be willing to fill out residual functional capacity forms. You need to know sooner, not later, and not after the carrier has denied your claim. If you find that your doctor is not supportive, you need to find a new supportive doctor now, create and establish a treating relationship with them, and then in several months, ask them to fill out the forms and then stop work and apply for your benefits. Don't do it the other way around. Got it? All right, let's take a break.
 
 Speaker C [00:16:47]:
 Are you a professional with questions about your individual disability policy? You need the disability insurance claim survival guide for professionals. This book gives you a comprehensive understanding of your disability policy with tips and to dos regarding your disability application that will assist you in submitting a winning disability application. This is one you won't want to miss. For the next 24 hours, we are giving away free copies of the disability insurance claims survival guide for professionals. Order yours today@disabilityclaimsforprofessionals.com.
 
 Speaker A [00:17:19]:
 Dot welcome back to winning isn't easy why an arrested disability carrier doctor's opinion can make or break your ERISA disability claim now when you apply for your arrested disability benefits, your application is reviewed by a claims examiner who's probably going to order all your medical records and request that your physician complete an attending physician statement form that addresses your diagnosis, your treatment, and your restrictions and limitations. Once the records and the AP's forms are obtained, the claims examiners are going to have your medical records reviewed by a nurse, case manager or a physician employed by the disability carrier plan. That's to assist the claims examiner in making the initial determination of whether or not you're disabled under the terms of your policy or plan. Now, if your medical records are unavailable or insufficient for the carrier or plan to decide, the claims examiner is going to consult with their own physicians or consult with a peer review provider that they may hire. Often, the initial review is done by a nurse and then reviewed by a medical director, all of whom are employed by the disability carrier plan and generally they are not specialists in whatever your medical condition might be. These doctors are going to be asked to render an opinion about the medical or psychological issues in your claim. So what are they going to address? The diagnosis the severity of your impairment the nature of your symptoms the severity of your symptoms the nature of the treatment that you were prescribed, your response to that treatment, your functional capacity and capabilities notwithstanding your disability, the potential length of your disability, the consistency of your complaints and the nature of your disability. Whether or not your disability is due to subjective medical conditions and whether your disability is due to mental nervous conditions.
 
 Speaker A [00:19:10]:
 So that's all fine and good, but you need to remember that there is no treating physician rule in ERISA. What that means is that the carrier or plan is not required to give your physician's opinion any deference or any special weight. In fact, as a practical matter, the disability care plan are going to defer to their nurse, their medical director or their peer reviewed doctor's opinions that allow them to deny or terminate benefits. Now, the paper review doctors don't have an opportunity to examine you, so what do they do? They have a lot of tools that they will use or techniques that they will use. They're going to pick apart the diagnostic studies found in your records, such as the MRI or CT scan. They're going to look at your medical records. They're going to say that the exam findings are not consistent. They may say that the MRI or CT scan findings are not consistent with the exam findings, or they're not consistent with the restrictions limitations assigned by your physician.
 
 Speaker A [00:20:08]:
 They'll say that the level of treatment that you have been getting is not consistent with the level of your complaints or the nature of your pain complaints. Now, there are other things that they do wrong. They're supposed to write a provide a written analysis of the medical records and the claims examiner is required to explain ultimately how they arrived at the decision to deny or terminate your benefits. This isn't always the case. There can be this disconnect between the questions that are asked, the questions that aren't asked, and the conclusions that the peer review doctor or nurse reach about your diagnosis, your restrictions, your response to treatment. You'll see gaps as if they've cherry picked your medical records or they purposely aren't asking the right questions. Now, what we always want to do when we get the claims file is to take apart the carrier or the plan's rationale for the claim denial or termination. We want to look at the medical records and see whether or not that claim denial rationale or termination rationale is consistent with what is or is not in the medical records.
 
 Speaker A [00:21:18]:
 We also obviously want to look at the nature of the medical provider's opinions. Are they a specialist? Do they understand the nature of this condition? Did they have all the medical records? Did they jump to conclusions or have leaps of logic in their attempt to create a reason to justify a claim denial or termination? Now these are just some of the reasons that medical opinions can make or break your ERISA disability claim. And I think you can understand why you might need an experienced ERISA disability attorney to help you with a disability appeal of a denied or terminated claim. Got it? Let's take a break. Welcome back to winning isn't easy. Should you let the disability carrier plan speak with your doctor? When you apply for your short and long term disability benefits? You sign many documents and one of the documents you sign is a release that lets the disability carrier plan's representative speak with your doctor. Now you might ask yourself, why does the disability carrier plan want to have their liar for hire nurse or doctor speak with your doctor when your doctor has done exactly what they asked you to do? The doctor's completed an attending physician statement form, and they documented your restrictions limitations in your medical records. Well, the answer is simple.
 
 Speaker A [00:22:46]:
 The disability carrier plan is looking for a way to create a reason to deny or terminate your benefits. And what better way to do that? Then have your doctor change their mind after they've had a conference with a disability carrier's doctor about your restrictions limitations. How does this game unfold? Well, the disability carrier or plan does not want to play high pay, high dollar claims or pay claims for very long. It reduces their profitability, their reason for being in existence. The nurse case manager is going to review your file, determine your restrictions limitations are not supported, or they'll allegedly have questions about the basis of the restrictions limitations. They'll recommend that the disciplined carrier plans hired gun liar for hire peer reviewed doctor consult with your physician to address these bogus issues. Now, these liar for hire doctors make their living doing peer review cases calls. They generally don't have hospital privileges.
 
 Speaker A [00:23:48]:
 They may not even be seeing patients. They use this as an opportunity to make money, like a side hustle to fund their lifestyle. They're not interested in the truth. They're interested in delivering to their employer the disability carrier or plan a reason to deny a claim or terminate benefits. Now, the liar for hire doctor peer reviewed doctor will make an unscheduled call to your doctor's office and try to catch them, saying that the insurance company has questions about your care and treatment and they just need five minutes of your time. That's just a pretext to get your doctor on the phone. And most likely your doctor probably doesn't even have the file in front of you if they choose to take the call. Now, the liar for hire peer review doctor will make unfounded, unsupported representations to your doctor about the nature of your occupational duties, what you report on the activity of daily living forms, and they may even claim they have an award winning, academy level film surveillance of you doing something you said you couldn't do.
 
 Speaker A [00:24:48]:
 Now, the purpose of the call is to ambush your doctor and have your doctor change their opinion about your restrictions limitations. Once the disability carrier plan gets something from your physician, changing the restrictions limitations, they've got enough to deny or terminate your benefits, and you're left with the prospect of appealing a wrongful denial and taking on the disability carrier because your doctor was ambushed. How do you protect yourself and your doctor from calls from disability carriers or plans? And they're a liar for hire peer review doctors indicate on that medical release that you do not allow any direct contact by and between the disability carrier and their representatives and your physician let your doctor know most likely they're going to get a call from the disability carrier or the peer reviewer and that they are not required to speak with them. Tell your doctor do not take any unscheduled calls from the disability carrier or peer reviewed doctor. Ask your doctor to insist that any questions for the disability carrier plan are put in writing with a copy to you and preferably your lawyer. Advise the doctor that they are not to reply to any written request unless and until I, your lawyer, or any other lawyer you might have have an opportunity to review their response and discuss the response with them. Put those requests to your doctor in writing and ask that they be made part of your chart. Remember, these are reasonable requests.
 
 Speaker A [00:26:09]:
 They're designed to help you, protect you from the games that disability carriers or plans will play in an effort to deny or terminate your benefits. Got it? Let's take a break. Hey, welcome back to winning isn't easy. Should I or my lawyer hire my own consultative doctor or IME doctor in my ERISA disability claim? Maybe. Before any decision is made, it's crucial that you and your attorney get a copy of the claims file, including all of the medical records of the carrier, of the plan and the peer review report that is the basis of the denial or termination of your benefits. It's crucial that you and your attorney understand what's the basis of the denial and what are the terms of the policy that are involved. The answers to that will help make a decision about whether a consultative doctor or an IME is needed. What type of consultative doctor or IME is appropriate? What a consultative doctor or IME is supposed to address in the examination and in a report? What type of physical examination is the consultative doctor or IME supposed to perform, including testing of you? Do we need to cooperate and supplement that treating physicians conclusions as a result of the denial? Do we need to clarify or address issues in difficult or complex medical conditions like pots, chronic fatigue, Covid complications, or rare disease? All those are relevant to determining whether or not a consultative exam should be held or an IME should be held and by whom.
 
 Speaker A [00:27:55]:
 You can see that the consultative doctor or IME can take apart and rebut the carrier's liar for hire doctors peer review opinion. So either the IME that the disability carrier might have had or their peer review doctors. We want to take that those reports apart as appropriate. So I don't generally have a problem fighting fire with fire. I just want to be very strategic and in part that reason is getting a consultative IME or a consultative examination or testing can be expensive. You got to sort of weigh what's the issue? How much is it going to cost? And at the end of the day, do we think that it would be successful in overturning a wrongful denial or termination of a denied ERISA disability claim? So you can see some thinking, some strategy needs to go into this decision. There's just no uniform answer. Got it? Well, I hope you've enjoyed this week's episode of Winning isn't easy.
 
 Speaker A [00:28:53]:
 Please if you've enjoyed this episode, like our page, leave a review, share it with your family and friends. Subscribe to this podcast. You'll get notified every time a new episode comes out. Please tune in next week to another insightful episode of Winning isn't easy. Thanks.