Royal Claims Advocates Your Disability Claim Experts Thu, 20 Sep 2018 19:58:33 +0000 en-US hourly 1 Royal Claims Advocates 32 32 148157407 Fatigue: When Your Options are Exhausted Thu, 20 Sep 2018 04:00:41 +0000

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If you struggle and can’t function normally due to fatigue, you may wonder if this feeling of exhaustion is just something you have to deal with as a part of your medical condition or if there is something that can and should be documented as part of a disability claim. Fatigue, as defined in most medical circles, is a combination of physical as well as cognitive or emotional tiredness that is not a result of expended effort and is not relieved by rest. This tiredness is overwhelming enough to reduce a person’s typical functional capacity.

Doctors and insurance companies often refer to this as central fatigue, which can be defined as the inability to initiate and/or sustain attentional tasks and physical activities. Fatigue can be difficult to assess by doctors and extremely challenging to prove in a disability claim.

Fatigue generally occurs as a part of other medical conditions, including:

People with anxiety and/or depression disorders also often suffer from fatigue and related symptoms.

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If you are so exhausted physically or mentally that your ability to function is impaired and the exhaustion cannot be relieved by rest or sleep, this is a sign of debilitating fatigue. Other related symptoms include joint pain, aching or sore muscles, apathy/lack of motivation, daytime drowsiness, headaches, irritability and mood swings, difficulty concentrating, impaired mental processing/cognitive dysfunction, vision problems, and nausea or dizziness.

Fatigue can cause you to be less productive while working, or unable to work at all. Disability claim examiners will demand evidence of the extent that fatigue restricts your work abilities. To be able to provide the required evidence, your doctor must document the nature and extent that your fatigue symptoms specifically cause you to be unable to perform your work duties.

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This is an instance when specifics really matter. During your doctor visits, make sure that you are upfront and honest about issues that fatigue causes. Explain in detail to your doctor all of your fatigue-related symptoms – it may be helpful to bring notes.  Those suffering from fatigue often assume their feelings are just to be expected and do not fully describe the difficulties presented by their symptoms to their doctors. Fatigue that causes you to feel weak, listless, unable to function in the capacity as before your illness, should always be shared with your doctor so there are specific and clear notes about your medical condition.

There are no generally-accepted medical tests that measure the subjective experiences of fatigue, so proving the extent that fatigue contributes to your inability to work is difficult. Insurance companies well know this. Fatigue can be considered an invisible disability, a condition that is unable to be diagnosed with a specific test, and requires careful consideration by both the patient and doctor when determining what information is included in medical records and what tests to perform. Doctors are highly skilled in diagnosing and treating medical conditions but can be too hurried to record your fatigue-related symptoms. Doctors are also trained to treat pain associated with medical conditions, but fatigue is often just attributed to an underlying medical condition and left undocumented and untreated. Documentation of your fatigue and the correlation to your inability to work is invaluable as your claim is reviewed and considered by an insurance company.

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As discussed in our earlier blog post Diagnosis vs. Disability,  you can help your doctor by preparing a detailed and thorough list of your specific limitations. Precisely describe your symptoms – and do NOT exaggerate. Most doctors are on your side, so there’s no reason to exaggerate. Once you’ve chosen your medical professionals, allow them to appropriately diagnose and treat you, evidenced by records that are supportive, complete, and accurate. Even if the insurance company pushes back against them, preparation can allow your disability claim to proceed more efficiently and successfully.

  • Because of the lack of objective medical tests to measure fatigue, claims examiners will likely want to interview you extensively and repeatedly and to have your medical records closely examined. Whether your fatigue is caused by a medical condition, a medical treatment, or a psychological or behavioral cause, claims examiners are trained to be professionally skeptical of causes of fatigue AND of fatigue of such severity that you are limited or prevented from working.
  • As you attend doctor appointments and complete records, keep in mind that you are trying to provide evidence that proves your medical condition, specifically including your fatigue, prevents you from performing the duties required of your job or of any comparable job, depending on the terms of your disability insurance policy.
  • As you complete claims forms, descriptions of the treatment of your conditions are less important than the documentation of the limitations and restrictions caused by your medical conditions, specifically fatigue.
  • Work with your doctor to document any and all limitations that are related to your medical condition, such as fatigue so severe that you are unable to work.

These tips scratch the surface of the mistakes that insurance companies will try to capitalize on in order to delay or deny your disability claim. It’s always important to get expert help when filing a disability claim, especially when you consider how much money is at stake over the lifetime of a policy.

If you have seen any of these scenarios happen to a friend or loved one or have had the unfortunate experience of falling into one of these traps, we are here to help! Call us at 855.828.4100 or visit our website for more disability claim help. If you have any more suggestions for this list or would like to tell your story, please comment below!

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Neuropsychological evaluation: Do I need one for my disability claim? Wed, 15 Aug 2018 11:06:03 +0000

Continue reading]]> Who should consider a neuropsychological evaluation?

If you suffer from any of a long list of medical conditions, cognitive functions may be impacted. While many conditions such as traumatic brain injuries, brain tumors or Alzheimer’s have expected symptoms of cognitive dysfunction, there are other medical conditions that also result in cognitive impairments.  Conditions such as long-term stroke, seizure disorders, sleep apnea, chronic pain, multiple sclerosis, Parkinson’s disease, Lyme disease, or cardiac conditions can all impair cognitive function. In many cases, a neuropsychological evaluation can help patients who seek answers to help improve their quality of life, in addition to providing important information about their true medical status disability claim examiners. The information gained through a neuropsychological evaluation can be critical to identify and quantify the restrictions and limitations on your ability to work.


How long and where?

Neuropsychology evaluations are performed in the neuropsychologist’s office. Depending on the case, the evaluation should take approximately 3 hours but can be performed as quickly as 1 hour and as long as 2 days.


What does a neuropsychology evaluation measure?

A neuropsychologist uses various testing measures to determine how your medical condition affects several areas of your brain functions, including verbal functioning, executive functioning, memory, processing speed and problem-solving capabilities.  Additionally, screening can be performed during the testing to determine any underlying psychological disorders that may be amplifying any cognitive dysfunctions.


What is the evaluation like?

  • A neuropsychological evaluation has three main parts, after which the neuropsychologist will summarize the information and data collected to prepare a rather lengthy report detailing the findings. First, the neuropsychologist will review your medical records. Secondly, the doctor will interview you (and/or caregiver if necessary). Finally, an array of tests are given to provide the examiner with data that will determine the extent of impairments of your mental capabilities in several areas.


  • When you arrive at the office for the evaluation, have all of your previous medical records or make sure they had been already provided to the neuropsychologist’s office for their review. If you have prepared your own Medical history document, make sure to bring a current version. Bring an updated list of any medications you are currently taking. The interview portion of the evaluation will include conversations with the neuropsychologist (or testing assistant) in which they will ask a variety of questions about your favorite TV show or movie, your recent activities,  or your favorite sports teams. These questions allow them to collect preliminary data as to your verbal fluency and memory.


  • Most of the time is then spent on completing tests that measure your cognitive function in several areas:  psychomotor speed, attention, visuospatial functioning, executive functioning, language, and memory.  There are various tests to use to evaluate your cognitive brain functions. Attention and processing speed are usually tested with tests in which you connect numerical or alphabetical dots in an allotted amount of time.  Executive functioning may be assessed with pen and paper tasks, such as drawing a clock face, putting in all the numbers, and showing a specific clock time for example. Problem-solving functioning can be checked using a variety of tests that require you to sort pictures into groups. Verbal fluency can be tested through letter and category naming activities where you name items beginning with certain letters or belonging to certain categories. Tests of visuospatial abilities may require you to copy simple drawings or to find shapes or items within given drawings. Examiners may also give test takers questionnaires to determine any mood issues that compromise cognitive functioning as well.


What do I do with the results?

Once the neuropsychological evaluation is complete and the doctor finalizes the report, the information and findings in the report can be used to provide a clearer understanding of your cognitive weaknesses, which can help explain the symptoms of your condition, as well as provide recommendations to help prove your disability, and substantiate the restrictions and limitations of your abilities to work.

Insurance claim examiners and their doctors consider these test results as an objective source of evidence in considering cognitive impairments. Neuropsychologists interpret the raw data from the tests and prepare a report that identifies any cognitive deficits that restrict and limit your ability to work. The results of the evaluation can help provide proof for “subjective” difficulties with issues such as maintaining focus, staying on task, expressing your thoughts verbally or in writing, processing or comprehending written or verbal communication, adhering to a schedule, or remembering details.


Further questions?

If you have any other questions about how a neuropsychological evaluation can help or affect your disability claim, or if you have any other questions about your disability claim, please contact our offices for a free consultation by calling toll-free at (855) 828-4100 or by filling out the contact form on the right-hand side of this page.

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Cardiomyopathy, CAD and Your Disability Claim Fri, 15 Jun 2018 08:38:26 +0000

Continue reading]]> Many people diagnosed with chronic heart disease are fortunate enough to be able to return to work and to function in a manner that is similar to their work life prior to their diagnosis. Conversely, there are those who suffer such severe symptoms of the disease that they will never be able to return to the work life they were able to participate in previously. When navigating the insurance claim process for those who are unable to return to work because of these symptoms, there are several issues of to be aware. Claimants with severe conditions will find a fairly simple process exists to be approved for immediate disability benefits. For those who find they are unable to return to work anytime soon, this seemingly simple process is just the beginning of what could become a much more difficult journey in the future, where claim investigations can be revisited many times, requiring claimant’s to provide additional documents including tax returns or activity logs. Insurance companies regularly review claims and restart the process. If you have been initially approved for benefits and are unable to return to work in the immediate future, there are many considerations that will help reduce the stress of continuing the claims process.

When navigating through the claims process, there are some key issues claimants commonly encounter.   Surveillance, appropriate care for the condition, and settlements are the most common topics.

The use of surveillance by the insurance company is an issue that many of our clients are concerned about. Being watched and recorded during your daily living is a concerning situation for anyone, and a very legitimate concern for many who are facing a disability claim situation. A person who is suffering from chronic heart disease may find themselves the subject of surveillance by the insurance company for a couple of different reasons. First, if your claims file is transferred to a new claims examiner it is likely your file will be reinvestigated and surveillance and internet searches will be a part of this review. This is a process the insurance company routinely participates in to review claims to see if there have been changes. Secondly, insurance companies often insure their own interests, this being called reinsurance. If your claim falls under one of these reinsurance treaties, the claim department may be required to complete ongoing reviews of existing claims to determine if the claim may be terminated.

If your claim has been selected for surveillance, you may be asked to complete a form that asks you to log your daily routine/activities beginning with waking and continuing until you go to bed at night. It is important that you fill this form out completely, consistently and accurately. It should be consistent with the statements you’ve made to your doctors and with what you’ve previously reported on claim forms. Any discrepancies that show you’ve overstated your limitations or understated your activities can be used against you if the surveillance shows that previous statements are misleading.

If your physician has declared that you are permanently and totally disabled and the insurance company is paying your claim, the insurance company may offer you a settlement. While this sounds promising in theory, settlements are usually more beneficial to the insurance company than to the claimant. The value of the settlement offer will be far less than the present value of the lump sum of all the disability benefit payments expected during the benefit period. The insurance company is searching for ways to minimize their liabilities for claims by offering settlements. Unless you are in a situation where you are in dire financial need of a lump sum payment, it is far more financially responsible to continue to receive monthly payments.

An issue our clients typically encounter during extended disability claims is the insurance company’s requirement to receive appropriate care, as defined by the insurance company’s policy. During the entire course of the benefit period, although traditional therapies and doctor visits may prove not to be beneficial for your specific condition, the insurance company policies require that claimants continue to obtain those services. If a claimant declines to receive what the insurance company considers to be appropriate care as defined by their policy, claims examiners can, and often do stop benefit payments. (A full explanation of this issue can be found in this article.)

In order to comply with your insurance policy requirements, you must fully discuss all the requirements of your disability benefits with your doctors. You may be required to continue to schedule appointments and receive treatments that have not proven to be helpful, as long as they do not cause additional harm or discomfort. Any alternative treatments you receive cannot replace generally accepted, standard protocol treatments. With chronic heart disease, there may be a time when doctors are not able to provide more beneficial treatment, making it medically unnecessary to have continued visits. Although medically true, the insurance company may still require these appointments continue throughout the entire benefit period. Monthly claim forms are often required to be completed by your physician to confirm your condition and disability.

Finding oneself suddenly permanently disabled from chronic heart disease is a difficult situation for anyone to be faced with. It is often made more difficult when trying to navigate through the sea of constant questions and demands involving your disability insurance claim. In order to reduce the inevitable stress this causes, claimants should prepare for the questions and investigations in advance. Having an understanding of why the insurance company is doing what it is doing will also make the process less daunting. With this understanding and preparation, you are more likely to receive all the disability benefits you deserve.

If you have any more questions about your chronic heart disease claim, or any other type of long-term disability claim, please don’t hesitate to call our offices toll-free at (855) 828-4100 or visit our website to fill out a free consultation.



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How A Recent Court Decision May Affect Your Disability Claim Tue, 27 Mar 2018 10:07:14 +0000

Continue reading]]> There is a new decision that affects what happens when claimants are disabled by a combination of physical conditions and a mental illness resulting from the initial physical problems.  An example of this is a claimant who is experiencing a total disability resulting from degenerative back pain that leads to depression caused by the pain and inability to work.  Insurance companies and their legal departments have begun to take a different approach to 24 month Mental/Nervous limitations in  policies.

This new method revolves around the decision in the case of Krash v. Reliance Standard Life Insurance Group, (3rd Cir. February 12, 2018)  The court decided that in order “to remain eligible for benefits past the 24 month mark, “it was [Ms. Krash’s] burden to prove she was totally disabled from any occupation solely due to a physical condition.”  This decision affects many individuals who are currently receiving benefits or are in the process of filing a disability claim, so it is important to fully understand this new decision.

Prior to the court case, the disability claim was initially filed because Ms. Krash was trying to obtain her ERISA disability benefits due to her back pain and a primary complaint of tremors.  Like most new disability insurance policies, her policy limited disability benefits to 24 months for disabilities “caused or contributed to by mental or nervous disorders.”

After receiving her claim and paying the claimant the benefits she deserved for almost 2 years, Reliance Standard had Ms. Krash undergo an Independent Medical Exam (IME).  As we have written on many occasions, these exams  can often be dangerous for a claimant and their claim.   The physician in charge of the examination stated Ms. Krash had:

  1. Degenerative disc disease
  2. Only subjective pain complaints
  3. Body tremors that were “psychogenic in nature.”

After this IME, Reliance Standard terminated her benefits because Ms. Krash “suffered a mental or nervous condition that contributed to her alleged disability and…was not, in the absence of a mental or nervous condition, physically disabled.” After this unfair denial, Ms. Krash sued, and the court’s interpretation of the abuse of discretion standard was applied.

The issue brought to the court was whether Ms. Krash established she was totally disabled after taking the policy limitations into account in regards to the mental and nervous limitations.  Unfortunately for claimants, the court affirmed the summary judgement for Reliance Standard and held that Reliance Standard’s denial was withing their rights and the correct interpretation of the policy.  The reason wee the following:

  1. Ms. Krash claimed her physical condition caused her depression, anxiety and psychogenic tremors. But the court noted: “to remain eligible for benefits past the 24 month mark, ‘it was [Krash’s] burden to prove she was totally disabled from any occupation solely due to a physical condition.’” Op. at 6-7 (emph. added).
  2. “‘[C]aused by or contributed to by’ in a mental disorders limitation clause [means] that benefits may be terminated when physical disability alone is insufficient to render a claimant totally disabled.”  Op. at 7 (emph added).
  3. “‘[T]he fact that the Plaintiff has been diagnosed with a condition does not equate to proof she is totally disabled from any occupation as a result of the condition….Under the policy Krash still had to prove that her condition prevented her from ‘perform[ing] the material duties of any occupation.’”  Op. at 7.

This decision makes it much harder for claimants who are experiencing any mental conditions due to the physical disabilities that are causing the inability to work.  Insurer-friendly decisions such as this one hurt the rights of a claimant and give the insurer more reasons to unfairly deny a disability claim.  While we agree that Ms. Krash was disabled due to her physical conditions, the simple fact that is was causing mental conditions completely excluded her from the ability to receive the benefits she paid for and deserved.

Cases such as this go to show how careful a claimant must be if they want to ensure they continue to receive the benefits they deserve.  If you or someone you know is considering filing a claim for disability benefits, or is already in the process, we can help.  Please fill out the contact form on the right-hand side of this page for more information or call our offices toll-free at (855) 828-4100.

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4 Ways Insurance Companies Fight Back Pain Disability Claims Fri, 02 Mar 2018 11:04:11 +0000

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Degenerative back conditions are a leading cause of disability and one of the main issues experienced by many of our clients.  Certain activities and professions can aggravate these symptoms into a condition that makes working almost impossible.  Many dentists find themselves unable to practice when their back pain renders them unable to sit in chairs for extended periods of time.  Several types of doctors, such as cardiologists and radiologists, are susceptible to back injuries and herniated discs from wearing heavy lead aprons.  While there are several types of surgeries that may help relieve symptoms, including discectomies, insertion of rods and pins, and spinal fusions, these surgeries do not always work.  Before and even after such surgeries, patients can suffer from numbness, weakness, and loss of sensation in their extremities.  When the pain becomes unbearable, many people find themselves unable to continue working and file for their disability insurance benefits.  However, getting your disability claim paid is not as simple and easy as insurance companies promised when the policies were sold.  Here are a few ways insurance companies unfairly fight against these claims and find ways to delay or deny the benefits that claimants deserve.

Using a watered-down version of the occupation

Back problems often result from degenerative conditions that many professionals will try and work through.  As the pain gets worse, people may try to continue working by refocusing their job responsibilities, trying to trade more physically demanding duties for different aspects of their job until they cannot stand to work any longer.  When the disability claim is filed, the insurance company looks at the occupational duties and responsibilities being performed as of the date of disability.  Many insureds equate this date with when they finally stopped working rather than when they became disabled, which may be a much earlier date.  Also, some insurance companies will not allow a date of disability until a doctor has deemed an individual unable to work.  When the insurance company evaluates the occupation, the change in job duties and responsibilities caused by the disability are ignored, and claims are denied on the basis that the insured is able to perform the watered down occupation.

To avoid this, determine and insist on an accurate date of disability and be under a doctor’s care as soon as you are no longer able to work as much or as well as you used to.  Although many people have worked hard to get where they are and do not want to stop working, caution and preparation are needed to ensure that you are able to obtain your rightful disability benefits.

Enforcing stringent care & treatment requirements

Many people prefer to avoid surgery or other invasive procedures when dealing with an injury or condition that is not life threatening.  Insurance companies capitalize on this fear and trepidation and turn it into a reason to deny your claim.  When an insured can’t work and chooses to pursue more conservative treatments rather than more risky procedures, the insurance companies may believe that the insured is choosing to not work, which can be developed to deny the disability claim and not pay benefits.  Avoid this pitfall by understanding, discussing, and documenting any recommended courses of treatment with your doctor, whether the approaches are conservative or involve surgery.

The “Good Day – Bad Day” Argument

As many with chronic back problems know, there are good days and bad days.  Insurance companies like to use surveillance to follow insureds and investigate the insured’s activities.  Once surveillance is obtained, they will cherry-pick through the data and potentially misconstrue the abilities of the insured.  For example, if a private investigator sees an insured out grocery shopping or driving to the office, the insurance company will often stop paying disability benefits.  Even if someone happens to feel good for one day or does something that will cause pain later, be aware of what’s reported on the monthly claim form.  Be aware of your surroundings and anyone suspicious or just seeming to be there.  Also, be very careful and thorough in describing what you can and cannot do on the claim forms and detail any activities that caused pain.

Changing the disability from total to residual

This is a two-fold strategy that can help the insurance company and hurt the insured.  Many disability policies provide total disability benefits only.  Claims are not paid unless the insured is deemed totally disabled, which is often hard to prove and often leads to the denial of the claim due to only being partially disabled.  For policies that have total and residual coverage, the issue can be much more subtle.  Insureds trying to claim residual disability benefits are required to provide large amounts of paperwork every month, and the insurance company can delay or deny the claim if instructions are not followed and documents sent.  Also, insureds are not guaranteed any certain amount of benefits each month, causing more stress and anxiety.  The insurance companies may even try to capitalize on that stress and anxiety by offering to settle residual claims for much less than they’ve already reserved, pennies on the dollar.

There are also business reasons to define claims as residual rather than total.  When an individual is collecting total disability benefits, the total amount is set up as a reserve and recorded as an expense.  On a residual claim, only a portion of the total amount is reserved, based on the assumption that the entire claim will probably not be paid every month.  Reclassifying claims from total to residual allows an insurance company to reduce reserves and the accompanying expenses, which lowers the loss ratio, increases income, and achieves management performance goals.

These four points just scratch the surface of the tactics and approaches that disability insurance companies will try and use to protect their bottom line and deny legitimate claims.  Each one of these could have an entire book devoted to them to relate all of the horror stories and experiences that we have heard from our clients and others in the industry.  If any of these tactics sound familiar to you or you would like more information on navigating the rough waters of the disability insurance world, please contact our offices at (855) 828-4100 or fill out the contact form on the right-hand side of this page.

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New ERISA Regulations and How They Affect Your Disability Claim Thu, 25 Jan 2018 09:55:29 +0000

Continue reading]]> As we have mentioned in previous blog posts, there are new regulations for disability claims on the horizon.  The Department of Labor’s new regulations governing disability claims and appeals published on December 19, 2016 will go into effect on April 1, 2018.  The goals of the new regulations are to help claimants by strengthening the disability claims rules under ERISA, primarily by adopting new protections and safeguards for the group polices protected and covered by ERISA.

The new regulations were originally planned to be effective as of January 18, 2017, but were intended to apply only to disability claims filed on or after January 1, 2018. After a short delay for additional consideration by the DOL, the regulations now will apply to claims filed on or after April 1, 2018. Though many disability insurers pushed for a delayed or weakened implementation of these rules, the DOL announced that comments received during the delay did not establish that their “final rule imposes unnecessary regulatory burdens or significantly impairs workers’ access to disability insurance benefits.” This updated decision clearly establishes the April 1, 2018 effective date and there is unlikely to be another extension.

What Do the Final Rules Require?


The final regulations make several substantive changes to the existing regulations applicable to disability claims and appeals:

  1. To ensure the independence and impartiality of claims and appeals decision-makers, any decisions regarding hiring, compensation, termination, promotion, or other similar matters with respect to any employee (such as a claims examiner or medical examiner) must not be made based on the chances that the employee will support a denial of benefits.  (As we have mentioned many times, the success of a disability insurance employee is often dependent on the outcome of the claims they process.)
  2. Communication conveying disability benefit claim denials must:
    • Include a discussion of the decision, with the basis for disagreeing with the views or decisions of any treating health care professionals, vocational experts, or other payers of benefit who granted the claimant’s similar claims (including disability determinations by the SSA);
    • Include the plan’s specific internal rules, guidelines, protocols, standards, or other similar criteria relied upon in making the adverse determination or, alternatively, a statement that such plan rules, guidelines, protocols, standards or other similar criteria do not exist;
    • Include a statement that the claimant is entitled to receive, upon request and free of charge, reasonable access to, and copies of, all documents, records, and other information relevant to the claim (previously, this statement was only required for adverse determinations at the appeals stage);
    • Be provided in a culturally and linguistically appropriate manner; and
    • Describe (in addition to the claimant’s right to bring an action under ERISA §502(a)) any applicable contractual limitation period that applies to the claimant’s right to bring such an action, including the calendar date on which the contractual limitations period expires
    • A plan’s disability claims procedures must:
      • Allow a claimant to review the claim file and present evidence and testimony as part of the claims and appeals process;
      • Provide that the plan administrator shall provide the claimant, free of charge, with any new or additional evidence considered, relied upon, or generated by the plan (or at the direction of the plan) in connection with the claim. Such evidence must be provided as soon as possible and sufficiently in advance of the date on which the notice of adverse benefit determination on review is required to give the claimant a reasonable opportunity to respond before that date; and
      • Provide that before a plan administrator can issue an adverse benefit determination on review based on a new or additional rationale, the plan administrator must provide the claimant, free of charge, with the rationale. Such rationale must be provided as soon as possible and sufficiently in advance of the date on which the notice of adverse benefit determination on review is required to give the claimant a reasonable opportunity to respond before that date.
  3. Failure to establish or follow claims procedures consistent with the new (and existing) requirements will result in the claimant being deemed to have exhausted the administrative remedies under the Plan and entitled to pursue any available remedies under ERISA §502(a). When this occurs, the claim or appeal will be deemed to have been denied on review without the plan fiduciary exercising any discretion, unless the violation is de minimis.  As defined by the DOL, De minimis errors are those that:
    • Do not cause, or are not likely to cause, prejudice or harm to the claimant;
    • Were violations for good cause or due to matters beyond the control of the plan;
    • Occurred in the context of an ongoing, good faith exchange of information between the plan and claimant; or
    • Are not part of a pattern or practice of violations by the plan.

In the event of any error, the claimant may request a written explanation from the plan, including a specific description of the plan’s bases, if any, for asserting that the error is de minimis and should not result in deemed exhausting of administrative remedies. The Plan must provide this written explanation, if requested, within 10 days. The claimant may then decide whether or not to pursue remedies under ERISA §502(a). If a court rejects a claimant’s request for immediate review on the basis that the Plan’s error was de minimis, the claim shall be considered as re-filed on appeal upon the Plan’s receipt of the court’s decision, and the plan must provide the claimant with notice of the re-submission within a reasonable period of time.

These new regulations can be confusing, but can be very beneficial to claimants who have been denied benefits or are fighting through the claims process.  Even claimants who filed claims prior to the April 1 deadline may be eligible to take advantage of the new protections.  If you or someone you know is currently filing a disability claim, or has been denied the disability benefits they deserve, we can help navigate the claims process.  For more information on our services, fill out the contact form on the right-hand side of this page or call us toll-free at (855) 828-4100.

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Be Aware of Methods to Limit and Deny Your Disability Claim Tue, 12 Dec 2017 10:13:48 +0000

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During your disability claim, insurers will employ many different strategies to  avoid paying the disability benefits you deserve.  One of the main strategies used by insurance companies is to redefine your physical disability as a psychological conditions or accuse you of not being properly motivated to return to work.  This article summarizes the viewpoints of many inside the insurance industry.  Claimants need to watch out for these strategies and make sure their claims are protected from false and early termination.

Insurers like to point out that there can be a complex array of psycho-social issues that arise with employees out on disability. These include concern over being able to return to work, anxiety about losing their jobs, and fear of pain.  While these are real issues to someone fighting to return to work from an injury, insurance companies will often marginalize these issues.  We have heard claims examiners accuse claimants with these issues of ‘catastrophizing’ — taking every pain, even if it’s minor, and exaggerating it to the point where they believe their life has ended with a disability.  While claims such as this are outlandish and unfair to the claimant, it happens often with our clients.

We have also seen many claims examiners assume claimants will begin to treat the claim and the treatment associated with it as a job in itself and not put any effort into returning to work. They frame it as a psychological issue and accuse the insured of making the injury their entire life.  In short, they believe claimants have a sense of entitlement and that they have no right to the benefits they have paid for and deserve.

Insurance companies also use sophisticated algorithms that automatically analyze data to identify claims that can be denied or terminated early for such issues. Then medical professionals hired by the insurance companies can become involved to “confirm” the presence of these issues and provide cause for claim to be denied, regardless of the opinions of the physicians who are treating you for your disabling condition.

The reason for these approaches by disability claims examiners is to shorten costly claim periods, even if the insured is owed the benefits they paid for and deserve.   Blaming the insured for their inability to work is a strategy used to defend against potential lawsuits or appeal filings.  Watching for these strategies, and defending against them, will help make sure that the claims process goes smoothly and that you are paid the benefits you deserve.

If you would like more information on the strategies insurance companies may use to limit or deny disability claims, or if you have any specific questions about your disability claim, please fill out the contact form on the right-hand side of this page or call our offices toll-free at (855) 828-4100.


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The Validity of Disability Insurance Reviews Tue, 21 Nov 2017 13:26:33 +0000

Continue reading]]> If you have dealt with disability insurance plans before, you already know that most ERISA plans require a review, commonly after 24 months, determining whether the claimant can perform “any occupation.”

This review usually involves a Vocational Assessment examining what “other occupations” and earnings are available given the claimant’s education, skills and experience.  Recently, courts have been placing higher burdens on vocational experts when establishing what “other occupations” the claimant can assume.  For example, using median wage data may not be sufficient in certain circumstances.

Here’s the case of Flaaen v. Principal Life Insurance Company:

(“[T]he term ‘gainful occupation’ requires an evaluation of the insured’s actual employment prospects and wages based on his current experience and qualifications.”)

In this case, Flaaen, a truck driver, received ERISA-governed disability benefits for years. While disabled, Flaaen earned a university bachelor’s degree in “Art/Media Culture”. After paying disability benefits for seven years, Principal Life sought to determine whether Flaaen could perform the “substantial and material duties of any Gainful Occupation” at an amount of $47,124. A vocational assessment determined he could perform jobs in the public relations and graphic design field, earning in excess of $50,000. Consequently, Principal discontinued benefits. Flaaen sued after an unsuccessful appeal.

The issue in this court case resolved around whether the Vocational Assessment supported the conclusion that Flaaen could perform “any Gainful Occupation.”

In the end, the district court decided that Flaaen was entitled to reinstatement of benefits.  The basis of their decision revolved around the following points:

  1. The Court rejected Principal’s argument that “an occupation is gainful even if the claimant would not be able to earn median/mean wage upon starting.”
  2. “[C]hoosing the median wage of every professional is an arbitrary heuristic because it in no way relates to the experience or qualifications of the specific insured.”
  3. The record did not support the vocational assessment that Flaaen was qualified for either job suggested by the report. Principal also failed to show that the report was used by “experienced job experts”.
  4. Principal’s vocational assessment failed to offer an opinion on Flaaen’s earning capacity.
  5. Flaaen presented persuasive evidence he would earn only in the 25% percentile of certain occupations due to his inexperience. Principal’s mere reliance on Flaaen’s social media profiles and listed job titles was insufficient to support a conclusion that Flaaen had relevant job experience. .

This court case shows another avenue that is being shut down for insurance companies to try and unfairly deny claims.  We have dealt with many clients who have dealt with the same issues.  Insurance companies routinely rely on flimsy reviews – financial, vocational, and medical – in order to deny legitimate benefit claims.  It can be difficult and time consuming to fight these opinions, but is often beneficial in the end.  As this case shows, insurance companies cannot arbitrarily rely on the opinions of their paid employees to deny claims.

If your claim has been denied or if you are having problems with the reviews completed by a disability insurance company, we can help.  Please call us toll-free at (855) 828-4100 or fill out the contact form on the right-hand side of this page for a free consultation.


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What to Expect During a Disability Claim Field Interview Thu, 21 Sep 2017 13:25:37 +0000

Continue reading]]> At some point after you’ve filed a disability insurance claim, your disability insurance company may contact you to arrange a field interview.  A field interview is when a disability insurer hires a representative to come meet with you face-to-face to talk about your benefit claim.  Many times, the field representative will ask to meet at your home or office.

Your claims examiner will  tell you that the field interview is just a way to get to know you better, or to help the company gain a better understanding of your claim.  What the claims analyst won’t tell you are the real reasons why insurance companies put so much time and effort into planning in-person field interviews, such as:

  • To take your picture so that a private investigator will recognize you during surveillance.
  • To find out what your house and/or office looks like to further aid in surveillance.
  • To look inside your house and see if you’ve been doing a lot of housework, paperwork, cooking for yourself, etc., all of which (according to the insurance company) can mean you’re able to work in your own occupation.
  • To see if you look like you’re in pain, if you can sit down for a long period of time, or if you can walk without any gait abnormalities.
  • To see if you look like you might have current monthly income from sources other than your occupation (i.e., if you have a nice car, a big house, a boat, etc.).
  • To drop in and try to interview your spouse, former business partners, office manager, or neighbors.
  • To try and get you to relax and open up, or to catch you off guard so that you give information the company can use against you.

Now that you know what the insurer is trying to accomplish, we’ll discuss what exactly to expect before the interview, during the interview, and afterwards.  As with many aspects of the claims process, the field interview will be different depending on whether or not you have a disability insurance attorney involved.  First, what to expect before and during the interview:

Setting Up the Field Interview

Initially, the field representative will call or e-mail you personally to set up a time to meet.  He or she will ask to come to your home, or sometimes your office (particularly if you have been practicing as a dentist or physician), and talk one-on-one. If you’re being represented by a disability claim consultant, the field representative will call or write a letter to the consultant’s office to request a field interview.  Your consultant will evaluate whether the in-person interview is necessary and appropriate under the terms of your policy and your particular claim situation.

During the Field Interview

When the representative arrives, he or she may ask to take your photograph.  The representative may also ask to audio-record your conversation.  If an consultant is present, the representative will usually refrain from asking to take a photograph or audio-record the conversation, knowing that your consultantl will likely determine it unnecessary and/or inappropriate.

The field representative will sit down and talk with you for an hour or more.  He or she will have an extensive list of questions to ask you, most of which your claims analyst will have specifically requested the representative address. For those who have hired a disability claim consultant, your consultant will have prepared you for each of the questions the representative will ask, so you’ll be ready to give accurate and well-considered answers.

During your conversation, the representative will be very warm and friendly.  The representative will normally try to establish a rapport so that you’ll relax and talk openly.  He or she will try to get you to talk without thinking, encourage you to go into unnecessary detail, and may ask personal questions that a claims adjuster would normally avoid.

While you’re talking, the field interviewer will take copious notes.  These notes will include the interviewer’s own observations about your appearance, how well you move, how long you were able to sit or stand, what your house looks like (if in your home), and whether you seem nervous or not.

After the Field Interview

After your interview ends, the field representative will leave to do some additional reconnaissance.  Without telling you, the representative may drive to your office to talk to people on your staff.  He or she will see what the office looks like, if it’s busy, and whether your name is still listed on the door.

Some days after the field interview, the representative will send you a copy of his or her report, which purports to summarize your conversation.  The report will ordinarily be 8 to 10 pages or more.  He or she will ask you to review the report, make any changes you see fit, and return it.  The representative will advise that if you don’t make any changes by a certain date, he or she will assume that everything in the report is accurate.

Meanwhile, the field representative will usually send a separate report to the insurance company.  This second report will have the representative’s personal observations about you, their conversations with your staff, and any other information he or she was able to gather about your outside of the interview.  You will not be provided with a copy of this report unless you’re able to obtain the claim file after your claim has been terminated or denied.

A field interview can be intimidating, but knowing why the interview is being conducted and what to expect during the process can make you better prepared to handle it in a way that doesn’t prejudice your claim.  If you have questions or concerns about a field visit, please complete the contact form on the left-hand side of this page or call our offices toll-free at (855) 828-4100.

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How Exertion Levels Affect Your Disability Claim Thu, 06 Jul 2017 14:16:05 +0000

Continue reading]]> The Dictionary of Occupational Titles (DOT) contains definitions of various exertion levels that are used to place different jobs within categories based on the level of strength required to perform each job. You may have noticed these categories listed on claim forms, or referred to in functional capacity evaluation(FCE) reports or independent medical evaluations (IME) reports. In this post, we are going to look at what the various exertion levels are, and why they matter.

The DOT lists five exertion levels:

Sedentary Work: Occasionally (i.e. up to 1/3 of the time) exerting up to 10 pounds of force and/or frequently (i.e. from 1/3 to 2/3 of the time) exerting a negligible amount of force to lift, carry, push, pull, or otherwise move objects, including the human body. Sedentary work involves sitting most of the time, but may involve occasional walking or standing for brief periods of time.

Light Work: Occasionally exerting up to 20 pounds of force, and/or frequently exerting up to 10 pounds of force, and/or constantly (i.e. 2/3 or more of the time) exerting a negligible amount of force to move objects. Requires walking or standing to a significant degree, requires sitting most of the time but also involves pushing and/or pulling of arm or leg controls, and/or requires working at a production rate pace entailing the constant pushing and/or pulling of materials even though the weight of those materials is negligible.

Medium Work: Occasionally exerting 20 to 50 pounds of force occasionally, and/or frequently exerting 10 to 25 pounds of force, and/or constantly exerting greater than negligible up to 10 pounds of force to move objects.

Heavy Work: Occasionally exerting 50 to 100 pounds of force, and/or frequently exerting 25 to 50 pounds of force, and/or constantly exerting 10 to 20 pounds of force to move objects.

Very Heavy Work: Occasionally exerting in excess of 100 pounds of force, and/or frequently exerting more than 50 pounds of force, and/or constantly exerting more than 20 pounds of force to move objects.

Why Do They Matter?

If you have an “own occupation” policy, these exertion levels will likely not come into play, because the terms of your policy will require your insurer to consider the particular duties of your specific occupation, as opposed to the broader requirements of the various exertion levels.  However, if you have an “any occupation” policy, which requires you to establish that your disability prevents you from working in any capacity, your insurer will likely seek to determine your restrictions and limitations at the outset of your claim, using claim forms or possibly a functional capacity evaluation (FCE).  Once they have done so, they will then likely seek to fit you into one of the five exertion levels listed above and have their in-house vocational consultant provide them with a list of jobs that you can perform given your limitations.

Your insurer will generally try to fit you into the highest category possible, and then argue that you can perform all of the jobs at that exertion level, and all jobs classified at a lower exertion level.  Typically, someone suffering from a disabling condition can easily establish that they cannot perform medium, heavy, or very heavy work, so, in most cases, the insurer will be trying to establish that you can perform light work, or sedentary work, at the very least.

As you might expect, one of the key differences between sedentary and light work is that sedentary work mostly involves sitting, without much need for physical exertion, whereas light work involves a significant amount of walking and standing, in addition to other physical requirements, such as the ability to push or pull objects and the ability to operate controls.  Given the low physical demands of sedentary work, it can often be difficult to establish that you cannot perform sedentary work.  This can be problematic, because there are many jobs that qualify as sedentary work.  However, if you have a disability that prevents you from sitting for extended periods of time, the very thing that makes sedentary work less physically demanding actually ends up being the very reason why you cannot perform sedentary work.

While this is a common sense argument, many insurance companies refuse to accept it and nevertheless determine that claimants who cannot sit for extended periods of time can perform sedentary work.  However, the Ninth Circuit Court of Appeals recently held in Armani v. Northwestern Mutual Life Insurance Company that insurers must consider how long a claimant can sit at a time when assessing whether they can perform sedentary work.

Avery Armani was a full-time controller for the Renaissance Insurance Agency who injured his back on the job in January 2011.  He eventually stopped working as a result of the pain from a disc herniation, muscle spasms, and sciatica.  Multiple doctors confirmed that Avery was unable to perform the duties of his job, which required him to sit for approximately seven hours per day. In July 2011, Northwestern Mutual classified Avery’s occupation as “sedentary” and approved his claim under the “own occupation” provision of his employer-sponsored plan.

Despite regular statements to Northwestern Mutual from his doctor that he could only sit between two and four hours a day and must alternate between standing and sitting every thirty minutes, Avery’s disability benefits were terminated in July 2013.  Northwestern Mutual’s claims handler identified three similar positions in addition to Avery’s own position that he could perform at a “sedentary” level, and determined that his condition no longer qualified as a disability under his policy.

When his benefits were terminated, Avery sued Northwestern Mutual.  After several years, his case ultimately reached the Ninth Circuit Court of Appeals.  In resolving the case, the Ninth Circuit held that an individual who cannot sit more than four hours in an eight-hour workday cannot perform “sedentary” work that requires “sitting most of the time.”  In reaching its conclusion, the Ninth Circuit cited seven other federal courts that follow similar rules, including the Second Circuit Court of Appeals, the Sixth Circuit Court of Appeals, the District of Oregon, the Central District of California, the Northern District of New York, the Southern District of New York, and the District of Vermont.

While this case is not binding in every jurisdiction, it does serve to reinforce the common sense argument that a claimant who cannot sit for extended periods of time due to his or her disability cannot perform sedentary work.  Additionally, though this rule was created in the context of a disability insurance policy governed by ERISA, the court did not qualify its definition or expressly limit its holding to cases involving employer-sponsored policies.  Accordingly, in light of this recent ruling, it would be reasonable to argue that a court assessing an “own occupation” provision of an individual policy should similarly consider whether sitting for extended periods of time is a material and substantial duty of the insured’s occupation.  If it is, and the insured has a condition that prevents him or her from sitting for more than four hours of a time—such as deep vein thrombosis (DVT) or chronic pain due to degenerative disc disease—then the insured arguably cannot perform his or her prior occupation and is entitled to disability benefits.

In short, the Armani case is noteworthy because its reasoning could potentially be applied to not only ERISA cases, but also disability cases involving individual policies and occupations—such as oral surgeon, endodontist, periodontist, attorney, accountant, etc.—that require the insured to sit for long periods of time in order to perform the occupation’s material duties.  It will be interesting to see if, in the future, courts expand the Armani holding to cases involving individual policies outside of the ERISA context.

If you or anyone you know if having problems with a disability insurance company, or if you have any questions, please fill out a contact form on the left-hand side of this page or call our offices toll-free at (855) 828-4100.

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