Author: Attorney Rachel Alters
In order to file a claim for short-term and/or long-term disability, the insurance company requires that you obtain treatment from a medical doctor that specializes in your particular disability. It is equally as important to find a doctor who is willing to clearly document your restrictions and limitations in the medical record and to periodically fill out forms called Attending Physician Statements (APS) to support your continuing disability insurance claim.
It is hard enough to find a doctor that provides good care and treatment that also provides a level of comfort and a good bedside manner. A claimant is also faced with the task of finding a physician that provides all of the former and is also willing to be bombarded with paperwork from the patient’s disability insurance carrier. This is a difficult and sometimes impossible task as physicians want to focus their time and energy treating patients, not filling out paperwork. This becomes a big problem with many disability claimants as they find more often than not, their doctors don’t want to be bothered with filling out forms at all let alone every three months. Disability insurance companies are well aware of this issue and it seems that they intentionally bombard treating physicians with paperwork hoping that at some point they refuse to fill it out, or fill it out improperly giving the insurance company a reason to deny the claim.
This is why it is extremely important to communicate with your treating physician so he or she knows that you are applying for disability benefits and to make sure they are on board with supporting your disability claim as well as periodically filling out paper work. If not, the results can be disastrous.
One Example of how a Michigan Man Lost a Claim in Federal Court that Could Have Been Won Had he Obtained Good Medical and Legal Support
In the case of Franks v. Unum Life Insurance Company of America. 2013 WL 449566 (W.D. Mich.) (not handled by our law firm) the Plaintiff Mr. Franks filed an action against Unum under the Employee Retirement Income Security Act of 1974 (ERISA) for review of Unum’s denial of long-term disability benefits. Unum filed a motion for summary judgment in which the plaintiff failed to respond to. This may have been the result of inadequate representation, it was not explained in the court opinion. The judge in the case conducted a de novo review (meaning he read the administrative record as if he were the insurance company seeing it for the first time). Even though the judge reviewed the case “de novo” he was still only permitted to consider evidence already in the administrative record and nothing else.
The failure to respond to Unum’s motion for summary judgment was not a fatal one since the judge reviewed the case “de novo.” The Plaintiff’s downfall was his lack of strong medical support from his treating physicians.
Poor Medical Support Can Be Disastrous For Your Disability Insurance Claim
On or about July 20, 2009, Franks filed an application for disability benefits due to severe back problems and degenerative disc disease. He was employed as a CNC Operator with job duties requiring him to stand most of the day, bend frequently and lift between 10 and 25 lbs frequently; 20-50 lbs occasionally; and never more than 50 lbs.
His treating physician, Dr. Kotecha performed spinal surgery on him in July of 2009, put him off work for several months and referred him to a physiatrist, Dr. O’Connor. He treated with Dr. O’Connor in November of 2009 and informed him he had recently been in a car accident and was experiencing pain which was a setback to his recovery. He received injections for several months. Dr. O’Connor filled out a form sent to him by Unum that Franks could return to work by October 2010 even though he had told Franks that he could never return to his previous occupation as it required heavy lifting and frequent twisting and turning.
In March of 2010 Dr. O’Connor sent Unum another APS stating that Franks could sit, stand and walk continuously, climb, twist and bend continuously, lift 10 lbs continuously, lift and carry up to 50 lbs occasionally and never lift greater than 51 lbs. His permanent restrictions were “no lifting greater than 25 lbs frequently.” This is a classic example of a case where a treating physician is not aware of the definition of disability in the claimant’s disability policy. This claimant would likely have secured ongoing benefits had his doctor understood how UNUM would apply the restrictions and limitations. Another problem is that the Attending Physicians Statement (APS) that treating doctors are asked to complete, are very general and do not address any occupation specific issues. “We always work with claimants and their treating doctors to make sure the APS accurately reflects occupation specific limitations and restrictions”, stated Attorney Rachel Alters.
Unum had his records reviewed by a medical expert who concurred with Franks own treating physician’s restrictions and limitations claiming that Franks was able to perform the duties of his own occupation which supports a lifting restriction of 25 lbs frequently and 50 lbs occasionally.
Judge Agrees With UNUM Disability Denial
Unum was found to have acted reasonably in upholding its decision to terminate Franks benefits as his own treating physicians agreed with Unum that he was capable of performing his occupation even though Franks had been told several times by Dr. O’Connor that he was not capable of working in his previous occupation.
This is why it is extremely important to obtain good supportive medical opinions and documentation from your medical providers. It does not matter how many times they tell you verbally in their office that you cannot work or whether they agree with you that you are unable to return to your job, everything must be documented or it will not be considered. If your physician is not supportive or refuses to fill out paper work that supports your disability it is pertinent to your claim to find a physician that will be willing to do so. Mr. Franks surrendered his rights to long-term disability benefits because he failed to obtain a supportive doctor. Don’t let this happen to you.
The law firm of Dell & Schaefer was not involved in the above-mentioned case, but we run into very similar situations on a daily basis. We cannot stress enough the importance of good doctor support. If you need assistance with your claim please feel free to contact us.
If you have a group disability policy chances are it’s governed by federal law under an act called the Employment Retirement Income Security Act of 1974 (ERISA). Your rights under ERISA are more restricted that those under state law. When your benefits have been denied or terminated it is critical to be aware of the strict deadlines that must be adhered to. Insurance companies are banking on claimants’ lack of understanding of these rules in hopes that the deadlines will be blown and the insured will have no recourse. If your benefits are denied, ERISA requires that you file an administrative appeal directly to the insurance company. This is your only opportunity to present your case as once the administrative record is closed (after the expiration of 180 days) nothing else may be added no matter how critical the information may be. If you end up in a court of law, the only information the judge will consider is information that was provided during the appeals process and nothing else.
When you receive a letter from your insurance company, it will contain language similar to the following:
You may appeal this decision by sending a written request for appeal to Hartford
within 180 days after receipt of this denial letter. In the event the appeal is denied in whole or part, you will have the right to bring a civil action under Section 502(a) of the Employee Retirement Income Security Act of 1974.
To help ensure you prevail and receive the benefits rightfully owed to you, it is pertinent be aware of and calendar the deadline to submit your appeal and contact an attorney specializing in ERISA to assist in preparing your appeal.
Missouri Court Holds no Claim for Lost Disability Benefits Allowed Past 180 Deadline
The case of Reindl v. Hartford Life and Accident Insurance Company is one example of what can occur if you fail to file a timely appeal. The Plaintiff, Ms. Reindl participated in an employee welfare benefit plan administered by Hartford during her employment with RKM Enterprises. She stopped working in 2005 and applied for disability benefits which were approved. In 2008, Hartford sent her a letter terminating her benefits claiming that she was able to work and gave her 180 days to file an appeal. Ms. Reindl hired an attorney to file the appeal for her. In December of 2008, the attorney sent a letter to Hartford requesting her claim file and medical records, but failed to file the appeal prior to the 180 day deadline. Hartford did not accept the appeal stating that it was received after the 180 days had expired. Plaintiff’s attorney claimed that the letter he sent in December of 2008 requesting records should be considered the appeal. Hartford disagreed.
A Mere Request for Records is not Considered an Administrative Appeal
Ms. Reindl filed a lawsuit against Hartford challenging termination of their long-term disability benefits. The District Court Judge in Missouri granted Hartford’s Motion for Summary Judgment on the basis that Plaintiff’s attorney failed to file a timely appeal and the letter sent by Plaintiff’s attorney requesting records was not considered an appeal. Plaintiff appealed the decision to the 8th Circuit Court of Appeals. The Court upheld the lower court’s decision holding that a timely administrative appeal is a prerequisite to filing an action in federal court challenging the denial of benefits under a plan governed by ERISA. The Court concluded that Hartford’s determination regarding the December 2008 letter was reasonable, as a request for records is not an appeal. Therefore, the decision of the lower court was affirmed and Plaintiff cause of action was dismissed with prejudice.
How can you prevent this very situation from happening to you? The best solution is to make sure to contact an experienced ERISA attorney as soon as you receive your denial letter. This way you can ensure that your attorney has ample time to investigate and build up your claim in order to put together an elaborate appeal in a timely manner. The failure to exhaust your administrative remedies will prevent you from being able to bring suit in a court of law. Once this mistake is made, it cannot be corrected.
There are 5 opinions so far. Add your comment now.
How the hell do you get doctors to document what they should? It’s really a serious problem when a person can’t work and should be on disability but they can’t get the doctor to do proper documentation.
You’re right about having to get a doctor that is willing to do the documentation but when you haven’t been able to work for 3 years and the only medical treatment you can get is through the local free clinics makes you stuck between a rock and a hard place and without a way to support yourself. I have found that they do what they can as far as treatment and send me to specialist that do what they can to treat but when you ask them for proper documentation as to what you can do and what you can’t do they look at you like you your crazy. They have told me there’s no way I can do what I was doing for a living because of risk to my health but wont write it down and put it in my records. I told them that I need what they are telling me documented because if I can’t work I need to file for disability and that it requires proper documentation. I ask them why they won’t do it and they told that we are not allowed to do any paperwork for disability for anyone it’s company policy ad they just don’t want to get involved with the process it takes to much of their time.
If a doctor is treating for disability and refuses to send in documentation for disability cases – can the doctor be sued if that causes a lost disability case?
Attorney Stephen Jessup:
No. Unfortunately, a doctor has no duty to complete disability paperwork.
“No. Unfortunately, a doctor has no duty to complete disability paperwork”
That’s a very true statement no doubt but what do you do in this very common situation?
I know the thing to do is find a doctor that is willing to do the paperwork but when funds are extremely limited due to inability to work, I hate to sound negative but this leaves you pretty much screwed.
I went to the records department of the clinic where I go and ask for a copy of the doctors notes about my medical conditions. They were more than happy to give me a copy of his notes but acted like they did not know why I wanted them. When I received the notes they looked like something a 2 year old child scribbled down and were in no way shape or form legible enough for anyone to read.
I first thought maybe they use some kind of special code or language that only doctors can read but I showed it to several RN’s and even another Doctor but they could not read it no better than I could.
Medicals records and doctors notes that can not be read can most certainly have some very serious consequences. And it makes me feel that if the doctor does not bother to makes his notes legible for anyone to read and understand he cares absolutely nothing about my health or the job he is being paid to do.
Just out of curiosity, when I go to the doctor during the visit he has no problem discussing the medical problems and saying and making comments verbally about how dangerous and risky it would be to work with the health problems. If you record those comments with a recording device and have it transcribed is there any way to submit such a document to Social security in order to prove disability without getting in trouble for making the recording without the doctors prior consent. I know in Florida to make a recording without his permission is not legal but can the doctor be subpoenaed for a deposition as to what he said.
Attorney Stephen Jessup:
Often the only option is to find a new doctor. If your doctor is willing to allow you to record appointments and then transcribe same then that could be an option. The only way your doctor would ever be subpoenaed is if your case went into litigation and it was a Non-ERISA disability policy.
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