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Tuesday, October 25, 2016

Proving Disability in Internal ERISA Benefit Appeals: Why It Is Easy to Get it Wrong

In my ERISA benefits practice, I often have the opportunity to review the work other lawyers have done in the initial internal appeal with the insurance company.  For more background on why the internal appeal process is so important, you can see this article from my firm’s website.  Most often, the lawyers have not done many ERISA internal appeals.  They may think that long-term disability appeals are not really that different from other areas where inability to do a job is an issue, such as a Social Security Disability Income denial or workers’ compensation.      

  • In one way, they are right: in each area, the claimant must show he or she can’t work, so the burden of proof is on the claimant.


  • What is required to meet the burden of proof in the three areas is fundamentally different.  Evidence that can win a workers’ compensation or SSDI case can be a loser in a disability insurance case.  

In both Social Security and workers’ compensation cases, once a claimant submits a certain amount of evidence, the effective burden of proof is shifted:   

  • Social security disability income appeals have a “treating physician rule:” once the claimant submits an opinion of disability from a treating physician supported by medical evidence, the claimant generally wins.

  • In workers compensation, a doctor’s statement that contains the magic words “I state with a reasonable degree of medical certainty,” that a disability resulted from a workplace injury may be enough to force the insurance company to prove that the opinion is wrong.

Of course, the doctors’ statements in these areas have to be supported by the medical records, but in many cases the treating doctor’s statement can be short and conclusory.

Claimants in ERISA cases don’t get the benefit of these presumptions: while a plan has to have some reason to reject a treating physician’s opinion, there is no treating physician rule that requires deference.  A short doctor’s letter that can win a workers’ compensation case can probably be safely ignored by an ERISA plan that has a contrary opinion from a doctor who has only reviewed medical records and has not examined the patient.  

Two aspects of ERISA make it more difficult to establish disability than under SSDI or workers’ compensation:    

  • The first is the basic ERISA principle that the language of the plan documents governs almost everything.  To a great degree, the plans get to establish what a claimant must show to be entitled to benefits, and understandably, they do not make it easy.


  • The second is the standard by which a court is likely to review the benefit denial.  Due again to language in the plan, almost every benefit denial reviewed by a court is going to be arbitrary and capricious review, which means the court is supposed to uphold the denial if there is any rational basis for the decision. So, what happens when a lawyer submits a doctors’ letter that could win a workers’ compensation case?  The court is likely to hold that a plan that relies on a medical file review paid for by the plan rather than a short letter stating the doctor’s opinion has a rational basis for the denial, and the claimant loses.   

In many states, it can be hard to find a lawyer who is experienced with appealing long-term disability denials, either for private insurance or group plans governed by ERISA.   In Connecticut where I practice, there are only a few experienced long-term disability insurance attorneys.  But, finding an attorney who knows how different it is to prove an inability to work in an ERISA case can make the difference between winning and losing.

Tuesday, September 13, 2016

What Do We Submit for an Internal Appeal With the Insurance Company?

In this blog, I have frequently discussed the importance of the internal appeal with the insurance company.  I haven't discussed what we commonly submit for internal appeals, though.  I recently posted an article to my new firm's website discussing what I commonly put in the letter, and the reports and medical records I submit with the letter.  As you can see, a lot goes into an effective appeal of a long-term disability denial.

Monday, August 29, 2016

In Introduction to Why the Internal Appeal is Important in ERISA Benefit Denials

As you may know, I moved my Connecticut LTD and ERISA practice last month to Zeldes, Needle & Cooper in Bridgeport, I've been working on posting articles to the new firm's web site.  Today I posted an article discussing the administrative appeal process and why it is important.  It is a good general introduction to the issues involved.  As the article notes, the insurance company won't tell you one of the most important things about the internal appeal process: that you probably won't be able to submit any new information in litigation that you haven't submitted during the appeal process. That is why is can be important to have an attorney during the appeal process to make sure you have the best chance to get the result you want in the appeal, and to put you in the best position to win in court if you don't win the internal appeal.

Thursday, July 21, 2016

Even Ex-NFL Players Have Trouble Getting Disability Benefits for Post-Concussion Impairments

The New York Times has an article this week about the lawsuit that Haruki Nakamura brought against Lloyd’s of London for wrongfully denying disability insurance after his doctors, and the NFL, told him he could no longer play in the NFL.  While my clients are more likely to sit at a desk and work at a computer all day than tackle an NFL running back, it is remarkable to me in reading the complaint that Mr. Nakamura confronted the same issues as my clients.  The post would be far too long if I addressed all the similarities, but I will note a couple of points:

  • Mr. Nakamura alleges that Lloyd’s imposed “virtually impossible” procedures, making repeated requests for the same documents, losing documents, and distorting medical records.  If the procedures were virtually impossible to fulfill for someone who made a million dollars a year and had a personal assistant to help deal with the insurance company , imagine how easy it is for an insurance company to impose absolutely impossible requirements on someone who made $75,000 a year and has a working spouse.  As I tell my clients, the courts are remarkably tolerant of insurers requiring endless recertification, updated medical records, and independent medical examinations.  Even if we think they are grossly unfair, we have to do the best we can to comply, as the insurance company will use any failure to comply as a basis to reject the claim, and we can’t count on a federal judge being sympathetic to the procedural difficulty of complying with the request.
  • The complaint shows how hard it can be to prove post-concussion syndrome and other conditions that result in cognitive impairments.  As regular readers of this blog know, I have frequently discussed how it is difficult to get insurers to accept cognitive impairments without a neuropsychological exam.  Mr. Nakamura didn’t get such an exam, and it was one basis for the denial.  Neuropsych exams are not always a help, though.  They are a rough measure that may not show the slight decreases in cognitive ability that can make it impossible to perform a cognitively demanding job like a bond trader, so Mr. Nakamura may have decided not to risk a neuropsych that was not helpful.  But, it shows how important it is to have a comprehensive strategy to demonstrate disabling cognitive issues.  I always make sure to emphasize and prove any psychological or physical impairments to make up for any difficulties in proving the cognitive side.
  • The case also shows how willing insurers are to ignore the opinions of highly-credentialed treating physicians.  Mr. Nakamura’s doctor was “an internationally renowned expert in sports-related concussion” who had established the first and largest research and clinical program on the issue.  The doctor on whom the insurer based the denial is employed by “Triangle Forensic Neuropsychiatry,”  and has no particular expertise in concussions 
  • Due to the strong medical community in Fairfield County and Southern Connecticut available to support LTD disability appeals, I am fortunate to work with some of the most prominent doctors in their fields.  The insurance companies, however, are happy to rely on anyone with the right initials after their name.  One insurance company rejected the opinion of a national authority on multiple sclerosis who was a full professor at Yale in favor of an opinion from a family medicine doctor whose only clinical experience was ten years of work in a rural Maine medical clinic.  Again, the way to deal with this is a comprehensive strategy to create an overwhelming case for disability.
The lesson of the Nakamura case is that insurers are equal-opportunity abusers, happy to abuse the rich and famous as well as poor and the middle class.  Make sure you are not alone on this journey by finding an experienced, sympathetic and aggressive lawyer who can create the comprehensive strategy necessary to succeed in long term disability appeals and long term disability litigation.

Monday, December 14, 2015

Residential Treatment for Eating Disorders: What Does Your Doctor Need to Say?

Slate.com had a great article recently by Katy Waldman talking about anorexia, and the potentially damaging narratives that even those in recovery from anorexia tell themselves.  As she writes: "[t]he anorexic impulse to lyricize one’s illness is a prescription for estrangement, for controlling and muffling the messy truths about who we are."

In the article, she calls for treatment that addresses the physical issues resulting from eating disorder: nutrition and weight restoration, rather than trying "to crack some psychological code—to unearth the mysterious psychic forces driving the illness "  

Whatever type of treatment a patient and his or her doctors want to pursue, obtaining insurance coverage for treatment of anorexia, bulimia and other eating disorders is challenging.  As with many issues with ERISA health benefits and group health insurance, what you think should work frequently doesn't.

In Connecticut, residential treatment of eating disorders, substance abuse and psychiatric illness has been difficult because there were no residential treatment programs for adolescents in the area.  There is now residential treatment for adolescents in Fairfield County, at Silver Hill Hospital, which I discussed in a prior blog post.   But, I believe we will still have many insurance companies denying coverage for residential treatment, even with a local provider.

So, what does your doctor need to say to get coverage for residential treatment of eating disorders, whether it is the "crack the psychological code" treatment or treatment addressed directly to the physical issues of eating disorders that Katy Waldman endorses?

  • Typically, a doctor will tell you that:

Residential treatment is the best way for your daughter to recover

That should do it, right?  Nope.  

  • What if your doctor tells you:

Residential treatment is the only way for your daughter to recover

That's got to do it, doesn't it?  The purpose of the policy is to provide treatment to cure problems, so if the treatment is medically necessary for the patient to get better, doesn't the insurance company have to pay for it?  

Still nope.  Under most health insurance policies, to get residential treatment for eating disorders, or for substance abuse treatment, or most any psychiatric illness, the doctor has to tell you:

Residential treatment is the only only way to protect your daughter from a serious risk of imminent death or serious injury to herself or others. 

I will post more in in the future about what specifically you need to do to make the best case for residential treatment for eating disorders, substance abuse treatment or other psychiatric issues, including the arcane treatment protocols that you have to follow to get benefits.  But, reviewing the policy and the incorporated treatment protocols before the claim is submitted will give you the best chance to get insurance coverage for residential treatment of eating disorders in Connecticut or in another state.   

An experienced health benefits attorney can help you get coverage for the treatment that you and your doctors think is best for treatment of eating disorders or other residential treatment.  

Monday, December 7, 2015

Residential Treatment for Eating Disorders Now Available in Connecticut

Patients and their parents in Connecticut have frequently encountered great difficultly in obtaining the residential treatment for eating disorders recommended by their doctors.   In the past, residential treatment of eating disorders was only available out of state.  Insurers fought hard to not cover out-of-state treatment, and I think the expense of out-of-state treatment was one reason for that.  I will discuss coverage for eating disorders in a upcoming post, and grounds for appealing a denial of benefits for residential treatment of eating disorders.  

Connecticut now has a residential treatment program for eating disorders.  Silver Hill Hospital in New Canaan recently started offering residential treatment.  I hope with in-state treatment available, it may be a little easier to obtain coverage for residential treatment of eating disorders in Connecticut.  It will still be a fight, but maybe we will start a little closer to the goal.  

Wednesday, November 18, 2015

Deceptive Attending Physician’s Statements: How to Fight the Form

What your treating physicians say about your condition and disabilities is the most important part of the claims process.  If you were an insurance company, wouldn’t it be great if it could come up with a way where it is almost impossible for the doctor to find that you are disabled?  Well, some insurers have done that with the form that asks the doctor to list your diagnosis, treatment, and you capacity to perform work-related activities like standing, walking, and lifting.  Different insurers have different names for the statements: 

  • Sun Life and Aetna call it an Attending Physician’s Statement;
  • Cigna calls it a Physician’s Statement of Disability;  
  • Sedgwick calls is a Physician’s Certificate for Disability Benefits.

Some forms are fair, and others are intended to keep your doctor from certifying you as disabled so long as you can occasionally sit, stand or walk.   

Here’s a link to an unfair form that Aetna uses for some cases.  The crucial part of the form is in the middle, asking the doctor to state whether the patient's ability to sit, walk, stand, etcetera, is "Occasional," "Frequent," or "Constant."

How does this form convert a physician’s certification of disability into a certification of no disability?

  • The form uses broad categories: The most restrictive category available is “Occasional,” for activities the claimant can perform from .5 to 2.5 hours a day.  There is no category for “Never.”  So, let’s say you doctor thinks you can stand, sit or walk for half an hour each, or a total of 1.5 hours in a day. So he fills in “O” for “Occasionally” for the sit, stand and walk categories.  The doctor understandably believes he has certified that you cannot do a sedentary job.

  • The insurer using the top of the broad range: Despite your doctor’s intentions, the insurer can read this form to establish that your doctor believes you can do a sedentary job.  “Occasional” is defined in the form as up to 2.5 hours day.  So, adding together the maximum hours for the three categories gives a 7.5 hour a day work capacity. The insurer can therefore use this form to conclude that your doctor believes you can perform a sedentary job requiring sitting, standing and walking, even though your doctor thinks you can only do these things for 1.5 hours! 

So, what do you do?  How can you fight the form?  In my Connecticut LTD denial practice:

  • I use my own form if the insurers’ forms are deceptive, breaking down the first category into “Never,” “Less than 5%,” “5-20%” and “20-33%” so that the insurer won’t be able to convert a doctor’s certification of an 1.5 of work capacity into a full day’s work, or

  • I have the doctors prepare a narrative discussing more specifically what my client can and can’t do as it relates to the specific job duties of the position at issue, without being locked into the categories the insurer uses on its forms.  

Deceptive attending physician’s statement forms are one of the reasons it can be difficult to represent yourself, whether in an appeal of a LTD denial or an initial application for short-term disability or long-term disability.  The best way to fight these tactics is to have an experienced long-term disability insurance attorney in your corner who knows the games insurer’s play, and how to fight them.