Appeal vs. Reconsideration: Don't Get Caught in the Trap!

One of the basic principals of ERISA benefit suits is that prior to filing suit in court, you must file an appeal with the insurer asking for the decision to be reversed.  If you don't, your case will be thrown out of court.

Sometimes, rather than filing an appeal, a claimant, or the attorney, requests that the company "reconsider" the decision, but doesn't use the word "appeal."  A request for reconsideration can be useful if you think the insurer overlooked a document, or you can submit a record was missing when the decision was made.  Since a reconsideration request is not appeal, you are not using up one of your levels of appeal.

But, make sure you still file an appeal during the 180 days following the decision even if you have filed a request for reconsideration  In the Connecticut LTD denial case of Feher v. Unum Life Ins. Co. of Am., 2014 U.S. Dist. LEXIS 174536 (D. Conn. Dec. 18, 2014) the attorney for the claimant asked for reconsideration of a benefit denial.  After denial of the reconsideration request, the attorney filed suit rather than filing an appeal with the plan.  The court dismissed the case for failure to exhaust the appeal rights with the plan, since the request for reconsideration did not count as an appeal.  

This case also shows how important it is to have attorney experienced in ERISA and employee benefits.  Without knowing about this specific issue, an attorney would have no reason to know that a request for reconsideration is not the same as an appeal.  

Health Insurance Doesn't Always Protect You From Big Bills

The New York Times has a post today on people who have health insurance, but are underinsured, defined as paying more than 10% of income towards medical bills.  One of the reasons people who are insured still have big medical bills is that the insurance company denies medical claims that they should pay.  They deny claims for many reasons, including that the requested treatment is not medically necessary, or is experimental, or the requested treatment is out-of-network and the insurer claims equivalent treatment is available in-network, even though your doctor disagrees.   This can occur with both private insurance, and insurance through an employer that is governed by ERISA

If an insurer does deny on a claim on these basis, you do have remedies that can keep you out of the ranks of the underinsured.:

• You can file an appeal with the plan.  This is a crucial step.  You cannot pursue any of your other remedies until you file the appeal with the plan.  Also, it may be your only chance to submit information in support of the appeal.  Having an  experienced Connecticut ERISA lawyer to handle the administrative appeal can help to make sure you have all the information in the file to succeed at the later appeal levels.  
• For appeals of denied health insurance claims in Connecticut, you can file an appeal with the Connecticut Department of Insurance. .  Here is a link to a guide to the process.  The Affordable Care Act requires states to establish procedures for appeal of denial health insurance claims, so there should be a similar process in your state if you are not a Connecticut resident.  
• If these don't succeed, you have the option of pursuing your claim in court: in federal court for ERISA claims arising from plans established by your employer; or state court if you purchased the plan directly.  Whether you have a good claim in court depends largely how complete your prior appeals were, so be careful with the appeals!

Insurers do not always pay the claims they should pay under the policy.  By effectively appealing the decision, you can increase the chance you will avoid the big bills that will make you underinsured.  An experienced employee benefits attorney in Connecticut or your state can be a big help in making this happen.

Medical Records: For Diagnosis and Treatment or Vocational Assessment?

Doctors use medical records for two purposes: for diagnosis and treatment.  Insurers use medical records to determine if you can do your job.  What’s the problem?  

If you have undergone a denial and an appeal, you have learned that your medical records are the one thing the insurer really looks at in making the disability determination, especially if there is no surveillance or in-person interview.  If the insurer doesn't find evidence in the medical records that you can’t do your job, your claim is likely to be denied.     

There are legitimate uses of the medical records by the insurer.  Using the medical records to assess the quality of the diagnosis is fine or for direct evidence contradicting a claimed impairment.  For instance: 

• It may be legitimate for the insurer to question a diagnosis of fibromyalgia if the tender points test is not done;

• It may be proper for the insurer to consider statements in the medical records that directly disprove a claimed impairment. If inability to twist the neck is a claimed disability, and physical therapy records show full range of movement of the neck, using the records to show there is no neck limitation is legitimate.     

So what’s the problem?

The problem is that the insurers treat the absence of evidence of vocational impairment as evidence of absence of an impairment: if the medical records don’t say you are impaired, then the insurer will conclude you are not impaired.  But, doctors don’t maintain their records to show current vocational impairment.  They maintain the records to address two things:

• Diagnosis: whether the conditions by which a disorder is diagnosed are present and what testing is necessary to show it; and 
• Treatment: what treatments have been tried, and whether the treatment alleviates the condition and side effects resulting from the treatment.   

If there is something relevant to your ability to work, whether observed by the doctor or that you report to the doctor, but is not relevant to diagnosis or treatment, there is no reason for the doctor to note it in the records.  For instance, if a doctor has treated a patient for years for spinal stenosis, the diagnosis was confirmed years ago by an MRI, and all treatment modalities have been exhausted, the doctor is probably not going to note on the medical records that the patient winced when climbing on the exam table, since that fact will change neither the diagnosis or treatment.  The absence of a note of wincing, however, will be interpreted by the insurer showing the patient is not experiencing pain.

This can happen with any patient who is has a long-term largely stable condition where treatment options have been exhausted, such as back pain, fibromyalgia, traumatic brain injury, carpel or cubital tunnel syndrome, or chronic Lyme disease.  But, if the doctor has not noted for two years your reports of pain or his observation of you experiencing pain, the insurer is going to use that absence of evidence as evidence that the impairment is absent.  Particularly when paired with ambiguous surveillance, this can be a basis for the insurer to deny benefits that can be hard to attack.  

How do you fight this?  As I have repeated many times in the blog, you need to tell the doctor the things you experience that show you cannot do your job, and make sure he notes it in the medical records.   Explain to your doctor that the insurance company is going to look to the medical records to assess your ability to work, and make sure he writes down anything that will show you can't do your job.  On my website, I have posted an article on this issue.  

No doctor went to medical school to fill out insurance company forms.  But, I have found that most doctors in Connecticut want to help their patients get disability benefits and win Connecticut LTD appeals.  Show respect for their time by offering to pay for their work, and be upfront and ask for what you need.  You are likely to get the cooperation you need to succeed in a long-term disability claim or LTD appeal in Connecticut.