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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.  

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