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.

Names Change, Problems Remain: Myalgic Encephalomyelitis - Chronic Fatigue Syndrome - Systemic Exertion Intolerance Disease

LTD applicants with CFS or ME/CFS can have a hard time being approved for benefits, or to win an appeal of a denial of long-term disability benefits.  The traditional diagnostic
criteria of the C.D.C., link here, are quite subjective.  Also, it can be difficult for a treating physician without experience in this area to exclude all the other diagnoses necessary to establish a diagnosis of CFS.  Due to diagnostic errors by inexperienced doctors, and inherently subjective criteria, insurer have a lot of grounds to deny a claim.   

Some of these issues may be resolved.  Today the Institute of Medicine of the National Academies (“IOM) issued new diagnostic criteria, and recommended that Systemic Exertion Intolerance Disease be the new name for the condition traditionally referred to as Chronic Fatigue Syndrome, and more recently sometimes as myalgic encephalomyelitis/chronic fatigue syndrome (ME or ME/CFS for short).  Here is a link to the IOM page with a number of different reports about the recommended change.  If this is TLDR (too long, didn't read), here  is a link to a New York Times’ discussion of the history of the name of the condition, and why the change was recommended.

The change in diagnostic criteria will make a difference for me as a Connecticut LTD lawyer, in appeals and initial applications. The new criteria establish a diagnostic
algorithm that makes it easier for a doctor to make a proper diagnosis, which will make it less likely that the insurer will deny a claim based on a faulty diagnosis.

But, the most important thing to win a claim for the condition, whether you call it CFS, MECFS or SEID, has not  changed.  You must focus on the impairment, rather than the diagnosis.  See my prior post on this issue.  Your doctor may not be a big help here; doctors are there to diagnose, not conduct a vocational assessment.  So, make sure that in any initial benefits application, or any appeal of a denial, you make sure it is clear:

• What condition is causing the impairments, 
• What the impairments resulting from the condition are; and 
• The specific aspects of the job that you can't do as a result of the impairments. 

Having an experienced ERISA benefits lawyer can help, but whether you are represented or handling the claim on your own, make sure you focus on impairment, not diagnosis.

33% of Social Security Disability Claims are Based on Mental Disorders; 27.7% are Musculoskeletal

The law firm Lane Powell, a Pacific northwest firm with an employer-side ERISA practice, has a great post here about the recent report from the Social Security Administration breaking down types of Social Security disability claims by type of claim and region.  It also has a good discussion of the significance of social security determinations in long-term disability benefit denials and appeals.  I've discussed this issue as well in a prior post. 

It is significant that the combined mental disorder/musculoskeletal conditions amount to 50% of social security disability income claims.  These conditions present some of the more difficult issues in winning an initial long-term disability claim or disability appeal because the insurers claim objective medical evidence doesn't exist to support the claims.  For these claims, it is important to work closely with your doctors to make sure the medical records reflect that all the standard diagnostic criteria are present, and the records contain a discussion of how the condition affects your ability to do your job.  As a Connecticut LTD lawyer, I know how important it is to work with the claimant's doctor to establish the impairment, and the effect of the impairment on the claimant's ability to work.  

Positive Interim Report of Stem Cell Treatment for Multiple Sclerosis

The National Multiple Sclerosis Society issued a press release about interim results of a study of autologous hematopoietic (blood cell-producing) stem cell transplantation– or HSCT, for treatment of relapsing-remitting MS.  The therapy seeks to "re-boot" the immune system to stop the auto-immune attack on the brain and spinal cord.  In a study of 24 people, 74% showed no progress in the disease after the treatment.  There were some serious side effects from the study,so it will be a long time before the treatment is generally approved.  
When HSCT is approved,  whether to try the treatment can be in an issue in initial benefits claim, or an administrative appeal of a denial of long-term disability benefits.   As I discussed in a prior post, if you ever decline a treatment suggested by your doctor, make sure you discuss that decision with your doctor, that your doctor agrees that your decision is reasonable, and that the discussion, and your doctor's approval of the decision, is reflected in your medical records.  As a long-term disability insurance lawyer, I've learned that Connecticut has some great MS specialists who have been a great help in appealing denials of long-term disability claims based on MS.  By working with them, you can make sure your treatment decisions don't harm your long-term disability insurance claim.