Our Experienced Attorneys Can Guide You Throughout the Duration of your Long-Term Disability Claim
In the past, a disability claim might be approved once, and then never (or rarely) be reassessed. Disability claimants are frequently surprised to discover that this is no longer true. Instead, insurance companies re-evaluate a claimant’s medical condition and disability status on a periodic basis. These periodic re-evaluations are often more demanding and frequent during the early stages of a claim (such as once every month or so), but may relax into more routine annual or biennial claim updates once the claimant has been disabled for an extended time. A claim may also be intensively re-evaluated in the period leading up to a change in the long-term disability insurance policy’s definition of disability (in many policies, this occurs after 24 months of benefits, and is referred to as the transition from Own Occupation to Any Occupation benefits). If a disability claim is based on a mixture of physical and psychiatric conditions, a similarly intensive evaluation may occur when the long-term disability policy reaches its limit for “mental/nervous” benefits, and the disability must thereafter be premised primarily (or wholly) on the physical condition. No long-term disability claim is ever safe, and an insurance company may, even in an otherwise “stable” claim, elect to escalate its evaluation of the disability by requesting that the claimant attend a Functional Capacity Evaluation (FCE), submit to an Independent Medical Examination (IME), participate in a Field Interview, or respond to Surveillance Film or evidence turned up in Internet and Database Searches. Our attorneys have the knowledge and experience to guide you through these insurance company investigations, and to ensure that your rights and disability benefits are protected.
- Periodic Claim Updates: Most insurance companies engage in active management of their disability claims throughout the duration of the disability. At the outset of a claim, Claimant Disability Questionnaires and/or Attending Physician Statements may be required as frequently as every month, depending on the disabling medical condition, the severity of the condition, whether it is a partial or total disability claim, the type of coverage, and other factors. An insurer may require less frequent updates if a claim involves a catastrophic total disability (for example, terminal brain cancer, or a severe spinal cord injury), but require frequent updates where the disability is less severe or is expected to improve (such a situational depression, or recovery from a major surgery), and/or where the claimant continues to work in reduced capacity (in which case the insurer may collect monthly earnings information to calculate the partial disability benefit that is payable). If a significant disability persists, the claimant does not return to work, and all significant policy/medical milestones are achieved, the claim may eventually be deemed stable. If so, it is likely to be managed on a less frequent basis (such as annually or biennially) and in a more routine manner (claim update requests may be sent out automatically, by a computer or team, rather than by an individually-assigned claim manager). Although each insurer may have a different name for its stable claims — CIGNA and LINA generally refer to such claims as “stable and mature” (managed by the “SAM” team) — most insurers generally graduate their disability claims to this annual, routine-maintenance status. To achieve this status, most claims administered under employer-sponsored long term disability plans subject to ERISA will need to surpass a number of milestones. Since most employer-based long-term disability plans permit the insurance company to “offset” or reduce its benefit payment by Social Security disability (SSD) benefits, Worker’s Compensation, and other similar disability benefits, a claim will not usually be considered stable until such offset benefits have been fully determined (and all “over-payments” as a result of the retroactive award of such benefits have been calculated and recovered). Similarly, and as discussed in the following bullet points, if the long term disability coverage transitions from Own Occupation to Any Occupation benefits after a period of time, or if coverage for psychiatric, mental or nervous conditions has a time limit to (and the claimant’s disability includes a significant psychiatric component), a claim will not usually be considered stable until the relevant time period or limit has been reached and disability has been established under the new “any occupation” standard and/or determined to be fully supported by a non-psychiatric condition. Once a claim has graduated into routine maintenance, this does not mean the claim is free from intensive re-evaluation. As discussed in the final bullet point below, any number of “red flags” or a quality assurance review by the insurance carrier’s reinsurer may result in the claim being “escalated” and subjected to non-routine investigative tactics. Our attorneys can provide guidance throughout the duration of your claim, by reviewing proposed claim update forms to ensure they include complete and persuasive information about your medical condition, functional limitations, and occupational restrictions that supports your entitlement to continued disability benefits.
- Transition from Own Occupation to Any Occupation Benefits: Although uncommon in privately purchased individual disability income policies, “transitional” disability benefits are fairly widespread in employer-sponsored group long term disability plans. In such transitional disability plans, disability is determined for an initial period of time (typically, either 24 or 60 months, depending on the plan) based on the inability to perform the important duties of the claimant’s “own occupation” or “regular occupation” in the national economy. After the initial period, the plan transitions to an “any occupation” standard, so that to qualify for continuing benefits, the claimant must generally be unable to perform the important duties of “any occupation” for which the claimant is “qualified by education, training, or experience.” The insurance company will perform an Any Occupation review, typically during the 6-month lead-up to the transition date. Because the Any Occupation standard is more demanding to satisfy, the transition from Own Occupation to Any Occupation benefits can be a particularly perilous time and insurance companies terminate many long term disability claims at this juncture. Many claimants have expressed to us their surprise and dismay that the same insurance company that helped them win their Social Security disability benefits would then turn around and terminate their long term disability claim at the time of the Any Occupation transition. Sadly, it happens with some frequency. Insurance companies will say that they have new or different medical information than the information the Social Security Administration considered, that the Social Security Administration’s decision is “old” or “stale,” or that the Social Security Administration applied a different disability standard, or applied different disability rules. Under the circumstances, and because the Any Occupation standard will generally govern the remaining duration of your disability claim, it is extremely important that you navigate the insurer’s Any Occupation review with great care. Our attorneys can use their knowledge, experience, and medical/vocational resources to maximize the probability that your claim will smoothly and successfully transition from Own Occupation to Any Occupation benefits.
- Exhaustion of Benefit Limitation for Subjective, Psychiatric, or “Mental/Nervous” Conditions: Another common feature of employer-sponsored group disability plans is a limitation period (typically, 24 months) for disabilities “caused or contributed to” by a psychiatric condition. In industry parlance, these limitation provisions are generally referred to as “Mental/Nervous Limitations” or “M/N Limitations.” Some provisions specify particular psychiatric conditions, and may exempt others (such as dementia when caused by a stroke or Alzheimer’s disease). Some provisions may be more expansive, and may impose limited benefits for conditions based on “subjective symptoms” (that is, conditions that are diagnosed on the basis of self-reported symptoms, rather than clinical or objective diagnostic findings). M/N Limitation provisions appear in a number of linguistic formulations, so that one plan may limit benefits for a disability that is “caused or contributed to” by a psychiatric condition, while another may limit such benefits only where the psychiatric condition is a “primary” factor in the disability. In many cases, even if a psychiatric or self-reported condition is present, it may be possible to qualify for benefits after the 24-month limitation period if it is demonstrated that a concurrent physical disability is — in its own right — wholly disabling (under the applicable disability standard), that is, the physical condition satisfies the disability test without consideration of any disabling effects of the psychiatric or self-reported condition. If you have a long term disability claim that is based on a mixture of psychiatric and physical conditions, and your plan has a Mental/Nervous Limitation, our lawyers can provide experienced legal guidance and strategy to maximize the probability that your physical disability benefits are continued after the M/N Limitation period has expired.
- Escalation of Claim Investigation — Functional Capacity Evaluations (FCEs), Independent Medical Evaluations (IMEs), Field Interviews, and Surveillance: At almost any point in the duration of a disability claim (even after it has graduated to “stable and mature ” status), a claim manager may decide to “escalate” the investigation and assessment of the claim. Escalation typically involves either the insurance company’s internal “special investigation unit” (SIU) or external consultants. SIU investigative tactics include filmed surveillance, in-person “field interviews,” and online searches. Surveillance is typically ordered for several days in a row, for as many as 10 to 12 hours per day. Field interviews are usually conducted with the claimant at home by a nurse or insurance company fraud investigator. Field interviews may be taped or video-taped. Internet searches may be performed using public content, such as the claimant’s own posts on Facebook, LinkedIn, blogs, or other open-access websites, or may be conducted through specialized background check databases, such as Accurint, Lexis-Nexis, and the like. External investigative tactics include the functional capacity evaluation (FCE), in which a physiatrist or physical therapist tests the claimant’s ability to perform a variety of physical movements and tasks, and the so-called independent medical examination (IME), in which an outside doctor is retained by the insurance company to evaluate the claimant’s disability by reviewing medical records and examining the claimant personally. In the early stages of a claim (and in conjunction with Any Occupation transition, or the exhaustion of M/N benefits), any one or more of these investigative tactics may be used — particularly if the claim seems poorly documented, a treating physician seems unsupportive, or the insurance company’s internal medical staff do not see eye-to-eye with the claimant’s treating physician. However, even small “red flags” may trigger an investigative escalation, such as: lateness or delay in returning claim forms; repetitive text on claim forms; a treating physician’s medical record references to improvement or to activities, exercise, or travel not otherwise documented or explained in the claimant’s own update forms; a claimant’s failure to answer the telephone; the duration of the disability is longer than average, etc. Or, the insurance company’s insurer (that is, its reinsurer), may identify a discrepancy in its quality review of your claim file and ask that your claim be escalated. If your claim is escalated and one of these investigative tactics is employed, you can be certain your disability benefits are in danger. These tactics are only ever used when the insurance company is suspicious about your claim, or otherwise feels that your evidence of disability is weak, unpersuasive, or vulnerable. If you become aware that your disability claim is being targeted with any of these investigative tactics, it is extremely important that you be proactive about your response. Our attorneys can intervene to push for access to surveillance, FCE, IME, and Field Interview reports; develop persuasive medical and vocational evidence to challenge and counteract the information obtained by the insurance company, and to otherwise protect your legal rights and make sure that the insurance company does not hastily or improperly terminate your long term disability claim.
Mark Scherzer Law :: Long Term Disability Claim Assistance :: Attorney Services Throughout Your Long Term Disability Claim
ERISA Disability and Private Disability Income Insurance Lawyers in New York (including New York County, Bronx County, Kings County, Richmond County, Queens County, Rockland County, Westchester County, Nassau County, Suffolk County, Orange County, Putnam County, Sullivan County, Ulster County, Dutchess County, Delaware County, Greene County, Columbia County, Albany County, Rennselaer County, Clinton County, Jefferson County, Oneida County, Schenectady County, Otswego County, Saratoga County and St. Lawrence County)