You worked hard on your long term disability appeal.  Hopefully, you followed our LTD claim appeal best practices when preparing your appeal.  Maybe you followed our advice and hired an attorney to prepare the appeal for you.  Now, the appeal is in the insurer’s hands.  Despite your preparation, it is still possible for the appeal to go awry after it is submitted to the disability insurer.  Here are some common disability claim appeal issues that can arise and how to handle them.

The Insurance Company Sends You an Adverse Report

The ERISA claims regulations were amended in 2018 to require that disability plan administrators provide claimants with copies of any new evidence generated after the appeal is submitted and a reasonable opportunity to response prior to issuing an “adverse determination” on the appeal.  29 CFR § 2560.503-1(h)(4).  Usually, this “new evidence” takes the form of a file review by a non-examining doctor.  If you receive such a report, it means the insurance company will deny your appeal, unless you are able to persuade the insurer through new evidence or new argument that the file review doctor is wrong.  Thus, it is imperative that you respond and not simply ignore the report.

Few unrepresented claimants think to request an extension of the deadline to respond, yet this is the first and most important step to preparing an effective response.  Most insurance companies will agree to a 30- or 60-day, or even longer, if the circumstances require.  You should request the extension as soon as possible to ensure you receive a response prior to the expiration of the original deadline.

After you have requested an extension, you should make an appointment with your treating doctor (or doctors) to discuss the report.  Ask your doctor to prepare a letter explaining why he or she disagrees with the insurer’s reviewing doctor.  Perhaps the doctor has mischaracterized your medical condition or overlooked some critical aspect of your disability.  Remind your doctor to focus his or her attention on your restrictions and limitations and why the reviewing doctor’s characterization of those restrictions and limitations is incorrect.  If your doctor is unwilling to write a letter, see if he or she will at least document his or her opinion in an office visit note that you can then submit to your disability insurance company as a rebuttal.

Additionally, review the new evidence for errors and omissions.  For example, did the reviewing doctor neglect to consider the non-exertional aspects of your disability?  Was the reviewing doctor provided with complete medical records, including the opinion evidence from your doctors that you (hopefully) submitted in support of your appeal?  Failure to provide a reviewing physician with complete medical records or to inquire about non-exertional aspects of disability are common reasons disability claim denials are overturned by reviewing courts.

The Disability Insurance Company Requests an Exam

The appeal is rolling along and a decision seems imminent when, out of the blue, a letter arrives requesting that you attend an independent medical examination, or “IME.”  Such exams are “independent” in name only, in that they are arranged and paid for by the insurer with a doctor of the insurer’s choice.  If you receive such a letter, there are some steps you can take:

  • Object, but don’t refuse to attend the examination.  Most disability insurance policies require that you submit to an examination with a doctor of the insurer’s choosing.  Thus, if an insurer requests that you attend an IME, you should voice your objections to the examination, but don’t outright refuse to attend the examination, as doing so could result in your disability claim being denied due to failure to comply with the policy terms.
  • Offer to arrange your own examination.  The insurance company is requesting an independent medical examination because it determined that some information is missing from your medical records.  Perhaps your treating doctor has done a poor job of documenting the reasons for his or her opinions, or you haven’t been seeing a doctor due to the cost. Offer to arrange your own examination.  The SEAK Expert Witness Directory is one resource for locating certified independent medical examiners in your area.  The doctor performing the examination is more likely to render an impartial opinion if he or she knows that the patient, and not the insurer, is paying for the examination.
  • Object to the qualifications of the examiner.  Carefully review the background and medical specialty of the examiner to determine if he or she is qualified to evaluate you.  If you suffer from a neurological condition such as migraine headaches, your examination should be performed by a neurologist and not internist, physiatrist, or occupational medicine specialist.  Similarly, if you suffer from an autoimmune condition, your examination should be performed by a rheumatologist.  If your complaints are primarily physical in nature, but the insurer refers you for a psychiatric or , you should protest that examination is not likely to produce relevant results.  You should also research the reputation of the examiner.  If he or she has 1-star reviews on Google or other websites, print those reviews and include them with your letter objecting to the exam.
  • Object to the location of the examination.  If the exam would require you to travel a great distance (over an hour), and you live in a dense metropolitan area with lots of other doctors with the same medical specialty, you should object to the examination on that basis and propose an alternate location and/or doctor, if possible.
  • Object that the examination is medically contraindicated.  If the insurance company has requested that you attend a functional capacity evaluation, but doing so could exacerbate your medical condition, you should object to the examination, supported by a letter from your doctor.  Similarly, if the insurance company has requested that you attend a neuropsychological evaluation, but you underwent one in the last two years, you should object to the examination because the rehearsal factor could produce artificially inflated results. 
  • Object to the timing of the examination.  If your appeal was submitted more than 45 days ago, you should object to the exam as untimely, since the need for an examination should have been apparent to the insurer within the first 45 days of the appeal review period.  Courts have scrutinized requests for an IME that are made more than 45 days into the appeal review period.  See, e.g., Kosiba v. Merck & Co., 384 F.3d 58, 67 (3d Cir. 2004) (late request for IME warranted inference of procedural bias where all the other evidence in the file supported disability); but see Montoya v. Reliance Standard Life Ins. Co., No. 14-CV-02740-WHO, 2015 WL 884643, at *5 (N.D. Cal. Mar. 2, 2015) (finding no procedural irregularity where IME requested late in the appeals stage).
  • Request to bring someone with you to the exam.  If the insurer insists on the examination over your objections, ask to bring someone with you to observe the examination.  This person can be a spouse, family member, or friend; a lawyer; or a medical professional.  The witness should take detailed notes of the examination, including when it starts and stops; the duration of the physical examination, clinical interview, and any time spent reviewing records; and any comments or conduct by the examining doctor that strike the witness as odd.  The notes from the exam can provide a basis for later arguing that the results of the exam should be set aside.

Your Doctor Is Unable to Reach the Insurer’s Doctor

Often, during the appeals process, a doctor for the insurer will contact the treating doctor to conduct a phone conversation, often referred to as a “peer to peer” conversation.  The insurer’s doctor may call the treating doctor at 4 p.m. on a Friday, 9 a.m. on a Monday, and then file his or her report with the insurance company, stating that attempt at a peer to peer conversation was “unsuccessful.”

These missed connections used to be detrimental to a disability claim appeal.  Thankfully, with the 2018 amendments to the ERISA claims regulations, claimants now must be provided with the report prior to an adverse benefit determination and an opportunity to respond.  Thus, if your doctor is unable to connect with the insurer’s doctor, he or she will have an opportunity to respond later, before your appeal is denied.

Your Doctor Agrees With the Insurer’s Doctor

What if the insurer’s doctor speaks to your doctor and gets your doctor to concede that you can return to work?  Oftentimes, the insurer’s doctor will pressure the treating doctor to give the most generous assessment of your abilities, then represent those abilities as the treating doctor’s opinion.  In any other legal context, such conversations would be inadmissible hearsay.  However, thanks to quirks in ERISA civil procedure, these conversations are treated as admissible by reviewing courts.

In the forgoing scenario, you should present your treating doctor with the report and request that he or she prepare a letter of clarification or retraction.  Perhaps the insurer’s doctor misrepresented the treating doctor’s statements, or the treating doctor misunderstood the question being asked.  According to cases like Cook v. Liberty Life Assurance Co. of Boston, 320 F.3d 11 (1st Cir. 2003), it is arbitrary and capricious to refuse to accept a treating doctor’s change of opinion when it is supported by a valid rationale.

Your Doctor Refuses to Cooperate

It is not uncommon, during the appeals process, for a treating doctor to throw up his or her hands and refuse to respond to new evidence generated by the insurer.  That refusal does not necessarily mean the treating doctor no longer supports the disability claim: he or she may be diverted by competing patient care obligations, frustrated by the insurer’s excessive paperwork demands, or confused as to what the insurer wants.  If this happens to you, don’t despair.  Here are some options to consider:

  • Offer to pay your treating doctor for his or her time.  Many doctors charge hourly consulting fees for medicolegal matters.  If you have not already done so, consider offering to pay your doctor his or her hourly consulting fee for time spent reviewing and responding to the insurer’s report.  The resulting report may cost hundreds (or even thousands) of dollars, but it will have been worthwhile if your appeal is approved.
  • See if your treating doctor will provide an opinion in an office visit note.  Doctors are required to chart each patient visit.  At your next appointment, try bringing the insurer’s report and seeing if your doctor will comment in the body of an office visit note.  A straightforward statement by your doctor that he or she has “reviewed the other doctor’s report and disagrees for the following reasons …” will suffice in place of a letter.
  • Consider asking a different provider.  If your doctor refuses to cooperate, you should ask another doctor or consider establishing care with a new one.  If time is of the essence, you can arrange an independent medical examination.  Or, depending on the circumstances, a functional capacity evaluation may achieve the same objectives at less cost.  An experienced benefits attorney can guide you through the decision of what additional testing to get, and whom to hire.

Your Medical Condition Changes

Another common occurrence in ERISA claim appeals is that the claimant’s medical condition changes after the appeal is submitted.  If you establish care with a new doctor, are hospitalized or undergo surgery, it is imperative that you notify the insurance company (or your lawyer, if you have one) promptly, so they can obtain updated medical records.  A change in medical condition, such as a new diagnosis, or the worsening of an existing condition, can be compelling evidence of disability.

Conclusion:  Don’t Despair, You Can Fix Disability Claim Appeal Issues (or Obstacles)

As the forgoing discussion illustrates, there are many ways in which an LTD appeal can go wrong after submission.  An experienced disability insurance benefits attorney can anticipate and prepare for those issues in advance and guide you should they arise in your appeal.  Thus, it is best to engage the services of an experienced benefits attorney as early as possible in the appeals process.  Contact DeBofsky Law today to discuss your case.

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