We have encountered several cases where claimants have been denied their benefits not because of incomplete or inconclusive evidence of their medical conditions but solely because their conditions kept them from working longer than the guidelines used by disability insurance claim departments. When evaluating disability claims, claims examiners rely on industry developed resources to determine the expected duration of the claim, regardless of the specific circumstances. Based on these claim management practices that have been put into place by most insurance companies, we’d like to shed some light on the process used to assign expected return to work dates for claims and the extra steps that claimants need to take to protect their benefits if they’re disabled beyond these arbitrary dates.
Industry trainers and expert consultants are hired to establish expectations that far too many days off of work are given for disabilities, forming a conscious bias against claimants and attending physicians from the beginning of the claim process. The professed basis for this bias is that many insureds and doctors allegedly don’t understand that work restrictions and limitations for many conditions are not medically required but rather reflect a voluntary choice. Claim examiners are trained to believe that very few conditions require physicians to impose work restrictions and that the majority of time off of work is not medically required and unnecessary. These assertions are accepted as true with a few war stories thrown in to support their beliefs. An environment is fostered that accepts claim decisions with little to no evidence or proof for the reasons behind the denials made of many claims. Claim managers (and the examiners they supervise) are also motivated to reduce costs and expenses while making return to work determinations, which often translates into obtaining as little expert input and advice as possible while trying to form a reasonably defensible claim decision that benefits the insurance company.
There are four factors that claims examiners are trained to use when determining the appropriate duration of a disability claim:
- The medical condition that was diagnosed and can be proven by the claimant
- How the medical condition affects the claimant’s ability to work at all (Functional Capacity Evaluations)
- The minimum level of vocational demands of the claimant’s job
- The requirements and accommodations needed for the claimant to return to work
While these categories may seem fair enough, how they are evaluated is where problems arise. To determine the functional capacity of a claimant, insurance companies rely on Functional Capacity Evaluations mentioned above as well as O*NET Resource Center. This resource was developed by the Department of Labor and provides a free online database of job descriptions. While this may be a good resource, a too common insurance industry practice is to aim for the lowest hanging branch and use job descriptions that makes a return to work the easiest and not necessarily the job description that most accurately describes the nature and extent of the occupational duties performed by the claimant. For example, if a claimant was a vice president of corporate communications, using the job title of communications manager instead waters down many of the higher level duties from the job requirements and provides an easier return to work with a shorter claim duration for the insurance company.
When reviewing a treating or attending physician’s opinion of the disability, claims examiners are trained that these doctors are little more than patient advocates and their opinion means little without further proof. It is our firm’s opinion that the determination of a doctor who has examined and is treating the claimant should carry far greater weight than the opinion of a doctor hired by the insurance company who has done nothing more than view the medical records of a patient and perhaps spoke with the treating physician without even examining the claimant in person.
To solve this “problem,” claim departments have developed and cite books of Medical Disability Duration Guidelines. These books provide simplified, standard recovery periods for many conditions. The guidelines are touted as efficient (i.e., quick) and effective (i.e., easy) alternatives (i.e., shortcuts) to doing complete investigations and evaluations of individual claims. As the books of guidelines are supported by industry research and industry experts, they’re touted as “non-adversarial” and a way to discourage malingering, insinuating that claimants who surpass these industry-developed timeframes are either sluggards or frauds who are trying to game the system through a so-called disability.
There are several problems with the over reliance on these guidelines. The first is the apparent abuse of basic statistics. An average recovery time doesn’t mean that patients actually recovered in that period of time, just that amount of time was in the middle of all the recoveries. The truth is that approximately half of the people recovered more quickly and the other half took longer than that period to recover. Teaching claims examiners to rely on this data to make basic determinations is poor advice that biases the examiners against claims unless claimants recover more quickly than average. Also, as these guidelines are written for insurance companies, the vendors are inclined to provide guidelines that are acceptable to the companies paying their fees. This leads to biased, inaccurate data sets that are used far too often in disability determinations. The guidelines also discount the effects of multiple medical conditions or of complications that may delay recoveries.
This leads to the main topic of this article: how can claimants protect their benefits when exceeding the return to work guidelines used by their claims examiner and the insurance company?
Our firm has successfully used several different techniques to combat these issues, and many of these answers can be found in previous blog posts. The first defence is to create a complete and thorough job description and make sure it accurately reflects your actual duties – more information on this topic can be found here. Fighting the disability guidelines is a more difficult process that relies on copious medical records and doctors who are willing to fight for their opinions. Insurance companies often contact doctors without any sort of notification to the patient-claimant and try to influence doctors to change their opinions on their patient’s ability to work, especially if the expected claim duration has been exceeded. You need to be in regular contact with your treating physician(s) to make sure they understand your job demands and your symptoms and to make sure they’re not being harassed by anyone from the insurance company – claims examiners, investigators, or even other doctors. We’ve seen doctors change their opinions just to stop the hounding by the insurance company, regardless of the actual condition of their patient. We have several posts on dealing with aggressive claims examiners, helping your doctor help you, and defending yourself against the medical examinations demanded by the insurance companies.
Industry training and claim management practices such as these are some of the reasons the disability claim industry has become known as an assembly line for claim denials and rife with unreasonable investigation practices. New employees and existing examiners are lulled into a sense of false normalcy by specialized continuing education seminars, creating (un?)intentional bias against claimants and the medical professionals who treat them. It’s become necessary to take steps to proactively defend your claim against these generalizations and make sure your claim is appropriately considered by claim examiners.
If you would like more information on guidelines for your specific disability, have been denied your benefits based on your recovery time, or have any other questions about your disability claim, please visit our website to sign up for a free consultation or call our offices toll-free at (855) 828-4100.