Monday, January 26, 2015

The "Own Occupation" vs. "Any Occupation" Definition of Disabliy LTD Cases

All long term disability claimants should have a good understanding of how their disability insurance policy and/or plan operates.  Most ERISA group policies contain similar language describing how it is determined whether a claimant is eligible for benefits or not.  Although the language is almost always very much alike, claimants should carefully read the plan documents, in case there are significant variations.

Here, I will discuss two terms that are almost always found in ERISA group policies: "Own Occupation" and "Any Occupation".  Most plans provide benefits for the first two years if the claimant is unable to perform his or her "Own Occupation" as a result of an injury or illness.  After, these two years, the definition of disability changes.  Thereafter, a claimant will only be able to receive benefits if he or she can show an inability to perform "Any Other Occupation".

It must be noted that the two year period (24 months) coverage under the "Own Occupation" definition is the general rule.  However, I have seen many ERISA plans that provide benefits under the "Own Occupation" provision for 12 months and several other that insure the claimant for 36 months under the "Own Occupation" provision.  I should also clarify that it is common for some plans to use the term "Regular Occupation" instead of the term "Own Occupation".  These two terms are very similar however, once again, I must point out it is important read the plan documents carefully because there can be significant variations.   

Own Occupation or Regular Occupation:


Beware, the insurance company can trick you with the meaning of the term "Own Occupation".  It is extremely important for you as a claimant to define accurately the nature of your own occupation. Do not allow the insurance company to determine on their own what was the specific nature of your job is.  You must state the particular physical requirements of your own occupation, thoroughly.  Present this information as part of your initial application for long term disability benefits.  I see many instances where the insurance company insists in improperly classifiying nature of a claimat's occupation.  In many cases, the insurance company will assume that your job is a sedentary job, unless you explain to them what the physical demands of your job are.  

I see the problem that I described above all the time, particularly in the medical field.  For example: a claimant tells the insurance company that they worked as a "medical secretary".  The insurance company goes ahead and determines that being a secretary is sedentary work, when in reality, the claimant's job required him or her to collect laboratory samples, gather medical records, usher patients (some of them in wheelchairs) and walk all over the hospital.  Obviously, the insurance company has a better chance of successfully denying your claim if they determine that your case is performed at a lower level of physical exertion.

Any Other Occupation:


In many instances, insurance companies fail to tell you that the term "Any Occupation" only deals with occupations that you are "reasonably" suited to perform.  Therefore, under this definition, you are not required to take any specialized training or accept jobs that are too complex for you.  

Moreover, in most policies you can still be found disabled if the other occupations available provide you with an income that is below 60% of your earnings before you became disabled.  It is important that the insurance company perform a thorough market research of the jobs available in your area.  A vocational expert must determine whether the other jobs that the insurance company believes that you can perform can provide you with an income equal to at least 60% of your pre-disability earnings.  

Monday, January 19, 2015

The Illegible Medical Records Problem

Over the years, my office has developed great expertise in deciphering the awful scribbles and poor hand writing of some physicians.  However, in some instances, a doctor's  handwriting is so bad  that it  is impossible use the medical record to support our client's claim.  
Bad handwriting can seriously interfere with your Social Security Disability or Long Term Disability Claim.  If the examiner reviewing your case cannot understand your doctor's notes, your case is less likely to be granted.  The problem of illegible medical records not only causes problems for disability benefit applications.  It is well established that illegible medical notes can also harm patient care.  A 1986 study from the New England Journal of Medicine found that out of 50 outpatient notes, 16% of the all words were illegible.  This means that on an average, one out of every six words could not be deciphered.  Besides affecting your chances wining your SSDI or LTD case, bad handwriting from doctors result in lost time and money, medication errors and bad communication between different providers. 
The solution to problem of bad hand writing is obvious: switch to a computer based system for taking  medical notes. Unfortunately, many dinosaurs in the field of medicine are still unaware of the digital era.
If you are seeking long term disability and/or Social Security Disability Benefits and you have a medical provider that has poor penmanship, here are some suggestions of steps that can be taken to improve the quality of medical evidence presented with your claim:
  • Prepare a questionnaire for your doctor to complete with very specific questions.  In our office we call these questionnaires "Medical Source Statements", however, many disability lawyers also refer to these forms as residual functional capacity "RFC" forms.  In many instances, it is a good idea to have specific boxes that your doctor can check in order to prevent him from writing too many illegible scribbles in the form.  Preparing this questionnaire can help you narrow down some of the specific medical issues in your case and get specific responses pertaining to your medical condition.
  • Try to transcribe some of the medical records and present them to your doctor for his approval. At the end of the transcription, you can provide a space for his signature attesting that your transcription is correct.  You can also be more diplomatic and resourceful and hire your own medical consultant to do the transcription.  Your medical consultant can then write the doctor asking for his approval of the transcription.
  • You can ask your doctor to agree with another medical expert's opinion by signing it.  You can provide him a copy of the other doctor's medical opinion and ask him in writing whether he agrees.  This is a way to, at least, give some weigh to the credibility a medical provider's whose record's would otherwise have very little weight in your case.
  • Finally, under HIPPA laws you are allowed to request that a medical provider make corrections on medical records that are inaccurate or illegible.  The problem with this option is that it might take a while for the doctor or hospital to make this change.  You are probably better off trying to address the issue informally with your doctor and ask him whether he can write a letter for your disability claim explaining the any illegible statements on the record.


Monday, January 12, 2015

I Will be Attending the 17th National Conference on Litigating Disability Insurance Claims

For the second year in a row, I will attend the ACI's 17th National Conference on Litigating Disability Insurance Claims.  This year's conference will be held at The Union League in Philadelphia, PA.  This is the only long term disability insurance law seminar where plaintiff and defense lawyers meet to discuss recent legal developments in ERISA law.
This event presents a one-of-a-kind opportunity to meet with colleagues --and opponents-- in a setting outside of our offices and share practical tips, strategies and solutions to the issues that we face everyday.
The conference presents a wide variety of panelists that includes renowned judges, prominent plaintiff and defense attorneys, medical experts and insurance claims professionals.  Some of the companies who we regularly fight are scheduled to participate: The Hartford, CIGNA, Unum, Prudential, The Standard and more.

Some of the major points that will be discussed in this conference include:

  • The battle over the standard of review: "de novo vs. arbitrary and capricious".
  • Dealing with IME evaluations, treating physicians opinions and Functional Capacity Evaluations.
  • Tackling the challenges of mental health claims.
  • Strategies and practice tips for successful medication.
  • Challenging/defending surveillance evidence.
  • Recovery of attorney's fees in ERISA cases.
  • Analysis of Vocational issues in disability insurance claims. 




Monday, January 5, 2015

ERISA Long Term Disability: Is the "Risk of Relapse" a Disability?

A recent First Circuit Court of Appeals decision examined whether the risk of relapse by a long term disability claimant, who is addicted to drugs, constitutes  a disability.  In essence, the question present before the First Circuit in Colby v. Union Security Insurance Co. was whether the risk of substance dependence "can swell to so significant level" as to constitute a disability in the same manner that risk into cardiac arrest or risk of orthopedic complications can constitute a disability.
The Court looked at whether the claimant could safely return to her material duties of her regular occupation as an anesthesia doctor once she had successfully completed a drug rehab program.  The Court found that "categorically  excluding risk of relapse as a source of disability is simply unreasonable".  Consequently, it found that the insurance company abused its discretion in denying the claimant's case by not taking into consideration her risk of relapse.
This appellate decision is directly opposite to a decision issued about five years ago by the Fourth Circuit, which held --in an almost identical case-- that not considering risk of relapse by the plan administrator was not an abuse of discretion.  See Stanford v. Continental Casualty Company.   
Given this clear split between the First and Fourth Circuit, I anticipate that in the upcoming months plan administrators, throughout the country, will be amending plan documents to address this particular issue.  Expect new language in the plans specifically excluding the risk of relapse as a valid claim for disability.

Monday, December 29, 2014

Repercussions of the Binder & Binder Bankruptcy

Binder & Binder one of the Nation's largest, and probably the best known, Social Security Disability law firms has filed for bankruptcy.  The firm became known for their tacky T.V. commercials showing attorney Charles Binder wearing a cowboy hat.

The firm's slogan: "We'll deal with the government.  You have enough to worry about."  is well known by those who spend a good part of the day watching day-time television.  Binder & Binder spends approximately $20 million a year in advertising alone.

Now, it is widely rumored that Binder & Binder is pulling all their T.V. ads off the air.  Binder has also announced that it will be closing offices in several cities through out the nation, including Hartford, in an effort to reduce costs.

Over the past two to three years, Binder's exorbitant budget and heavy caseload was used by the critics of the Social Security Disability programs to wrongly allege that the system was being overly generous to claimants.  Such criticism lacked basis.  In fact, Social Security Disability Law Firms have always had to work with a very small margin of profit.  Binder & Binder's bankruptcy debunks the wrong notion the lawyers are getting rich out of the Social Security Trust Fund.  Moreover, all well informed disability lawyers have known that the boom in SSDI applications has been over for quite some time.  (The boom probably occurred from 2010 to 2011.)  As I have explained in previous posts, the boom was the result of the Nation's demographics, not of a system that was overly generous to claimants.  Unfortunately, lousy politicians in Washington don't want to do a serious analysis of Social Security's problems.  They act as if the Nation's demographics had not changed.  Instead, they find it easier to play the blame game and portray disability lawyers as the cause of the crisis.     

Monday, December 15, 2014

Fraudulent Tax Preparers and Social Security Disability

Lately, I have seen a lot of Social Security Disability claimants get in trouble because they have reported self employment income to the IRS in order to receive a refund under the Earned Income Tax Credit. Unfortunately, in many instances, the claimant never really had any self employment income and the only purpose for falsely reporting this income was to get a refund.  Beware! Those who engage in this practice are committing tax fraud!  
In addition, falsely reporting self employment income will kill your chances of winning your Social Security Disability case.  A person who is self employed will, in all likelihood, be found not to be disabled.  Moreover, a person who has made a fraudulent tax return, is not going to be believed at all by a judge.  If a claimant lied in his tax return, why wouldn't he or she also lie in her SSD application? 
Through out the entire Social Security Disability process, is always good to keep in mind the fact that Uncle Sam knows a lot more about you than you think.  Please remember that, you can't get away with telling one thing to the IRS and then telling something else to the SSA.
I suspect that tax preparers are largely responsible for the large number of fraudulent tax returns seeking an earned income tax credit.  The tax preparers that we frequently see aggressively advertising in the inner city, solicit low income people and lead them to believe that there will be no consequences to filing a false tax return.  In many instances, they convince disabled individuals who have been waiting for a long time for their Social Security Disability hearing and are desperate for money.  This is truly unfortunate.  More needs to be done to educate the public, --particularly those who are disabled--, about the consequences of falsely reporting income in order to get a refund.  It would also be ideal if the government took a more aggressive stand in investigating the corrupt practices of tax preparers who induce low income individuals to engage in this practice.    

Monday, December 8, 2014

Nazis Can't Collect Social Security... Anymore

Did you know that, Jakob Denzinger, a 90 year former Auschwitz guard who later became an American citizen, collects approximately $1,500 per month in Social Security payments. Denzinger has renounced his American citizenship and no longer lives in the U.S.  However, he still gets his monthly check.
After it was discovered this past October that dozens of Nazis who have been forced out of the United States are still collecting Social Security, Congress unanimously passed a bill a few weeks ago terminating benefits for these war criminals. 
Even though these Nazis had lost their U.S. Citizenship, under current law benefits can not be stopped.  In order to be able to stop benefits, a higher threshold is required: there must be a final order of deportation against the Social Security recipient.  Now, if the bill passed by Congress becomes law, benefits would be stopped immediately.
According to Forbes magazine, Social Security payments to Nazis could have reached millions.  It is estimated that as of 1999 at least $1.5 million in benefits had been paid.  The lighter side of this story is that at least members of Congress were finally able to unanimously agree on a piece of legislation related to Social Security.      
Since we all need some humor to get through the Social Security Disability process, here is a report from Stephen Colbert on this subject: