Wondering how to prove your long term disability claim? Here's what you need to know.
Your Burden of Proof
You will bear the burden of demonstrating your disabilty. To meet this burden, you must establish the following:
- You have a sickness or injury;
- The sickness or injury has reduced your functional capacity; and
- As a result of your reduced functional capacity, you are unable to sustain the functional requirements of the occupational standard specified in the policy.
Proving your disability claim will require you to gather two types of documentation: (1) medical evidence and (2) vocational evidence. Medical evidence will include objective testing, treatment notes from physicians, hospital visits, and medical literature. Vocational evidence will include your job description, employment history, education and other records that describe your current occupation, including other potential employment opportunities.
Starting the Applications Process
A claim of disability is commenced by filing an application for disability with the insurance company. The application typically consists of three parts:
- Claimant Statement;
- Employer Statement; and
- Physician Statement.
Insurer Forms Contain Traps for the Unwary
The forms, particularly the Physician Statement, have traps for the unwary. For instance, most forms ask the doctor to opine how long in a day the patient can sit, stand and walk. It usually breaks it down into three broad categories: “occasionally,” which is 1-33%; “frequently,” which is 34-66%; and “continuously,” which is 67-100%. If the doctor checks the “occasionally” box for each, thinking that the patient can sit 1%, stand 1% and walk 1%, the insurance company might interpret the form as indicating the ability to perform an occupation where the employee must sit 33%, stand 33% and walk 33%. Therefore, the doctor is well advised to be more specific than just checking the boxes provided on the form. Similarly, the forms heavily are focused on the physicality of the occupation and do not focus on the fact that the patient may have difficulty with the cognitive and stress demands of the job.
The forms should be completed so they accurately reflect the full extent of the disability, with a particular focus on the actual functional requirements of the client’s occupation. The insurance companies try to analyze the client’s occupation only in terms of the classifications found in the Dictionary of Occupational Titles (“DOT”) published by the United States Department of Labor: sedentary, light, medium, heavy, and very heavy. These classifications, which date back to the 1970s (and have not been revised since 1991), focus primarily on the physical demands of the job. By focusing on these classifications, the insurers simplify the task of deciding disability, but also short-change the claimant’s rights under the policy. The policy typically insures the claimant from his or her regular occupation for at least two years. By focusing on the DOT classifications, the insurance companies in effect only are insuring 5 occupations, instead of the myriad of occupations that claimants have. Do not let this happen to you. Make sure your occupation is fully described and that the insurance company is provided with adequate information explaining why you cannot perform the specific duties of that occupation, even the non-physical duties.
Why Medical Evidence is Vital
The importance of providing adequate medical evidence to support a claim cannot be stress enough. A doctor’s notation indicating that you are “totally disabled” is insufficient. You need to compile your entire medical history, including a history of your illness, the physician’s treatment notes, objective test results, and reports or questionnaires that speak to your disability. These records often are difficult to obtain, and are frequently illegible and almost impossible to utilize in your favor. Therefore, obtaining new medical evidence, such as questionnaires and reports that speak specifically to your disability, may be crucial to establishing a valid claim. You may want to consider having someone in the treating doctor’s office transcribe the notes so they effectively could be used in support of disability.
Medical evidence is either objective or subjective. Objective evidence consists of test results, such as MRIs, X-rays, blood tests, etc., and clinical findings. Clinical findings are findings observed by the medical professional, such as a rash, fever, swollen glands, red throat, restricted range of motion, etc. By contrast, subjective evidence consists of recordings of a patient’s subjective complaints that cannot be verified by objective testing or clinical observation, such as pain and fatigue. Subjective evidence is more credible when it corresponds with objective evidence. For instance, if a patient’s MRI shows a herniated disc, the patient’s subjective complaint of back pain is more credible because a herniated disc is expected to cause back pain. Likewise, subjective complaints are more credible if they are quantified. For instance, the patient’s complaints of pain are more credible if the doctor recorded complaints of pain on each visit in the treatment notes, particularly if the doctor asked the patient to quantify the pain on a scale of 1-10.
How Insurance Companies Use Medical Evidence to Deny Claims
Insurance companies often insist that a claimant supply objective evidence in support of disability. The Courts generally have supported this insistence when a condition or disability can be established by objective evidence. For instance, a diagnosis of fibromyalgia can be established with the evidence of 11 of 18 trigger points. Courts will affirm the denial of a fibromyalgia claim when the insurer requested trigger point proof and the claimant failed to provide it. See, e.g., Hobson v. Metropolitan Life Ins. Co., 574 F.3d 75, 88 (2d Cir. 2009); Hawkins v. First Union Corporation Long-Term Disability Plan, 326 F.3d 914, 15 (7th Cir. 2003).
Insurers, however, often insist on objective evidence even when a condition or disability cannot be established by objective evidence. For instance, in one recent case, an insurance company required a claimant to provide objective evidence of tinnitus, even though there is presently no objective way to demonstrate tinnitus. The Court, in accord with most courts around the country, found the insurer’s denial on that ground to be arbitrary and capricious. The Court would not require that the claimant provide the impossible. See, e.g., Miles v. Principal Life Ins. Co., 720 F.3d 472, 488-489 (2d Cir. 2013).
Treatment Notes are Particularly Important
Treatment notes are the progress notes recorded (often scribbled) by physicians during office visits. The insurance companies particularly focus on these notes because they are contemporaneously recorded and, in their opinion, are more reliable than medical reports, which they think are tainted by a doctor trying to help the patient. Insurers cherry pick the notes for signs of improvement, such as “feeling better,” “headaches are less severe,” etc. They also search for the absence of symptoms. For instance, if the notes show that the claimant complained of great pain on visits 1, 2 and 3, but not 4, the insurer might interpret visit 4 as showing improvement, because no complaint of pain was listed.
The problem with the insurer using progress notes as a talisman of your condition is that the doctor does not use the notes for the same purpose. The doctor uses the notes as a memory jogger. Doctors are not court reporters who record everything that was said and done. Often, notes do not reflect everything the patient said. Also, at an office visit the patient only may focus on her major complaint of the moment. For instance, during the visit the patient may focus on her pain without mentioning her fatigue, because of a flare in her pain. This does not mean, however, that the patient did not experience fatigue at that time.
Because of the different ways that insurers and doctors use treatment notes, it is necessary to go through the notes with a fine-tooth comb, looking for references to conditions and symptoms that speak to the extent of your disability. You also may need to ask the treating doctor to write a report addressing statements in the notes that may be misinterpreted by the insurer.
Test Results – The More the Better
It is much harder for an insurer to deny benefits when you have objective verification of clinical symptoms. So, the more test results, the better. Some tests are important for establishing a diagnosis and other tests are important for establishing your functional limitations. Many people do not have sufficient testing done because the treating doctor did not think the testing was needed for treatment purposes. Do not let this deter you. While the testing may not be needed for treatment, it may be necessary for disability purposes.
The Written Opinion of Your Treating Doctor is Essential to Your Claim
The written opinion of the treating doctor indicating that you are totally disabled from a sickness or injury is essential evidence for your disability claim. Without such an opinion, there is no claim. Insurance companies require the treating doctor to complete its pre-printed Physician Statement, but those statements do not always fully present your condition.
Besides the Physician Statement, have the treating doctor complete a Residual Functional Capacity Questionnaire (“RFCQ”) prepared by you. The RFCQ should include: a checklist of possible symptoms relating to your specific sickness or injury; a checklist of possible medical signs and laboratory findings; a section where your doctor could record the your medications and side effects; a section where your doctor could describe the your pain and fatigue; a section where your doctor could opine as to your ability to sit, stand, walk, reach, twist and bend in a competitive working environment; and a section where your doctor could provide an opinion whether you could work in an occupation with duties and functional requirements similar to the patient’s own job. These duties and functional requirements should be specified on the questionnaire.
RFCQs completed by your doctors are an excellent way of obtaining comprehensive answers regarding your condition while avoiding the confusion of incomplete treatment notes and Physician Statements. Obtaining this information in a RFCQ may be the only way to obtain the information from an overworked doctor. When using a RFCQ, it is preferable to choose a template specific to your illness, rather than a “general” RFCQ.
When you furnish a RFCQ to a doctor, she often finds it helpful if you give her a copy filled in with your suggestions as well as a blank copy. Indicate to the doctor that she should feel free to change your suggestions in any way and that she should use the blank RFCQ if needed.
Another way of obtaining your doctor’s opinion is to request a narrative report directly from your doctor. It is very important to guide the doctor by providing her with a specific list of questions that need to be answered. This list should include the symptoms experienced by you, questions related to your history of the illness/injury, and the physician’s opinion regarding whether you can perform his job. Such narrative reports are difficult to obtain from busy physicians, but this evidence can become crucial, especially if the medical records are difficult to understand or are otherwise lacking. Offering to pay doctors for their time is an effective means of encouraging them to prepare this sort of report.
Insurer Calls With Your Treating Doctor Are Fraught With Risk
Permitting an insurance company doctor or nurse to speak with your treating doctor is fraught with risk. Insurance companies often misinterpret or misrepresent these conversations. Often, these conversations are then followed up with a letter summarizing the conversation and state that if the doctor does not comment within 10 days, it will be assumed she agrees with the content of the letter. Expecting a busy doctor to respond to such a letter, or even to remember the specifics of the conversation, is unrealistic and unfair. These letters often are correct in what they say, but present only an incomplete description of the conversation. The unwary doctor will not notice what they do not say.
These letters also put you at a disadvantage. If the doctor disagrees with the insurer’s summary of the conversation, it often appears that the treating doctor is changing his story—in what the insurer will describe as an effort to help his patient.
The better course of action is to indicate to the insurer that instead of speaking with the insurance company doctor or nurse, the treating doctor gladly will respond to written questions. Having the questions be made in writing ensures there is no misunderstanding as to the answers.
In case you think this warning is being overly cautious, or may pick an unnecessary fight, discovery we have obtained from more than one insurer shows that nurse case managers are evaluated on the number of times they get treating doctors to agree with the insurance company position. They, therefore, have a strong incentive to say in their notes (whether true or not) that the treating doctor agrees with them, all to your detriment.