Introduction

Many people assume that they can relax once their long term disability (“LTD”) claim is approved.  While it’s true that winning your long term disability claim is a big hurdle, it doesn’t mean you’re entirely in the clear.  Over time, your LTD insurer will continue to re-review your file and demand proof of your ongoing disability.

LTD insurers use a number of ploys to justify cutting off your benefits after your claim is approved.  Below, the NYC long term disability attorneys at Riemer Hess will discuss the five most common tactics used by LTD insurers to terminate long term disability benefits.

TACTIC #1: Your long term disability insurer searches for “red flags”

Once your claim is approved, your disability insurer will demand updated medical records, as well as updated statements from you and your treating doctor.  As the insurer receives and reviews this evidence, it will actively hunt for “red flags” that might support benefit termination.

The insurer will latch onto anything it can find.  For this reason, our legal team always reviews our clients’ submissions for any potential red flags.  If we find a possible issue in the submission, we proactively request more information to address it – minimizing the chances of benefit termination.

You can learn more about red flags here, but typical red flags include:

Your new evidence contains inconsistencies

The insurer will look for any inconsistencies in your new evidence.  For example, your doctor now reports you can occasionally sit for up to 30 minutes, but you previously told the insurer that you can never sit for more than 15 minutes.  If the insurer finds an inconsistency, it may demand more information and be more likely to question the reliability of your other statements.

Your doctor estimates a new return to work date

Insurer forms often ask your treating doctor to estimate a specific date when you will be able to return to work.  If your doctor writes down a time that you can return to work in the near future, the insurer will latch onto that date as a “deadline” to cut your benefits off by.  The insurer will justify the benefit termination by saying your own doctor said your condition has improved enough by that time to work.

Your new evidence shows medical improvement

Documentation of medical improvement will be noticed by the insurer.  The improvement may even be minor or not directly stated.  For example, if your doctor stops prescribing medication for your pain, the insurer will assume that your pain improved enough to work.  The insurer may jump to this conclusion even if your doctor stopped prescribing the medication for some other reason, such as poor response or intolerable side-effects.

Your doctor indicates you are exaggerating

If your doctor suggests that you are malingering and/or exaggerating your symptoms, the insurer will almost certainly use that as justification to terminate your long term disability benefits.

You are non-compliant with recommended treatment

Long term disability insurers want to see that you are still doing everything in your power to improve your health and return to the workforce.  For this reason, they want confirmation that you are reasonably compliant with your doctor’s treatment plan.  Most disability insurance plans require you seek “regular treatment” to remain in compliance with the policy.  If you don’t seek treatment regularly or fail to follow the recommendations of your doctors, the insurer will try to claim that you are purposely avoiding treatment that might end your disability.

Your doctor says that you are no longer disabled

The ongoing support of your treating doctor is critical.  If your doctor indicates that you are no longer disabled, that can be extremely difficult to overcome.  To keep your benefits ongoing, either that doctor will need to change their mind (perhaps by considering new testing, for example), or you will need to find/have another doctor who continues supporting your disability.

TACTIC #2: Your long term disability insurer demands an Independent Medical Examination (“IME”)

At any point during your claim, your long term disability insurer may demand that you attend an “independent” medical examination (commonly known as an “IME”).  As you might expect, these medical examiners are anything but “independent.”  The examiners are hired by the insurer.  They are therefore heavily incentivized them to find that you are no longer disabled.

Unsurprisingly, the IME reports are often unfavorable to you, which can easily lead to benefit termination.  These IMEs are typically cursory and incomplete.  Often, the independent medical examiner will not even bother to review your medical records.  They tend to significantly downplay the degree of your disability and supportive medical findings.  An unfavorable IME report can be used by the insurer to cut off your disability benefits.

Our team does everything we can to help our clients avoid IMEs.  We do so by analyzing the specific circumstances surrounding each client’s unique claim, while always recommending ongoing treatment with a qualified medical professional.  The failure to receive regular treatment will almost always result in an IME request.

TACTIC #3: Your long term disability insurer contacts your doctors

Long term disability insurers often will have one of their doctors (or nurses) call your doctor to talk about your condition, treatment, limitations, and return to work possibilities.  Allowing an insurance company doctor to speak with your doctor is fraught with risk.  We don’t allow it.  Instead, we proactively direct that all doctor-to-doctor communications be in writing.  Here is why:

The call is not recorded

The call is not typically recorded.  Rather, the insurer’s doctor prepares summary notes based on the call.  So, there is no clear record or transcript.  Often these summary notes contain substantial errors and omissions, while also reflecting the subjective bias of the insurer’s doctor.

Miscommunications and misunderstandings happen

There is ample room for miscommunications and misunderstandings during these calls.  Oftentimes the insurer’s doctor will pose a very broad or confusing question that your doctor does not fully understand.  Your doctor also might offer responses while incorrectly assuming that the insurer’s doctor is familiar with your file.

Your doctor may be caught off-guard

Your doctor is busy and the insurer rarely schedules ahead.  An unscheduled call from the insurer’s doctor will likely catch your busy doctor off-guard.  If that happens, your doctor’s responses may be rushed or incomplete.  Even worse, your doctor may not have time to even pull up your chart, so your doctor might try to respond from memory only – never a good recipe.  The circumstances of a phone call make it too easy for your doctor to mistakenly provide incomplete, inaccurate, or vague assessments of your medical condition.

TACTIC #4: Your long term disability insurer sets traps in the forms

Your long term disability insurer might request an updated Attending Physician Statement (“APS”) form to be completed by your doctor.  The APS includes questions that purposely contain traps.  For example, the form might ask your doctor to indicate how long you can sit for in one day.  The form will usually only provide three broad options:

• • “occasionally,” which means 1-33% of the day
  • “frequently,” which means 34-66% of the day
  • “continuously,” which means 67-100% of the day.

Your doctor might check the “occasionally” box for sitting, thinking you can sit 5% of the day.  However, the long term disability insurer will interpret your doctor’s response as indicating the ability to sit for 33% of the day.

We actively avoid these traps by requesting supplemental written statements or other forms of clarification from treating doctors.  This allows your doctor the opportunity to clearly outline your restrictions and limitations.  These supplemental statements often make the difference between benefit continuance and benefit cutoff for our clients.

TACTIC #5: Your long term disability insurer conducts surveillance

Long term disability insurers often hire third-party investigators to spy on their claimants and dig up evidence that supports benefit termination.  This surveillance is conducted with the hope of “catching” you performing activities that are inconsistent with your ongoing disability.  If successful, your long term disability insurer will use the surveillance as “proof” to cut off your long term disability benefits.

Our team aggressively combats surveillance evidence.  This evidence is often too cursory or incomplete to draw any reliable conclusions about your ability to work.  It is often insufficient to reliably demonstrate an ability to work on a full-time basis.  Most of the activities recorded are just daily activities, which are irrelevant to your work demands.  However, that won't stop the insurer from trying their best to use surveillance as justification to terminate your disability claim.

Conclusion

Insurers will use a variety of tactics to deny or terminate disability benefits for their claimants.  If you recognize any of the above "red flags" from your insurer, you may want to speak to an experienced long term disability attorney.

At Riemer Hess, our New York ERISA attorneys are highly familiar with the tactics used by insurers to cut off disability benefits.  We understand the best strategies to keep your disability claim in good standing, and how to proactively avoid common issues that cause insurers to try to terminate benefits.

The attorneys and staff at Riemer Hess know how to keep your disability benefits secure.  Contact an attorney at Riemer Hess today at (212) 297-0700 or click the button below to schedule a call with one of our professionals to discuss your long term disability claim.