Who is Responsible For Obtaining Medical Records in a Long Term Disability Appeal?

I find that claim administrators and long term disability claimants are often confused as to which party is responsible for obtaining the medical records during the administrative appeals process. Is it the claimant's responsibility or the plan administrator / insurer? 

As a result of this confusion there are many situations where decisions are made by the insurer or the plan administrator without reviewing all relevant medical files.  Moreover, it is evident that many unscrupulous disability insurers foster this confusion in order to gather only those medical records that are favorable to their position.  

Fortunately, several Circuit Court of Appeals decisions have shed some light on this issue.  One case that is particularly helpful on this questions is Harrison v. Wells Fargo Bank, N.A., 773 F.3d 15, 2014 U.S. App. LEXIS 22932, 59 Employee Benefits Cas. (BNA) 1507 (4th Cir. Va. 2014).  In Harrison  the plan administrator failed to obtain medical records from the claimant's psychologist even though the records were "readily available" and it was put on notice of their existence.  The 4th Circuit held that by failing to contact the claimant's psychologist when the plan administrator was on notice that she was seeking treatment for mental health conditions and when the administrator had his contact information, as well as  properly signed release forms from the claimant, the administrator "chose to remain willfully blind to readily available information" that may well have confirmed her theory of disability.  Consequently, the Circuit Court held that the plan administrator breached the fiduciary duty owed to the claimant.

However, it is extremely important to note that in Harrison the 6th Circuit emphasized that under most circumstances claimants are primarily responsible for obtaining the medical records.  The Court of Appeals stated:

[T]he primary responsibility for providing medical evidence to support a claimant's theory rests with the claimant. (Citations omitted.) Claimants are more familiar with their medical history and their treating physicians and are far better suited to provide the evidence necessary to support a claim for disability. However, once a plan administrator is on notice that readily-available evidence exists that might confirm claimant's theory of disability, it cannot shut its eyes to such evidence where there is little in the record to suggest the claim deficient.

Harrison is consistent with other Court of Appeals decisions.  See Roganti v. Metro. Life Ins. Co., 786 F.3d 201, 2015 U.S. App. LEXIS 7933, 59 Employee Benefits Cas. (BNA) 2529 (2d Cir. N.Y. 2015)

The "Mental Illness Limitation Clause" in Long Term Disability Policies

If you are covered by a long term disability policy, it is very likely that your policy contains a limitation as to how long you can be paid benefits when your disability is caused by mental illness. Most disability insurance policies contain a standard provision that states that if your disability is caused by a mental health problem, the maximum period for which you can receive LTD benefits is 24 months.  However, the length of the limitation for mental illness might vary depending on the language on your particular policy.

It is extremely important to check your long term disability policy to determine the exact term of the limitations for mental illness.  In some rare cases, policies don't contain any limitations for disability claims based on mental health. 

Generally, limitations for claims based on mental illness have been held to be legal.   In my opinion, clauses limiting the payment of disability benefits for mental illness are extremely unfair. Moreover, such actions by insurance companies show a clear bias against persons who suffer from mental disabilities.  A mental health condition can be just as disabling as a physical one.  About a year ago, I participated in a disability law conference where a guest speaker, who was a psychiatrist, explained that science now believes that most mental health problems have a psychical cause inside a persons's brain and that it is erroneous to think that mental illness is caused by environmental or emotional factors.

One legal issue that comes up very frequently is whether the cause of a person's disability is a mental health condition or a physical illness. Take for example the case of someone who has suffered a stroke.  Many times stroke victims suffer from symptoms that go beyond physical limitations.  For example, after a stroke some patients suffer from severe depression symptoms.  Such cases are generally decided on a case by case basis. The determination as to whether the mental health exclusion applies or not depends on the exact language used in the policy as well as the specific facts of the case.  For example, if the language of the mental health limitation clause is expressed in very general terms and the claimant never had a history of depression before the stroke, it is possible that the person might have a good argument against the application of any limitations due to mental health.

If you are currently receiving disability benefits or have recently applied an you suffer from mental and physical health limitations, it is good idea to consult with a long term disability lawyer.  A lawyer can determine whether any limitations for payment will apply.  Moreover, an attorney can assist you in developing a claim strategy that makes it difficult for the insurance company to limit your disability benefit payments to 24 months or less. 

LTD ERISA: 9th Circuit Excludes Weekends from 180 Day Appeal Deadline

Once an insurance company denies or terminates a long term disability claim, a claimant has 180 days to file an administrative appeal.  Last week, the 9th Circuit Court of Appeals ruled that weekends should not be counted in the 180th day computation when the deadline falls on a Saturday or a Sunday.     

In Legras v. Aetna Life Insurance Company, (Click Here for a Copy of the Opinion) Aetna cancelled Andre LeGras' long term disability benefits because he, allegedly, was no longer disabled under the terms of the plan.  The the 180 time frame for LeGras to file the appeal ended on a Saturday. However, he did not mail his appeal until the following Monday.  Aetna automatically turned down his appeal because it was untimely.  Subsequently, the the District Court entered a judgement in Aetna's favor and ruled that LeGras had failed to submit his appeal within the 180 time period. 

On appeal, Judge Richard Paez from the 9th Circuit Court of Appeals determined that Aetna should have allowed LeGras' appeal based on the "widespread understanding that a deadline falling on a Saturday, Sunday or a holiday extends to the next business day".  It is important to note that ERISA does not specify a method for computing time for appeals.  There has always been a great deal of uncertainty as to how this time period is computed.  Fortunately, this Circuit Court decision provides some guidance on this issue.  

Judge Paez wrote on behalf of the majority: "There is nothing novel about the principle we adopt here",,,  Incorporating this time-computation method into ERISA's federal common law protects the interests of insureds, thereby effectuating the policy goals of ERISA.  

A dissenting opinion was written by Judge N. Randy Smith who maintained that the case dealt with "simple contract interpretation" and that the ruling expanded "Federal Common Law" without any precedent.       

Newtown Officer Must Get Disability Benefits for PTSD

Many individuals who contact our office seeking the assistance from a long term disability lawyer, seem to be unaware that most disability plans have a limitation on payments for claimants who suffer from mental health conditions.  Unfortunately, they assume that disability benefits will continue to be paid until age 65 or 66, regardless of whether their disabling condition is caused by mental health or not.

As part of my practice, I must constantly remind clients and prospective clients that most group insurance policies only pay benefits for a period of 24 months if their inability to work was caused by a mental health condition.  It appears, that town officials in Newtown, Connecticut also overlooked the 24 month mental health limitation provision when they negotiated the collective bargaining agreement with the police union.  

As part of the police union contract, the town of Newtown agreed to provide members of the police department with disability benefits.  The union contract that was signed did not contain any limitation for the payment of benefits for mental health conditions.  However, when the town proceeded to purchase a group disability policy for the union members, they bought a "standard a group policy" that has a 24 month limitation for mental health.  As a result of the purchase of this type of insurance policy, the town has been left with the responsibility of paying from its own funds for any claims for disabling mental health conditions that last more than 24 months.  

This past Friday, the Connecticut State Board of Mediation and Arbitration ruled that Newtown must pay a police officer who hasn't worked since 2012 due to PTSD that was caused by his involvement in the horrific Sandy Hook Elementary School massacre.  The three member panel ruled that the town was contractually obliged to pay disability benefits under the union contract, without being subject to the two year limitations contained in the LTD insurance policy.  For a copy of the Arbitrator's decision click here.

  

FedEx LTD Denial Subject to De Novo Review

On May 5, 2015 the United States Court of Appeals for the Fourth Circuit ruled against the Federal Express Long Term Disability Plan in its denial of LTD benefits to one of its former employees. This decision is great news for  disabled FedEx employees.  FedEx was unsuccessful in convincing the Circuit Court to apply an abuse of discretion standard to review the denial of benefits. Instead, the court determined unanimously that the denial was subject to a de novo review.  See Bilheimer v. Federal Express Corporation Long Term Disability Plan, No. 13-1859.  

Long term disability attorneys must deal, on a regular basis, with the issue of what standard of review a court must apply when reviewing a denial of benefits.  Under ERISA case law, a court may review a denial of benefits using one of two standards: 1. an abuse of discretion standard or, 2. a De Novo review.  Under an abuse of discretion standard a court will not reverse a denial of LTD benefits if the denial "was reasonable" even when the court "would have reached a different decision". Therefore, as long as the denial is grounded in some "principled reasoning process" it will not be reversed.  However, under a "de novo" standard a judge can review the record and make a decision without any deference to the denial by the insurance company or plan administrator. Obviously, the de novo standard is much more beneficial for disabled individuals and is the standard that plaintiffs' lawyers always want.

In the case of Bilheimer, which was decided just a few weeks ago, the Fourth Circuit Court of Appeals had the opportunity to decide whether FedEx had discretion in denying LTD benefits to one of its employees.  The Circuit Court ruled that the denial was subject to a de novo review because the FedEx LTD Plan did not properly delegate its final decision making authority to Aetna.  The court found that FedEx could not outsource its discretionary duties to Aetna without first amending its long term disability plan documents.  RamosLaw is currently representing another  disabled FedEx employee whose LTD benefits were also denied.  The case involves the same standard of review issue as Bilheimer and is pending before the Connecticut District Court.  Although the Fourth Circuit decision is not binding in our case, (Connecticut is on the Second Circuit) we are confident that the Court will reject the abuse of discretion standard also, and review the case de novo.   

Get a Copy of Your Long Term Disability Plan Early... or Find Out Whether You Have LTD

If you suffer from a chronic condition or illness, preparing to file for disability benefits is something that you should start thinking about very early on.  Everyone should try to work as long as possible. However, it is better to be safe than sorry.  Don't be passive about your situation.  Get educated as much as possible, and learn what benefits will be available to you in the event that  you can no longer work.

Very often I get calls from prospective clients who are thinking about filing for Social Security Disability.  During my conversations with them, I notice that many persons out there don't know whether or not they have a private disability plan provided by their employer.  Unfortunately, only 30% of employees in the private sector have long term disability insurance.

If you have severe health problems or suffer from a condition that might prevent you from working, it is a good idea to contact your human resources department to determine whether or not you are covered by a long term disability insurance policy.  If you are covered, then you should request from HR a copy of your long term disability plan and the plan summary.  The long term disability plan administrator is required by federal law to provide you with a copy of the plan.  

Once you obtain a copy of the plan and of the plan summary, you should spend sometime reading it and learning how it works.  Don't file for short term or long term disability without first reviewing these documents carefully.  It is also advisable to contact a long term disability lawyer who can sit with you and with a copy of the plan and explain to you how its provisions apply to your particular situation. 

How to Get Your Doctor to Support Your Social Security Disability Case

Having a doctor on a claimant's side makes a world of difference in a Social Security Disability case.  Unfortunately, many of the persons who are considering filing for disability seem to be unaware of this important fact.  The opinion of the doctor or doctors who treat a claimant can make or break a disability claim.  For this reason, I would like to provide some helpful hints on how to enlist your doctor's help in your SSDI or SSI case and how to make the best use of his or her medical opinion regarding your physical or mental limitations.  In addition, I would like to provide some suggestions on what to do in circumstances when a doctor refuses to cooperate with the case. 

• YOUR DOCTOR NEEDS TO KNOW YOU AS A PATIENT:   In order to make the best use of the opinion of a doctor in a Social Security case, a lawyer needs to establish that the doctor has been treating the patient long enough to be able to form a credible opinion.  Simply stated, the more the doctor knows you, the more weight Social Security is required to give to his or her opinion.  Your doctor's opinion has to be given controlling weight, unless the judge can cite specific reasons why it should be disregarded.  One of the reasons most commonly cited by judges for giving little weight to a medical opinion is that the doctor did not treat the claimant long enough to be able to form a credible opinion.  Likewise, many doctors feel uncomfortable issuing opinions or helping patients that they have just begun to treat.  For this reason, I often recommend to clients not to bring up the issue of disability with a doctor that they have just begun seeing.  I believe that doctors are often irked when a patient brings up the issue of his or her social security disability case during their first or second visit.  Therefore, whenever possible, a claimant must give his or her doctor reasonable time to form an opinion with respect to his or her limitations.
• TALK TO YOUR DOCTOR BEFORE FILING YOUR CASE:  Before a Social Security disability claim is filed, it is a good idea to ask the treating physician whether he or she will support the claim.  Moreover, the claimant should specifically ask whether the doctor would be willing to complete a questionnaire stating his patient's limitations.  However, I think that before posing the question, the patient should engage in a dialogue with the doctor regarding problems performing specific work related tasks.  Ideally, this dialogue should take place over the course of several office visits.  I believe that a doctor is more likely to support a claim when he has had a chance to openly discuss the case with his patient beforehand.  I believe that doctors are reluctant to help patients with their disability claims when they are unexpectedly asked to support a disability claim.          
• REMEMBER THAT YOUR CONVERSATIONS WITH YOUR DOCTOR ARE OFTEN RECORDED IN THE MEDICAL RECORD:  Many of my clients are unaware of the fact that doctors often transcribe in the medical record the content of their conversations with their patients.  In fact, doctors are known to record specific statements made by their clients that pertain to their disability claim.  Unfortunately, I have found several instances where my clients' statements have ruined their chances of getting their claim approved.  Disability claimants should be very careful with what they tell their doctors when they ask for a medical opinion.  Don't joke around with the doctor on how desperately you need the money from Social Security or how you have to look really bad in order to win disability.  Keep in mind that your comments could be misconstrued very easily and remember, it is never a good idea to suggest to a doctor to exaggerate the severity of  a condition or an illness, or to ask the doctor to be dishonest in any way.
• GIVE YOUR DOCTOR A BRIEF QUESTIONNAIRE THAT GOES TO THE HEART OF YOUR CLAIM: Social Security Disability Lawyers often prepare questionnaires for their client's doctors.  These questionnaires ask the treating physicians to state the extent and the nature of their patients physical and mental limitations.  When preparing these questionnaires it is important to keep in mind that doctors don't have a lot of time in their hands and that they dislike having to spend time completing forms.  For this reason, I like to keep my questionnaires brief and to the point.  Moreover, the questionnaire should go right to the legal issues that are most relevant to the case.  For example, the questionnaire should specifically ask questions that could help a judge decide whether the claimant's case falls within a specific Social Security rule or guideline.  I believe that the best way to obtain a good opinion from a doctor is by giving him or her one of these questionnaires.  (In my office we call these questionnaires: "medical source statements".)  Instead of questionnaires, some doctors prefer to write a letter in support of their patient's disability claim.  I often find that these letters are not very effective because, in many instances, they fail to address the specific legal issues being decided by the adjudicators in the case.
• OFFER TO COMPENSATE YOUR DOCTOR FOR HIS OR HER TIME:  Whenever possible, it is a good idea to offer to compensate the doctor for the time spent completing the questionnaire.  Most of the time, the amount paid is just a nominal sum.  However, I believe that doctors often appreciate the gesture and spend additional time and effort when their patient offers to remunerate them for their valuable time.
• IF YOUR DOCTOR IS UNCOOPERATIVE, CONSIDER FINDING A NEW ONE:  Let's face it.  Some doctors don't want to help their disabled patients get benefits.  Its probably not worth your time trying to convince them to complete a medical source statement for your case.  Under those circumstances, its probably a good idea to consider changing doctors.  I know that this type of decision can be very difficult.  However, I have found that in many instances a claimant can get a new doctor that is more cooperative with their case without having to sacrifice the quality of their care.  Naturally, claimants should not wait until the last minute to get a new doctor.  The earlier they get on the right track, the better. 
• DOCTORS WHO ARE NOT SPECIALISTS IN YOUR MEDICAL CONDITION CAN ALSO HELP YOUR CASE:  An alternative to finding a new doctor is asking one of your treating physicians who is not a specialist in your particular condition to help with your case.  I have found that primary care physicians can often issue very credible opinions which are well supported by the medical evidence in the record.  In many circumstances these opinions can be extremely helpful.   Don't be discouraged if your specialist does not help you.  The Social Security Administration knows that highly paid specialists such as neurosurgeons often refuse to complete medical source statements.  I believe that you can still win, even when your neurosurgeon refuses to complete a medical source statement.  I recently won a case in which the neurosurgeon refused to help his client.  Fortunately, prior to filing for disability, my client had seen a neurologist on several occasions for some problems related to his spinal cord condition. My client went back to the neurologist and was able to obtain a very well reasoned medical opinion.  The opinion from the neurologist, combined with a questionnaire completed by his primary care doctor, was enough to win him disability benefits.

 

Checklist of Things to do Before you File a Long Term Disability Appeal

When a claim is denied, there is a very short period of time in which to submit an administrative appeal to the insurance company that denied the claim (typically 180 days).  If the appeal is not filed within this time period, it may be impossible to later challenge the denial in court.  This is why you must take certain steps immediately in order to protect your rights.  Here is a check list of some important things that you must do before you file the appeal.  If you call (860) 338-5619 and retain our legal services, the Law Office of Iván A. Ramos, LLC will assist you in completing the items mentioned in the check list.

            1.         COUNT THE DAYS AND CALENDAR YOUR APPEAL DEADLINE:   On a calendar, you need to count the days that you have to file the appeal.  Write down a reminder of the date on your cell phone calendar and on a regular calendar.  Also, ask a friend or a relative to remind you of the date.  Make another reminder in the calendars, several weeks before the date that it is due.  You should never wait until the last day to mail the appeal.  It is usually advisable to mail it, via overnight mail, several weeks ahead of the deadline. 

            2.         MAKE DOCTORS APPOINTMENTS AND UPDATE YOUR MEDICAL   CONDITIONS:  You need to make appointments with all the doctors that have been treating you, particularly those that know the most about your disability.  The purpose of the visit is to make sure that the medical files are updated with the status of your condition.  Sometimes conditions have worsened but the medical files do not reflect your current status accurately.  You should also ask the doctor if he or she would be willing to write a letter detailing your limitations. 

            3.         REQUEST A FULL UP-TO-DATE  COPY OF YOUR DISABILTY PLAN AND OF THE CLAIM FILE:  Pursuant to Federal Law, you have a right to obtain a copy of your disability plan and of all the documents that the insurance company has in  your claim file.  Obtaining these documents is important because it gives you the reasons why you have been denied benefits.  From these documents, you will get sense of the   theories and strategies that the insurance company will rely on to continue to deny your benefits.  You should also check to see if the company has included all the necessary medical documentation in the file       

            4.         REQUEST COPIES OF ALL YOUR MEDICAL RECORDS:  Medical  records are an essential part of all Long Term Disability Appeals.  In your appeal, you  must present a full picture of your medical conditions.  Once your administrative appeal  is filed, you are not allowed to introduce any new evidence in your case.  For this reason,  it is always a good idea to err on the side of caution and gather as much medical information about your condition as possible.  You should also review your medical records and make sure that all the information is accurate.  If any information in the      records is inaccurate, you can ask your doctor to correct it.

            5.         DOCUMENT ALL CONTACT WITH THE INSURANCE COMPANY AND KEEP COPIES OF ALL CORRESPONCE REGARDING YOUR CLAIM:                       

You should keep detailed notes of all telephone conversations that you have with the insurance company and keep copies of all correspondence in your case.  This will also give you a better understanding of the strategies and theories that the insurance company might use justify their denial.

            6.         CHECK YOUR POSTINGS IN FACEBOOK AND OTHER SOCIAL NETWORKS:  Insurance companies will go into Facebook, Linkedin, Twitter and other social media in search of information that might weaken you disability case.  In many instances, information contained in social media is misconstrued and used by insurance  companies to contradict your claim that you are unable to perform certain activities.  For this reason, it’s a good idea to remove any pictures or postings that could weaken your case.  The bottom line is that should always be careful with what you post the internet.

            7.         READ YOUR POLICY:  Take time to read your long term disability policy carefully.  It’s important that you obtain a good understanding of how the provisions in your policy apply to your particular case.

            8.         BE CAREFUL WHEN YOU SIGN MEDICAL AUTHORIZATION FORMS:  Insurance companies have the right to request your medical records.    However, on some occasions insurance companies ask claimants to sign authorization  forms that cover more than just medical information.  You don’t have to allow the insurance company to talk to previous employers or give them permission to obtain financial documents.  You should read all medical authorization forms carefully and redact from it any language allowing the company to obtain non-medical information.

            9.         UNDERSTAND WHY YOUR CLAIM WAS DENIED:  The ancient Chinese warrior-philosopher Sun Tzu encouraged his troops to "know your enemy" before going into battle.  Likewise, you need to read your denial letter and understand the reasons why your disability benefits were denied.  Before you advocate on your own behalf, you need to have a good understanding of your opponents’ argument.  If the denial letter is unclear, you might want to write a letter to the insurance company asking for clarification. 

            10.       GATHER INFORMATION THAT DESCRIBES THE NATURE OF YOUR WORK:  You need to gather documentation that adequately describes your job duties.  You may need this information because in many instances job titles don’t reflect the  actual duties performed by an employee.  You must also consider obtaining letters from  your previous employer stating the difficulties that you had performing your job. 

            11.       OBTAIN DOCUMENTS FROM THE SOCIAL SECURITY   ADMINISTRATION:  If you are receiving social security disability benefits, it is important that you obtain a copy of your complete file at the Social Security Administration.  Although the definition of disability used for awarding SSDI benefits is usually different for the definition used by your insurance company, the information contained in SSA documents is highly persuasive evidence that you are unable to work as a result of your condition.

          12.       IDENTIFY A FRIEND OR A RELATIVE THAT CAN HELP YOU IN THE PROCESS:  Finally, it is always a good idea to have a close friend or a relative help you during this difficult process.  Find someone who can help you gather all the information  needed to file the appeal and who can keep track of your medical appointments and deadlines.

The Law Office of Iván A. Ramos, LLC strongly recommends that you contact us as soon as you encounter problems with the granting of your benefits.  We will provide you with a free initial consultation.  If we represent you and you do not get benefits or payments from the insurance company, we will not charge you for our legal fees.  You will only be responsible for the costs associated with pursuing the appeal.   

Call (860) 338-5619

Our firm will not charge you legal fees, unless we get payments for you.