Ask an Insurance Denial Lawyer: April 20, 2017

  • @Forum_Moderator:

    There is no sure way to have a “watertight” claim. Insurers, and in some instances the courts, take a cautious approach to disability claims based on “subjective conditions”. Consider the following reason for a denial (from an actual claim): “The medicals provided in support of the claim do not provide a clear diagnosis and do not clearly outline what prevents the insured from performing his / her work duties.” Therein lies a hint: ensure that the medicals provided in support of the application are not “insufficient”. This is easier said than done. I have heard time and again from clients that treating doctors are frustrated that their opinions are generally dismissed in the assessment by the insurer. Therefore, the treating physicians may not go the extra distance to clearly outline the diagnosis, and the specific restrictions and limitations, and very importantly, how those impairments affect the person’s specific job duties to the extent that they would be totally disabled within the meaning of the policy. It is not enough to simply provide a diagnosis and state that the person making the claim is disabled and unable to work. What are the restrictions and limitations? How do those restrictions and limitations impact the person’s actual job duties? To provide such an informed opinion, the treatment provider must have an understanding of his or her patient’s job duties. At the other end of the spectrum, the treatment provider may feel that he or she should go overboard in trying to convince the insurer why the patient cannot work. This is also not advised. As soon as a treatment provider’s opinion appears emotional or subjectively based, that opinion, regardless of how valid and sound it may be, will be at risk of losing weight as it will have the taint of advocacy, which can be quite detrimental to a disability claim.

    As opposed to submitting a “bare bones” application, consider gathering all relevant medical evidence, such as consult reports of other treatment providers, specifically experts who have been consulted, test results, imaging results, etc. Of course, if the imaging proves to be “normal”, that may play into the insurer’s hands by stating that there is “insufficient objective medical evidence” to support the claim. Again, this is something I routinely see when a claim is denied, and again, there are specific strategies to employ depending on the specific circumstance.

    Remember that the policy mandates that the disabled person making the claim has certain obligations. These would include following recommended treatment advice, and being under the regular care of a physician. Once a person has ceased working due to a disabling condition, that person should ensure that he or she consults the treatment provider regularly, and that recommended treatment advice is followed. This will reduce the likelihood of a potential denial based on a failure to follow recommended treatment advice or not being under the regular care of a physician. If you have not yet been seen by a specialist, and your condition remains symptomatic, discuss with your doctor the option of a referral to an expert (be it a physiatrist, rheumatologist, or chronic pain specialist). Waiting lists are long. Without having been seen by a specialist, the fact that you are at least on a waiting list to see the specialist will help negate a possible future defence by the insurer that you have not been appropriately treated. The same would apply to being referred to a pain management program.
    As part of the insurer’s assessment of the disability claim, the case manager will contact you to discuss your claim, and more importantly to interview you about your condition, your restrictions and limitations, the diagnosis, your job duties, medications you are taking, and very importantly, your activities of daily living. These interviews are conducted to explore your function, both inside and outside of an employment setting. The insurer is looking for discrepancies or inconsistencies. Coupled with these interviews, there may be surveillance conducted in an attempt to establish whether your reported restrictions and limitations are consistent with your actual function as may be seen in surveillance. When your condition is one of complex and chronic pain, and there is little “objective” evidence in the form of diagnostic imaging, the dreaded credibility factor comes into play. This means that if your reported restrictions and limitations are inconsistent with what is seen by (often circumstantial) surveillance, your credibility may be seriously affected to the extent that it may lead to a denial.

    Here's another question:

    What can someone making a disability claim do to try to make sure that their claim is sound and watertight?

  • Here's another question:

    What can someone making a disability claim do to try to make sure that their claim is sound and watertight?

  • @Forum_Moderator

    Some of the more common reasons for denials include the following (often there may be a combination of two or more of the grounds listed below):

    a. There is not sufficient objective (medical) evidence supporting the reported restrictions and limitations that prevent the insured from performing the essential duties of his or her own / regular occupation;

    b. The insured is not under the regular care of a physician;

    c. The insured is not receiving optimal treatment for the condition that he / she has been diagnosed with (for example the insured has not been referred to a specialist or is not currently being followed by a specialist). Similarly, if the insured’s pain condition had been as severe or disabling as the insured alleges it is, the insured would have been prescribed stronger pain medications or would have been enrolled in a pain management program;

    d. The insured is not following recommended treatment advice or is not enrolled in a recommended treatment plan;

    e. In some cases, where the policy language allows for a pre-existing condition exclusion based on the fact that the insured has not had coverage for a specific period mandated within the policy, a denial based on a pre-existing condition. In this instance the denial (if it is the sole basis for the denial), is focused on exclusionary language within the policy and does not necessarily address the merits of whether the insured actually meets the definition of total disability within the policy;

    f. In certain instances, the insurer will deny a claim where it deems the insured to be refusing to participate in an active rehabilitation program, as approved by the insurer;

    g. Where the definition of total disability changes within the meaning of the policy from a total disability of one’s own or regular occupation to a total disability from “any occupation: many claims are denied at this stage (called the “change of definition” stage). The insurer will take the position that the insured, even though the insured may be totally disabled from performing the essential duties of his or her own or regular occupation, is not totally disabled from performing the essential duties of “any” occupation; and

    h. In instances where there may be an element of addiction / substance abuse issues, the insurer may deny the claim if the insured is a not enrolled in a registered / approved treatment facility specifically to treat the substance abuse.

    I have seen all of the above, and various combinations of the above, as reasons for denials of disability claims by insurers in matters that I have litigated. There are specific strategies to deal with these denials, dependent on the individual circumstances of each specific claim. Remember that the starting point of any analysis is always the language within the particular policy. Insurers routinely employ “medical consultants” or “health partners” (a fancy name for the insurer’s in-house medical doctors), to review claim documents, which would include medical reports, attending physician statements, and summaries of telephone interviews with the insured, to provide “opinions”, without ever having had an opportunity to interview, let alone examine, the person making the claim. These “opinions” are generated with the goal of establishing whether the disabled person (the person living with chronic pain), is actually restricted and / or limited from performing the essential duties of the subject occupation. The absurdity of this approach is that the insurers routinely rely on the opinions of these in-house medical consultants, to establish whether the person has restrictions and / or limitations that would indeed render them totally disabled from working, as opposed to the informed opinions of the disabled person’s actual treatment providers, who have had the benefit of examining and following the insured for a period of time.

    @martinw, can you talk about common reasons why disability claims get denied?

  • @chloe: If you had an own occupation clause built into your policy, you likely would have purchased a rider that would remove the change of definition (in other words, the rider would prevent the definition from changing to any occupation). You should also contact the insurance broker who sold you the policy to assist with your request.
    @chloe said:

    @martinw Thank you. I seem to recall having an owner occupation clause built into my personal policy, but when I spoke with the adjuster for my LTD policy, she denied that I had this clause. She also mentioned a redefinition after 24 months, Can I ask you what does that mean?

  • Thanks, @chloe and @martinw.

    @martinw, can you talk about common reasons why disability claims get denied?

  • @martinw Thank you. I seem to recall having an owner occupation clause built into my personal policy, but when I spoke with the adjuster for my LTD policy, she denied that I had this clause. She also mentioned a redefinition after 24 months, Can I ask you what does that mean?

  • @chloe Thank you for your question. It is a common question when a person is denied. Under the Insurance Act, the insurer is required to provide you with a copy of the policy. Coupled with a freedom of information request, you may address your request to the insurer's ombudsman. The best course may be to approach the broker who sold you the policy for assistance.

  • @martinw Good Morning,
    My question relates to access to my full policy. I purchased an LTD plan in 1994 and I do not have the original copy. I have requested a copy from my carrier last year and I have still not secured the full policy . Please advise what actions I can take to secure the original copy.

  • @Forum_Moderator To make a claim for disability benefits, you first need to have coverage under either a group policy through your employment or through an individually purchased disability policy. These policies are contracts, and govern the rights and obligations of the parties. The term “total disability” or “totally disabled” is defined within the policy (not all policies have the same definition for total disability, and some have more onerous definitions than others). To be successful with a claim for disability benefits, the onus lies on the insured to provide sufficient evidence that the insured meets the definition of total disability.

  • Thanks for that info, @martinw . Here's another question we often hear:

    How do you know whether you can make a claim for disability benefits?

  • @Forum_Moderator It is difficult to say how common it is for disability claims as a whole to be denied. What appears to be clear though is that disability claims resulting from certain conditions are more likely to be denied than others. In particular, disability claims arising from what is described as “subjective” or “invisible” conditions have a higher instance of denial. These conditions include fibromyalgia, chronic fatigue syndrome, and in particular, claims arising from complex and chronic pain where the etiology of the pain condition cannot be confirmed by means of “objective” means such as imaging (MRI’s, CT scans, x-rays etc. Another group of claims that are routinely denied (and strictly scrutinized), would be those resulting from mental health illnesses. These claims are quite often linked to a chronic pain condition.

  • Let's begin with a general question: How common is it for disability claims to get denied?

  • @martinw We're so glad to have you with us today!

  • Good morning everyone. Welcome to the event. I hope the answers posed will be helpful to those living with pain and dealing with denied disability claims.

  • Hello all! We're almost ready to begin today's Ask the Expert with Martin, a disability lawyer. We'll begin at 9:30 AM on the dot. Thank you to all who posted their questions in advance on Facebook, and welcome to those who are joining us live today.

    Just a reminder that Martin will do his best to answer questions in a general way, and won't be providing individualized advice.

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