There are several kinds of disability income benefits available to a worker who becomes unable to work due to an injury or illness. This article focuses on private disability insurance policies or plans provided by employers that are governed by a federal law known as the Employee Retirement Income Security Act of 1974 (“ERISA”). Applying for long-term disability benefits under your employer’s benefit plan can be a difficult process with traps for the unwary. You may think a note from your doctor stating you are unable to work would be enough for an insurance company to pay your claim. Unfortunately, it is far from that easy.
Insurance companies that fund employer-provided benefit plans have every incentive to deny meritorious claims. There are limited remedies under ERISA if an insurance company acts in bad faith. That being said, they will scour your records to find any basis to avoid paying you. One argument that insurance companies like to make is that your doctor’s contemporaneous treatment records do not document findings that support his or her claim that your condition is severe enough to prevent you from working. For example, in the case of Leslie v. United of Omaha Life Insurance Company, 662 Fed.Appx. 522 (9th Cir. 2016), where the plaintiff alleged disability on the basis of fibromyalgia, the Ninth Circuit Court of Appeals was persuaded by the insurance company’s argument that, other than the doctor’s statement supporting disability, there was no evidence in the medical record that the plaintiff was restricted in her ability to lift, sit, stand, or walk, or otherwise perform the substantial and material duties of her occupation and the office notes did not reflect these conclusions. The court also found it significant that numerous treating physicians noted that the plaintiff was in no acute distress and had a full range of motion.
Similarly, in Biggar v. Prudential Insurance Company of America, 274 F. Supp. 3d 954 (N.D. Cal. 2017), the court agreed with the insurance company’s argument that the treating doctor’s statements that the plaintiff’s “Parkinson’s symptoms were so severe that he could not work are undermined by her own contemporaneous findings that he had normal balance, no observed tremors, and normal motor strength.”
This kind of cherry-picking of medical records creates practical problems for claimants in their long-term disability claims. Most treating doctors do not document visits for purposes of supporting a disability benefit claim. Often, doctors do not do complete physical examinations or accurately document the patient’s condition at the visit because it may not be relevant for purposes of administering care. However, it is very important for a patient with a disability claim. If you have a disability claim, you must convey to your doctor the importance of accurately and thoroughly documenting your physical or mental condition at your appointment. It is also important that you are open with your doctor about all of your symptoms and any difficulties with activities of daily living. Do not say, “I’m fine” if you are in pain or fatigued. If your treatment records do not support your claim of disability, an insurance company will grab on to that. If you are aware of this issue early on in your claim, you can avoid a headache down the line. Remember, treatment records are important!
ABOUT THE AUTHOR: Michelle L. Roberts, Partner
Kantor & Kantor, LLP
mroberts@kantorlaw.net
Michelle represents individuals in benefit claims governed by the Employee Retirement Income Security Act of 1974 (“ERISA”). Her practice focuses primarily on claims for disability and life insurance benefits. Her firm also handles ERISA and non-ERISA insurance denials for health, long-term care, and pension benefits. Michelle speaks and writes frequently on the topic of ERISA litigation including contributing regularly to Employee Benefits Law (BNA) and ERISA Litigation (BNA). She has been named a Super Lawyer by Northern California Super Lawyers Magazine in the category of employee benefits every year since 2015 and was included on the Super Lawyers Top 100 and Top 50 Women list in 2018. Michelle received her law degree from the University of California, Berkeley School of Law. When she is not doing all things ERISA, she enjoys spending time with her two children (ages 14 and 8) and SoulCycle.
[Ad] Calling all neighbors in the Walnut Creek area and beyond! At Absolute Trust Counsel, we understand how unique the needs of your family can be. When it comes to planning for your family’s legacy, there is no one-size-fits-all approach. Schedule a free discovery call,and let’s talk about how we can help build the right plan for your family’s circumstances. Or, if you have a question about the content in this blog, please feel free to get in touch with us by calling 925.943.2740 or sending an email to Info@AbsoluteTrustCounsel.com.
Our Absolute Trust Counsel team would love to offer all of you access to ATC’s Incapacity Planning resource page on https://absolutetrustcounsel.com/incapacity-planning/ We’ve collected our top planning information all in one place so listeners can find videos, guidebooks, blog posts, a host of information with tips and strategies on implementing, planning, and protecting themselves and their loved ones.