The most common mistakes pain patients make on a private disability claim come in three kinds. They go to the insurer’s “independent” medical exam without checking the policy. They file without a disability insurance lawyer. And they let the insurer define “disability” and document the claim on its own forms. Each mistake is explained below.
What mistakes do pain patients make when applying for disability?
- Blindly attending an Independent Medical Exam.
- Failing to consult with a disability insurance lawyer.
- Misunderstanding the definitions of “disability” and “occupation”.
- Inadequate documentation of the claim review process.
- Believing all mental conditions are excluded or subject to limitations.
- Inadequate communication with a treating physician.
- Quantifying your time.
- Ignoring the possibility of surveillance.
- Blindly accepting that subjectively diagnosed conditions are not covered.
- Tossing out the disability insurance application, policy, and claims documents.
- Assuming that you have enough evidence for your claim if your employer says you are too sick to work.
- Relying solely on the advice of your human resources department.
- Documenting your disability claim using only the forms provided by the insurance company.
- Accepting a psychiatric determination instead of a physical disability.
- Accepting a residual claim instead of total disability.
- Not realizing the effects of social media.
- Waiting too long to seek a diagnosis and file a claim.
- Trusting the insurance company to be fair and do the right thing.
- Prescription drug abuse and the effect on disability claims.
Should you attend the insurer’s “independent” medical exam?
After you submit your claim, you may be asked to submit to an “independent” medical examination. The examiner is chosen and paid for by your insurance carrier. Before you submit to an “independent” medical exam or any other exam, you must first make sure your carrier has a right to the exam under the policy language. For example, a psychologist, not a physician, runs a neuropsychological exam over several days. The carrier often uses the subjective findings from that exam to deny benefits. If your policy requires that you submit only to “medical exams” or exams “conducted by a physician,” there is certainly an argument that you need not submit to neuropsychological testing. Also, you may wish to bring an attorney or other legal or medical representative who can monitor your “independent” medical exam.
Do you need a lawyer for a disability insurance claim?
Patients thinking about filing a claim for disability insurance benefits are advised to meet with an attorney experienced in this area before they submit a claim. Insurance claim departments have one goal: to pay only those claims they absolutely have to pay. Sadly, some companies go one step further. They design their claims process to draw out information from insureds. Then they twist that information and use it to close the claim. Their friendliness is designed to give you a false sense of safety, so you will share more than you might otherwise. Their helpfulness is designed to win your trust, so you won’t question the documents they demand. All the while, they are studying you and your claim. They want to find the best way to reduce or close your claim as soon as possible. Claims examiners are on the insurance company’s payroll. Their employer’s instructions come first. Everything you submit, plus anything else they can get, is reviewed with that one goal in mind.
Misunderstanding the definitions of “disability” and “occupation”
There is no such thing as a “standard” disability insurance policy. The definition of “disability” can significantly vary.
Inadequate documentation of the claim review process
When you submit a claim and speak with your carrier, take notes. They help you remember what was said if your claim is denied. Keep notes of all phone calls: the date and time of the call, and what was said. Write down the name of the person you spoke with. Confirm every conversation with the carrier in a letter sent by certified mail, so there are no misunderstandings. The “paper trail” may later be used as evidence of unreasonable treatment during the claim process.
Believing all mental conditions are excluded or subject to limitations
Most disability insurance contracts treat mental and physical disabilities differently. More recent policies cut off benefits for psychiatric conditions after two or three years. Insureds often blindly accept their carrier’s decision to deny or limit benefits based on these conditions. They do not consider many relevant factors. Are there any physical aspects to the mental condition? Does the mental condition have a biological/organic cause? Was another, covered condition the legal cause of the disability?
Inadequate communication with a treating physician
Insureds should not discuss their claim, or that they are thinking about filing for disability insurance benefits, with their treatment provider until after you have had several visits. Physicians are often reluctant to support claims for benefits if they question the patient’s motives. A physician who has treated you without success will likely be more willing to help. It is also important to tell your treating physician about your symptoms and limits in an organized, detailed way. That way all relevant information is recorded in your medical records, which your insurer will ask for in the end. When you finally speak to your treating physician about your claim, make sure your physician understands the definition of “disability” under your insurance policy. It is often different from how that word is normally used. Then he or she can give an accurate opinion on your ability to work.
Quantifying your time
Be wary of insurance companies asking you to break down, in percentages, the activities you did before and after the disability. If there is any crossover, companies will often deny benefits or pay benefits for only a residual disability. Describe your important duties broadly, not your minor duties. That gives your carrier a clear picture of the core of your job.
Will the insurance company watch you during a disability claim?
Insurers are likely to videotape or photograph patients who have filed for disability insurance benefits. The insurance company will be watching what you do. If you do things your doctor said you shouldn’t do, it might look like you are trying to cheat the insurer.
- If the insurance company sends you an activity log to fill out, that only confirms you are being watched. Follow your doctor’s instructions carefully. Patients caught on tape doing activities they claimed they could not do are likely to have their benefits denied. The contract could also be terminated.
- Also, the total value of your benefit payments plays a major role in how likely surveillance is. The amount of reserves set for a claimant’s disability benefits must justify the cost of the surveillance. The cost of each surveillance operation varies, but surveillance costs usually range from $2,000 – $5,000. So relatively high-value claims are more likely to face surveillance than low-value claims.
- Anytime claimants meet with or talk to a claims examiner or field rep, they are in effect under surveillance. If a claims examiner asks to meet in your home, they are trained (and expected) to inspect the surroundings. They look for anything that does not fit the story of your claim. Insurance companies hire experienced investigators and train them further to write reports for disability claims. For example, say you have a bad back and had to let your housekeeper go for money reasons. The investigator will make sure to note the spotless condition of your house, inside and out. That note can then become the basis of an assumption: that you must be able to clean and repair your home. Or say you sit for a long time to talk with the field rep, despite being in pain. The field report will note that you are able to sit and work for long periods, whatever records you already provided.
Blindly accepting that subjectively diagnosed conditions are not covered
Disability insurers often deny benefits by insisting that the insured’s subjective symptoms are not objective, verifiable evidence of disability. In many cases, no clause or contract term requires the insured to submit objective evidence of disability. So the insured may be able to secure benefits with ample evidence of the extent and severity of his or her limits. That matters far more than a definitive diagnosis.
Tossing out the disability insurance application, policy, and claims documents
From the time you apply, keep copies of everything. That includes notes from meetings with the insurer’s sales representative or agent, the policy application and the policy itself. The sales representative may have given you a letter or said something you jotted down. Those notes can go a long way if the insurer says the policy says something different.
Assuming that you have enough evidence for your claim if your employer says you are too sick to work
The insurance company, not your employer, will be paying your long-term disability benefits. Assuming your employer’s opinion about your ability to work is enough to qualify for benefits is a big mistake. The insurer will decide when you meet the legal definition of disability under the terms of the policy.
Relying solely on the advice of your human resources department
Human resources staff might mean well when they give you advice. But they are not trained to read insurance policies. For the most part, they have no sway over the insurers. Taking action to get long-term disability benefits will be up to you.
Documenting your disability claim using only the forms provided by the insurance company
Your doctor must answer certain questions on the insurance company forms. But don’t stop there — you may need more explanation or information to prove your disability. Sit down with your physician and explain the terms of your disability insurance policy. Ask your doctor to write a report that fully explains how your sickness or condition keeps you from doing the substantial and material duties of your occupation. Even if your doctor charges you for such a report, it is well worth the money.
Accepting a psychiatric determination instead of a physical disability
Most newer disability policies have a 12 or 24-month cap on benefits from mental and nervous conditions. Because of this limit, insurance companies look to reclassify claims. A claim may have started out as a physical disability. By reclassifying it as a mental and nervous disability claim, the insurance company can reduce its liability. This ties to the last point: your doctor must be very specific in describing your symptoms and functional capacity. Many people try to work with chronic pain from back problems. But this pain may become unbearable and cause them to become depressed. If an insured files a disability claim in this case, the claim should be pursued for the back problems and chronic pain condition, which may not have a benefit limit, in addition to the depression.
Accepting a residual claim instead of total disability
Most disability policies have clauses that separate total and residual disability. Without going into too much detail here, a claim is usually considered a total disability if the insured cannot perform material and substantial duties. The claim is considered a residual (or partial) disability if the insured can perform some of their material and substantial duties. Insurance companies like to skip past the required duties and jump to the insured’s income, to back into a residual claim. But the job duties almost always guide this decision. No matter your current income, if you cannot perform the material and substantial job duties, you are considered totally disabled in most policies.
Not realizing the effects of social media
Social media has become a major factor in claim investigations. Many people like to show a “second” life on social media with their friends. These sites are the only places many disabled insureds can feel normal and part of society. However, insurance companies may not see it this way. Say you are active in groups or forums for activities your restrictions and limits say you can’t do. The insurance company may try to use this against your claim. Remember that insurance company investigators can find everything about you on the Internet. And it is next to impossible to fully remove something once it is out on the Web.
What happens if you wait too long to file a disability claim?
Successful people are rightly proud of their careers and enjoy what they do for a living. So it makes sense that they would not want to stop working. In the long run, this choice can hurt a disability claim. Many policies require an insured to be under a physician’s regular care and to have reduced or stopped working to qualify as the date of disability. That is not always when the insured began to suffer from his or her restrictions and limits. If you have been reducing your job duties before filing a claim, your material and substantial duties at the time of disability may have shrunk. That makes your disability claim much harder to prove. Likewise, if you’ve become disabled and don’t file your claim, there may be restrictions and deadlines that hurt your claim. Get medical care as soon as you have work restrictions and limits, and decide wisely when and how to file your disability claim.
Trusting the insurance company to be fair and do the right thing
Insurance companies will brag about how quick and easy their claims process is when you buy a policy, or even when you ask for claim forms. But the process becomes anything but quick and easy as the claim unfolds. Under the cover of preventing fraud and keeping “integrity,” insurance companies teach their claims examiners to act like your friend. They try to convince you they are on your side. These lines are carefully scripted to win your trust and make you slip up, so you say something they can use against you and your claim. Claims examiners and their managers earn bonuses based on achieving certain claim ratios, so it is misleading to say they aren’t biased when their compensation depends on how many claims are paid or denied. Get an expert to help you with your claim, someone you know is on your side and will help you every step of the claim review process.
Prescription drug abuse and the effect on disability claims
Medications have improved the quality of life for many sick and disabled people. Many of them get disability benefits from both the Social Security Administration and private disability insurers. Some patients may develop life-long dependence on many of these drugs. When claimants become addicted to the medications they use to control their disability or disease, their claims can become much harder. They may face many delays or denials. Insurance companies often fight disability claims involving drug dependence in two ways. They assert that the disability is only a “legal disability.” Or they assert that the disability is intentionally self-inflicted. Both of these causes of disability are more and more often excluded from insurance coverage. Legal disability can loosely be defined as an inability to work in an occupation due to legal or license restrictions, rather than a factual disability.
Related reading: the SSA five-step process for chronic pain.
Frequently asked questions
What should you not say when applying for disability?
Be careful with everything you tell the insurer. Claims examiners work for the insurance company. Their friendliness is designed to get you to share more than you otherwise would. Do not break your job into percentages of time spent on tasks; describe your important duties broadly. Keep notes of every call. Confirm each conversation in a letter sent by certified mail.
What will disqualify you from disability benefits?
On a private claim, being caught on video or in photos doing activities you said you could not do is likely to get benefits denied and the contract terminated. Social media activity that shows what your restrictions rule out can be used against you. Claims involving drug dependence face exclusions for “legal disability” or self-inflicted disability. And many newer policies cap benefits for mental and nervous conditions.
Is chronic pain covered if it cannot be objectively proven?
Often, yes. Disability insurers often deny claims by saying subjective symptoms lack objective, verifiable evidence. But in many cases the policy has no requirement that you submit objective evidence. Ample evidence of the extent and severity of your limits can secure benefits, and it matters more than a definitive diagnosis. A detailed report from your doctor on how your condition keeps you from your job duties helps.
What is the difference between total and residual disability?
Most policies treat a claim as total disability when you cannot perform the material and substantial duties of your occupation. They treat it as residual, or partial, disability when you can perform some of them. Insurers like to look at your income to push a claim into residual status. But job duties almost always guide that decision. If you cannot perform those duties, most policies consider you totally disabled.
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Medically reviewed by Dr. Gurpreet Singh Padda, MD, MBA, MHP — Board Certified in Anesthesiology, Pain Medicine, Interventional Pain Management, Addiction Medicine, and Obesity Medicine.
