Brian:           Greetings, everybody.  It’s Brian Therrien here today with Jonathan.  Jonathan, how are you today?

Jonathan:      Great.  How are you doing, Brian? 

Brian:           Doing great, doing great.  We’re here today to talk about long-term disability policy, short-term disability policies, ERISA, all those great insurance policies of people get when they go out and get a job.  And we’ve been working and helping folks out for around 18 years now, assisting people in getting their benefits commonly after they’ve been denied their claim but even more so in recent years, helping people from the very beginning making sure that they get all of their benefits. 

                   So I know I have an audience that is just eager to hear what you’ve done and some of the tips you’re willing to share us.  So thanks for coming out tonight. 

Jonathan:      You’re welcome, Brian.  If you said I’ve been at this area of the law for about 18 years and I’ve been practicing law of other types since about 19….  It’s actually since late 1985.  But, you know, I’m here today to try to provide in a cursory way some reasons and answers to questions that your audience has about short-term disability, long-term disability and that the general pitfalls of ERISA.  So, ask away.

Brian:           Yeah.  Apparently there are some pitfalls.  So let’s start with the basics, Jonathan.  You know, a general review of a group policy somebody, you know, they go to work, you end up getting a long-term disability policy, typically, a little chunk of your income is taken out of your paycheck and you end up buying a policy from there.  Now, let’s start with this. 

                   There’s the two different types of long-term disability policies.  And then there’s the, in general, to my understanding, and then there’s short-term disability. 

Jonathan:      Right, you’re right.  Let’s just touch on short-term disability real quickly because it’s different.  No state requires that anyone be provided with long-term disability.  There are some states that require short-term disability but those are far and few between.  For example, Rhode Island does in our neck of the woods and California requires some level of short-term disability.  But the long-term in every state is voluntary. 

And one thing I want to point out right off the bat is that those people working in the private sector, they get their benefits through their employer such as long-term disability.  They’re all governed under this law called the Employment Retirement Income Security Act (ERISA).  Those folks that are lucky enough to work for what are government such as, you know, the state, municipal or the federal government in terms of benefits, their benefit plans are all exempt from ERISA which turns out to be a huge advantage. 

ERISA was passed in 1974 after a lot of studying, a lot of jockeying and negotiating through Congress with the purpose at least as the intent at that time was to protect employee benefits.  And the quick history to that was after Studebaker Motors failed and I believe 1964 to tens of thousands of employees that were left without pensions.  And Congress said and the public and unions and individuals said something needs to be done to protect these people.  And after a lot of negotiation, ERISA came into effect on Labor Day in 1974.  So that’s where it all began. 

Brian:           So how is it that government employees, which I know is a very small segment of our overall population, is exempt from the traditional--but I guess, more specifically, Jonathan, how are they exempt?  What does it mean that they’re exempt from ERISA?

Jonathan:      All right, I’ll answer that.  Let me also point out that people that work for what are called Church Plan Organizations are exempt.  Something to get your a real grip on would be like Catholic Archdiocese, if someone’s employed by an archdiocese.  They could be employed by a church-affiliated hospital, those people are exempt. 

                   But to answer your question directly, it’s in the ERISA statute that Congress said the statute does not apply to people who work for governments or church plans.  And it also turns out in this day and age, generally, non-US citizens are not subject to an ERISA and that’s of some level of importance because in the global economy we’re in now, it’s not unusual to have someone whose a citizen of the United Kingdom that happens to work for an American company and there may be a disability plan that covers that person.  But that person and the plan should be exempt from ERISA. 

And in general, being exempt is good.  The reason I say that is the person’s claim then is governed and controlled by state traditional insurance or contract laws which are much more favorable than ERISA. 

Brian:           I see, okay.  So although ERISA was put in place, prior to ERISA, the environment for the long-term disability or short-term disability policy holder would have been more favorable, is that correct?

Jonathan:      Yeah, it’s correct because they were traditionally just considered or the plans were just considered insurance contracts and those are governed under state laws which tend to be more favorable and there’s a long history in connection with interpreting insurance policies since they’re called contracts of adhesions.  They’re basically take it or leave it.  People don’t get to negotiate the terms through common law the courts said because people aren’t bargaining over the terms.  Insurance companies have lots of smart people working there, lots of smart lawyers, they know how to draft these type of plans.  And if it turns out something’s ambiguous, in general, there’s an exception in some states.  But in virtually every state, anything that is ambiguous in the plan is going to be construed in favor of the person seeking coverage and against the insurance company.  Plus, if there is a dispute over the policy and a person ends up in court against the insurance company, ultimately, they’re entitled to a jury trial.  Just like any other breach of contract claim. 

                   Under ERISA, the claims basically always end up in the federal court.  There is no jury trial and the actual trial procedure is still a peculiar and that there’s really never any live witnesses and it tends to be a trial on a paper record.  Very disadvantaged to the insured, very advantageous to the insurance company or the private employer if the plan turns out to be self-funded. 

Brian:           So the likely--the lobbyists from the insurance companies got the ERISA acted?

Jonathan:      I can’t really say it was done by that.  It was through a court decision.  A lot of it happens to be with a, I believe 1987 Supreme Court decision involving a bad faith insurance claim that came out of Mississippi involving something called Pilot Life.  And Justice O’Connor decided that we’lll say state laws in this area were all pre-empted and the right to jury trial and to we’ll just say traditional type of damages were all pre-empted by the enactment of ERISA.  Let me explain that real quickly a little bit more.

                   Pre-emption has to do with when Congress passes a law and decides to, we’ll say in some sense, override all state laws because of the way the constitution is interpreted, federal laws are supreme.  So in a very casual sense you could say ERISA wipes out virtually all state laws.  There is a relatively jumbled perception that insurance regulations, for the most part, still apply to insurance plans.  It’s somewhat complex.  The reason I’m saying it’s complex is because the statute’s unclear and the courts have not done a great job in defining that level of clarity.  But for the most part, things have been shifted heavily in favor of plans in insurance companies and it’s not really through lobbying although maybe it’s lobbying now that keeps those laws in place.

Brian:           Okay, so for today’s information that we’re going to cover if somebody is employed by the government or by a church organization and has a policy, would any of the information that we’re going to cover today be a value to them?

Jonathan:      Well, it would be a value to them in the sense that there are certain things that one needs to look out and to provide to the insurance company under either situation to do the best, not to do the best but to make sure one’s application goes through the insurance company and a person that deserves to get paid should be paid. 

Brian:           Okay.

Jonathan:      So tongue-tied at the moment. 

Brian:           Okay.  Don’t worry.  So all right, that’s a good distinction.  I was not aware of that.  So okay, for short-term disability, can we go through the common process if somebody has a short-term disability policy, is it--that's something that they would apply for first?

Jonathan:      Absolutely.  Yeah, usually, if someone has to be out of work from anything from a few days to maybe a week and the person either goes to the insurer, to their employer, fills out whatever needs to be done in the application and submits it and often that means obtaining, you know, appropriate medical documentation that is necessary to prove that the person is actually disabled.

Brian:           Okay.

Jonathan:      That process tends not to be as cumbersome as the long-term but it’s equally important because so many short-term plans typically pay 13 or 26 weeks of short-term disability and then they roll into long-term disability.  And let me just say this.  the premium cost for a lot of the long-term disability plans, they’re very inexpensive and for that reason, the insurers tend to carefully scrutinize certain claims that are coming in very early that may appear to be a chronic condition.

Brian:           Okay.  So with short-term disability, somebody’s out on, you know, for example, on FMLA leave and they don’t think they’re going to be able to go back, then, while they’re out in there FMLA leave, they should file for short-term, right? 

Jonathan:      Sure, assuming they meet the qualifications.  Let me say this.  No matter what the plan is, it is essential to get a copy of the plan, at least the summary, although the plan, it’s really is essential to have the plan and look at the definition of disability under the plan.  It’s not uniform but in general, the plans tend to say, “You’re entitled to payment if you’re unable to do the material and substantial duties of your job.” 

                   For example, someone could be out in FMLA leave because a family member is sick, that is probably not going to qualify the person for short-term or long-term disability. 

Brian:           Okay, got you. 

Jonathan:      So they don’t quite dovetail but--anyway, it’s something to keep in mind.  But the key on much of this is getting a hold of the plan documents right away.  The next question you might want to ask, “How do you do that?”  You go to your Human Resources Department, if they’re not there, if your company’s small and doesn’t have that, at least your employer should tell you who the insurance carrier is.  Write to your insurance carrier, write to your HR Department.  Do it in a way that you know you can get a receipt, whether it’s by an email and asking your outlook to send a receipt or mail it and with a certified mail get that green card, do something to show you that you’ve actually made contact and asked for the appropriate documents. 

Brian:           Would the lingo, Jonathan, be as simple as saying, “I would like to have a copy of my short-term, long-term disability policy?”

Jonathan:      Yes.  That’s great.  That’s really all that’s needed. 

Brian:           Okay.  Okay, great.  So there’s this term out there called ‘group policy.’

Jonathan:      Group policy generally means--is used to distinguish between an individual disability policy.

Brian:           Okay. 

Jonathan:      For example, Brian, if you go see your friendly local insurance broker, he or she may sell you an individual disability policy.  The group policy tends to generally mean that it was bought through work or in some instances, it could be an organization.  For example, the American Dental Association may provide a group long-term disability plan to members of the American Dental Association that happen to be dentists.  Things are a little tricky there if those plans are actually controlled by ERISA.  Sometimes they are and sometimes they’re not.  But that--those are the main area--ways that most people get involved in group plans.  It’s either work or through something called an association plan. 

Brian:           Okay, okay.  You know the reason why we’re here today, as you probably know, is that a lot of these claims and it seems as though is that the trend is ticking upward, are getting denied.  I mean is there any general reason for the increase that, you know, that we’re seeing on this side that you could point to and then maybe we can zero in on some things that we could do for people to help prevent that?

Jonathan:      Sure.  The most important thing is to, as I said, is to get a hold of the plan and read as much of it as possible before you apply.  It’s sort of like a situation where one would rather go to their doctor for an annual physical rather than going to see--never going to the doctor for an annual physical and then developing some, you know, horrid condition and needing to see a surgeon to get to have the problem resolved.

Brian:           Okay.

Jonathan:      But to answer--go back to the other question--why is there an uptick?  It’s probably, I can’t say I know this for a fact but having lived through a number of economic cycles, a lot of it is often correlated with the state of the economy.  And let me explain what I mean. 

                   When the economy is booming, employers tend to be much more accommodating.  So for example, someone that might, you know, have a certain ailment, I don’t know.  We’ll say a bad back disc problems.  And say that person wants to be able to work from home, a lot of employers, while the economy is booming, are more accommodating.  As the economy tightens up, people--employers aren’t necessarily so accommodating.  So maybe that person that had a bad back before that person is laid off, puts in a claim for disability.  There’s no doubt that in a downward economy, the incidents of claims goes up.  Now, why aren’t they getting paid?  My educated is that’s often tied to what’s going on in the stock and bond market.  You know, the general model for insurers is or insurers are they take in dollars and premiums, they are pretty good at predicting over the long haul what the incidents of certain types of claims are.  For example, like life insurance claims, insurers are quite good at it.  Disability is a bit harder.  But anyway, so insurers are taking dollars in, they’re investing the money but if the stock market craters, like it did in the--like it has over the past--how long now--14 months, 16 months, if insurer takes a dollar in and invest that dollar and the dollar is only now worth $0.95, there’s a $0.05 loss there on the dollar and the insurer had to use that money, 1, to pay its own bills and ultimately pay some claims.  And when there’s a shortage of dollars in the pipeline, what I’ve seen over certain economic cycles, more claims tend to get denied.  It just seems to be the reality of the markets.  I can’t say I have a proof of that but I’ve seen this cycle happen before.  That’s my educated guess.

Brian:           Wow.  That is really cool I mean its just--that’s a great explanation.  It’s not one that people want to hear, that are going to this but at least, you know, makes some sense.  So--

Jonathan:      Good because think about it this way too.  If the economy is booming, the stock market’s booming, the insurers are taking in a dollar, and with that dollar, they’re able to invest in, I don’t know, get back at $1.15 within a year, that leaves plenty of play for the insurer to make a profit.  The insurer’s entitled to make a profit and needs to make a profit to stay in business and there’s more money around theoretically to pay claims.  And the insurers, I think, during booming economic times, maybe are a little bit loose around their standards.  On closer calls, they’re more likely to pay people.  So that’s why at other times when things are going well, claims may get paid more easily. 

Brian:           Okay.  Good explanation.

Jonathan:      Thank you. 

Brian:           I’ve got a list of questions of, you know, some of our members have written in to cover.. I’m going to try and jump around a little bit.  But let’s start with this.  We go through the short-term disability policy process, Jonathan, and that’s pretty standard its a defined period of time then you apply for long-term disability. 

                   Now, your long-term disability policy.. there’s different flavors of this.  There are some policies, correct me if I’m wrong, that are for like a closed period of time and then there’s others that will last a lifetime, right?

Jonathan:      I would say this.  Conceptually, what you’re saying is correct but I’d define it a little differently.  Most of the policies that I see across the board will pay usually for the first 24 months benefits if you’re unable to work in your own occupation.  After 24 months, it’ll pay--the policy will pay based on any occupation and that doesn’t really mean any occupation.  It usually means any occupation based on your education, training and experience.  Those--and that period tends to run to age 65 or what is the person’s normal Social Security retirement age for those people born I think in 1960, that may be 66 and a half now and people that are a bit younger that period may run to age 67.  And it’s rare I’ve never seen actually a group policy that’ll pay lifetime benefits. 

                   In the private sector, the individual policies will pay lifetime benefits.  And then on occasion there are some policies that will just pay for relatively short finite period of time which could be five years.

Brian:           Okay.  So there is--when somebody’s applying and going through this process, the Social Security Disability component of it is big.  Let me direct my questions this way.  If somebody is--files for long-term disability and they’re going to be out for longer than a period of time, I don’t know what that is, hopefully, you can guide me in that direction then aren’t they directed to file for their Social Security?

Jonathan:      Most of the long-term disability carriers require, although they don’t say it, explicitly that the person files for Social Security Disability Income Benefits, depends on the company.  Some companies do it across the board, others actually make an evaluation of the claim and say this person is likely to be chronically disabled or and/or this person is likely to qualify for Social Security Disability Income so they must apply.  Now, some--once under some plans, the insurer actually tells the person they must apply.  Under others, it’s a little bit looser.  They say, “Well, you don’t have to apply.  But if you don’t apply for long-term disability, well, I’m sorry, Social Security Disability Income Benefit, we are going to estimate those benefits and reduce the amount that we think you will be paid by the Social Security Administration from the monthly benefit.  So the person’s really being forced to apply.  And the reason there is this certifying distinction is because it happens too often, Social Security Administration awards benefits to someone and then an insurer either denies long-term disability benefits or terminates benefits and the insurer wants to be able to be in a position to say, “Well, the way we determine disability is different than Social Security Administration and even though we really asked you to go apply there and sort of made you do it, we don’t want to be bound by that decision. 

Brian:           Okay, that’s straight.  You know, there’s a lot of areas of question and concern around the offsets in how the two are tied together.  So, to make sure that I get it, most policies are going to ask that somebody, if they are on a long-term disability policy that they will file for Social Security Disability.  The exception would be somebody that’s not going to be out for or does not have a chronic illness.  Would that be correct? 

Jonathan:      Generally.  Although I’ll say I was just looking at some core documents that I’m not going to name the insurer but a very, very large insurer in this business has a tendency to make every one who applies for long-term disability benefits also apply for Social Security benefits without really analyzing the claim.

Brian:           Okay.

Jonathan:      And it’s financially, it’s in the interest of the insurer to have someone apply ‘cause if we do the quick math, let’s just take someone who, let’s say their monthly income is $3,000 a month and on your typical long-term disability plan, maybe they’ll be paid two-thirds of that.  So $2,000 a month is the normal long-term disability benefit.  Let’s say the person then is eligible and there’s a paid-$1,100 a month in Social Security benefits.

Brian:           Okay.

Jonathan:      Typically, that $1,100 is deducted from the $2,000 so the private insurer now only has to pay $900 a month. 

Brian:           Yeah, yeah.  Yeah.

Jonathan:      But that’ll be, you know, well, that’s not a reason not to apply for Social Security Disability Income Benefits ‘cause a person’s entitled to it, they should because it’ll also help them become qualified for Medicare AB within 24 months.  And then this day and age having, you know, a.. some type of health insurance of some kind even if it’s Medicare, is essential. 

Brian:           Well, here’s where the real problem is.  That, you know, that has been out there publicly and I know our members have challenges with this, if you’re on the long-term disability policy, the definition of disability there is different than the Social Security definition.  The definition for Social Security as you know and I know, just for the audience’s sake, is that you have to prove that you can’t do any job in the U.S., five days a week, 40 hours a week and there’s, you know, that’s a ticket taker at a movie theater, a greeter at Wal-Mart.  There are some exceptions if you’re, you know, there are some intricacies to it if you’re over 50 and depending on your work history but pretty much, that’s it.

                   So with long-term disability, those guidelines are different. 

Jonathan:      Right.  It is perplexing and the position of the long-term disability carriers is frankly very inconsistent.  But the courts in a lot of cases that  have been litigated haven’t.. just to not accepted in an argument that if the person qualifies for Social Security Disability that they must also qualify for long-term disability.  Some of the rationale has to do with the way Social Security makes its determinations.  Such as, you know, if a person is of a certain age, certain presumptions are made.  The Social Security System requires Social Security administrative people and the administrative law judges to grant deference to the decisions of treating doctors.  On the long-term disability ERISA world, there is no requirement to grant deference to the opinions of treating doctors.  And it’s those type of distinctions, they don’t--frankly, they don’t make sense in the real world but that’s how it’s been justified that long-term disability insurers don’t have to be bound by Social Security decisions. 

                   On the other hand, you’d say, “Gee, they’re financially benefiting from it, it doesn’t seem right that the insurer gets to take the--receive the financial windfall, yet, at the same time, deny benefits.”  It’s just not fair.  And something should be done about it. 

Brian:           Yeah.  So anyway, we have to play the hand that we’re dealt.  And so we all understand that there’s inconsistencies in the definition of disability between long-term disability and between Social Security. 

Jonathan:      Yes.

Brian:           Right?  So anyway, that being said, let’s move on to some more specific questions.  You know, there’s people that are in the process they’ve been denied, what they have is.. does everybody provide 180 days or a specific period of time to do an appeal? 

Jonathan:      Well, the U.S. Department of Labor regulations require a minimum of 180 days.  And some plans take that as a mandatory and others as a minimum.  One needs to look at the actual plan to see what the language says in there.  Older plans that have not been amended sometimes say you have a shorter period of time to appeal.  That law, I’m sorry, those plans are effectively we’ll say overridden by the Department of Labor regulations.  But one you just assume in general on an insured plan that the appeal period is 180 days minimum.  And the thing one needs to do is as soon as a quest for benefits, either on initial application or someone that’s been paid for a while then terminated, is to make note of that 180-day time period and then the next step in the process is to write to the insurer and get a copy of the entire claim file.  The insurer is required to provide it to the claimant and it’s essential to look at that before actually filing the appeal. 

                   The biggest mistake that anyone can make and sometimes I think some insurers are not being straight with people, they will tell someone, “Oh, if you want to appeal, just fax in a letter saying ‘I appeal’ and we’ll send a file to the Appeals Department.”  If the claim was denied in around one, without submitting additional information that the insurer thinks is missing, it’s almost a guarantee that the claim is going to be denied on appeal and then it becomes much more difficult to overcome in court, maybe impossible. 

Brian:           So the value of getting the file is?

Jonathan:      So you can look through file and you can see for example that maybe in the file and I’m just making this up as an example, let’s just say Jane Doe whose benefits are denied, it says her job is a floor nurse.  And let’s say in reality, she was a surgical nurse.  The duties of being a floor nurse and a surgical nurse are just different.  And if whatever her ailment or condition is that’s preventing her from working, let’s say with something that was generally more particular to being a surgical nurse than a floor nurse, at least, one can argue and say to the insurer, “You used--you didn’t look at the occupation correctly.”  Or you may find out that not all the medical records made its way into the file.  So you go back to your doctor, your hospital or your physical therapist, round up the records and make sure that they get to the insurer. 

                   Sometimes, you’ll see things such as the files being reviewed maybe a nurse who’s offering opinion that is quite different than the treating doctor or other times you’ll see that the there has actually been a doctor reviewing the plan. 

                   One needs to see the rationale why the insurer denied the claim.  And then providing the information that’s missing and if necessary, contest it.  But one of the most important things people need to do particularly after claim’s been denied or terminated is to make sure that their health provider supports them in a way that they’re explaining to the insurer why the person can’t work.  And the magic language that the insurers are fixated on are restrictions and limitations.  Restrictions are things, you know, that a person can’t do; limitations are things--I’m sorry, the other way.  Limitations are things that the person can’t do and restrictions are the things people can’t do.  Such as, you know, Mrs. Jones who has--who’s recovering from spinal surgery, you know, can’t lift 50 pounds from the floor to her waist because of her back condition.  That would be an example of a limitation.  A restriction is more something you shouldn’t do. 

                   But in any event, it doesn’t help when you’re doctor or physical therapist just writes a letter back and says, “Dear Insurance Company, Brian can’t work anymore and I find him totally disabled.  Very Truly Yours, World’s Greatest Doctor, graduated first in my class at Johns Hopkins and did my residency in orthopedic surgery at Massachusetts General Hospital.”  The quickest way to get the claim denied because it’s not--because the doctor is not explaining to the insurer looking at restrictions-limitations or will just say facts, giving an explanation why the person can’t work.  Just saying “Brian is disabled” is not going to cut it. 

Brian:           So this is the same process as we coach people for Social Security, you know, people are often asked why they’re filing and they say, “Well, I have XYZ condition.”  But that’s not the deal, you need to express so that condition limits you.

Jonathan:      One hundred percent correct.  This is same way because there are certain conditions people have and they can work.  There are certain diseases that one person has that, you know, Brian may be able to work but I could have the same disease and I can’t work.  So it’s really specific to the individual.  Although on occasion, there’s some thing that are, you know, just obviously so overwhelming that it should be obvious that the person can work. 

Brian:           Okay, that’s great.  That really clarifies it.  Let’s talk about you mentioned doctors.

Jonathan:      Yes.

Brian:           Which was a nice example there.  Medical examinations - if somebody’s filing for long-term disability, do they need to go to their policyholder’s doctor, how does that work?

Jonathan:      I would say in general, the insurers don’t send people out for medical exams.  They just don’t do it because of the strange way that ERISA works, the insurers much prefer to have file reviews.  That means, you know, Brian, you could be seeing a doctor in your locality but the insurance company will say based in Pittsburgh, Pennsylvania, hires a doctor who happens to be sitting in his or her home in San Antonio, Texas, and looks at medical records and without ever examining you will offer an opinion.  And this is frankly, very unfair and it goes on much too often.  But that’s the reality of it. 

                   Sometimes the insurers though will send people out for what they’re calling independent medical exams and they’re not necessarily so independent.

Brian:           Okay.  We got a fair amount of questions about, you know, how to handle an independent medical examination.  You know, like “Should I attend it?  Should I go alone?

Jonathan:      Well--

Brian:           “Should I tape it?  Should I bring somebody, you know?”

Jonathan:      My recommendation is this in general.  Certainly bring a copy of all your medical records because a lot of times, the insurers don’t provide all the records.  It’s really important to bring all the records and it’s nice to, you know, in this day and age, it’s easier to deal with things like this.  You can always run them through a scanner and burn them to a CD and put it on a PDF file and then put that--and bring the CD with your records.  And then you can hand those to the doctor and say, “Here’s all my medical records and here’s an index of everything that’s on the CD.”  If you can’t do that, it’s wise to bring all the records because you should not assume that the insurer has delivered all the records to the doctor. 

                   If you’re in a state which, I don’t know off the top of my head, how many states absolutely allow you to video tape, that’s a great way to do it.  I think Florida does.  Maybe Alaska, maybe Oklahoma.  But most states will not say as a matter of right that you can do it.  I could be wrong on the states that I just mentioned. 

                   If you can’t video tape the examination, don’t do it and don’t be sneaky and put a tape recorder in your pocket or hide a video camera.  Because doing that in a lot of states will--that’s probably a felony of you’re violating a wire-tap law or some type of, you know, sure attempt of this--I’m sorry, I’ll call it sneaky filming law.

Brian:           But you could have somebody come as a witness and--

Jonathan:      You should. 

Brian:           And dialogue the process.

Jonathan:      Dialogue the process and the person should take copious note.  Copious, let’s use real words.  Should take a lot of notes.  Take note, what time you arrive, what time were you actually seen and if the person can do it, minute by minute, because sometimes it turns out that let’s say if you, Brian, you’re scheduled for an hour exam, you show up at Dr. Smith’s office promptly at 3 o’clock, you’re sitting in the waiting room, reading, you know, Sports Illustrated, someone comes out at 3:10, says, “Oh, Brian, we’ll see you in a few minutes.”  You know, someone comes out greets you, you’re then five minutes later, you’re told to change into the little dressing gown, wait in the room, doctor finally comes in, it’s 3:20, exam takes place, you know, for 10 minutes.  Doctor shakes your hand, sends you on your way.  And maybe by the time you get dressed and you’re out of there, it’s 3:45.  But the doctor then the exam is reported as being 45 minutes to an hour, when it turned out, it was probably only 10 minutes.  So, look, it’s just not unusual.  Yeah, maybe generalizing but doctors that have very busy practices, that are actually practicing medicine day-to-day can not do that many of these type of exams.  There’s other doctors this is how they make their living. 

                   And, anyway, so that’s sort of known to go on in that vein.  But and then, sometimes though, some of the doctors get very upset, they won’t allow anyone in the room with you to take notes, the best you can do is as soon as the exam is done, is to sit down and make notes immediately.  You want to do it as quickly as you can afterwards so you don’t forget. 

Brian:           Okay.  So tape it if you can, take notes either way probably, bring all your medical records, make sure of course that you have somebody that goes with you.  That will be the best way to take notes.

Jonathan:      Yeah.  I’ll throw this out too.  Insurers, if you’re already being paid on a claim, insurers tend to but not always, put someone under surveillance a few days before the exam and a few days after the exam. 

Brian:           Oh, they do?

Jonathan:      Yes.  That is a ripe time for a surveillance. 

Brian:           So that would be somebody that’s watching your house, your activity, right?

Jonathan:      Correct. 

Brian:           Possibly?

Jonathan:      Yeah.  And if you happen to see anyone doing that, I think there’s two ways to handle that.  One, walk up to the person, ask who or she is.

Brian:           Yup.

Jonathan:      And legitimate licensed private investigators tell exactly who they are.  Most of them actually call the police in the town where they’re surveilling someone because, for example, you know, if the police drive by and see a car sitting in front of your house, Brian, and it’s sitting there two, three hours later, the police may be interested.  But when that person--when that private investigator calls the police at 6 a.m. and says, “I’ll be over on Maple Street, you know, around this area,” the police know why the person is there.

Brian:           Okay. 

Jonathan:      And, you know, the insurer has the right to surveil you as long as they’re not invading your privacy.  You know, the private investigators, they’re not supposed to be trying to listen in on your phone calls, they’re not supposed to be climbing up ladders and looking into your bedroom.  But if you’re in public places, it’s fair for them to look at you.  And some of the surveillances certainly legitimate ‘cause certain claims are suspicious.  Other times, you know, from being cynical, it’s just being used to dope up a case to terminate someone’s benefits. 

Brian:           Okay.

Jonathan:      But very common to happen, you know, at a short period before a medical exam and afterwards. 

Brian:           Yeah.  They’re looking to catch the person mowing the lawn or painting their house, right? 

Jonathan:      Correct.

Brian:           Yeah.

Jonathan:      Yeah.

Brian:           Okay.  Shoveled snow, that type of stuff.  Great tips.

Jonathan:      Good.  And I mean for someone who has a, you know, an office job, typically whether they can shovel snow one day, really has nothing to do with whether they have the ability to show up and work 40 hours a week but things like that often get taken out of context. 

                   The other reality too for a lot of people is their income has dropped off markedly and maybe they had lawn service before they cut their lawn but they can afford to do that so the person just toughs it out and cuts his or her lawn.  And it’s really not fair to hold that against them but it happens. 

Brian:           Okay.  So you’ve given some really good tips of how people can protect themselves even from the very beginning.  Is there any other, you know, real silver bullets that you’ve got out there in your repertoire that you could recommend for people?

Jonathan:      Well, I’ll say this and I’m doing this over a long period of time.  Those people that work with someone right off the bat usually end up with a better result and it’s often less expensive.  Again, I analogize it to going to the doctor every year for a yearly check up, going to the ophthalmologist or optometrist once a year to have your eyes checked.  Because if someone, you know, feels that they’re going to have to file an application for disability and works with, you know, a lawyer, where there’s non-lawyers that represent claimants.  Just like in the Social Security world, those people tend to end up with a better result.  And the reason I say it’s less expensive because hopefully the person gets paid, goes on their merry way and they never have to see the rep or the lawyer again.  Those people that try to do too much on their own and they’re working in an area that they, you know, normally wouldn’t do, I mean if my meniscus was torn I wouldn’t try to repair it myself, I wouldn’t say skip the anesthesiology--skip the anesthesia during the operation, I’ll do that part myself just to save a few dollars, it just doesn’t make sense.  And because the process just is not simple. 

                   And let me say this.  If the person thinks they’re only going to be out on a disability for a shorter period of time, they have an injury that it’s pretty clear they’re going to recover from, probably less of a need to go seek the help of a professional, person’s developed some condition that’s chronic, and particularly the younger they are, the more the need is to work with someone.  Why is that?  Because as I said early on our conversation, the premiums for these group policies are quite inexpensive.  And insurers, they’re not the happiest when someone’s 35, 40, develop some chronic condition that is not going to shorten their life span, but it will make that person be unable to work to age 65, then the benefits the insurer may be paying out may total a lot of money over the next, you know, 25 or 30 years. 

                   And those are the type of situations that really need a decent handling from the beginning.

Brian:           Great advice.  You know, here’s another area.  It just makes--you know what?  Let me just touch on that before I move on.  I really believe that most people are not aware when they’re filing for, you know, short-term disability policy or when they get on to long-term, that it’s even an option to consider using somebody or where would they find somebody?  So I would expect that, you know, if they knew that they had that as option at least, to consider, it would make a difference.  In addition to that, do you know what percentage of these claims get denied?  Is there any statistical evidence out there?

Jonathan:      I don’t know.  I really don’t know across the board.

Brian:           Okay.

Jonathan:      And it’s hard to tell.  I mean the world’s biggest insurance carrier likes to talk about the billions of dollars it pays out every year and so many of the claims that are being paid.  My belief is statistically, most people that go on long-term disability, tend not to be really long, long-term.  Meaning, you know, more than two years.  That just seems to be a reality.  And I think that’s just because most people don’t have debilitating accident or sickness that makes it so they can’t work for a really long period of time.  But those are the claims that at least on the lawyer end, we tend to see more.  Maybe think about there must be 100 million people working in the private sector in the U.S.  And I don’t, anyway, I don’t know what the percentages are across the board.

Brian:           Okay.  What about for folks out there and I know we have some that have--they’ve been denied.  They’re on long-term disability policy and some have gone on and gotten their Social Security Disability and still were never able to collect their long-term disability and some not.  Is there any way that somebody listening out there, a general rule of thumb, that they could re-visit a policy based on the information that you’ve shared that, do you know, maybe they were rightly entitled?

Jonathan:      Sure.  One can always try.  You know, let me say this.  Some of the insurance companies actually provide multiple levels of voluntary appeals.  Under the Department of Labor regulations, the person’s only or the insurer’s really only required to provide--can only--let me say it in another way.  Can only force the person to go through one level of appeal.  There are some of the big insurers that have two, three voluntary levels of appeal.  And a person should go back to the insurer and if they know whats, you know, is missing in round 1, appeal again.  And even if the plan doesn’t have a provision allowing for multiple appeals, it’s generally worth doing.  It could be--it depends on where you live in the country because certain part of the country, one of the federal circuit courts decided, you can pretty much keep appealing and add new information to your claim until the time you file suit. 

                   So I just recommend people not take no for an answer.  It doesn’t hurt to try again. 

Brian:           Even if it’s a year ago, 15, 18 months?

Jonathan:      Probably, it’s probably okay.  I’ll say this.  Most insured plans have a three-year time period for filing suit. 

Brian:           Okay.

Jonathan:      It’s generally the case. 

Brian:           Okay.

Jonathan:      Self-insured plans can have very short statute of limitations.  But most plans provide three years.  So that’s a fair amount of time.  It’s not necessarily so easy to peg from when that three-year time period runs.  But that’s a pretty good general rule of thumb. 

Brian:           Okay.  So if somebody’s listening and they’ve been denied, within, say, the last three years, there’s still a chance?

Jonathan:      You’re correct.  I agree with that.

Brian:           Okay. 

Jonathan:      And I mean there’s other circumstances where a plan will not actually have a time limit period.  And if you happen to live for example in Massachusetts, the default rule under ERISA here is there is a six-year time period for filing suit.

Brian:           Okay.

Jonathan:      So it’s different in different parts of the country.  But, you know, one shouldn’t quickly throw in the towel.  I know it’s a frustrating process but until the person gets a competent advice, a decent opinion saying, “Look, this is hopeless,” people shouldn’t give up easily. 

Brian:           Okay.  I want to go back to the Social Security Long-term Disability connection.  And here’s specifically what I want to talk about.  Commonly, good questions like this, John, my long-term disability companies told me that I need to file for Social Security Disability and they gave me a company that they asked me to use to file my claim.  Okay.  So the questions are, I’d like to know from your perspective, you know, if you could tell the audience, is it necessary to use the firm that they’ve, you know, that they’ve suggested?  One.  Two, is there pros and cons to doing it?  Does it make a difference?  

Jonathan:      And the answer is most plans don’t require you to actually use a particular company.  I think the two big players both of their companies start with the letter “A”, I’ve seen a few plans that actually require the claimant to use the company.  Very few--the insurer may suggest it but under most plans, you’re not required to.  My opinion is a person should go get their own rep or their own lawyer to deal with the Social Security process.  Why?  Because that lawyer or rep, and certainly in the case of the lawyer has a fiduciary duty solely to the claimant, you know, the individual. 

                   The companies that are being recommended by the insurers and actually some of the lawyers that are being recommended by the insurers are, you know, sort of sitting in a dual role.  I think the lawyers try to do a careful job and say, “I represent you but as part of the agreement of hiring me, I will do--I am required to disclose a little bit of information to the insurance company.”  And I think the lawyers try to be careful of not disclosing anything more than they should but the people should just be aware that some of those lawyers are--they’re close to wearing two hats at one time.  And certainly the companies that are recommended, they’re definitely wearing two hats.  And if you find your own Social Security rep or your own lawyer, you don’t have--you as the insured--you don’t have that concern. 

                   That’s my take on it.  So I’m sure someone or a lawyer that comes recommended from an insurance company might give you a different perspective and explain why that dual role shouldn’t--should not be of any concern to the claimant.

Brian:           Well, I mean commonly it is that they’re working for both the claimant and, you know, if they really come clean, the LTD company and it’s of their vested interest to get the claim through. 

Jonathan:      It’s true.  I mean so that lawyer or the rep could say, “Listen, we are both working in your best interest because we want you to get paid because that’s the only way we get paid.”  That’s true but so is the individual rep or the individual lawyer.  And that person just doesn’t have any taint at all of working for two parties at once.  That’s why I see the difference. 

Brian:           Yeah, yeah.  And also, you know, read publicly that their, you know, if the Social Security claim is denied, then it usually or it has risen a flag that the LTD claim could be in question, which of course, as we discussed has different standards.  So there is a lot of stuff going on.  But that’s good advice.  So, okay, great. 

                   Let’s move on to talking about the short-term disability, long-term disability application process.  If somebody wants to go through and do this right, the first thing that you are saying is get a copy of the file, right? 

Jonathan:      Yeah, get a copy of the short-term plan, the long-term plan. 

Brian:           Okay.

Jonathan:      Get a hold of those, do your best to read and understand it.  Get a hold of any forms that the insurer requires you to fill out.

Brian:           Okay.  Then the other thing is that from your perspective is people that do the work that you do can make applicants’ life a lot easier by helping them go through the process and I would expect there’s some type of cost-benefit that somebody’s got to consider in that.  But that is--that’s certainly an option.

Jonathan:      Yeah, that is.  Let me just point on the example.  You know, maybe it’s obvious to people but maybe it’s not.  But let’s say a person looks at the application and there’s usually a claimant statement and there may be a line that’s six inches long and the question before it is, “Please explain why you’re unable to do your job duties.”  Some people are just going to write, “I’m too tired and sick to do my job, period.”  That’s it.  What should you really do?  Write a “See an explanation on the attached form.”  And if you need to get on your computer and type a word document that’s four pages long to explain what you did, that’s the right way to do it. 

                   And not just something that may not jump out to people that aren’t doing this kind of work regularly. 

Brian:           Yeah.

Jonathan:      But the key is to provide lots of information to the insurer supporting the claim.  And the people are handicapped a little bit in the sense that, you know, the form provides maybe a six-inch line, maybe a three-inch line.  Same thing goes for the doctor’s forms.  And a lot of times, it’s, you know, “Why can’t your patient, Brian work?”  And there’s a little box and, you know, the doctor scribbles in three words, it’s just not real helpful.  It’s much better if you can work with the doctor and say to him or her, “You need to provide a longer explanation.”  And to be fair to the doctor, you may have to say, “I know this is outside your usual area of practice, so I’m willing to reimburse you for your time.  Keep your track of your time and just bill me something reasonable and I’ll pay you promptly.” 

Brian:           Oh, great advice.  Great advice.  Okay.  So that’s--it’s good to know for the audience that’s out there.  Now, fees and all of that, we won’t get into that today but I just--I do know this.  I do know that in being in and around this segment for, you know, for the work that we’ve done here that there are just some long-term disability policies that it’s difficult to justify for the policyholder to, you know, to be able to pay for somebody to  work on it, to litigate or to file it, right? 

Jonathan:      Yeah, in some circumstances that’s true.  So what can that person do?  I guess in this day and age that so much information is accessible out on the Net, person needs to get on their computer, look around websites where they can find decent information.  And there’s people out there, not everyone I represent is paying me.  There is a certain level of people I take on pro bono just because the service I provide and ‘cause I know they can’t--that not everyone can afford to pay a legal bill.  There is other people out there like me that are willing to do that. 

                   The other thing is that I said there is a lot of good information out on the web.  If you don’t have a computer, go to your, you know, public library and do some scouring around and find some information.  Yeah, there are sites like yours, Brian, that provide a lot of great information that help people along.  So there’s ways to do this for--there’s ways to do this.  And I suppose depending on a person’s state, you know, there may be some government agencies that would actually help people out in this area.

Brian:           And we do have those resources and I certainly I’ll put them while we, you know, if we have them all.  But we’ll put them with this interview so people can access those.  So well, that’s great tip.  So is there anything that you can think of?  We’ve covered a bunch of information that I may have missed, forgot to ask that people should know or something?

Jonathan:      Nothing is, you know, really jumping out.  It’s a complicated messy area that unfortunately, none of us ever want to have to deal with.  But when you do, you’ll seek some help from a professional.  If you the person that’s suffering from some, you know, impairment, if you can’t find a professional, ask around friends, family.  Just try not to do this all on your own and it is essential to gather, as I keep saying, as much information as possible to understand what you need to show to the insurance company and then do what you can to gather information to also support your disability.

Brian:           Great.

Jonathan:      It’s just--there’s just absolutely no rule of thumb.  I’ll say this again.  There are definitely some, you know, websites out there, yeah, provide information online.  There’s other lawyers that do that.  There’s claimant’s reps, there’s your site Brian that you’re running.  The information is out there and people just need to read before they jump into this. 

                   And it’s sort of like you don’t want to practice medicine on yourself, as a lawyer doesn’t want to represent himself or herself if they’re having a problem.  Ask around.  There’s ways to get help.  It’s just out there.  And since disability benefits can be the difference between financially surviving or ending up and, you know, a terrible situation, it’s something that requires some forethought. 

Brian:           Well said. 

Jonathan:      Thank you.

Brian:           I want to hit some of the real key points that I saw--learned from today.  And then a few things in closing. 

                   So the first thing is that is glaringly obvious.  If you haven’t filed, or even if you have filed, get a copy of your policy and read it.  Read the definition of disability, understand what it is and make sure if you’re filing, make your file consistent with that or if you’re appealing that it’s consistent with that.  Right? 

Jonathan:      Excellent.  That’s very important.  Point number 1. 

Brian:           Point number 1.  Point number 2 is if you have a file, you’ve been denied, okay, you’ve been through the process and you’ve been denied and you want to contact your long-term disability policyholder, via email or regular snail mail… 

Jonathan:      No.  Let me clarify there.  Write to that insurance company or if it’s someone else’s, the plan administrator.  Do it by snail mail, do it by certified mail and make sure you got a green card receipt. 

Brian:           Okay.

Jonathan:      But you want to have proof that you requested the file because, you know, there’s penalties if the materials are not turned over to you timely.  But more important, if you have to ask again, you want to show that you requested the materials the first time and if you end up running it up against some supposed deadline, you can at least say, “I asked you three times to provide the file and it took, you know, 120 days until you delivered it to me.  Give me 180 days running from the 120 now to get my appeal completed.” 

Brian:           Okay, great.  So when they review the file, the tips are just everybody knows their job and what they do in their occupation and their treatment and their doctor.  Look for inconsistencies, right?

Jonathan:      Right.  You know, see if the insurer’s reason for denying the claim is rational and put yourself in the claim rep’s, not the claim rep, we’ll call it the insurance adjustor’s position.  “Have you provided some, you know, reasonable information, hope--actually hopefully strong information you’re impaired?”  As I said a while ago, a letter that just says, you know, “Brian’s disabled, world’s greatest doctor” just doesn’t cut it. 

Brian:           Restrictions and limitations. 

Jonathan:      Restrictions and limitations.  Those are the magic words. 

Brian:           How many minutes can you sit for, stand for?  How much can you lift?  How many stairs can you climb all kinds of stuff like that, right?

Jonathan:      Yeah, and particularly for people that work in the office world.  A lot of times, with impairing them may not be so much their inability to be able to lift up 15 pounds.  It’s their taking some, you know, very powerful narcotic to treat some chronic pain and then their head is swimming.  So make sure the insurer knows that, you know, that you’ve been prescribed to take, you know, Klonopin for anxiety.  Oxycodone because of pain.  And it makes sense to provide some information about the side effects of those drugs and get to the insurer so you can say, “I can’t concentrate.  You don’t believe me?  Read the side effects.”  You can always find that information.  Go to website like www.rxlist.com or any of the other, you know, drug information sites.  So that’s just an example of something that maybe needs to be provided to the insurer. 

Brian:           Okay.  That was rxlist.com.

Jonathan:      I think that’s it.  If you just plug in the name of a common drug. 

Brian:           Yeah.

Jonathan:      What did I say?  Klonopin?  If you plug that in, search that in Google, you’ll probably get to the company that actually manufactures it and you can find a sheet of information probably as a PDF that you could download and print that will explain, you know, the dangers of the drug and the side effects.  Because a lot of times, it’s the prescribed medications that cause someone to be unable to work.

Brian:           Okay, good.  Next step that you gave was for independent medical examinations.  Bring all your records, bring someone with you, definitely have them take ideally a minute-by-minute, very methodical accurate notes.  And if you can, tape it.

Jonathan:      Yeah, bring the tape and all and one more thing.  If possible, schedule an examination with your own treating doctor the next day.  ‘Cause then you’ll have a contemporaneous, well, almost contemporaneous record from someone who’s hopefully isn’t biased. 

Brian:           Okay.  All right.

Jonathan:      Same thing goes if you’re--a lot of certain insurers like to send people out for functional capacity exams.  If you can schedule an appointment with your doctor the same day after the exam or the next day, that can often be very helpful ‘cause it’s conceivable that, you know, Brian you do, you do okay on the functional capacity exam but then you go to your doctor the next day and the doctor says, “Gee, Brian, you’re going to have to get back in bed for the next three weeks.”

Brian:           Okay. 

Jonathan:      That’s a method of documenting that, yes, you were able to perform one day but the--it won’t--but because you can perform one day doesn’t mean that you can do it on any continuous basis.  And what you have for support is your treating doctor examined you and found you to be, you know, exhausted. 

Brian:           Okay, great, very nice.  And then good news for those that have been denied.  If it has been less than three years, there is still a possible light at the end of the tunnel, right? 

Jonathan:      That’s true.  That’s general rule of thumb.  You know, even with a longer period of time, there may be light at the end of the tunnel too.

Brian:           Okay, good.  So in closing--

Jonathan:      Let me add one more little piece, actually. 

Brian:           Sure. 

Jonathan:      Sometimes insurance regulators find that an insurer has done things that they shouldn’t do and will order that lots of those claims be reopened.  Since I’m really not--I’ll mention two insurers in this vein.  One, because it was so publicly known. Unum Group, which is probably the biggest disability carrier in the world, had certain regulatory issues and as part of a compromise with 50 state regulators, agreed to reopen and look at claims for a long period of time.  And when I say long I think it was somewhere from in 2004 going back to possibly 1999.  And people could go through a process and have their claims re-evaluated.

                   So claims that may have been barred from someone bring suit on because of this regulatory settlement were reopen nationwide for a period of time.  Something similar in a much more finite period has happened within another insurer in California.  And I would just suggest to people if they go look at the Commissioner of Insurance website, in California, they can learn some information involving another big insurance carrier reopening claims for a much more finite period of time. 

Brian:           Okay.

Jonathan:      So there’s, you know, there’s other things out there in the world that happened that may give a person another crack at getting their benefits paid even if normally, they’d be time barred. 

Brian:           It will make the time investment this interview very much worthwhile for people.  Great advice.

Jonathan:      Thank you. 

Brian:           Okay.  Last thing is I want to thank you for your time.  This has been very generous information.  And for the audience out there, you know, the strategy that we’ve used, that we recommend, if you’re going through this process, is to explore all your options.  It’s been, you know, the best way that we’ve been able to help to coach people through and hopefully you’ve gained some information and insight from this.  And if you are working on the process on your own and want to consider either filing or advancing your claim by using representation, just click on the button that’s right on this page, it says request an interview and complete all the information about your current situation, where you’re at, tell us as much as you can about your situation.  And we have people that will review this and we’ll do our best to at least, you know, try to provide a qualified candidate that would be a good match to interview you about your short-term, long-term disability needs and how they could possibly help.  So do that. 

                   So, again, in closing, Jonathan, thank you very much.  This has been great.  Tons and tons of valuable information                                               

Jonathan:      Well Brian, I want to thank you for allowing me to chat with you about this important topic.  I know you’re out there trying to help a lot of people and so am I. So..  I really want to thank you again.

Brian:           So that’s the deal.  Together we can make a difference.  I certainly appreciate it

Jonathan:      You’re welcome.

 {end of the interview}