Although the COVID-19 pandemic has existed for less than a year, it’s already started to change the way long term disability claims are being handled (and denied). Some people with pre-existing conditions that aren’t enough for a disability claim on their own could find themselves facing a tough choice: quit your job or expose yourself to COVID? Before taking any decisive action, it’s important to know your rights. What should claimants know about navigating the long term disability claim process in the age of COVID?
GREG DELL: Hi. I’m Greg Dell. And I’m here with attorney Stephen Jessup. And we want to talk about the disability insurance claim denials and claim handling in what we’re considering to be the COVID era. We’re filming this video in August of 2020, and we’ve already started to see a change in which the way claims are handled, claims are being denied, and the way in which we think claims are going to be managed moving forward. And it’s something that all of our lawyers are discussing every day.
Will The Way a Job is Performed During COVID Affect Disability Benefit Approval?
And so let’s touch on some of those issues, Steve, about the recent denials we’re seeing and how we think the tactics are going to change, and what disability insurance companies are going to use as tools also to evaluate these claims moving forward. And so one of the big issues we were talking about before we got on for this video today was, are we going to see a shift in the way in which an occupation is evaluated and maybe how a job can be done now versus how it might have been done pre-COVID, and what impact would that have on someone’s policy– two scenarios though, whether they’re already–
STEPHEN JESSUP: Yeah.
GREG DELL: –approved for benefits, which is one. And the second one, is the person who’s watching this video going, I’m thinking of filing for benefits now? So let’s first talk about the person who was on claim already and whether a change in how their job is done would have any impact on them.
STEPHEN JESSUP: Yeah. I don’t think so in that situation unless they were working from home prior to all of this. But for the most part these insurance policies are written that occupation is based on how it’s done in the national economy, and some policies are written in such a way that it says it will use the Department of Labor’s Dictionary of Occupational Titles to determine what those occupational duties are.
So if you’re already on disability I don’t see it as being of big of an impact as opposed to the people who are thinking about filing, because that does create a big issue in the sense that, well, if they’ve been able to work from home and do this, why can’t they now? Because a large thing with a lot of the medical conditions are it’s physically being at the workplace doing that, being able to rest, take breaks when you need.
Well, if you’re working from home you can control that a lot more. And as you know, claims that prior to all this COVID mess and everything happened– the clients who worked from home to begin with, those could always be more difficult to establish the causal connection between the diagnosis and the disability. So it will cause a lot of issues for people looking at filing now. And I even have some clients and potential clients that are working from home. And they’re like, I can continue to do it now, but the minute I have to go back to my regular duties there’s no way in heck I can do them. So it is a very unique, novel situation a lot of people are faced with in that sense.
GREG DELL: Yeah. And I want to clarify that if someone’s home now on disability and they say– let’s just assume they were a traveling salesperson, their job required a lot of traveling, and that job has been modified now where it doesn’t require that traveling, I don’t think that person needs to have any concern because it’s supposed to be the duties of your occupation at the time you became disabled or the duties of any occupation at the time that you became disabled. Now, here’s something that’s interesting. What about the person who switches from an own-occupation definition of disability to an any gainful occupation, which is how jobs perform in the national economy, and now the national economy standard of job has totally changed? Those people are going to be subject to the post-COVID world of how the job is done.
STEPHEN JESSUP: Potentially, potentially. I think it depends how long everything really lasts. The insurance companies have been a little sensitive or good about dealing with these nuances. In this situation going to doctors, I think it’d be hard for them to try to establish that anything can be done from home– to what end? And there’s still this thing of having to show in the any occupation stage that not only can you do the job, but these jobs exist in your market. So in the COVID world, these alternate occupations, even if they could be done from home, do they even exist right now?
So I think that’s going to be very difficult for them to do that. With the expectation at some point things will go back to, quote unquote, “normal,” I don’t see them making a huge change in the way they’re going to look at how occupations are performed in the national economy. I think they’ll still always go back to those hardbound occupational descriptions and stuff. But it could be used against someone. There is always that possibility, transitioning from own to any occupation. But I think the real risk is for people who are thinking about filing disability now that are going to be faced with the biggest problems and difficulties since they can work from home, if that is the case.
GREG DELL: Right. And how does the person who had a job three months ago that was all travel, now they’re at home, but that’s just a temporary stopover, how do you portray that job? Is that job still travel, or is that job what’s been going on in the last two months, where it wasn’t travel? Is it really fair for the disability carer to go, well, your job doesn’t require travel because you haven’t been traveling.
But you weren’t traveling by choice. I mean, you were you were limited. Airlines weren’t allowing travel. The risk was too high to travel. The vendors on the other side don’t want you to come in doesn’t mean that’s not the duty of the job. You’re making do, but it’s not the way the job should be done. This is coming up a lot now.
STEPHEN JESSUP: Yeah.
STEPHEN JESSUP: And one of my experiences for a client of mine who is a dentist, dental offices shut down. She was on a residual partial disability working limited hours. We reported that, hey, she can’t work. She’s not allowed to work because of what’s going on. And to the credit of her insurance carrier, they just treated it as a total disability that month and paid the full benefit amount, being sensitive to what is going on. So the insurance companies are giving people the benefit of the doubt to an extent, especially if someone is on claim. The new filings bar none are receiving additional scrutiny that you wouldn’t normally see.
Disability Companies May Argue Your Loss of Income is Due to COVID, Not Disability
GREG DELL: And what about your residual disability provisions, which residual disability is that you’re unable to do one or more of the duties of your occupation, and you have a loss of income due to disability. But talk about a dentist, for example, or a business that someone was working part time, there’s a very strong argument from the disability companies to say that your loss of income is due to COVID because these customers and these patients aren’t coming in. Is that a reasonable argument for a disability company to make, or should they take the world as it is and they don’t have the option to argue?
STEPHEN JESSUP: Well, reasonable– I mean, technically I’d say yes. It’s reasonable. Is it right? And that’s why I said too in that example, the dentist I had in that exact situation, they just paid the full benefit that month. What are you going to do? They didn’t want to, I think, get into a situation with that. I think they were more keen on doing the right thing by their insured, just paying that dentist the full benefit amount.
Now, that same dentist or the practice is open, is back to work in that reduced capacity. So is it reasonable for them to argue? I guess it wouldn’t be unreasonable. I don’t think it’d be right. And I think they are trying to avoid quite a bit of that now in filings for claims and stuff.
I’ve seen denials where people are like, well, I have an underlying medical condition, and my doctor says I can’t go to the office or work because I’m at a higher risk for contracting COVID and it being a problem because of my underlying medical conditions. And I have seen denials out to bat of, listen, the possibility of a medical condition is not a disability, and those cases, those situations being denied.
Can You Obtain Long Term Disability Benefits For the Risk of Getting COVID?
GREG DELL: Right. And we’ve been dealing with– this is not new with COVID– about is a risk of exacerbation a disabling condition? And in some situations, yes, it absolutely is. And in some situations, no, the risk– it’s a level of how high the risk is and what the probability is of you exacerbating that condition. But in most of our cases the risk is exacerbating an underlying condition. Here, the risk is the risk of getting COVID, which is completely different than a lot of things that we’ve seen in the past. And you have a risk of getting tons of different illnesses out there.
And disability carers are not going to say, in most cases, that the risk of getting COVID is a basis for you being disabled, unless you have such a severe underlying medical condition, like a lot of the severe autoimmune disorders, or cancer, or very significant medical conditions where that may be enough. And we’re dealing with those every day and more and more right now. It’s 50-50 from my experience right now on the carriers that are approving those versus denying those situations.
STEPHEN JESSUP: Yeah.
GREG DELL: Let’s talk about– we also said we were going to talk about the tools being used by the carriers to evaluate claims now. Now, video surveillance was a huge tool before as a basis to determine the validity of someone’s symptoms or more often or not a tool used to deny a claim. Now currently many people aren’t going out as much as they were. They’re more staying in the home. They’re doing limited things. With video surveillance being limited, what other resources do you see the disability companies using more of to try to validate someone’s complaints?
Disability Companies Will Search Your Social Media Profiles
STEPHEN JESSUP: Well, I think the new comparable item to be used with COVID going on is internet searching, looking into social media. If you have blogs, what are you posting? I’ve seen a large uptick in that to basically take the place of the video surveillance.
And like we were discussing prior to this, you said a lot more people at home. They’re on the computers. They may be posting more, doing stuff like that. And the insurance companies are looking into it without a doubt. So that’s something to always be mindful of.
And we’ve always warned people about what they do share in their situations. Sometimes insurance companies, especially in the process of potential lawsuits and litigation, are wanting access to your pages to see what you do post. So you have to be very concerned about that. Additionally, you are seeing a larger uptick in phone calls, phone interviews, where they’re touching base that way since they can’t send people out into the field to physically put eyes on you and interview you.
How Will Lack of Medical Treatment During COVID Affect Your Disability Benefit Approval?
GREG DELL: The last area I want to cover that’s a very big deal now is medical treatment. We’re coming up on five months since the whole country shut down. People couldn’t even go to doctor’s offices. You still can’t go to the– you can go to the ER, but family members can’t come in. And people obviously didn’t get treatment, at least they didn’t get in-person treatment.
So historically, disability carriers want to see the claimant come in every two to three months. And now we’re at this five plus month period, and our claimants are calling at all times saying, haven’t been able to see the doctor. What impact is this going to have on existing claimants and for new people who want to get on claim who have been suffering for the last four or five months but haven’t been able to get into a doctor? How are you viewing that?
STEPHEN JESSUP: For the existing clients and people on claim, this is where, from my experience, I think the insurance companies have done the right thing. And we’ve said, listen, hasn’t been able to get in. We can’t get you this attending physician statement. Heck, I was trying to reach out to a client’s doctor just to get medical records, and someone from the office called, said, we haven’t been in the office. We don’t know when we’re going to be in the office. We can’t send you the records.
And we advised the insurance companies of this, and they are giving that time. They do understand that it’s not the person’s fault that they cannot physically get into the doctor when that’s required. And also too now with the telemedicine, where before I think they would look down on telemedicine, I think if nothing else COVID has really shown what the power of telemedicine can be. And the insurance companies are accepting telemedicine notes, and appointments, and stuff like that. But they are doing the right thing about, hey, I can’t get into my doctor. My doctor’s not around to fill out this form.
Now, the people who haven’t filed a claim and they can’t see their doctors, this does cause a really big problem for them because these cases are so medical driven. It’s so medically information driven that if you don’t have it or you have large lapses, that is going to cause a problem. And then even doubly so that, all right, well, it’s been four to five, six months, you haven’t been able to get to the doctor, but you’re working from home in this new capacity at home and doing the job. So it really makes it hard.
So the people I think who are going to be impacted the most are those looking to file a claim right now, barring some type of either accident situation where there’s a defining moment or some larger catastrophic medical problem– cancer, whatever the case may be. But your standard chronic pain from some herniated disks, that can be a harder case to make now because of that lack of ability getting to the doctor’s. And even in doing appeals, this has affected their ability to get appeals done in the sense of functional capacity evaluations, neuropsychological examinations, which we’ve now been, over the past month, two months, sometimes three, have been able to start getting done, but it’s very limited and hard.
And insurance companies historically would argue, especially in a claim denial, that if you do a functional capacity evaluation five months after the date of denial they’d argue, well, it’s not contemporaneous to the time of the denial, so it’s not indicative of what the problems were. So now with these FCEs sometimes being pushed out, it does create a problem. In a lot of my appeals I make the argument, well, it’s not their fault. We couldn’t get them because of COVID. But these problems didn’t occur overnight. This would be indicative and would be time relevant to the date of disability. So it’s learning how to work and I think more importantly knowing how prior to all this happening what the insurance company arguments are going to be about your medical treatment, your records, all that information, understanding how they generally think, and then being able to take this very unique situation we’re dealing with now to carve exceptions and work through that to make sure that the client isn’t penalized for the inability to get the treatment they need.
GREG DELL: And on the claim denials, you talked about, obviously, getting exams done. Are you getting an extended period of time that’s usually allotted from the insurance companies to get the appeal done?
STEPHEN JESSUP: Yeah, the insurance companies are– some of them have formally put out about extending the date to get an appeal in X amount of time after the end of the national crisis. I think they’re going to probably curtail that, because who knows when that will exactly be. But they are giving more time. They are being a little more loose on those requirements.
But that cuts both ways. You submit your appeal, and if they can’t get a hold of your doctor to discuss, it’s kind of hard to hold them to the 45 days when they’re allowing you to take longer than 180 because of this problem of getting medical information or treatment. So that can cut both ways.
And when discussing with people, I would say early on in March when this all started, I’d say for the first month, month and a half the insurance companies were very quiet. We didn’t see a whole heck of a lot of new claim denials, things like that. And I would say for me personally around the end of April, I don’t know if the insurance companies– they’re businesses to assess risk– they determined, well, this is going to have some, and let’s get back to business as usual. And around that time there’s been a large uptick in claim denials, investigations. I mean, it’s been a very busy summer when it comes to denials from insurance companies.
GREG DELL: Yeah. And most of the insurance company people, from what I find, are working remotely or working at home. But they’re paperless, much like our firm is paperless. And I think they’re back to their normal routine in some ways.
STEPHEN JESSUP: Yeah. I think some of the companies that had more we want our people in and stuff, it hit them harder the way they do it. But some of your larger– like your Unums, your Cigna, your Prudential who have been, in my opinion, a little more forward thinking about the way they do things, and working remotely, and their business practices, I don’t think this has impacted them at all in the ability to review cases.
GREG DELL: Yeah. And then the last thing is, are you starting to see those compulsory medical exams with the hired gun doctors, or have they not been scheduling those yet because of the–
STEPHEN JESSUP: No, they’re scheduling IMEs, 100% scheduling functional capacity evaluations, independent medical evaluations. Heck, during the height of this I saw they were trying to send people to IMEs. There were doctors who were willing to do them. Generally speaking, those doctors, when we look them up, generally made their living doing these as opposed to running a regular practice. So no, they’re still requesting them and having them done.
GREG DELL: Well, we have tons of videos specific to all the disability companies, which I encourage the people watching our videos to watch. This was a general video we did to talk about how to handle claims in the COVID world and what to expect. And I encourage our viewers to search our YouTube channel and our website for the specific information. We have lots of helpful tips about your medical condition, your occupation, and your specific disability company.
Most importantly, I would say that we always offer a free initial consultation, whether you speak with Stephen Jessup, myself, or any of our disability lawyers. We’re available to represent you anywhere in the country. And we look forward to the opportunity to discuss your disability claim with you.
The advent of COVID-19 has left many unanswered questions for disability claimants and disability insurance carriers alike. Navigating the disability insurance process through a historic pandemic isn’t something you want to tackle on your own. The disability insurance attorneys at Dell & Schaefer can help. Our experienced nationwide team has helped thousands of claimants secure their disability benefits, and we remain hard at work during the pandemic to continue to offer support, legal advice, and action. Give us a call today to set up a FREE consultation with an experienced disability insurance attorney.
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