Everyone who goes to the doctor is familiar with the routine of the doctor asking questions and making notes in a chart or entering the data on a computer. Few patients look at those notes and for many of us, those medical records won’t play a big role in our lives. For someone with a long-term disability claim, however, those records may be the key to getting and keeping your long-term disability benefits.  This article will discuss how to make your medical records support your LTD claim. Getting long-term disability benefits is much easier if the medical records support your claim.  An experienced Connecticut LTD lawyer can help you make this happen.

The fundamental problem with medical records is that your doctor and the long-term disability insurer use medical records for different purposes.  This can result in the insurer having a legally defensible reason to deny a valid claim.  This article discusses how to avoid that problem.

Why Do Doctors Keep Medical Records?

Doctors maintain medical records for two reasons:

• Diagnosis: whether the conditions by which a disorder is diagnosed are present and what testing is necessary to show it; and
• Treatment: what treatments have been tried, and whether the treatment alleviates the condition, and to record any side effects resulting from the treatment.  

Doctors want to make sure they have a record of the basis for their diagnosis, and what treatment methods have been tried to address the condition so they can learn from what they have done before, in figuring out what to do in the future.  If you tell the doctor something that is not relevant to diagnosis or treatment, the doctor may not record it in the medical record.  For instance, if the doctor has diagnosed you with radiculopathy as a result of cervical spinal stenosis, she may not record in your medical record that in the past week you suffered acute pain when you reached to get something off a high shelf, if that type and intensity of pain is consistent with the diagnosis, and all treatment options to address that pain have been tried and failed. 

This is particularly an issue for patients who have been treated for the same condition for many years and whose condition is stable.  If the doctor is sure of his diagnosis and all treatment options have been explored, the later medical records can become minimal, as no further detail will affect the diagnosis or treatment.  But, the lack of detail can cause huge problems for long-term disability claimants.

How Do LTD Insurers Use Medical Records?

There is some overlap in how doctors and LTD insurers use medical records.  Insurers certainly review the medical records to determine whether the records support the diagnosis, and whether the insured is receiving appropriate medical treatment.   

LTD insurers also look to the medical records for another purpose than your doctor: long-term disability insurers look to the medical records to determine whether you can do your job, called “vocational capacity.”  The insurer reviews the claim to see what evidence is in the medical records to show that you are disabled.  For instance, for the LTD insurer, a statement that you experienced great pain lifting a box onto a shelf could be quite relevant to the insurer determining whether you can perform your pharmaceutical representative position, as it requires lifting a heavy sample case.  But as explained above, your doctor might not put that into your medical records if it is not relevant to your diagnosis or treatment. 

The LTD insurer will take the absence of evidence regarding your capacity to perform the essential functions of your occupation as evidence of the absence of any vocational impairment.  The doctor may not include details of the continuing consequences of your chronic condition if diagnosis and treatment are no longer an issue, but the LTD insurer may construe the absence of detail of the effect of your chronic illness on your ability to function as evidence that your chronic condition doesn’t affect your ability to function and perform the duties of your occupation. 

Below, we discuss how you as an individual can deal with the fact that the LTD insurer uses the medical records for a purpose never intended by the doctors who prepared them, and how an experienced LTD claims lawyer can help you.  To make sure your medical records support the claim, you need to be your own patient advocate and insist on what you need to make your medical records work for you.

How to Make Sure Your Medical Records Support your LTD Claim

• Tell your doctor about your need to have the medical records reflect anything that would show that you can’t do the tasks required by your occupation, or that you can’t do tasks that are similar to those you do in your job.  Particularly if you suffer from a condition that is not commonly diagnosed with objective tests, such as chronic fatigue syndrome, fibromyalgia, chronic Lyme disease, migraines, or significant back pain without substantial physical damage, you need to tell your doctor how important the record is to your claims.  In my long-term disability insurance practice in Connecticut and Westchester County, I’ve found doctors generally to be supportive of their patients’ LTD appeals, but they do need guidance in producing records that prove their disability keeps them from performing a job.  Help the doctors by giving them details of things that happen in your daily life that illustrate the problem you would have performing your job duties.  For instance, if you were a plant manager who regularly had to perform walk arounds of the factory floor, and now it takes you 15 minutes to walk to your mailbox, make sure you tell your doctor that and make sure he puts it in the medical records.

• Make sure your doctor notes any impairments she observes, such as slurred speech, memory issues, physical issues such as halting gait, guarded movements, pain observed on palpation, etc. It is hard for an insurer to claim that there is no objective medical evidence of a cognitive issue if the doctor has observed it in the course of a regular examination and has made a note of it.  If the doctor believes the diagnosis and treatment are established, the doctor may not record the incident in the medical records.  But as discussed above, the insurance company will interpret the absence of evidence of disability as proof that there is no disability.  So, make sure your doctors record any incidents that occur during an examination.

• This problem is compounded by electronic medical records or “EMR.”  Unless a doctor makes a choice in response to a specific question in the EMR program, the program defaults to saying that condition is not an issue.  For instance, if there is a question in the EMR program asking whether the patient suffers from headaches, and the doctor does not specifically ask the question and include the answer in the electronic record, the program will default to say that the patient doesn’t have headaches.  You may be seeing a gastrointestinal doctor for a colonoscopy.  She may not ask you if you suffer from headaches since she is not seeing you for headaches, in which case the notes for that appointment will say that you don’t suffer from headaches.  The insurer can then cite that record and claim that you told the doctor you don’t have headaches!  So, you need to tell every doctor about every condition on which you are claiming disability, and make sure they note it in the medical record.  The doctors may not be happy with you insisting on this, but anyone who has spent much time in the health care system knows that any patient must constantly advocate for themselves. 

Tell your doctor about any episodes you had since the last exam that reflect your disability, and make sure he writes it in your record.  An insurance company may not believe your contention that you cannot sit for more than 30 minutes without experiencing excruciating back pain.  But, if your medical records reflect repeated instances where you experienced severe pain after riding in a car for 30 minutes, it is harder for the insurer to claim that the limitation is not real.   Also, if you do something that may be inconsistent with your limitations, make sure you tell your doctor any difficulty you had as a result. For instance, in one case, a claimant with a severe limitation on sitting decided he could not pass up the chance to see Game Seven of a Red Sox – Yankees American League Championship Series. The insurance company, after seeing a reference in a medical record that the client had attended the game, stated that if he could go to a baseball game, he could go to work.   The claimant was able to produce medical records, however, that showed he had to stay in bed for three days after the game to recover. This went a long way towards establishing that while he may have been able to make an extraordinary effort occasionally, there was no way he could do so for even two days in a row.

My Doctor Gave Me a Letter That I am Disabled.  Why Isn’t That Enough?

You may think a letter from your doctor saying you can’t do your job should be enough in applying for benefits or appealing an LTD denial. Insurance companies look at letters created after a benefit denial, or specially[WK1]  prepared for a claim, with great skepticism.  The insurers see them as the doctor’s attempt to help a patient rather than a fully accurate record, particularly if the letters are from your primary care physician rather than a specialist.  This is particularly the case when the letter, as is common when doctors prepare these letters without the involvement of an attorney, is only one or two sentences long, stating only the conclusion that you are disabled, without discussion of the medical basis for the finding of disability.  Doctors are used to having their opinions respected, and they may not expect that the insurer will deny an opinion if their letter does not show the medical basis for that opinion.

Medical records, particularly if they are for visits before you applied for benefit or were denied benefits, don’t have this problem.  They are created specifically to provide medical care, rather than to support a disability claim. They therefore have more credibility with the insurance companies than a letter explicitly supporting a disability claim. A scrawled note on a chart reporting that during a regular examination the patient had slurred speech and difficulty getting on the examination table is more valuable than any letter the doctor and your lawyer create after the fact. This can go a long way to establishing that you are disabled, or that you are entitled to have coverage for a particular medical procedure.

Make sure your medical records will support your disability claim. Talk to your doctor and make sure she writes down what you tell her, and what she sees. Get copies of your medical records periodically to see if your doctor is keeping notes that are going to help you. An experienced LTD attorney can review all your medical records, identify what the LTD insurer may use as an excuse to deny benefits, and work with your doctors to fix any potential problems.  Then, when you apply for benefits or appeal a denial, you’ll be in the best position possible to secure an award of the benefits you deserve, whether it is long-term disability, short-term disability, or coverage for a medical procedure.