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.
Doctors maintain medical records for two reasons:
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.
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.
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.
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.
If you suffer from a degenerative condition, how does continuing to work affect your ultimate application for long-term disability benefits? How do you keep working and protect your LTD benefits? Whether you suffer from Parkinson’s disease, multiple sclerosis, amyotrophic lateral sclerosis (“ALS” or Lou Gehrig’s Disease), rheumatoid arthritis, or degenerative cognitive disorders such as early-onset Alzheimer’s disease or other dementias, you may want to work as long as possible, but you don’t want your additional time working to make it more difficult to get your long-term disability benefits:
Clients in my long-term disability insurance practice in Connecticut regularly confront the consequences of working while disabled. What should you consider in deciding how long to work?
You may be able to keep working part-time and still get long-term disability benefits if you have a policy or plan that provides for partial disability benefits. With a partial disability benefit, if you are only working part time, you can get a partial benefit that makes up all or much of the decline in income. You can reduce your hours and duties, reduce your pay, and replace all or most of the lost income with a partial disability benefit. Since your employer can pay you less for the reduced hours you are working, it is more likely that they will keep you on.
This is a great provision, but the formulae for calculating the benefit for a given level of income can be complicated and the conditions to qualify for partial disability benefits can be complicated. If your plan has a partial disability benefit, it can be useful to consult with an experienced ERISA benefits attorney to have the best chance of qualifying for that benefit.
One of the most unfair consequences of working while disabled is that the insurer may conclude that if you are working, you must not be disabled. For instance, let’s say your medical records reflect a level of impairment in May 2021 that could support a finding of disability, and the records for each subsequent month report that you are “stable.” If you keep working until May2022, the insurer could say that the fact that you did work for a year shows that you are not disabled. The insurer may say the medical records reflect no change in condition that could explain why you could do the job from May 2021 – May 2022 but could no longer perform it at the end of the 12 months. With some conditions, like multiple sclerosis, there may be no obvious explanation for the degeneration in your condition, as your condition can degrade severely even if an MRI shows no additional lesions. Some courts haven’t bought the LTD insurers argument. As one judge wrote: “Hawkins may have forced himself to continue in his job for years despite severe pain and fatigue and finally have found it too much and given it up even though his condition had not worsened. A disabled person should not be punished for heroic efforts to work by being held to have forfeited his entitlement to disability benefits should he stop working.” Hawkins v. First Union Corp. Long-Term Disability Plan, 326 F.3d 914, (7th Cir. Ill. 2003). So, if you are making heroic efforts to stay in your job, there are things you can do, with the help of a knowledgeable ERISA long-term disability attorney, to protect your ultimate claim for long-term disability benefits.
Whether you are planning to receive partial disability benefits, or just trying to avoid having your insurer claim that you are not disabled because you have worked during your disability, here are the steps you should take to make sure working while disabled doesn’t hurt your long-term disability insurance claim:
Don’t let working while disabled turn into not working and not getting long-term disability benefits. Talking to your doctor and keeping a log will make it more likely you will prevail on an initial claim for long-term disability benefits or in an appeal of any denial. An experienced ERISA long-term disability attorney can work with you to develop a strategy to address your particular career and personal goals so that you can work as long as you want to and still receive the benefits you have earned.
Click on the link below for more articles on long-term disability benefits and moving from working to disability.
Reasonable accommodation is a right established by the Americans with Disability Act or “ADA.” The ADA says that an employer cannot discriminate against an employee who is able to perform the essential functions of a position with or without reasonable accommodation. There are enough concepts stuffed into that one phrase that multi-volume treatises can, and have, been written about the meaning of each of the words. This post can only give the most basic introduction to the law of this area, but it will give you some idea of how the reasonable accommodation part of this law can help you keep working. We will also discuss reasonable accommodation and strengthening your LTD claim.
The ADA requires employers to reasonably accommodate disabled employees by eliminating job functions that are not essential functions of the job or modifying the way they are performed, as long as the employee can still perform the essential functions of the position. Whether or not an accommodation will be considered “reasonable” depends crucially on the particular job. Eliminating a requirement of lifting a 50 lb. box might be reasonable if the workplace has several other employees who can do it instead, but it might not be reasonable if the employee works alone.
The landscape of reasonable accommodation has been radically altered by COVID pandemic work restrictions. The ability to work from home part or full time has always been one of the most sought-after accommodations by my clients, but also one that most employers did not easily grant. Now, it is much harder for employers to argue that it is unreasonable to allow work from home when so many people have worked from home for months during the pandemic.
Among the types of reasonable accommodations that are helpful to those with cognitive and physical degenerative positions include:
Many of these accommodations can be difficult to get, especially since many employers still don’t realize how much the ADA requires them to do to accommodate disabilities. For instance, an employer in Fairfield County refused working from home as a reasonable accommodation because “then everyone will want it.” Giving something to someone with a disability a benefit that everyone else doesn’t get is the essence of a reasonable accommodation under the ADA. .
For more information about how reasonable accommodation can help you and the challenges and opportunities of working while disabled, see the Keep Working and Protect Your LTD benefits article I wrote for this blog.
In additional to potentially allowing you to work longer, requesting reasonable accommodation can also put you in a better position when you apply for long-term disability benefits or in appealing a denial of long-term disability benefits, even if the accommodation request is denied. When someone has kept working while disabled, and then decides to leave and collect disability benefits, the insurer will frequently argue that the person just doesn’t want to work anymore, and really could keep working, in other words, claiming the person is a malingerer who could work, but just doesn’t want to.
Applying for reasonable accommodation is a great counter to a claim that you just don’t want to work, since the point of asking for reasonable accommodation is to allow you to keep working. It is hard to argue you are a malingerer if you show you did everything you could to keep working. You therefore get a benefit from asking for reasonable accommodation even if the employer refuses to provide it. And, some long-term disability policies only provide you are disabled if there are not reasonable accommodations that would allow you to continue to perform your job. If you have asked for reasonable accommodations and the employer has said no, it is hard for the insurance company to argue that the accommodations that the employer declined to provide are reasonable
Having a lawyer negotiate reasonable accommodation can help you stay at work longer, if that is what you would like to do, and make it more likely that your long-term disability claim will be granted once you do apply:
Reasonable accommodation is a powerful tool to allow you work as long as you want to, while strengthening your long-term disability claim once you do file. Whether you suffer from multiple sclerosis, Parkinson’s Disease, back pain, rheumatoid arthritis or any other chronic degenerative condition, working with an experienced LTD claims attorney can help you navigate the difficult terrain of the move from diagnosis to disability.
For more information on the ADA, please see https://www.ada.gov/.
Chronic degenerative conditions are common reasons for people to apply for long-term disability benefits based on cognitive or physical impairments resulting from the conditions. While much will be unknown about the course of the disease, that the conditions will ultimately result in inability to perform one’s job is unfortunately an inevitability, particularly for those who are years away from retirement. Many chronic conditions such as Parkinson’s disease, multiple sclerosis, rheumatoid arthritis, degenerative cognitive disorders such as early-onset Alzheimer’s disease or other dementias, and amyotrophic lateral sclerosis (“ALS” or Lou Gehrig’s Disease) all lead to increasing fatigue, cognitive impairment, and physical impairments which make a long-term disability claim inevitable for many. Knowing that one is likely to become disabled in the future without knowing the extent or timing of the disability must be one of the hardest parts of dealing with a chronic condition like these.
One benefit of knowing that one is likely to be disabled is the ability to plan, to take actions now while you are still working to smoothly transition from work to disability, and to increase your chances of being awarded long-term disability benefits. While all these conditions differ in many ways, there are some things that commonly affect almost everyone who applied for long-term disability insurance benefits.
This site has a series of articles dealing with this common issues in apply for long-term disability for chronic conditions like multiple sclerosis or Parkinson’s disease Below are links to these articles:
As a Connecticut ERISA – LTD attorney who has represented many claimants in long-term disability appeals, I know that actions you take now can make a huge difference when you finally make your application for long -term disability benefits. I hope this series will provide guidance to employees with chronic degenerative diseases to make this transition from working to disability as smooth as possible.
When to tell your employer that you suffer from a degenerative condition is a difficult one. You don’t want to be treated like a disabled person before you have to, but you don’t want to harm your future application for long-term disability benefits by waiting too long to do so.
In this post, I discuss what you should consider in deciding when to tell your employer about your condition so you can protect your career so long as you are able to work, and put yourself in the best shape possible for a future application for long-term disability benefits.
Telling your employer is one of the key tactical decisions in the process of moving from diagnosis to application. Discuss it with a trusted adviser and make the decision deliberately. Consulting with an ERISA long-term disability lawyer who is familiar with Connecticut and federal employment laws can be a big help in navigating the transition from work to disability, and in pursuing any appeals of a long-term disability denial, and is crucial if you want to sue for a denial of long-term disability benefits.