Claims are being denied for lack of "objective" evidence where such objective evidence is not possible for disabilities such as CFS and Fibromyalgia
In one recent case, the claimant alleged disabling pain caused by his longstanding problems with his back. The claimant's application to Prudential for LTD benefits was bolstered by objective evidence of a back condition which supported his subjective complaints of disabling pain. The court found that although the LTD Plan did not expressly require objective proof of disability, it was reasonable for Prudential to seek such proof to ascertain the "occurrence, character and extent" of the alleged loss. The court found it compelling the claimant's proof spanning a period of over two decades, including multiple back surgeries, his increasing age, and his increased dosages of pain medication. Prudential repeatedly characterized the claimant's decision to apply for disability benefits as a calculated decision to swindle Prudential out of monthly payments based on a nonexistent disability.. The court found these "aspersions without merit" upon review of the entire record.
Insurers are becoming more clever at writing policies with exclusionary language
As the recognition and understanding of mental illness evolved, most companies added a policy definition of the term "mental illness." GetMyLTDbenefits.com lawyers have successfully argued that a mental illness limitation is ambiguous when such a definition is not provided, or if the definition is ambiguous as applied to the facts of a particular case. For example, "A disorder found in the current Diagnostic Standards Manual of the American Psychiatric Association (DSM-IV-TR) or Any psychological, behavioral or emotional disorder or ailment of the mind, including physical manifestations of psychological, behavioral or emotional disorders, but excluding demonstrable, structural brain damage" is insufficiently vague and should not be enforced.
Courts addressing the issue have taken three basic approaches. They have either focused on the infirmity's (1) symptoms; (2) cause; or (3) method of treatment (whether medical or psychiatric).
Psychological and Neuropsychological Testing is used by insurers to claim a mental rather than physical basis for the disability
There has been over reliance upon the results of a particular aspect of the Minnesota Multiphasic Personality Inventory (MMPI-2), known as the Fake Bad Scale (FBS). Numerous flaws exist including(1) inadequate description of the item selection procedures; (2) lack of independent and empirical verification of the rationally selected items; (3) no description of the criteria used to determine personal injury claimants who appeared 'notably credible'; (4) no description of any sound procedure used to determine those 'who appeared clearly to be malingering'; (5) no information about the population from which the subjects were selected; (6) use of small sample sizes that can lead to unstable findings; (7) lack of descriptive information, other than mean age and gender of the samples; (8) failure to consider gender differences in responding to the selected items; (9) use of weighted estimates to calculate the mean scores of the normative sample and psychiatric inpatients.
Insurers make more extensive use of FCEs and IMEs to deny benefits
Insurance contracts typically provide an insurer the right to seek a medical examination of a person claiming entitlement to long term disability benefits. A typical contract will often read as follows: "As often as is reasonable, we have the right to have the insured examined by a physician of our choice." Many insurers have read this language broadly in seeking to have claimants undergo Functional Capacity Evaluations. These FCE's are dramatically different from a medical examination, in that they typically force a claimant to undertake rigorous physical activity for a sustained period of time, engaging in functions such as pushing, pulling, climbing, bending, reaching and other activities. Often, this type of testing is performed by a physical therapist, rather than a doctor. A claimant who undergoes such testing will likely find themselves suffering substantial exacerbations of their medical condition following this testing.
"Independent" doctors create reports for insurers that are baseless, unreliable, and false
As reported by the New York Times recently, "Dr. Hershel Samuels, an orthopedic surgeon, put his hand on the worker's back. 'Mild spasm bilaterally,' he said softly. He pressed his fingers gingerly against the side of the man's neck. 'The left cervical is tender,' he said, 'even to light palpation.'" As he moved about a scuffed Brooklyn office, he called out test results indicative of an injured man. His words were captured on videotape. Yet the report Dr. Samuels later submitted cleared the claimant for work and told a far different story: no back spasms, no tender neck. In fact, no recent injury at all.
"If you did a truly pure report," he said later in an interview, "you'd be out on your ears and the insurers wouldn't pay for it." Its review of case files and medical records and interviews with participants indicate that the exam reports are routinely tilted to benefit insurers by minimizing or dismissing injuries.
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