PART III

Another favorite approach: Second-guessing your doctor

Policies specify that insurers may ask claimants to be examined by doctors the companies select. That's because many disabilities are short term, and the independent medical exam (IME) "can be an appropriate means of determining whether a disability persists," says UnumProvident's Christopher Collins. The problem, critics say, is that insurers sometimes send you to doctor after doctor until one agrees that you're no longer disabled.

"When there is strong objective evidence that a condition exists, multiple IMEs don't occur," responds Howard Rosen, a Union Central executive. "But we're getting more and more subjective or self-reported claims, especially from doctors who have self-treated." Adds Union Central's Ray Kowalczyk, "When there are several diagnoses, we'd get several specialists. For example, if someone has a cervical/back injury, we'd send him to both a neurologist and an orthopedist. If depression was involved, we'd include a psychiatrist."

Claimants and their attorneys also say insurers lean toward IME doctors known to favor insurers. Attorney Darras cites a case where an insurer's written request for an IME of a man who was claiming total disability bore the notation, "This one will be difficult. Basically, I need someone to indicate [he] is capable of doing something."

Doctors who do IMEs can also be financially motivated to give insurers the opinions they want. "They can make $400,000 to $600,000 a year just doing IMEs part time," says Richard J. Quadrino, a Garden City, NY, attorney. "They wouldn't keep getting work if they found the claimants to be disabled."

Union Central's Kowalczyk disagrees, saying his company wouldn't use a doctor whose IME reports heavily favored the insurer. In fact, Kowalczyk says, roughly half of his company's IME reports favor claimants. Union Central uses an outside service that arranges IMEs and finds board-certified doctors to perform them. So does Massachusetts Mutual. UnumProvident selects IMEs themselves and leans toward board-certified doctors in a university setting, because "it's likely they'll be current on the condition they're evaluating," says McCall.

No matter how well-intentioned an insurer might be, though, sometimes the IME falls short. Attorney Rafel tells about a radiologist who suffered from premacular gliosis and malignant myopia and could no longer distinguish shades of gray. The insurer denied benefits after its independent medical examiner had him read an eye chart and declared him not disabled.

In response, Rafel set up a meeting with her client and another radiologist who brought in 10 X-rays. Her client misdiagnosed seven. Rafel taped the session and sent the tape to the insurer. Her client got his benefits.

Related to the independent medical exam is the functional capacity evaluation (FCE), a test designed to measure limitations. It simulates the demands on a person's body by requiring him to perform physically demanding, repetitive, and stressful activities such as weight-pulling and ladder-climbing. Insurers say the test helps expose false or exaggerated claims.

"An FCE puts the claimant in a no-win situation," says Quadrino. "If you say, 'Ouch, I can't do it,' the therapist will say you're exaggerating your injuries. If you fight through the pain and do the task, they'll say you're not disabled." And Surrano points out that even though you might be able to perform a task once, you probably can't do it repetitively if you're disabled, as you might need to do in your work.

In a deposition for Smith's lawsuit, Robert Coddington, the physician who did the claim review for Provident, admitted that he didn't believe a therapist conducting an FCE could judge whether a person being tested for fine motor skills, as Smith was, has the appropriate degree of "feel and touch." He also admitted that without the "proper feel and dexterity," an anesthesiologist could cause a permanent or even fatal injury to a patient.

Attorneys say that disability contracts don't specify that FCEs be performed. Insurers say they do, under the independent medical exam stipulation.

How to protect yourself: If you know there's a problem with the IME doctor the insurer wants to send you to—a license problem, for instance, or malpractice history, or a pro-insurer bias—you should inform the company before the exam and ask for a new examiner, Darras says. Quadrino says he has occasionally suggested that his client's physician and the insurer's in-house physician agree on a doctor for the IME. "A couple of times, they did," Quadrino says. But you can't count on that kind of cooperation.

No matter what physician performs the IME, keep a careful record of what transpires. "Tape record the entire exam and offer to share the tape with the insurer," advises Darras. "There shouldn't be any objection to that, and it eliminates the he-said, she-said aspect." After the exam, make a note of the tests that were ordered and those that weren't, and of what questions should have been asked but weren't. This information could be useful even if your claim is accepted, because you might eventually face another IME.

Alternatively, Andrew L. Miller, an attorney in Bala Cynwyd, PA, always sends a nurse or physician's assistant with a client to an IME, to witness the exam. If the IME doctor objects, Miller asks the insurer to assign another.

The insurer isn't obliged to share IME results with you or your doctor, but it may agree to. "If you're denying a claim based on an IME exam and you don't share the results, you have something to hide," Darras says. In Diamond's case, the insurer's IME had, in fact, found him totally disabled. But General American hadn't shared this information with Diamond; instead, it cut off his benefits.

Kowalczyk says Union Central will share results with an attending physician, at the claimant's request. Gish says that if a claims decision is based on the result of an IME, "Massachusetts Mutual will definitely contact the attending physician before making the decision."

Make sure you're not your own worst enemy

In certain situations, the insurer can use your own actions against you. Two examples:

You on videotape. Insurers use video surveillance when they suspect a supposedly disabled person is doing things such as golfing or gardening, or other things he shouldn't be able to do if he were disabled. "We use it in less than 1 percent of cases," says Jeff McCall of UnumProvident. Union Central sometimes does surveillance of claimants whose work involves strenuous physical activity, "or if we've been tipped off that someone is faking," says Kowalczyk. But anesthesiologist Sidney Smith couldn't figure out what an insurer could learn about his disabled hand by videotaping his daily walk. "Some people take a daily walk to a business they have on the side," says Kowalczyk.

How to protect yourself: Should you find yourself starring in such a production, all is not lost. To begin with, Darras points out, total disability, according to many insurance policies, "is not a state of helplessness, but the inability to perform the duties of your occupation with reasonable continuity in the usual way," regardless of whether you can pick up a child or a bag of groceries. Furthermore, you may have done this activity under heavy medication, or perhaps paid a price by suffering excruciating pain for hours or days afterward.

Although you might be able to explain the activity if you saw the tapes, the insurer isn't obliged to share them; typically, the tapes aren't produced until a courtroom showdown. Your treating physician might be able to get them, though, Darras suggests, by saying something like, "If he's not being truthful, I don't want him as a patient."

Darras adds that relying on videotape to deny coverage means that the insurer might be ignoring objective evidence such as MRIs, X-rays, and treating physicians' notes. This violates the duty to evaluate claims fairly and to consider all the evidence. In one case, the judge said that if an insurer "seeks to discover only the evidence that defeats the claim, it holds its own interest above that of its insured."

The ERISA charge. Did you pay the premiums for your disability coverage, or did your practice? If you file a lawsuit against your insurer, that's the first thing the insurer will look at, says Darras. If your employer or corporation paid the premiums, the suit may be litigated under the Employee Retirement Income Security Act (ERISA). Legal remedies are limited to benefits owed and, sometimes, attorney's fees. Typically, no awards are made for emotional distress or punitive damages. The case is heard by a federal judge, but no jury. The judge looks only at the evidence in the administrative record.

How to protect yourself: If you're covered by a group policy, arrange to pay the premiums yourself, Darras suggests. If you can't, he advises, take out an additional individual policy. In the meantime, the laws are changing. Some courts recently ruled that ERISA could be pre-empted when someone covered by a group policy has filed a bad-faith lawsuit.

Your own claim may well encounter none of these obstacles, but preparing for the worst seems advisable. Says anesthesiologist Sidney Smith, "I felt that the claims process had absolutely no protection for the policyholder, and only the threat of court, the skill of my lawyers, and the weakness of the insurer's case eventually made them pay attention to me."

The author is a former Senior Editor of Medical Economics.