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By Ben Glass, Guest Writer
You have probably spent significant time researching what type of disability policy or policies to buy. You’ve paid premiums that are not cheap. Hopefully, you will never need to make a claim. As with any insurance policy, you expect that the claims process will be straightforward, and your reasonable claim will be paid. But at the time you can least afford to devote any extra time and energy to it, you might be shocked to find your disability claim is denied. Then, you are facing a lengthy appeals process or, worse, a lawsuit. So, it’s important to consider your claim from the insurance company’s perspective before you make it, if at all possible.
Ironically, if it’s not possible to prepare for a disability claim in advance, your claim is generally easier to get approved. That’s because there is probably a clear answer to the insurance company’s main question: why could you work Monday but not Tuesday? Often there has been some event that triggers your claim, whether an accident or a health crisis like a heart attack or stroke. Insurance companies “get it” when you make claims based on these types of disabilities and are more likely to approve your claim, at least initially.
If your disability comes on more gradually, though, getting the claim approved can be a lot more difficult. Often, there is not a clear answer to why you worked on Monday but made your claim starting Tuesday. If you have a condition like rheumatoid arthritis (RA), tremors of any origin, mild traumatic brain injury (mTBI), etc., it can be much harder to convince the insurance company that you are no longer able to work.
That’s for two main reasons: first, you did work Monday, so the insurance company will want to see evidence that “something changed” on Tuesday to keep you out of work. Second, your condition may only be disabling because your professional responsibilities are extreme. If you had a less demanding job, by even a little bit, you might be able to continue to work. In preparing to make your claim, you need to be sure that you have evidence that answers both these potential objections.
Disability Insurance Claims Come Down to Evidence
And it all comes down to evidence. Often, for doctors especially, this requires a mind shift. For much of your career, you sat on one side of the disability insurance table. You provided the evidence to support your patients’ claims, whether by filling out Attending Provider Statement forms, documenting test and exam results in their records, maybe talking to insurance company peer reviewers on the phone, or writing letters to respond to their reports. Maybe you even worked as a peer reviewer yourself.
Now that you are making a claim, it’s normal to feel that the insurance company will believe what you say about your own condition. After all, they’ve seen you as an expert in plenty of other claims for other people. Unfortunately, when it comes to paying you disability benefits, the insurance company is exactly 0% more likely to rely on you as an expert witness about yourself than they are to listen to your patients. You’re on the other side of the table now, and the requirement to provide proof of your claim is as exacting for you as it is for your patients.
You can also run into trouble if you relied too much on yourself for a diagnosis and treatment plan or if you consulted informally with experts in the field (aka your buddies) and little or nothing is documented in your medical records. The insurance companies will never, ever just take your word for something. They will rarely take the word of your doctors even. They want to see your condition documented in your medical records so they can give your records to their doctors, and their doctors can make the same diagnosis just by reading your records, or, occasionally, examining you in person. It’s never enough for you to know what’s wrong with you, even if you are 100% correct. You must have your diagnosis documented in your medical records, and the diagnosis has to come from a doctor who is not you.
In addition to evidence, the timing of your claim is everything. You don’t want to make your claim too early or too late.
Get Prepared—Don't Make a Disability Claim Too Early
Making a claim too early can happen if you fill out the claim forms before making sure that your doctor(s) will support your claim and that you have sufficient evidence in your medical records. Even for conditions like fibromyalgia where there is no specific test, you will need to be able to show exam results and test results that indicate other causes for your disease have been ruled out. Another “too early” claim can happen if you cannot show that you have (or will have) loss of income. Nearly all disability policies require both a condition that prevents you from working AND a loss of income in order to meet the policy definition of “disabled.”
Unfairly, making a claim too late can happen if you try to put your patients and your practice first and start working part-time, sell your practice, or otherwise adjust your practice to lessen the impact of your disability. This is especially risky if you ease out of full-time practice before documenting your condition in your medical records. Since your disability benefits are based on your “prior work earnings,” if you let those drop before making a claim, your disability benefit can also drop. If you stop working before seeing a doctor to document your disability, the insurance company can argue that you were not actively working when you became disabled, so no benefits are payable.
What to Do Before Filing a Disability Insurance Claim
In short, there are a few things you must try to do before making a disability claim:
- Evaluate Your Policy: Get a copy of your disability policy. Understand the policy definition of “Disability,” as well as what is required as “proof of claim.” Look carefully at the “Own Occupation” definition, especially if you are practicing in a subspeciality. If, for example, you can no longer work as a surgeon but could continue to work in a less demanding area, are you covered or not? It will depend on how your “own occupation” is defined and whether it’s as broad as the scope of your medical license or as narrow as your subspeciality.
- Discuss Claim with Your Doctor: Talk with your doctors about your disability claim and ask them if they will help explain to the insurance company why you are no longer able to work. If they will not or cannot, don’t make a claim until you have a doctor who will support you. It’s that important. The claims process is set up to agree or disagree with your doctor about your functional restrictions and limitations. If you don’t have a doctor to supply those, the insurance company will not step in to do it for you. It will deny your claim instead.
- Evaluate Medical Records: Get a copy of all your medical records, and read them with a critical eye. If you were asked to determine whether this patient was disabled based only on what you read in the records, could you? If not, work with your doctors to add whatever test or exam results would help explain your condition.
- Add Objective Evidence: Add objective evidence wherever possible. You may think certain tests are unnecessary, and you may very well be right. But the insurance company will never take your word for it. If there’s a test you would order for a patient with a similar condition, go ahead and get your doctor to order it for you. That goes for tests to both establish and rule out a condition or diagnosis.
- Get a Treatment Plan: Have a treatment plan that’s designed to get you back to work if at all possible. Insurance companies understand changes to those plans much easier than they understand the lack of them.
- Document Job Duties: Make sure your employer documents your job duties. Especially if you have a disability that would not be disabling for someone in a different, less demanding profession, you will have to explain to the insurance company why the combination of your restrictions plus your job requirements equals a disability. Understand what your billing codes say about you and what your primary responsibilities are.
- Talk to a Lawyer: Consider talking with a lawyer before you make your claim. An experienced disability attorney should be able to review your policy and your medical records and identify any areas where your claim might be lacking. Talking to the right lawyer before you make your claim is so much cheaper than hiring one for an appeal if your claim is denied!
- Do Not Rush to Appeal: If your disability claim is denied, do NOT fire off a letter to the insurance company about how you are appealing its outrageous and erroneous denial. You often get one shot at an appeal, and especially for group disability policies, if your appeal is denied, your only option will be to file a lawsuit. The catch here is that unlike most lawsuits, for group disability claims governed by ERISA law (a blog post unto itself), you cannot add any new information. No new medical records, no new physician opinions, no expert witnesses, nothing. The judge will not be deciding whether the insurance company was right or wrong about whether you are disabled. They will only be deciding whether the insurance company’s decision was reasonable given the information it had at the time. This is a very high bar to clear. Do not rush your appeal (normally you’ll have 180 days for an appeal), and do consult a very experienced disability attorney before taking any next steps.
Your disability claim is really one of those places where an ounce of prevention is worth a pound of cure.
[Editor's Note: Ben Glass is a long-term disability attorney at Ben Glass Law who, since 1999, has helped doctors, dentists, and other high-earning professionals nationwide tell their stories to skeptical insurance companies. This article was submitted and approved according to our Guest Post Policy. We have no financial relationship.]
This is great! We all follow the beat of the “you must have disability insurance” drum, but it seems that understanding how to actually USE it, if heaven forbid we one day need to, is not information that is readily available.
I do impairment and disability exams for a governmental agency. I see the same issues over and over regarding Disability. Many claimants think they can get Disability payments just because they have chronic pain or because a Doc says they deserve it.
Often, issues of causality arise. Claimants have a post hoc, ergo proptor hoc mentality. Medical documentation is often poor, with the attending Doc simply recording symptoms like a transcriptionist. Physical exams are incomplete or in direct conflict with other evaluators. Neurological exams are particularly poor. Generally, non-IME docs hate these types of exams. No specific training or interest in doing a good evaluation.
Does using your employer’s group disability hurt you in the future for applying for your own disability policy?
Also, if you change jobs in the future, would the next employer find out about having taken disability in the prior job? Does it show up on a background check? Or can the current employer inform the next employer about it?
It limits how big of a policy you can get.
I think that’s protected information from the employer, but it probably does go in the big insurance database. I just don’t think employers have access (certainly not easy access) to that.
I have no idea on the background checks, but doubt it.
I don’t know if the employer is allowed to say that or not when giving a reference. I would try to avoid it just to stay out of trouble.
There are two problems we see.
First, there are doctors with valid claims but crappy policies. We reviewed one recently where the practice administrator actually terminated one rather robust group policy for one that paid a maximum of $60,000 year. This was for surgeons. Truth be told, she probably tried to show this to the owners of the practice before they did it.. no one read it (or didn’t understand what they were reading.). The insurance agent told them they had “full coverage for less.” So yes, the premiums were less but the surgeon we were talking to lost hundreds of thousands of potential benefits… he was young and had a progressive disease.
To get an individual policy in the future you would have to disclose prior health issues, so it can be difficult or more expensive once you have had some medical issue that might recur. (Different if, for example, you made a prior claim due to an even like a car accident that your recover from.)
For future group policies if you switch employers, you would need to pay attention to the pre-existing condition rules of the new policy… generally, you’d have to not make a claim for the first 12 months of a new policy (that can be shorter or longer, depending on the policy.)
Great article. Thank you. One question: When would you inform the insurance company of a possible claim to begin the elimination period? Does this (EP) have to be documented with the carrier to then begin the countdown? Or can you submit the claim, stating I’ve been out of work for 60 days or whatever.
Seems as though completing this checklist could take weeks if not months. Trying to get a sense of timing. Thank you.
Thank you for your insight!
My understanding is that it can be done retroactively.