By David S. Rintoul
To Win Your LTD Appeal,Â
Talk to your doctor, and make sure he writes down what you tell him
Everyone who goes to the doctor is familiar with the routine of the doctor asking questions and making notes in a chart. For most of us, few people may look at those notes again, and they won’t play a big role in our lives. For someone with a contested long-term disability denial, or a denied health benefit claim, these records may be the key to succeeding in an administrative appeal of a benefit denial, or prevailing in a law suit to force the insurer to pay the benefit. A long-term disability benefit appeal or an appeal of a medical benefit denial can be much easier if the medical records support the claim.
Insurers Use the Medical Records for Different Purposes than the Doctors: Doctors create medical records to provide a history of your diagnosis and treatment so the doctor, and any subsequent doctors, know what treatments have been tried and what tests have been done to establish a diagnosis. While these records are not prepared to show vocational capacity (that is, the ability of a patient to perform a job) this is how the insurer is going to use the records. In a benefit appeal, the most important function of the medical records is to provide an objective, contemporaneous record of your vocational impairments, either physical, psychologically or cognitively. But, since the doctor is preparing the records to address diagnosis and treatment, the doctor may say little or nothing about any vocational impairments.
- You may think a letter from your doctor in applying for benefits or appealing an LTD denial should be enough. Information about your ability to perform a job that is contained in the regular medical records your doctors prepare can be strong evidence to support your disability claim. Insurance companies look at letters created after the benefit denial with a jaundiced eye, seeing them as more likely the doctor’s attempt to help out a patient rather than a fully accurate record. This particularly the case when is it the usual one or two sentence letter stating that your are disabled, with little discussion of the medical basis for the finding of disability. The records are much more convincing than a letter prepared by your doctor after benefits have been denied.
- Medical records, particularly if they are for visits before you applied for benefit or were denied, 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.
How to Make Sure Your Medical Records Support your LTD Claim:
-  Talk to your doctor about your need to have the medical records reflect evidence of your problems with performing 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 about the importance of the record 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 disability from performing a job.
- Make sure your doctor notes any impairments he 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 n the medical records. But, the insurance company will interpret the absence of evidence of disability as proof that there is no disability. So, make sure your doctors record these incidents that occur during an examination.
- Tell your doctor about any episodes you had since the last exam that reflect your disability, and make sure she 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 change to see Game Seven of a 2004 Red Sox – Yankees American League Championship Series. The insurance company then said if you can go to a baseball game, you can go to work. The claimant was able to produce medical records, however, that showed he had to stay in bed for three days 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 even two days in a row.
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. It is a good idea to get copies of your medical records periodically to see if your doctor is keeping notes that are going to help you. Then, when you do appeal the denial, or if your lawyer is taking your case to court, you’ll be in the best position possible to secure an award of benefits, whether it is long-term disability, short-term disability or coverage for a medical procedure.
If you have any questions about long-term disability benefit denial appeals, short-term disability benefit appeals, appeals of medical benefit denials or other ERISA benefit appeals, please feel free to call David S. Rintoul at Zeldes, Needle & Cooper. He is an experienced Connecticut long term disability lawyer and Connecticut ERISA attorney and Westchester County LTD appeal lawyer. The firm has offices in Bridgeport, Stamford and Darien, and he can travel throughout Connecticut and Westchester County, and he would be happy to discuss your benefit and ERISA appeals. For more information on ERISA claims, see David blog at The Claimant’s ERISA Blog
