Insurance companies routinely hire physicians to perform a medical records review and use that review to decide whether a claimant qualifies for disability benefits. The use of reviewing physicians is not always problematic, as they may support the claim. A fair and thorough review can also provide valuable insight and identify evidence that can be provided by the claimant to shore up their case. Those potential benefits, however, are often outweighed by the reviewing physician’s anti-claimant bias.
Medical reviewers often work as independent contractors for many different insurance companies, and frequently earn more reviewing cases than they would treating patients. As their livelihood depends on providing reports that will please the companies that retain them, they simply cannot afford to be impartial. Insurance companies rely on reviewers’ opinions over the treating physicians who confirm that the claimant is disabled.
We know that treating physicians have far more information about their patient’s condition and functional abilities than insurance doctors. Their experience personally examining the patient, making their own clinical assessments, and engaging in discussions with the patient all provide information that is not available just by reading the records. Most treating doctors take the time to develop a formidable basis to decide what restrictions and limitations are appropriate.
If your insurance company has involved a reviewing physician in your claim, it may seem like the deck is stacked against you. However, as a claimant, you are far from powerless. When you understand the issues that are common to reviewing physician opinions, you can take proactive steps to avoid them. Based on our decades of experience with these issues, we recommend strategies below that you can use to ensure that a reviewing physician does not deprive you of benefits you are entitled to.
Maintain Your Own Records
Insurance companies (and their reviewers) are legally required to consider all of the medical evidence when making their decision. If they deny the claim, they must explain their reasoning and support it with references to the records. If your denial is based on an insufficient medical review, there are steps you can take to refute it including, in some cases, filing an ERISA appeal.
It is important for you to keep your own copies of all the records, forms, and physician certifications submitted in support of your claim, particularly if you’re not represented by counsel. This will enable you to fact-check the insurance company, point out important information that was overlooked, and persuasively establish your entitlement to disability benefits.
Manage Your Insurer’s Contact with Your Doctors
Insurance companies often insist that claimants sign a form giving them unrestricted authorization to communicate directly with their treating physicians. If a reviewer disagrees with the claimant’s treating physicians, they are generally required by the insurance company to contact the physician to address their difference of opinion. It is important that your doctor be able to interact with the insurance company to clarify records and/or restrictions and limitations as needed. However, we frequently see deceitful and confusing tactics by the reviewing physicians when such follow-up takes place.
We advise our clients to instruct that their doctors not communicate with the insurance company or its reviewers by phone. The discussion usually turns into a battle of words in which the reviewing physician attempts to induce statements from the treator that can be used against the claimant. Instead, treating physicians should request that the insurance company submit their questions in writing. Insisting on written communication allows the treating physician to take time to carefully consider the questions and review their clinical notes before answering.
It is important to keep in mind that even written communication can be misleading, as the questions asked will be designed to undercut the treating physician’s opinion. If you are represented by counsel, your attorney can review the questions with your physician and help facilitate their responses to ensure nothing is said to jeopardize your claim.
It is ultimately the insurance company’s responsibility to thoroughly investigate both the integrity of their reviewers and the validity of their reports. Your insurer has a fiduciary duty to ensure that claims are fully and fairly decided based on consideration of all of the available evidence. As our Courts have held, insurance companies breach this duty when they adopt and rely on the uninformed or skewed analysis of a reviewing physician.
If your claim is denied based on a reviewing physician’s report, it is imperative to thoroughly review and assess the adequacy of their review, the basis of their opinions, and the legitimacy (or lack) thereof. We at Bonny G. Rafel LLC, provide legal counsel to individuals seeking to obtain (or overcome a denial of) long term disability benefits, and advocate for our clients as the Voice of the Disabled. See our website for video presentations and information on our boutique practice and contact us to discuss your case. www.disabilitycounsel.com