What might not be obvious to the average San Francisco Bay Area consumer is a daily bane to most experienced ERISA long term disability attorneys: “Independent” Physician Consultants (IPCs) hired by insurance companies to review disability claims are not truly “independent.” This is because insurance companies often pay the same repeat players to evaluate claims and these doctors know that the insurance company is looking for a reason to not pay a claim (and save their bottom line). Knowing on which side their bread is buttered, IPCs will cherry-pick your medical record to find any basis to support a claim that you are able to work, even if your own treating doctors believe fully that you are not able to return to work.
Fortunately, as noted in this past Monday’s blog, an IPC’s financial conflict of interest is something that a court in the Ninth Circuit (which includes California) will take into consideration. To recap, in our case, Demer v. IBM Corporation LTD Plan, No. 13-17196, __F.3d__, 2016 WL 4488006 (9th Cir. Aug. 26, 2016), Metropolitan Life Insurance Company (“MetLife”) obtained file reviews from three alleged independent physicians to evaluate Demer’s long-term disability claim. The three doctors did not support Demer’s claimed disability, and MetLife relied on their opinions to stop paying his LTD benefits. Demer filed suit and in the course of the litigation conducted discovery which showed that two of the doctors performed collectively nearly 500 reviews a year in the time frame that they reviewed Demer’s claim. They also earned a substantial amount of money for their work for MetLife. In an opinion authored by Judge Edward Chen, the court held that MetLife abused its discretion in denying Plaintiff’s claim for long-term disability benefits because MetLife did not find that Plaintiff’s cognitive ability was affected in any way by the medications he was taking for his physical pain. Further, MetLife improperly rejected the credibility of Demer’s complaints of fatigue and difficulty concentrating based on the opinions of two financially conflicted IPCs who did not examine him and did not explain why they did not believe him.
So, in the face of financially conflicted IPCs, how can you protect your long-term disability benefit claim? There are a number of things you can do, but here are just a few:
- Make sure your treating doctors and hospitals have complied with the claims administrator’s request for information and records.
- If an IPC calls to speak to your doctor, your doctor should not ignore the call; however, communications are best confirmed in writing to avoid any misunderstanding.
- If your doctor writes a letter on your behalf, he or she should avoid sounding like an “advocate,” which is a red flag to insurers. Instead, your doctor should objectively document everything supporting his or her assessment on your ability to work.
And, remember, substantiating a disability claim involves multiple types of evidence. If your evidence is overwhelmingly corroborative of your disability claim, then a financially conflicted IPC will have little to hang his hat on. If your long-term disability claim is denied, you should immediately consult with a knowledgeable ERISA attorney about how to appeal the claim denial.