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Opposing a Long Term Disability Company Doctor’s Report

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Opposing a Long Term Disability Company Doctor’s Report

The most probative piece of evidence a long term disability insurance company will present in a lawsuit regarding disability benefits is the report of the company’s doctor. This course will outline strategies to limit the weight given to such a report or to get the report thrown out entirely. We will cover attacks on the credibility of the insurance. company doctor, attacks on the opinion itself, and attacks on the methods used to arrive at those opinions.

Transcript

Hi. Today we're gonna be talking about Opposing a Long Term Disability Company's Doctor's Report. My name is Matthew Maddox. I'm the founding partner of the Maddox Firm, LLC, New York City. We help file long-term disability in other ERISA claims. We mainly do long term disability claims, but we also do long term disability appeals. And we also litigate if an appeal has been denied. I've been a litigator for 14 years, have extensive experience with nearly every long term disability insurance company. And these are some of the things that I've learned how to oppose a long term disability company's doctor's report. As presentation, I've broken it up into three parts. The first two parts are just sort of, to give a bit of a background, a lay of the land as to, you know, the regulations and the case law that will apply to attacking a doctor's report. And then part three, we're gonna talk about the types of attacks. So in part one, we'll talk about the types of reports that insurance companies create. We'll talk about the timing of those reports, and we'll talk about the standards of review that insurance companies use in, sorry, the courts use when looking at insurance company report. In part two, we're gonna talk a little bit about ERISA's protection. There are two main types of protections, the fiduciary protection and the full and fair review protection. And then finally, in part three, we'll get into the meat of the presentation where we'll talk about the type of attack that plaintiff's attorneys can use to attack long-term disability insurance companies doctor's report. So we'll talk about lack of credentials, lack of independence, a lack of thoroughness, internal inconsistency. Talk about, whether the insurance company doctor has dismissed relevant evidence, whether they have been inaccurate or mischaracterizing the record. And we'll talk about the method that doctors use that may be faulty. Okay. First, the overview. We're gonna talk about types of reports, timing and standards of review. Now, in general, there are two major types of doctor's report. You know, the first is in person medical evaluations, and then there's also a paper review, what I call a paper review. Every long term disability plan or policy, if it's purchased on an individual basis, provides that the policy holder or participant has to submit to an in-person medical evaluation if it's requested. But evaluations are not conducted for every claim. Now, you know, the exact way that is worded in plan or policy is different from policy policy or plan to plan, but it's generally required. There may be a reasonableness standard attached to it, you know, or there may not be. But in any event, there is that requirement that the claimant may need to submit to an in-person medical evaluation. One way that we try to not have an in-person medical evaluation happen is just to make sure that the evidence in front of the insurance company is as thorough as possible. I like to say insurance companies don't do anything that they think is gonna lose the money, and in person medical evaluations can be expensive. And so, especially in person medical evaluations with a specialist like a neuropsychologist or a cardiologist. And so, insurance company's not gonna do that unless they really think there's some possibility that the claim will be denied due to an in-person medical evaluation. So, providing a thorough record on your own is a way to have that not happen. So generally, we'll be talking about paper review throughout the course of the presentation because that is conducted in every case, whether it's during the claim process or during the appeal process. After timing, you know, there are generally three times during long term disability claim that a insurance company doctor will issue a report. During the claim process, typically, there'll be one to three doctors who will review claimant's file depending on the complexity of the stipulation. And then it, you know, is it an approval or a denial. Sometimes there's not a doctor that reviews it. Usually that happens when it's actually just gonna be an approval. And so, sometimes it won't go to a doctor during the claim process, but it's gonna be an approval. If it's gonna be a denial, many times then it is sent to a doctor because, you know, the insurance company is preparing for a possible appeal or a possible litigation down road. The second time that long term disability insurer's report will be created is during the appeal. So for ERISA covered long term disability plan, ERISA covers generally group policies, so if it's provided by an employer. This is typically how it happens. But if for ERISA covers plans, healthcare professionals engage for appeals have to be somebody who is neither consulted in connection with the claims process, nor the subordinate of that individual. So, that has to be new folks, is what this says. Typically, it is new folks. I mean, insurance companies don't typically get that wrong, you know, they used to, but you know, it's fairly clear that the regulation says what the regulation says. And so, you'll get new doctors during the appeal process. And typically they're of a higher qualification during the appeal process. There's a third time that you'll get long term disability insurance company doctor's report, and that's during the appeal, but in a rebuttal phase of the appeal. So since 2016, risk regulations have required that new evident as we provided as soon as possible, and in advance of the date of the denial through the claimant, so that the claimant has a reasonable opportunity to respond prior to the determination. What this means is that you will get an appeals report, and then if it's going to be denial, you typically will get an additional, you'll get that report and you'll have an opportunity to respond. Once you respond, the company, the insurance company, may provide a rebuttal report to your rebuttal. And so it ends up being, you know, a back and forth a little bit more than it used to be. So, there'll be a rebuttal report. Finally, you'll get to review by the court. And, you know, review by the court is mainly what we're gonna be talking about today. But keeping in mind what the court will eventually do is important to help you along the way, whether you're dealing with a claims process or an appeals process. All right. And just really quick, I just want to talk about own occupation versus any occupation, just 'cause it's relevant to what the doctors are gonna say. For own occupation is typically for just the first 24 months of benefits, especially for group policies covered by ERISA. Any occupation is a standard where that, you know, you have to show that you are disabled from any occupation that you are suited to, by education, training and experience, is typically the way it is framed. And that will happen with group policies, typically after 24 months. Sometimes it's after 12 months, sometimes it's after 36 months. And then, you know, there are some employer provided policies and lots of individual policies purchased by an individual that will just have own occupation for the entire benefit period. Each of these definitions will be broader or more specific, depending on the policy of the plan. For example, for own occupation, the policy may say, may be very specific. If it was purchased by a doctor, it may say something like, it is just for the specialty of that doctor. So if the claimant is, for example, a cardiologist, own occupation may mean a cardiologist not just a doctor. Okay. Standards of court review. There are two major standards of court review. The first is De Novo, which is the default standard of review in all circumstances, whether it's in individual policy or an ERISA policy. That means that the judge is gonna take a look at all the evidence in the record and is going to make her own decision about what that evidence shows. The second standard is arbitrary and capricious, which, you know, is different a little bit from court to court and from even from judge to judge. But generally you can think of it as, you know, unreasonable. So, if something is unreasonable, then it is arbitrary and capricious. I've tried to simplify this as much as possible, but here's how you determine whether you're going to get De Novo review or arbitrary and capricious. Again, we're just trying to go over the background of how the court is gonna be looking at the report, and then we'll get to what the court is going to look at, the specific attacks that you're making on the report. So the first question to ask is, is the policy covered by ERISA? If it is not, then review will very likely be De Novo. But it's a question really of state law in that instance, because the policy then will be covered by state insurance law and state contract law. And in general, there is no deference given to an insurance company under most states laws in most circumstances. So, that will be De Novo reviewing. If the policy is covered by ERISA, the standard of review is still De Novo unless the LTD plan contains language, according discretion to the decision maker to both interpret the plan and to award benefits. Now, you know, there are cases that say that the language does not necessarily need to be, it doesn't need to use magic words, but you know, the net effect of years of interpreting of the regulations and ERISA itself, so that you really should be saying the word discretion and you should be saying both, to interpret the plan and award benefit if the insurance company wants to be afforded discretion. If it doesn't contain the discretionary language, the answer is no and review will be De Novo. If it does as a plaintiff, you may still get De Novo review, but at this point you would have to show that the administrator, typically the inference company, has committed claims, procedure violations that were neither inadvertent nor harmless. If they have committed such violations, you can prove it. Then review will still be De Novo. If they have not committed those violations, then you're into arbitrary and capricious, which is a difficult standard to prove. Now, throughout this presentation, you know, when we get to the third part and during the text, I'll be very clear about when we're talking about something that maybe arbitrary and capricious and when we're just talking about De Novo review. But I wanted to lay out, you know, the groundwork for when those standards apply, All right, really quick on ERISA regulations and the types of protections that ERISA provides. So ERISA generally provides two major types of protections, claimants, one area is fiduciary protections, and the second are full and fair review protections. And we will go over both. The fiduciary protection provided by ERISA. Administrators of long term disability plans covered by ERISA, they play two roles. One is the decider of claims, and two is the payer of benefits. And there's a conflict there. And it's an inherent conflict of interest that really can't be gotten rid of. But there are ways that that ERISA fiduciaries can act that will make it so that that conflict does not infect the process. And this is the reason why, you know, ERISA imposes high fiduciary standards on administrators. And so, there are very specific ways that or codify the general law across about fiduciary responsibilities. One of those modifications of general cross law is that an administrator has to act in the sole best interest of a participant. So the administrator, again, in this case is the insurance company generally, and the participants or beneficiaries are generally the claimant, the plaintiff, if you're in court. ERISA regulations provide that, this is actually in the ERISA, sorry, statute itself, not in the regulations, but it says that the administrator has to discharge his duties solely in the interest of participants and beneficiaries and for the exclusive purpose of providing benefits to their participants, to participants and their beneficiaries. You know, this would be if you just named somebody a fiduciary, this would be the standard no matter what, but it's also codified in ERISA. Protection is prudent. Again, this is in the risk of statute itself. Administrators, insurance companies, are required to discharge their duties with the same skill and diligence as, "a prudent man would have under the circumstances," you know. So what that means is it's hard to prove that someone hasn't acted as a prudent man, but, you know, listen, they have to act reasonably. And sometimes there are decisions that are made that are unreasonable. If there has been an unreasonable relying on a doctor's report, for example, if it would be unreasonable to rely on that doctor's report, it may be a breach of fiduciary duty. Another, the final fiduciary protection that I wanna talk about is that they have to act, an administrator has to act in accordance with the written documents that are governing it. So, that means that if there's a standard that is provided in the or the plan document itself, the administrator has to follow it. So, you know, for example, you know, we talked earlier about in person medical evaluation, the insurance company cannot just make up a brand new reason that they want an in-person medical evaluation if that would be contravened by the standard for that medical evaluation in the plan document. Similarly, if the plan document lays out, you know, how they will decide to look at the claimant's doctor's information, the administrator needs to follow those, that guidance, you know, that's in the contract. And this is, you know, provision that provides that they have to follow the contract, right. Full and fair review, this is another protection of ERISA and there are three categories of full and fair review. The second type of protection provided by ERISA are the full and fair review protections. And there are three main categories of full and fair review protections, all of them are relevant to looking at insurance companies doctor's report. They are timely decisions, they're adequate communications and full unbiased and expert review. And we'll talk about all three. Really quick, just to let you know, you know, this is going back to the of doctors' report, but you know, ERISA, insurance company needs to provide timely decision or claims. That means 45 days, plus there are two possible 30 day extension. For appeals that mean 45 days plus a possible 45 day extension. Then adequate communication. So, a denial has to communicate the specific reason or reasons for the adverse determination. And what that means in this context is that, they have to provide the reasons from a medical judgment that they have denied the claim. They have to provide reference to the plan provision. They have to provide a description of any additional material or information necessary to perfect the claim and an explanation of why material or information is necessary. In this context that means, you know, if there is something that the insurance company doctor is saying, some sort of testing that they are saying is missing, that information needs to be related to the claimant. if it's a cognitive claim and the insurance company doctor is saying, well, there's no neuropsychological evaluation here, then the insurance company needs to say that to the claimant to Say, listen, this is the reason that there's a denial because there's no neuropsychological evaluation. Finally, there needs to be a description of the review procedures and the time limit, you know, and provide the reason, a statement that the claimant can bring a civil action. Next is unbiased and expert review, you know. This is the right that all claimants have under ERISA regulation to have all their comments, documents and information taken into account during an appeal without regard to whether the information was submitted or considered in the initial benefit determination. In practical terms, what this means is that, the medical doctor of the insurance company who is taking a look at the claim needs to take into account everything, you know, that's relevant that is provided to the insurance company and will go over later. you know, how this plays out in the real world. But this is, you know, an ERISA regulation that all of that information needs to be taken into account. And then again, you know, this is in the statute, it's in the regulations, but a claimant has a right to acclaims and appeals process that is designed through the independent and impartiality of the persons involved in making the decision. So during the appeal, it needs to be new folks and that's, you know, a requirement of, of ERISA and they need to be independent of the folks that look at it during the claim process. Again, this is some of the further regulations about the unbiased and expert review. But you know, a claimant has a right to an appeal that doesn't afford deference to the initial claim process. Claimant has a right to an appeal. They can consult with a healthcare professional who has appropriate training and experience, you know. We'll go over that when we talk about specifically, what does that mean, appropriate training and experience and their, you know, voluminous case law about it. Finally, there's a regulation that just says, you know, a claimant has a right to know whose advice was obtained on behalf of the claimant. And this is not just about medical doctors, but you know, if there's a vocational professional that is consulted, then the claimant has a right to know who that vocational professional is. Another full and fair review protection is that the unbiased and expert review has to include the discussion of a denial. So specifically, needs to provide a basis of, or disagreeing with, for example, the views presented by the claimant and including the healthcare professionals that are treating the claimant. So the denial needs to say, you know, why, if the insurance company did disagree with the treating physicians, there needs to be an explanation of why and how they disagreed with the treating physicians. Second, the insurance company needs to provide the views of the vocational experts or medical experts whose advice obtain on behalf of the long term disability plan in connection with the adverse benefit determination. Even if they didn't rely on it still required to be provided to the claimant. And finally, and this was in case law prior to 2016, but is now in the regulations, but the long term disability plan has to provide a reason. If they do disagree with the views of the Social Security Administration, they have to describe why and how they're disagreeing with the Social Security Administration. All right, now we get to the types of attacks. And so, each of these will rely on the ERISA regulations in some instances. I'll talk a little bit about whether we're talking about a De Novo attack or a arbitrary and capricious attack. But each of these are relevant to one extent or another no matter what the standard of review is and no matter what the type of plan or report. It's just a matter of tailoring each of these attacks to the specific circumstances presented. First, let's talk about, you know, what can be considered by the court. You know, several circuits have said this, that social security regulations are "instructive", when a court is looking at doctor's reports. And so, security administration regulations are right below that. If those factors include the frequency of the examination and the length, nature and extent of treatment relationship. So, you know, if it's a paper review where the doctor has not actually done an examination, or even if the doctor has done an examination and it's just one examination in person, that is, you know, it's relevant, that it would be more credible if the doctor has many evaluations of the claimant. Again, you know, it's relevant to look at the evidence in support of the opinion, to look behind the opinion, to see what facts support the opinion. Three, and it's similar to the one before, but is the opinion consistent with the record as a whole? So the court can look at, you know, the entire record and see, you know, are there things that are inconsistent with it or, you know, is this opinion reported by the record as a whole? Four, it's relevant to consider whether the opinion is from a specialist, you know. In the medical field there are specialists for almost anything and the there are board certification for almost anything. And so, having an opinion from a specialist, it's more credible than having an opinion from a generalist. And then five, other relevant factors. And, you know, the second circuit and another project instead. In a De Novo review, the district court is free to evaluate a doctor's opinion in the context of any factors that it considers relevant. And then list some. And you'll see that these are similar to the factors that were listed in the Social Security Administration regulation. So, you know, like the nature of the relationship, the level of the doctor's expertise and the compatibility of the opinion with the other evidence. Each of these attacks that we'll talk about is relevant to one or more of these categories. The first type of attack, getting in specifics of the types of attacks is a lack of credential. And risk regulations are relevant here. Risk regulations provide that in deciding an appeal of an adverse benefit determination that based in whole or in part on a medical judgment, the insurance company has to consult with a healthcare professional who has appropriate training and experience in the field of medicine involved in the medical judgment. You know, this language is fairly general, but it does provide that the physician, that the healthcare professional has to be someone with appropriate training and experience. You'll notice that as healthcare professional, it does not necessarily safe physician. So, it doesn't have to be a medical doctor, but it does have to be a healthcare professional with appropriation and experience. You'll see it says medicine, but it doesn't necessarily say that, that person needs to be board certified in particular field of medicine. Almost every specialty nowadays has a board certification process. And typically someone that has that board certification their report should be given more weight and that's, yeah, you know, just had some intuitive appeal. But the regulations you provide that they have to be in the field of medicine. In particular here's a case from Southern District of New York, Robinson versus Met Life, where the insurance company did violate that regulation. In this case the plaintiff had neurological, you know. She was suffering from a loss of sensation and control and weakness on her left side, had some pain in her spine and she had headaches and that's, you know, what she was alleging it has been disabling, to stopping her from work. Met Life, instead of sending it to a neurologist instead, sent it to a pulmonary specialist. That they some other medical conditions, but they weren't what she was saying was causing her to be disabled. And the Southern District of New York said, you know, by sending it to the wrong type of doctor, that was denial of a full and fair review, you know. But then there's these other cases, you know, these two from this one from the fifth circuit and the sixth circuit that says, the plan administrator, insurance company, has not abused its discretion merely by selecting or reviewing a physician who does not have the exact same specialty as the claimant treating physician. In both of these cases, these were and arbitrary and capricious cases. And so, you know, the plaintiff was claiming, you know, you have percentage of the same specialty and that's just not true and that's not gonna be arbitrary and capricious decision by the insurance company. But in both of those cases, the doctors did have the proper appropriate training and experience in the field of medicine involved, but they didn't necessarily have the exact same faculty as the claimant's treating position. This type of attack, is gonna be much easier to make in a De Novo review situation, especially if treating physician's credentials are stellar. If the treating physician at faculty is board certified in that specialty, gone to great schools, had a great residency, you know, is published and by the way has, you know, the exact right type of specialty, that's gonna be a report that's gonna be recorded a lot more weight than, you know, an internist report from the insurance company by a doctor who didn't evaluate the plaintiff in person. Second Circuit case, Connors versus S.D.N.Y, says that in a physician's level of expertise is relevant. It's relevant to the amount of weight given to a physician report. So, you know, if a medical doctor has been in practice for 30 years, that is a level of expertise. If they're not a medical doctor and they don't have years of experience, then there's a lower level of expertise. So, to be aware of it, if there's no hard and fast rules, the insurance company has to engage a medical doctor to review these things, there are cases out there that say, for example, this one from the southern group New York that say, that a registered nurse may actually have appropriate level of experience. If that nurse, you know, has plenty of experience in the areas that are needed, that are relevant to the plaintiff state, you know. Again, it's a situation where if you're talking about De Novo review, a registered nurse, a report from a registered nurse is not gonna be accorded as much weight as a report from a board certified medical doctor. Practical advice here, you know, bring attention to the lack of credentials if appropriate. if they're not board certified, especially if your treating physician, your plaintiff's treating physician has the appropriate specialty and is board certified, you're gonna wanna point that out. And you wanna point it out if the reviewer is not an MD, especially if they're a physician assistant or a registered nurse, you're gonna wanna my that out. And especially if you're trying to create a contrast between that report and your report. Again, even if it's not a violation of ERISA regulations, I'm paying attention to this, you know, a reason for judge to . The judge is looking for reasons to credit one report over another and this is one of those reasons. Lack of independence. So, you know, we talked about lack of independence earlier. And there's two different types of circumstances where lack of independence come into play. The first is on this slide. Lack of independence of the representative, the reviewer, the folks involved in the decision, at the insurance company level, not necessarily the physician. Here, the ERISA regulations provide that the appeal has to not afford deference to the initial adverse benefit determination. And so, you know, there's no giving a credit to the reasons that we're given in the first claim decision. They have to make a brand new decision. For example, in the Krodel case, an appeals committee asked the initial reviewer to just give us the information to support your summary and decision, you know, for saying, don't give us the information that does not support your summary and decision. And that's a full and fair review violation. because at that point the appeals committee is just giving credit to the good information and not the bad information. On the other hand, this more recent case, there's an email, an internal email from an appeal supervisor saying that the initial reviewer could give the appeal reviewer "scoop". And that's not a full and fair review violation. There was no other evidence that the appeal reviewer gave any deference to the decision of the initial reviewer. I think the idea from the court, it was just that this scoop was, you know, providing all evidence to the appeal reviewer, you know, not necessarily hating it one way or the other. For healthcare professionals, you know, there are specific ERISA regulations about the appeal report. And so the appeal reviewer needs to be an individual who wasn't consulted in connection with the claims determination and they also can be the subordinate of any of those individuals. You know, typically in turn somebody to get this right, you know, they maybe in the past it did not, but nowadays, you know, it's fairly easy to just send it to a new medical doctor or a new you medical professional. And so, they don't typically get it wrong. And you know, during the appeal process, you'll find that the medical professionals are, you know, actually have a little more experience have a better specialty, things like that. Insurance companies generally don't it get wrong. But that's exactly why if they do get it wrong, you should point it out. One recent example of how they got it wrong happened during a remand situation. And in Spears case, you know, it went to litigation and then when Liberty got the claim back after a remand from the court, the Liberty sent it back to the exact same peer reviewer. And by doing that, the court said that Liberty virtually assured that plaintiff would not receive a full and fair review because it's nearly inconceivable that consultants whose analysis and conclusion has been called into question would do anything other than defend that conclusion. And so, that was a full and fair violation. Hopefully insurance companies will see this and now even in a remand situation, we'll send it to new reviewers so that they can get a new decision. Practical advice here is, listen, if the insurance company includes but doesn't send it to the new medical reviewer, I point that out cause that's gonna be a reason that's arbitrary and capricious. It certainly in a De Novo review situation. That report should be not given any weight because it's an ERISA regulation violation. And so, you're gonna wanna point that out. But you know, be wary that it is not a lack of independence necessarily, that a medical reviewer gets information from the prior doctor or from the claim process folks, or even that they adopt the views of the prior medical reviewer, you know. That's not gonna be an aris of violation and it may not even be a reason to attack the report because generally, you know, doctors view other doctors' report and agree with them or disagree with them and that, you know, how they conduct their business. So just because they adopt the views doesn't necessarily mean that's a reason to attack it, All right, lack of thoroughness. During both, the claimant appeals process, the reviewer needs to be thorough. So, it needs to provide the ERISA regulations, they have to provide for a review that needs to be account all comments, records, other information that were submitted without regard to whether it was submitted during the claim process. And you know, Glenn, the Supreme Court case from 2008, says that if the insurer doesn't take into account all relevant evidence that decision's arbitrary and capricious. But we'll get into, it's difficult sometimes to show that at the incident nobody did not take into account all relevant evidence. The practical advice here is that, you know, what you should do is take a look at the list of evidence that the medical reviewers say they says they reviewed, and compare that to the list of evidence that you think they should have reviewed. If anything is missing, that may be an ERISA regulation violation, in which case it may be arbitrary and capricious. Even if you're in a situation where you're doing De Novo review or the court is doing De Novo review, if the medical reviewer left something out of the list, that may be a reason to give that that report letter weight. if on the other hand, you know, many times what the medical reviewers will do is, list every document and they leave nothing out. But that doesn't necessarily mean they really look at everything and give enough credit to everything that's in the record. But, you know, if there's some important piece of evidence that then they don't discuss, you should point that out. So, you know, there's some big huge piece of testing evidence that they list but then they don't grapple with. That's a reason to discuss that medical reviewer and the judge would like to hear about it, you know, and you should point that out to the judge. All right, internal inconsistency, and this is one of my favorite. it's one of my favorite to find out that, to investigate and it's also, you know, some good way to with judges. So whether papers reviews opinions is internally, is not like a requirement under ERISA regulations, but you know, it's gonna go to the weight. All right. Internal inconsistency. So here, this Touhey versus Hartford case outta Missouri, it's arbitrary and capricious to rely on an internally inconsistent report, you know. If you can see from just the face of a document that it doesn't hold together and there are inconsistent conclusions or even factual findings that are inconsistent with the final opinions, that's arbitrary and capricious. It's unreasonable to rely on something that is a mess, that is internally inconsistent. Then there's this second case outta the southern district, you shouldn't give credit to evidence that is internally inconsistent and inconsistent with the record as a whole. This Georgia case, you know, is about the weight that can be given to an internally inconsistent doctor's report. You'll see here that the court says, given the doctor's unexplained new conclusion and his earlier inconsistent conclusion, it's perhaps most useful to look at his factual findings as opposed to his ultimate inconsistent conclusions about plaintiff's ability to work. So here, you know, when I say internal inconsistency, I'm not just talking about, within a one report itself. It may actually be, you know, across a physician's report. You know, if the physician creates two or three different reports, compare them. If the doctor changes opinions without really explaining why, that's a reason to not give credit to that opinion. Here you see, the court did take a look at the factual findings of this doctor, but didn't give any credit at all to the opinion. And so there that, you know, shows you how much weight the court was giving that report. As I said, is not necessarily an ERISA violation, but it has one of the strongest include of appeals I think. You know, the judge, especially in a De Novo review situation, is going to be looking for a reason to trust one report or over another, right, because there's the treating physicians that will likely be saying, you know, this person is disabled, here's why? And then there's the physicians for the insurance company they're saying, no, no, no person is not disabled. Here's why, you know. The judge is not doctor and is gonna be looking for, how do I determine what to do between these two different reports? Internal inconsistency is a really good reason to dismiss one report over another. You know, you're gonna want to, like I said, compare the factual findings between the reports and within one report and also compare them to the opinion. One thing I would note here, and this is, you know, maybe really practical advice, is be careful to avoid characterizing quotations and reports of practical finding. So the physician of the insurance company may say, this is what this other doctor said, that doesn't necessarily mean that that's what the insurance company doctor is saying. And so, you know, you don't want to over read and say that that was a conclusion of the doctor if it's not really a conclusion of the doctor. Improper dismissal of relevant evidence. This is from, you know, the Supreme Court itself. An insurance company cannot arbitrarily refuse to credit a claimant reliable evidence, including the opinions of a treating physician. So, if a doctor on behalf of an insurance company refuses to credit reliable evidence for the opinions of a treating physician, you know, that's gonna be arbitrary and capricious. Whether it's a De Novo review or an arbitrary and capricious situation, the insurance company can't do that. One way to gain the specifics, one way that a paper reviewer might try to dismiss the piece of evidence, and I've seen this, you know, many times is that, it will say it's not time relevant. So you want to examine in a particular case whether this a valid reason to dismiss piece of evidence. Sometimes it may be, right, like there may be some situations where the evidence is not time relevant, but it is necessarily the nature of medical reports that they are rendered retrospectively. And this ninth circuit case talks about that, you know. It's from the 80s but it's just sort of, reason, you know, rationale that you're going to do. When a doctor is creating a report, it's harder to predict the future than it is to say what happened in the past. Another way that paper reviewers sometimes dismiss a piece of evidence is by saying, it's not supported by clinical findings. And usually if they're doing this, it's a way for them, they're just not doing a thorough review actually. So you may need to go find the clinical findings that support the opinion. So, you know, it may just be on a different piece of paper provided by the reading provider, you know, And second, there may just be testing and from another doctor that, you know, self-reported symptoms that are supporting the opinion and you know, if there are other reasons for that opinion, you wanna be able to help the treating provider out and provide those to the court. Another type of attack is inaccuracy. So sometimes, you know, a paper reviewer's report is just not supported by the evidence. It could be at odds with the facts in the record or many times there is a paper reviewer that's cherry picked and so has only credited evidence that does not support disability and has a dismissed evidence that does support disability. This case from the third circuit helpful. If a reviewer's report is it odds with the facts and record, you should point it out. So if an insurance company's decision is clearly not supported by evidence in the record, then the decision itself is arbitrary and capricious. So, you know, if a doctor's report it just comes outta nowhere and there's, you know, for example, testing evidence in the record that you know they're ignoring or that they are not giving enough credit to, you know, that's gonna be arbitrary and capricious. If they've just cherry picked, you know, you're gonna wanna point it out too. And courts across the country have rejected it, rejected cherry picking. Here in the McCauley case, first Unum only gave credit to an earlier questionnaire and just ignored a later report and the court criticized them. The second circuit criticized First Unum saying this kind of wholesale embrace of one medical report supporting a claim denial to the detriment of a contrary medical report that favors granting benefits was already determined in Glenn, the Supreme Court case, to be indicative of an administrative abuse of discretion. Practical advice here for internal, for inaccuracy is like internal consistency, judges are looking for a reason to credit the treating physicians report over the insurance company reviewers reports or vice versa. If an insurance company reviewer is directly contradicted by a piece of evidence and they don't grapple with inconsistency, that's a reason for a judge who's not a medical doctor who dismiss that report or at least to give it lesser weight. You know, you should know that nearly every insurance company report's gonna be the product of cherry picking. You'll end up in litigation, that is what probably will have happened. It's up to you to decide how important the ignored evidence is. So, you know, I keep talking about testing evidence. But, you know, that's one of the best types of evidence. if they ignore the testing evidence, point it out. If it's just, you know, one visit note, that may not be as important. Faulty method. You know, there's the fact that a insurance company report is just a paper review report that's enough to criticize it. And courts across the country have have said so, especially if you've got a long time student provider on the other side, you know. The fact that it's just a review of record, it just shouldn't be accorded as much weight as an in-person valuation. Now on the other hand, you know, that is how insurance companies make their decisions. And like I said at the very beginning, in person evaluations are do not happen in every claim and you don't necessarily want them to happen in every claim. So, you know, courts across the country have also said that it's permissible to rely on medical records review without getting an independent medical evaluation. What they mean here is, an in person medical evaluation because that's what insurance companies do. But that doesn't mean that, you know, you shouldn't point it out, especially in a De Novo review situation, you know. It is one of the reasons to give lesser weight to an insurance company doctor's report. That in combination with all of the other types of attacks we've talked about are the reasons for the court to give less weight to the insurance company Doctor's report? The practical advice is that, you know, you wanna to work with your client treating providers to the extent you can to determine whether the insurance company doctors used proper methods. Sometimes, you know, I talked to just about paper review reports, but you know, sometimes whether if it's an in-person evaluation, sometimes an insurance company doctor will not perform a required test to test that everyone uses to evaluate a certain medical condition. If they left something like that out, you're gonna want point it out. Or if, you know, if it's a paper review situation and you know, the doctor does not give proper weight to a certain type of evidence, but is usually given a lot of weight in that circumstance, you know, you're gonna wanna work with the treating providers to figure out that is and to point it out if that's happened. Again, you know, the fact that a paper reviewer is not just by itself gonna be persuasive, it's just not. But like I said, with a bunch of other attacks, it may be something that's worthwhile, you know. If the report is done by someone who's not expert, with someone without, you know, the proper experience, if it's incomplete, if it's inaccurate, if it's a cherry picked, then that, you know, it's gonna be the result of a review that was not conducted in person and you should point it out that it was not conducted in person in addition to all the other attacks. Finally, I wanna talk to, you know, just leave you with this, you know. If you're in a ERISA case, which is, you know, typically an insurance policy provided by an employer or other group, you know, rely on the ERISA regulations. They really do help. ERISA is a comprehensive statute designed to promote the interest of employees and their beneficiaries in employee benefit plans. And this, you know, that's the saw case from right after ERISA was set by Congress, you know. Rely on the regulation to the extent possible. And even if an insurance company doctor or the insurance company has not violated the regulations, it may be still worth pointing to them if they've, you know, come very close to the line of violating the regulations. Especially if you're again, in a De Novo review situation where you're trying to let the court give less weight to an insurance company doctor's report. Again, my name is Matthew Maddox. If you'd like to be in touch with me, there's my website. I'd be happy to speak with anybody individually about specific ideas they have about attacking doctor's reports, whether in in the ERISA context or in the individual policy context. And you reach me at madoxxfirm.com. Thank much very much.

Presenter(s)

Matthew Maddox
Founding Partner
The Maddox Firm

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