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Can My Treating Physician Change Her Mind?

Mar 31, 2017 | Long Term Disability

By Peter Casciano, Esq.
(301) 244-4523

Insurance companies that carry and administer Long Term Disability claims examine carefully the routine forms they send to physicians when reviewing a claim to see if benefits should continue to be paid. The slightest error or inconsistency could lead to a heighted review, or even the termination of benefits. The treating physician’s innocent comments, taken out of context, have served as the justifications for sending the claimant to an Independent Medical Exam (IME) or even hiring an investigator to conduct surveillance on the claimant.

In certain cases, the error committed on the review form is not slight. It is easy to imagine the doctor, trying to fit in paperwork in between appointments, zooming through an Attending Physician Statement sent by the insurance company, and committing an error. This is especially so where the doctor is completing the umpteenth form for that particular patient because the insurance carrier sends review forms to that doctor several times per year. All of us would be annoyed by this repetitive task. All it takes is one form to be submitted contradictory to all previous forms that have gone in.

One might think that such an error is forgivable as long as the clinical records generated by the erring doctor clearly show the inconsistency in question to simply have been a mistake. In some cases, that is correct and the reviewing official considers the weight of all evidence already in the record and continues paying benefits. However, sometimes claims are terminated based on one erroneous form.

Federal Court in Minnesota recently had the occasion to review a case where the treating physician allegedly released the claimant to return back to work. Broderick v. Hartford, February 16, 2017. After the LTD carrier terminated benefits, the claimant submitted additional evidence showing that the physician did not in fact return him to work. The carrier claimed that when they reached out to the treating physician to ask him what was going on, the physician provided vague responses. Therefore, the terminated of benefits was upheld by the carrier and litigation ensued.

The Court took the carrier to task for failing to ask the treating physician specific questions that would have explained much more completely the reason for the alleged inconsistency. The court indicated that no reasonable mind would have accepted the unexplained or vague responses without inquiring further. Suggested questions by the court included:

  • Why did the doctor write “undetermined” in response to the question of whether a permanent disability existed?
  • Why did the doctor continue to re-fill the claimant’s prescriptions?
  • Why did the doctor adjust the workability rating to what the physical therapist reported?

Those questions, and others cited by the court, are designed to give the carrier a correct, more complete picture of disability, which is what the carrier should have been searching for.

There are valuable lessons to take from this case. First, for inconsistencies like these, it is almost always best to confront the issue head on. Many doctors would prefer to simply change their opinion and move on. In other words, “she is disabled because I said so.” This approach will not work and will especially not work when the record contains a glaring inconsistency. It is almost always best to have the doctor explain the earlier statement and even cite to it. The bottom line is that the insurance company knows the inconsistency exists, therefore don’t hide from it.

There typically is a good reason why the doctor’s opinion has appeared to shift. It is usually best to state this reason and explain the earlier record. It is not best practice to leave it up to the carrier to ask the pointed questions or risk taking the case to Court so that the Judge can admonish the carrier for not asking the pointed questions. If the claimant and/or the claimants representatives had asked the treating physician at the outset the questions highlighted by the court, much time and money may have been saved.

Contact the Disability Lawyers at Andalman & Flynn in Maryland

The disability lawyers at Andalman & Flynn makes it a practice to stay up to date on new regulations and case law to provide the most effective representation to our clients.  We normally provide free consultations for clients looking to file for disability insurance benefits or appeal the denial or termination of those benefits, whether the claim is covered by ERISA or not. Please contact Peter Casciano for a free consultation today.

By Peter Casciano, Esq.
(301) 244-4523

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