If your insurer has set up an Independent Medical Examination or scheduled you for a Functional Capacity Evaluation or some other type of examination (which would occur outside of your home), chances are, you are going to be surveilled on the day before the examination, the day of the examination, and the day after the examination.

            We recently had the opportunity to evaluate several surveillance tapes to determine what possible use they had to the insurance company.  The insurance company is not interested in surveilling you on days when it does not know your schedule.  Therefore, when you are scheduled for any type of examination by a long-term disability insurer, YOU SHOULD ASSUME THAT YOU ARE BEING WATCHED.

            For most people this does not present a problem.  For some people, any opportunity to get out of their house translates into a desire to stop by their doctor’s office or a pharmacy or a bank.  It is a well-known fact that many individuals who are on disability frequently combine their trips outside so they don’t have to expend more energy than is necessary and they can recover in the days following these activities.

            Many insurers interpret these “extra stops” as hidden capacity for work.  Most of the surveillance that we see, frankly, is useless in the demonstrating or determining excess capacity.  We recently watched a video of our client who was standing out in front of his house with his dog on a leash.  We also witnessed a client stepping outside with his cane for a cigarette.

            To the insurance industry, these activities are demonstrative of working capacity.  In reality any reasonable vocational or medical expert will tell you that these small activities do not contain enough information that would translate into full-time, part-time, or even volunteer work.

            The thing to remember is that if you think you are being watched by your long-term disability carrier, you probably are!

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“Peer Reviews” Lead to Wrongful Denial of Disability Claims

A peer review is NOT the same as a second opinion or independent medical exam (IME). Essentially, a peer review is a tool used by the insurance company to review your Dr’s medical records.

Peer reviews are problematic because of the type of information that the insurance companies send to the reviewing doctor. The peer review physician does not even examine the claimant, speak with the claimant, or get a full picture of the claimant’s capabilities. Nevertheless, that doesn’t stop the peer review physician from issuing an opinion that the claimant is not disabled. This is a completely unacceptable practice that leads to the wrongful denial of disability claims.

And you would think the reviewing physician would have the same experience and credentials as your treating primary care physician or specialist. But in reality, you may find an Internal Medicine doctor reviewing your complicated Neurology case!

At McDonald & McDonald we recently had a case where the administrative record contained hundreds of pages of medical records, but the disability insurer singled out only 35 pages of medical information to send to the peer-reviewing doctor. Despite the fact that this claimant had suffered from severe systemic lupus for over 10 years, the peer reviewer could not agree that lupus existed because the insurer did not supply her with any lab work.

Peer reviews do not generate the type of medical evidence that has high quality or high value. At best, they provide a very limited opinion derived from very limited information. If disability insurers were more interested in the proof than profit, they would be working more closely with the physicians who have the greatest experience in the case (your treating physicians) or they would schedule IME’s with doctors that are not entirely beholden to the insurance industry. When we have asked for input in the selection of the examining doctor, the disability insurance community has refused our input into physician selection.

In disability practice you quickly find out that insurance companies accept peer reviews as the “gospel truth.” We recently had another case where a client had a paralyzed diaphragm. This was a substantial finding according to our client’s family doctor and pulmonologist, but the peer-reviewing physician didn’t view it as significant. The peer review resulted in the insurance company’s conclusion that “no restrictions or limitations” existed.

Possibly the most disturbing trend with peer reviews is that they are being used after your appeal is complete. I do not believe that this is a legitimate practice. Once the appeal is complete, there is very limited room for the creation of new evidence by the insurer, but that is exactly what they are trying to do. Our disability appeal work is very thorough and we usually point out the weaknesses in the insurer’s denial of the claim. We have had more than a few insurance companies use peer reviews to correct the weaknesses in their own administrative records.

Peer reviews will sometimes have a “peer to peer” consultation feature. This is a practice where the peer-reviewing physician will call your doctor and speak to your doctor about your condition and your medical records. The peer review physician will then summarize the conversation and report the conversation to the insurance company.

We recently had 2 separate cases where we sent the peer reviewing doctor’s summary to our client’s treating physician. In BOTH CASES the treating doctors were floored by the extent of the misrepresentations and inaccuracies in the peer reviewing doctor’s summary. I believe that any peer reviewing physician who contacts a claimant’s treating physician may be inviting the claimant’s treating physician to violate HIPAA privacy laws. The claimants treating physicians should be weary of discussions with peer reviewing doctors.

In closing, we remain hopeful that the insurance industry will stop its reckless use of peer reviews and peer-to-peer consults. Disabled workers deserve better than this shabby treatment.

What type of Doctor should I see for fibromyalgia?
Many people see their family doctor for symptoms of fibromyalgia.  But if you have an increasingly serious case of fibromyalgia, you should consult a Rheumotologist.

The American College of Rheumotology (ACR) uses specific criteria to diagnose fibromyalgia.  Insurance companies know this, and will frequently deny your long term disability claim or short term disability claim if you are not under the care of a Rheumotologist.

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