The Many Mistakes Vocational Evaluators Use in Long Term Disability Cases

Long Term Disability carriers routinely use vocational evaluators to determine whether or not you can return to your former job or there is a job that exists in the national economy. Vocational rehabilitation counselors eager to please the Long Term Disability insurance company, make a number of errors in reaching a favorable Long Term Disability insurance opinion.

     These mistakes include:

            1. Failing to understand the extent of your medical condition and the restrictions and limitations that you may have as a result of depression, fatigue, pace, concentration.

            2. The opinions of functional capacity evaluators who determine the true extent of your physical restrictions and limitations. Once they can the vocational evaluator will      cherry pick the medical and functional capacity evidence so that you have some sort of ability to perform sedentary work.

            3. Vocational evaluators routinely fail to understand the definition of disability that is being used in each case.

 It is very important that you review your Long Term Disability policy and understand the definition of a disability. In the first twenty four months of disability it is not uncommon to see a definition that includes a statement that will indicate that you are disabled if you are “unable to perform the material and substantial duties of your own or regular occupation due to illness or injury.”

 Some vocational rehabilitation counselor will only consider the inability to perform the occupation without really understanding what your own occupation was at the time of your illness or injury. Or, more importantly what the material and substantial duties were.

Being a Long Term Disability benefits denied lawyer I will get from your employer your job description and will review what the is called the dictionary of occupational titles to see what job title was used by the Long Term Disability vocational evaluator in denying your claim.

Disability Insurance Myths | Tampa Bay Long Term Disability Lawyer

If you have any questions, please give us a call at 727.894.3188 or contact us online by clicking here.

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How Long Term Disability Physician’s Companies Use The Dual Occupation Defense to Deny Physician’s Claims| Clearwater Long Term Disability Insurance Lawyer

Are you a physician who has multiple specialties or businesses? If so, you must properly protect yourself in the event that you become disabled, because one of the common defenses to a long-term disability claim is the “dual occupation” defense. What is this defense?

The long-term disability insurance company will argue that you have two or more occupations at the time you claim to be disabled. Because you’re able to work full time in one of those occupations, a long-term disability carrier will argue that you are not entitled to ANY benefits.

Let me give you some examples.

In Giampa v. Trustmark Insurance Co., 73 F.Supp.2d 22 (D. Mass. 1999), Dr. Giampa, a chiropractor, spent 85% to 95% of his pre-injury time treating patients by conducting examinations and performing manipulations or chiropractic adjustments. He injured his back, which limited his ability to perform manipulations. He had spent incidental time managing his two other chiropractic facilities before his injury.

After his injury, Dr. Giampa devoted all of his time to administrative duties managing the other chiropractic facilities, which resulted in a dramatic increase in his income. He claimed long-term disability benefits, which were denied.

His disability insurance policy had both a total disability clause and a partial disability clause.

The Federal Court decided that the total disability clauses should not be read so literally that an insured persons ability to perform some business duty, no matter how small, would prevent the finding of total disability.

Another twist on the dual occupation issue involved a dentist who had retired and begun working in the real-estate field.  He became disabled and filed a claim asking for the payment of long-term disability benefits based on his inability to perform dentistry. The court found that regardless of whether he intended, even after the sale of his dental practice to resume dentistry, dentistry wasn’t his regular occupation at the time he became disabled. The un-controverted medical evidence show that he was unable to perform most of the substantial material duties of his regular occupation as a real estate developer. The clause in the disability policy defined total disability as the inability to perform some substantial and material duties of his regular occupation. The long term disability policy  did not unambiguously require that he be unable to perform all of the substantial maternil duties of his occupation.

Another example involves the policy of a general surgeon who had on the side, developed a second business doing cosmetic surgeries including vein striping. Needless to say, that was far less stressful and more remunerative than doing general surgery. Unfortunately, he became disabled and unable to perform general surgery. Was he entitled to long-term disability benefits?

The answer could be found in the terms of the disability policy. He had a policy that looked at the occupation he was engaged in at the time of his disability and also had a residual disability provision. The residual disability provision paid benefits even if he was working at another occupation.

The residual disability provision said that “residual disability must follow right after a period of total disability that lasts as long as the qualification period, if any.” Huh?

This would seem to say that one could never get residual disability benefits, unless there was some initial period of total disability. Another question would be whether you had to be totally disabled from work as both a general surgeon and as a cosmetic surgeon to get benefits?

Another paragraph says that “This (residual disability benefit) will begin on either the commencement date or the day after the total disability ends up later.”  You could argue that if he are unable to do general surgery, but the same day could do vein stripping, the doctor  would be entitled to residual disability benefits.

You have significant choices to make and you can inadvertently shoot yourself in the foot and screw up your eligibility for disability coverage by making the wrong decision

It is crucial that you consult with a qualified long-term disability/ERISA attorney before you file your disability application to avoid making crucial mistakes that can result in the complete denial of your claim and cost you residual disability benefits.

You must determine what your policy says about the criteria for being disabled, what occupation your policy covers, whether there is a residual claim, what percentage of your revenue comes from both occupations, how your disability impacts your ability to perform both occupations, and how you’re going to prove that disability. That determination should be made BEFORE you even file your long-term disability claim.

Nancy Cavey, a long-term disability/ERISA lawyer, can be a great resource to you before you apply for long-term disability benefits. Nancy Cavey will be able to review your policy, advise you as to the best course of action to preserve your benefits and maximize your disability income, and assist you in gathering the necessary documentation to prove your entitlement to disability benefits.

Finding a lawyer with long-term disability/ERISA experience who has a proven background in dealing with physicians committee will make the difference between obtaining your long-term disability benefits or being denied. The lawyer who helped you set up your practice, helped you write your will and helped you purchase your house does not have the experience handling disability/ERISA claims.

Contact Attorney Nancy Cavey, who represents physician’s  through out the United States for more information on the dual occupation defense and to get your free no obligation copy of “Robbed of Your Peace of Mind.”

If you have any questions, please give us a call at 727.894.3188 or contact us online by clicking here.

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Choosing The Right Disability Insurance Company | Florida Tampa Long Term Disability Insurance Attorney

The time to learn that you’ve picked the wrong disability insurance company isn’t when you’re sitting in a lawyer’s office. Unfortunately, there are many times I have to explain to my clients that they’ve picked the wrong disability insurance company.

There are many factors and variables that should be considered in picking out a disability insurance policy, which are discussed in Nancy Cavey’s book, Robbed of Your Peace of Mind, which is free of charge.

This article focuses on choosing the right disability insurance company.

First, and foremost, you should purchase an individual disability policy which you pay for yourself with post-tax dollars.

If you have any questions, please give us a call at 727.894.3188 or contact us online by clicking here.

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Disability Insurance Policy Basics and Your Disability Policy | Brandon Long Term Disability Attorney

If you are sick or injured and unable to work, you and your family are probably experiencing financial problems. Disability Income Insurance can replace, in part, a paycheck, so it is important to understand the disability  benefits you purchased. I would suggest that you get a copy of my book ““Robbed of Your Peace of Mind? Important Information on Long Term Disability Insurance Policies, the Claims Procedures and How to Win Your Long Term Disability Benefits” to learn about your disability policy.

Disability policies have common provisions. Plans have a specific period of time you have to be disabled before the disability benefit kicks in and you start receiving payments. There is also a maximum time limit you get paid before benefits stop. Think of it as a starting and ending point for your disability/ERISA benefits

Disability benefits plans generally only cover 2/3 of your gross income. However, there are offsets that can reduce your disability check by the receipt of Social Security, Workers’ Compensation benefit and 401K benefits. You could end up with a minimum payment of $100.00 after all reduction and deductions are made.

There are two types of disability insurance. Short term disability is just that- payment for a short period which can last six weeks to twenty-six weeks. Long term disability plans can last 2 years, 5 years, 10 years, and even in certain cases, can last you until you are 65.

Short-term disability usually can only be purchased on a group basis through your employer. Short-term disability benefits can start immediately after an injury or illnesses. Policies will typically pay after one or two weeks or being off of work.

Long term disability plans are more complicated than short-term disability plans. The waiting period for benefits can be one to six months or more, with an average waiting period of 90 days. Long-term disability plans have all sorts of limitations which I discuss in my book Robbed of Your Peace of Mind? Important Information on Long Term Disability Insurance Policies, the Claims Procedures and How to Win Your Long Term Disability Benefits”.  One of the most important is an “own occupation” policy. This “own occupation” policy says that if you cannot work in the job you were trained for (by schooling or experience) you are considered disabled and eligible to receive benefits. There are many other types of disability policies with different definitions of disability. Do you know what your policy says?

Do not let an disability insurance policy intimidate or confuse you. If you have any questions regarding short or long term disability policies contact experienced St. Petersburg Long Term Disability/ERISA Attorney, Nancy Cavey. Regardless of where you live, she can help!

If you have any questions, please give us a call at 727.894.3188 or contact us online by clicking here.

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Mistake 8 – Restrictions and Limitations – Lifting and Carrying, Bending and Twisting | Clearwater Long Term Disability Lawyer

It is important to prepare for your long-term disability statement or field visit by the long-term disability claims adjuster so you can get your long term disability/ERISA benefits.

Long term disability insurance companies like to ask broad, open ended questions which are hard to answer accurately, but which are traps for the unwary long-term disability claimant.

The questions you will be asked will include:

1. How much are you able to lift and carry?

2. Provide an example of something that you can carry it without being uncomfortable?

3. Have you lifted more than 10 pounds?

Why are you being asked these questions? If the long-term disability insurance company can shows that you can do a sedentary job, which requires less than 10 pounds lifting, they will take the position you are not disabled.

Please note that these questions don’t address how much you can lift without having symptoms, how much you can lift repetitively, how much you can with repetitively without becoming uncomfortable, and don’t take into consideration real-life lifting situations at the workplace.

Your answers will be compared against the surveillance film. If they catch you lifting more than what you said, they will play “gotcha!”

Your answers will be given to your doctor. The long-term disability carrier will say to your doctor, “She completed a statement that says she can lift and carry a maximum of 15 pounds.  Doctor, would you agree that she could work at a sit down job where she only had to lift 5 pounds?” What do you think your doctor is going to say?

I am sure that your lifting and carrying ability depends on the size of the object, its weight, whether you’re lifting it off the table, lifting from the floor, how many times you have to lift it, whether you have to bend and lift, twist and lift, or squat and lift.

You will be asked about your ability to bend and twist:

1. Can you bend at the waist to pick something up off the floor?

2. When you bend or flex toward the floor, what symptoms do you experience?

Most everyone has the ability to bend at the waist. Even my clients who have those kinds of problems would bend over to pick up a crying child regardless of how much pain they have. Isn’t that a dumb question?

You will be asked about your ability to twist:

1. Can you twist at the waist?

2. Can you twist to the right or left?

3. Can you twist or turn your head to the left or right?

4. What symptoms do you experience when you twist?

Of course, you can twist but you probably have limitations. Of course, the question is phrased in a way that you have to give an absolute black-and-white answer. Don’t fall for that trap! Don’t answer any question in absolute terms. Use ranges and estimates and make it clear that’s what you’re doing as you answer these questions. Never say that you can never do any physical activity. You’re setting yourself up if you do so.

Answering these broad-based questions isn’t easy. Help is a phone call away. You can contact Nancy Cavey, an experienced long-term disability attorney at 727-894-3188.

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Mistake 7 – Restrictions and Limitations — Standing | Clearwater Long Term Disability Attorney

As part of your long term disability statement about your restrictions and limitations you will be asked questions about your ability to stand. These will include:

1. What is the maximum number of minutes you can stand?

2. What happens after you stand that length of time?

3. What is your pain level when you stand for that long?

4. What symptoms or do you have when you stand for that long?

These are absolute questions but you really can’t give a hard and fast answer. I am sure that your ability to stand depends on whether you are having a good day or bad day, what you may have done the day before, and what medication you might be taking.

Interestingly, what’s not being asked is how you may have to alternate sitting or standing, how problems standing interfere with your ability to function, how long you can stand before you develop symptoms that interfere with your ability to engage in activities of daily living.

Aren’t those kinds of questions more relevant? As you can see, such broad-based questions are open to interpretation by you. Regardless of how you answer this question, make sure you qualify your answer so that you narrow the scope of this question.

Often, the disability insurance company will have surveillance film on you. If you say you can only stand for 15 minutes and they have film of you standing longer, you can be assured they will argue that you are not being truthful to your doctor about your abilities. They will question your doctor’s reliance on your statements about your physical abilities. Don’t fall into that trap.

Don’t be afraid to contact a long-term disability/ERISA attorney like Nancy Cavey to assist you in accurately answering questions about your restrictions and limitations so you can get your ERISA/long term disability benefits.

If you have any questions, please give us a call at 727.894.3188 or contact us online by clicking here.

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