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THE LONG TERM DISABILITY INSURER "FORM" DEFENSE

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It is very common for disability insurers to deny disability benefits based on findings made on "Attending Physician" of "Functional Ability" forms provided by the insurer to your treating physician. Typically, these forms are surreptitiously mailed to your physician without your knowledge in hope of duping your doctor into providing answers favorable to denying your claim.

One way insurers try to fool your physician is by using terms of art incorrectly. The insurer will ask your provider if you are able to perform "sedentary labor." Many times, no definition will be provided for this term. On other occasions, the insurer may provide an incorrect definition.

The Dictionary of Occupational Titles (DOT), 4th ed. (1991, Revised) published by the United States Department of Labor sets forth the following definition of "sedentary" work:

S-Sedentary Work - Exerting up to 10 pounds of force occasionally (Occasionally: activity or condition exists up to 1/3 of the time) and/or negligible amount of force frequently (Frequently: activity or condition exists from 1/3 to 2/3 of time) to lift, carry, push, pull or otherwise move objects, including the human body. Sedentary work involves sitting most of the time, but may involve walking or standing for brief periods of time. Jobs are sedentary if walking and standing are required only occasionally and all other sedentary criteria are met.

Rather than mentioning the need for moving one's body for 1/3 of a workday, the insurer will describe "sedentary" as "mostly sitting" in order to minimize the activity level. But, when it comes time to use of this finding, the insurer will stick to the DOT definition so as to demonstrate a claimant can perform other work. Is this unscrupulous? Yes. Do physicians fall for it? All the time, with claimants paying the price afterwards.

Other forms provided are inherently biased as these forms do not contain any check-off completion for an activity level which is below occasional. The term "occasional" in this context is a term of art. "Occasional" activity is defined by the DOT as occurring minimally up to 1/3 of day. Therefore, it is not accurate if you are able to perform the activity a few times only. It is certainly not applicable should you be unable to perform that specific activity (sitting, standing, lifting, bending) for a full 1/3 of workday. Since 1/3 of a work day comprises 2.5 hours minimum, it is no small feat to accomplish this level of activity.

By not providing a check-off completion that is below the occasional level, it guarantees that a person can perform a full range of sedentary work and the claim will be denied. Many times, your physician will check off the least of the activity level thinking that this will accurately reflect disability. Nothing could be further from the truth. The form to be completed is rigged so that the most minimal findings still will result in a claimant being able to perform sedentary labor at the least.

An even more dishonest way in which insurers deceive your treatment provider is via the creation of "disability levels" in which the only way you may be found disabled is by your doctor verifying that you have a Class 5 disability which means "incapable of even minimal activity." These levels are a pure invention of the insurance defense industry and have no basis in any vocational manual.

Many treatment providers are uncomfortable with finding a person "incapable of even minimal activity" and will find a Class 4 disability which is defined as "capable of sedentary work." Then, the claimant just loses again.

How does the insurance industry feel about being called out for this type of conduct? I once gave a lecture on this topic at a disability claims conference. I brought forms from all the major insurers and pointed out the bias and flaws. After that, I provided my own even-handed questionnaire to demonstrate how this should be done. In response, I was booed and hissed by the insurance representatives and banned from speaking at the conference forever as the insurance companies stated they would not pay for the event if I were to speak at it again.

The insurers don't want you to know the truth and will take drastic measures to cover up their misdeeds. I have no problem pointing out their misconduct. Last time I checked, they don't pay my check.........at least not directly.

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