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Ask "Bernie the Attorney"

By Bernard A. Kansky, Esq.
2006  All Rights Reserved

The questions and answers set forth in this column are an expression and exchange of ideas of a general nature.  The interpretation of laws, rules and regulations vary from time to time and are based on the particular facts of a specific set of circumstances at any given time.  The law is fluid and can and often does change from day to day.  If you have specific questions, it is essential that you consult with your own attorney or leave a message for me along with your telephone number at my office at 616-227-2020 or via FAX at 617-227-5717.

Q. My long-term disability insurance carrier wishes me to undergo an "independent medical exam," or an IME by one of their psychiatrists. Do I have the right to videotape this evaluation?

A. Yes. At least some courts have approved a claimant having a videotape of the IME conducted by a psychiatrist of the insurance company's choosing. One court indicated that the insurance company argument that videotaping the proceedings would compromise the psychiatrist's capacity to conduct a truly objective psychiatric examination, is based upon the false premise that the setting is non-adversarial. The court held that, without in anyway suggesting that the psychiatrist would conduct the examination unethically, the fact remains that the psychiatrist was engaged to perform a service for the insurance company and the claimant is entitled to reasonable protections. See the decisions of Hepburn, et als v. Barr & Barr, et al, Suffolk Superior Court, Civil Action No. 05-0039E, June 14, 2006. Additional authorities cited regarding this proposition are Velez v. Liberty Mutual, 2001 Mass. App. Div. 56, (2001), Wang v. Liberty Mutual, 2000 Mass. App. Div. 313 (2000) and 184 F.R.D. 552 (E.D. Pa 1999).

I have been totally disabled by CFIDS/ME and Fibromyalgia for many years and I believe that I am coming up for review again in the near future by a new long-term disability company of my employer's sponsored ERISA or employee welfare benefit plan. Is there anything I can do now to help prepare for this anticipated review?

A. Yes. The insurance companies for these plans and, especially the new insurance companies, are using every possible method to deny and/or terminate payments to any disabled employee-claimant and particularly to those who have been receiving substantial benefits for 8-10 years, more or less. But now what these insurance companies are doing is instead of saying that you have "no objective medical evidence to support your claim of CFIDS/ME and Fibromyalgia," they have found a new and, unfortunately, court approved method for denying and terminating benefits. Recently, they have their peer reviewing, "book reporting," IME physicians accepting the fact that you have CFIDS/ME and Fibromyalgia, but then denying benefits based upon their findings that you have not provided " any objective (vocational) evidence, that your CFIDS/ME and Fibromyalgia prevent you from performing any gainful employment activity." The best way to counter this would be to have a yearly or once every two (2) year evaluation by a vocational expert experienced with CFIDS/ME and Fibromyalgia who will provide a comprehensive, detailed narrative report that based upon his/her actual examination, you remain totally and permanently disabled to the same extent or worse, (if truthful), compared to his/her prior "hands-on," vocational evaluations and examinations of you in the past. This is not to be in lieu of the usual updated medical reports but in addition thereto.

I am in the process of going through the internal administrative review to obtain approval for the payment of my long-term disability benefits. The only people I have been dealing with have been in the insurance company. I have repeatedly asked them to send me copies of all my records as I am told I am entitled to have, but they refuse and then send me letters saying that they do not have to provide those records. Is there anything I can do?

A. Yes. When the insurance company advises you that they do not have to provide the records you have requested, that is usually the responsibility of the long-term disability plan and not always the obligation of the insurance company which administers or co-administers the plan. Under those circumstances, you should address your letter again- but this time send separate letters by Certified Mail Return Receipt Requested, separately addressed to the insurance company, to the employer, to the plan, to the plan fiduciaries, to the plan administrators with a cc: to all of the others who are to receive your timely written request. Not providing these records is just another ploy to discourage you from proceeding with your claim and also to reduce your chances of success in court, if you do. There is no doubt that the insurance carrier has access to all of the documents you have requested but are constantly hopeful that if they deny your request, they will not have to pay you based on some overlooked or unseen technicality by reason of depriving you and your attorney the documents requested, until they submit the Administrative Record to the local United States District Court after you have had to file suit.  By then, it can be too late.
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