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By Bernard A. Kansky, Esq. © 2008
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 617-227-2020 or via FAX at 617-227-5717 or at my e-mail address with the subject matter listed as: Ask "Bernie The Attorney."

Q. My long-term disability insurance carrier is reviewing my entitlement to benefits and has sent some of my records to an out-of-state physician review service to decide if I still am disabled and still entitled to my benefits.My policy says that the insurance company can have me examined by a physician of their own choosing, but says nothing about having the right to review my records without interviewing or examining me. Is there anything I can do?

A. Yes, there are several things which can and should be done:
First, if a disabled beneficiary knows in advance that that is one of the steps which will be taken by the insurance company administrator or fiduciary, then, in writing, by certified mail, return receipt requested, send them a letter advising them that you object to it and it is contrary to the terms of the policy. Remind them that the policy/plan provides for a physician of their own choosing to examine you but the plan says nothing about a paper review by anyone----any health care professional, physician, psychologist, vocational expert or other.

Second, after you have done that, also in writing, by certified mail, return receipt requested, and if possible, in the same letter, request that the administrator of the policy/plan provide you with a schedule of the full names,titles, office/business addresses, areas of expertise, professional license information and state or states of issue of the license of each person reviewing your medical records, along with and a full and complete copy of each of their respective resumes. Also, in the interest of accuracy, request exactly what documents are being forwarded to each reviewer for a paper review by each one of their (book reporting,/paper reviewing) "experts."

Third, if the insurance carrier fails to timely provide that information (within 30 days from the initial date of request) then renew those requests every two or three weeks until the insurance adjuster refuses to provide any or all of what you have requested, and be sure to insist that the insurance adjuster put that refusal (to all or part of your requests), in writing. Whether the insurance adjuster provides the requested information or not, be sure to make a written notation for your own permanent records as to the exact days, dates and times of refusal as well as the name,telephone number and extension,and the fax telephone number of the adjuster.

Fourth, if the adjuster does not confirm the refusal to provide the information requested in writing, then you put in writing, the days, dates, and times the adjuster verbally refused to provide you with any or all of the information requested, and be specific as to what was requested, what was provided, and what refused.

Fifth, If you are given some of the information, but not all of it, also make a note as to the names, addresses and specialties of those "paper reviewing experts," being used by the insurance company. Then check the internet to determine if their name appears as being an expert whose paper reviewing reports was or were the basis, at least in part, for termination of any other disabled claimant's benefits. You could also have your attorney with his or her internet legal research capabilities, run the names of these so-called experts and determine if any of them had written an adverse reports about any other claimants which makes that expert the center of controversy in other past ERISA litigation and severely discredits the paper reviewing opinion of that "expert."

Sixth, if you have a copy of the adverse report of that so-called, "paper expert," and well before the internal or Administrative series of appeals is concluded, prepare an affidavit addressing how and why each of the statements alleged in support of that "paper expert's," adverse opinion, are not correct and not supported by (a) the test results, (b) the treating physicians' reports, (c) the observations and examinations of your treating physician(s), and (d) the observations of immediate family members as well as (e) those with whom you live and who can observe you best.

Seventh, if you have requested and been provided with a DVD of any video surveillance, then before the Administrative appeals are concluded, be sure to include in your affidavit, that what the video surveillance shows demonstrates that your disability remains totally disabling and prevents you from attempting even light part-time work. By way of example, the video surveillance may show you pushing a shopping cart from a supermarket to your car. Remember that video may also show by way of example, that you were only in the supermarket or convenient store for a very short time; that you only purchased just a few necessities because you would not be able to lift any more or any heavier bundles. Also, you can, if truthful, include in that affidavit, that you are and were so weak that before you became disabled you could have carried the same and more bundles without needing any carriage. But now however, by reason of your disability, you used and needed the shopping carriage to help you maintain your balance and assist you in walking to your car. Even then, (if true), unloading your bundles into your car was difficult as can be seen by the video surveillance. Instead of taking 3-4 bundles at a time, as you used to be able to, you only were able to take one bundle at a time from the carriage and even then had trouble lifting and placing each bundle in your car, without dropping them.

Eighth, the surveillance reports may also show that there had been no activity by you outside your home and that your car never left tts parking spot for several days before this one day during that week when you needed a few items, and even then you were only in the store for such a short period of time by reason of your lack of stamina. Thereafter, you can indicate, if true, that you were followed home and, according to the report, surveillance was discontinued, or describe the follow-up circumstances which occurred to support your limited ability to function.

This is all very crucial to preserving your rights in any court case brought. However, and most important, these affidavits must be filed at the internal Administrative Review and internal appeal level before final denial by the insurance company or your sworn affidavits will not be part of the Administrative Record upon which the courts generally rely to review your ERISA court action. The timely filing of such affidavits prior to the final conclusion of the insurance Administrative Review is essential to help protect your rights.

The National CFIDS Foundation * 103 Aletha Rd, Needham Ma 02492 * (781) 449-3535 Fax (781) 449-8606