What is a Pain Journal and Why Are They Important?

In previous posts, we have discussed the importance of properly documenting your disability.  In this post we are going to discuss one way you can document your disability—pain journals.

A pain journal is exactly what is sounds like—a journal in which you document your pain levels and symptoms each day.  Creating this sort of record will not only provide you with documentation when filing your claim, but will also allow you to effectively communicate with your treatment providers regarding your symptoms, so that they can provide you with appropriate care.  Oftentimes, depending on your disability, you will go several days or weeks without speaking to your treatment providers.  A pain journal can help you easily recall and communicate to your treatment provider everything that has happened since you last met with them.

Tips for Creating a Pain Journal

When creating a pain journal, you want to be as specific as possible so that your record is complete.  You also want to make sure that you describe your plain clearly, so that you will be able to understand what you meant when you refer back to your journal.

Here are a few things you might consider documenting in your journal:

  1. The location of the pain.
  1. The level of the pain (if you use a numeric scale, be sure to also describe the scale).
  1. The duration of the pain.
  1. Any triggers to the pain.
  1. Any medications you are taking.
  1. Whether the medications you are taking are effective or have any adverse side effects.
  1. Any other symptoms in addition to the pain.

When filling out your pain journal, you may have a hard time coming up with a description that fits the type of pain you are experiencing, since all pain is not the same.  However, you should avoid the temptation to document your pain in a generic way.  The type of pain you are experiencing is just as important as your pain levels, and it is something that your insurer will likely ask you to describe.

To that end, here is a list of adjectives that are commonly used to describe pain:

Cutting; Burning; Cramps; Knots; Deep; Pulsing; Sharp; Shooting; Tender; Tight; Surface; Throbbing; Acute; Agonizing; Chronic; Dull; Gnawing; Inflamed; Raw; Severe; Stabbing; Stiff; Stinging

Sample Pain Journals:

American Pain Foundation Form:

http://static1.1.sqspcdn.com/static/f/780996/10986694/1298931690137/Partners+Againts+Pain+Daily_Pain_Diary.pdf?token=%2BxUZiQYiQI0BQuASODoUtMrCRaE%3D

American Cancer Society Form:

http://static1.1.sqspcdn.com/static/f/780996/10986775/1298931779760/pain_diary.pdf?token=4N2osqMoTgvDsWtePLtKqJGthag%3D

Peace Health Medical Group Form:

http://static1.1.sqspcdn.com/static/f/780996/10986822/1298931923430/Peace+Health+Pain+Diary.pdf?token=qqil7fKha7RaXW7%2FgJ8tCnXxihY%3D

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Case Study: The Importance of Proper Documentation

In previous posts, we have discussed the importance of properly documenting your claim. From the moment you file your claim, most insurers begin collecting as much documentation as possible in the hopes that they can use the documentation to deny your initial claim, or terminate your benefits later on.

Oftentimes, benefits are terminated without warning. For example, an insurance company may conduct covert surveillance over an extended period of time, and then suddenly terminate your benefits once they feel that they have sufficient footage to assert that you are not disabled. If you are not consistently documenting the ongoing nature and extent of your disability, you may find yourself lacking sufficient evidence to contest a denial or termination of benefits.

For example, in the recent case Shaw v. Life Insurance Company of North America[1], the insurer refused to pay claimant her disability benefits. Although claimant saw multiple doctors and psychiatrists for PTSD and depression before filing her claim, the court ultimately found that the medical records she submitted were deficient, for several reasons.

First, even though claimant was asserting mental health claims, the claimant’s primary treatment provider was a family practice physician, not a psychologist or psychiatrist. Additionally, the court observed that the family practice physician’s records were “cursory, and contain[ed] minimal documentation of the frequency or intensity of [claimant’s] symptoms.”  Id. To make matters worse, the claimant only saw the psychiatrists for a period of a few months, and the psychiatrists’ records showed that claimant had refused to follow the recommended treatment plan, which included both psychiatric medication and cognitive treatment.

The claimant attempted to supplement her medical records using a narrative letter she wrote describing her symptoms, along with several letters from family and friends. However, the court ultimately found the narratives unconvincing because there was a “significant potential for bias,” the severity levels described in the narratives conflicted with the psychiatrists reports, and claimant’s friends and family were not medical specialists or care providers and therefore could not diagnose claimant’s medical condition or assess claimant’s functional capacity. Id.

In the end, the court affirmed the denial of benefits, even under de novo review. Id.

What could the claimant have done better to avoid the denial?  For one, she could have used a psychiatrist or psychologist as her primary treatment provider. She also could have followed the treatment plan recommended by her psychiatrists. Finally, she could have asked her physician to provide more thorough documentation.

Remember, courts will generally want to see medical records, not statements from friends and family. While such statements can be a useful way to provide background information, a court will want to see documentation of diagnosis and treatment by a health care provider. An experienced disability insurance attorney can help you review your medical records and determine if they are sufficient in comparison to the documentation that the insurance company will almost assuredly be collecting.

[1] No. CV1407955MMMFFMX, 2015 WL 6755187 (C.D. Cal. Nov. 4, 2015).

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Unum Denies Its Own Employee Disability Benefits

In previous posts, we have discussed how Unum is notorious for wrongfully denying disability claims.  Recently, Unum refused to pay its own employee disability benefits.[1]

Apparently, the Unum employee suffered from carpal tunnel—due to all the typing that her job required—and also suffered a back injury in her home office.  Naturally, the Unum employee saw a hand specialist for the carpal tunnel, and a back specialist for the back injury.  After the Unum employee had surgery on her hand to treat the carpal tunnel, the Unum employee’s primary care physician placed her on work restrictions.  However, the primary care physician did not send the work restrictions to Unum because she thought that the other doctors had already documented the restrictions.

Unfortunately for the Unum employee, the other doctors had not forwarded the restrictions to Unum.  Instead of reaching out to the Unum employee’s doctors to see if the disability claim was legitimate, Unum simply denied the long term disability claim due to a lack of documentation.  At that point, the primary care physician came forward and expressly told Unum that she supported the restrictions, but Unum still refused to pay any benefits.

[1] See http://www.lawyersandsettlements.com/articles/first_unum/interview-unum-lawsuit-insurance-29-20883.html#.VfhBwxFVikp.

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The 10 Biggest Legal Mistakes Physicians Make
When Filing a Disability Claim (Mistake #1)

If you are a medical or dental professional and are thinking that you may need to file a claim under your disability policy, you may be wondering “Do I need to hire an attorney to file a disability claim?”

Given the voluminous, complex language of modern policies and the amount of money at stake, failing to consult with a lawyer is one of the biggest mistakes professionals make when filing a disability claim. An experienced disability attorney can explain the significance of key policy terms, and work with you to present the best claim possible while avoiding the pitfalls we have identified in our previous posts on this topic.

Ed Comitz’s article, “The 10 Biggest Legal Mistakes Physicians Make When Filing a Claim for Disability,” published by SEAK, Inc. (2005), discusses ten of the most significant mistakes to avoid. The excerpt below explains the importance of consulting with an attorney before filing a long-term disability claim:

MISTAKE NO. 1:  Failing to Consult With a Disability Insurance Lawyer

Physicians who are considering filing a claim for disability insurance benefits are advised to meet with an attorney experienced in the area before submitting a claim for payment.  Disability provisions vary greatly in the language used, and coverage is often circumscribed and restricted by qualifying words and phrases.  Accordingly, each insurance policy must be individually reviewed to determine whether a particular claim is covered and, if so, how that claim is best presented to ensure payment.

Action Step:  Physicians should make a coordinated effort with the assistance of an attorney when interpreting their policy, presenting their claim, and providing subsequent information to their carrier.

Insurers have laid plenty of traps throughout the claims process. They will use private investigators, video surveillance, social media platforms, and similar tactics to harvest information and set up your claim for denial or termination.  To learn more about these tactics and other mistakes to avoid, click here.

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The 10 Biggest Legal Mistakes Physicians Make
When Filing a Disability Claim (Mistake #2)

Any medical or dental professional considering filing a claim or weighing long-term disability insurance policy options should be familiar with two key policy terms: “total disability” and “occupation.”

Misinterpreting the definitions of “total disability” and “occupation” and/or falling prey to other common pitfalls can lead to having your claim denied or your benefits terminated.

Ed Comitz’s article “The 10 Biggest Legal Mistakes Physicians Make When Filing a Claim for Disability,” published by SEAK, Inc. (2005), details ten of the most significant mistakes to avoid. The excerpt below explains the importance of understanding these crucial definitions in your policy:

MISTAKE NO. 2:   Misunderstanding the Definitions of “Disability” and “Occupation”

Because there is no such thing as a “standard” disability insurance policy, the definitions of “disability” can significantly vary.  Most physicians purchase “own-occupation” policies, which provide compensation following a disability that prevents the insured from performing the particular duties of his or her occupation.  Thus, the insured may be entitled to benefits even if he or she could in fact perform work of a different nature.  The central issue in many cases is the definition of “total disability,” which could variously mean that the insured cannot perform “all” or “every” duty of his or her occupation, or the “substantial and material duties” of his or her occupation. 

Similarly, the term “occupation” may be specifically defined in the policy (e.g., “invasive cardiologist”) or may refer to the insured’s occupation immediately prior to the time that disability benefits are sought.  In the latter situation, if the physician reduces his or her hours in the months preceding claim filing, the insurer may consider his or her occupation to be part-time rather than full-time.  Similarly, the term “occupation” may be comprised not only of the duties of a physician’s specialty, but also of significant travel time, teaching engagements, or other areas in which the physician spends time or draws revenue.  For example, “occupation” may be defined as “internist/professor/business owner,” in which case the physician may not be “totally disabled” if he or she can still teach or perform management functions.

Action Step:  Physicians should read and fully understand their policy terms before filing a claim for benefits.

Even if you read how these terms are defined in your own policy, you may not realize the significance of the definitions if you do not have a full understanding of the claims process and/or you have never seen any other policies for comparison as a frame of reference. Being familiar with the several variations of “own occupation” policies being sold by insurers can help you determine whether you have a true own occupation policy.

To learn more about some of the tactics insurers use to deny claims and other mistakes to avoid, click here.

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The 10 Biggest Legal Mistakes Physicians Make
When Filing a Disability Claim (Mistake #3)

When you file a claim, at some point you will have phone calls with the insurance company regarding your claim. In fact, many companies are now conducting phone interviews when you first call in to request forms. Oftentimes these conversations will be recorded and incorporated into the insurance company’s claim file, but you likely will not receive a copy of the recording unless your claim is denied and you end up filing a lawsuit challenging the denial. And even if the conversation is not recorded, it likely that, following your call, the analyst will be making a note in the claim file summarizing what was said in the conversation.

Because of this, it’s important that you do the same, to ensure there is a complete and accurate record of your interactions with the insurance company. Keeping records of what was said in these phone calls and evading other common pitfalls can help protect your claim from denial and your benefits from termination.

Ed Comitz’s article “The 10 Biggest Legal Mistakes Physicians Make When Filing a Claim for Disability,” published by SEAK, Inc. (2005), details ten of the most significant mistakes to avoid. The excerpt below explains the importance of establishing a paper trail with your insurer:

MISTAKE NO. 3:  Inadequate Documentation

When submitting a claim and speaking with their carrier, it is important that physicians take notes to assist them in remembering what was said in the event that their claim is denied.  They should keep notes of all telephone conversations (including the date and time of the call, and what was said) and identify the person with whom they were speaking.  Every conversation with the carrier should be confirmed in a letter sent by certified mail so that there are no misunderstandings.  The “paper trail” may later be used as evidence to establish unreasonable treatment during the claim administration process.

Action Step:  Starting with their first telephone call to their insurer, physicians should document in detail their conversations and meetings, and confirm everything in writing, sent by certified mail.

While you may have jotted down the occasional note when speaking with your disability insurer, you should now have a greater appreciation for the importance of establishing a record of what your insurer says and how they treat you. Detailed notes of conversations with your insurer can help shield valid claims from wrongful denial and even help prove bad faith treatment.

To learn more about some of the tactics insurers use to deny claims and other mistakes to avoid, click here.

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The 10 Biggest Legal Mistakes Physicians Make
When Filing a Disability Claim (Mistake #4)

As part of your long-term disability insurance claim, your insurer may require you to attend an independent medical examination (IME), ostensibly to assess the validity of your filing. Many physicians, dentists, and other professionals (understandably) feel anxious and concerned about attending an IME set up by their insurer.

Ed Comitz’s article “The 10 Biggest Legal Mistakes Physicians Make When Filing a Claim for Disability,” published by SEAK, Inc. (2005), details ten of the most significant mistakes to avoid. The excerpt below notes policy language to watch for and covers several helpful steps to consider before, during, and after your IME:

MISTAKE NO. 4:  Blindly Attending an Independent Medical Exam

After submitting their claim, physicians may be asked to submit to an “independent” medical examination by someone chosen and paid for by their insurer.  They may also be asked to undergo exams by someone other than a physician.  Before submitting to an independent medical exam or any other exam or evaluation, physicians must first ensure that their carrier has a right to conduct the exam per the policy language.  For example, a neuropsychological exam is conducted over several days by a psychologist, not a physician, and insurers often use the subjective findings from such an exam to deny benefits.  If the policy requires submitting only to “medical exams” or exams “conducted by a physician,” there is certainly an argument that a physician need not submit to neuropsychological testing.  Further, physicians may wish to be accompanied by an attorney or other legal or medical representatives who can monitor the independent medical exam.  Other considerations include receiving the examiner’s curriculum vitae in advance; limiting the scope of the exam to ensure that no diagnostic test that is painful, protracted, or intrusive will be performed; having the exam videotaped or audiotaped; and receiving a copy of all notes and materials generated.

Action Step:  Because the “independent” medical exam is a tool used for denying benefits where possible, physicians should work with an attorney to ensure that their rights are protected during this process.

Reviewing your policy’s requirements and preparing to attend an independent medical examination can make the process less stressful and protect valid claims from wrongful denial.

An IME is often just one part of your insurer’s broader investigation of your claim. To learn more about other common pitfalls to avoid, click here.

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The 10 Biggest Legal Mistakes Physicians Make
When Filing a Disability Claim (Mistake #5)

Many disability policies now contain provisions that limit coverage for mental conditions. However, each policy also contains specific definition of the types of conditions that are limited and/or excluded, and these definitions can vary greatly from policy to policy.

Ed Comitz’s article “The 10 Biggest Legal Mistakes Physicians Make When Filing a Claim for Disability,” published by SEAK, Inc. (2005), details ten of the most significant mistakes to avoid. The excerpt below explains why you should read your policy carefully, to ensure that limitation provisions in your policy are correctly applied to your particular situation:

MISTAKE NO. 5:  Believing All Mental Conditions Are Excluded or Subject to Limitations

Most disability insurance contracts differentiate between mental and physical disabilities.  Most recent policies cut off benefits for psychiatric conditions after two or three years.  Insureds often blindly accept their carrier’s decision to deny or limit benefits based on these conditions without considering numerous relevant factors, including whether there are any physical aspects to the mental condition, whether the mental condition has a biological/organic cause, or whether another, covered condition was the legal cause of the disability.  Without exploring these issues in detail, insureds often blindly accept that certain conditions are limited or excluded from coverage when in fact they are not.

Action Step Physicians should understand their policy’s mental conditions limitation and work with counsel on submitting their claim in such a manner as to ensure payment of benefits.

If you have submitted, or are considering submitting a disability claim, based on a mental illness, be sure to carefully review your policy’s language and do not simply assume that all mental conditions are excluded. And if your insurance company relies on one of these limitation provisions to deny your claim or limit your benefit period, you should consult with a disability insurance attorney and assess whether the insurance company’s decision is proper under the terms of your policy.

To learn more about the tactics insurers use to deny claims and other mistakes to avoid, click here.

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The 10 Biggest Legal Mistakes Physicians Make
When Filing a Disability Claim (Mistake #6)

[Excerpt from disability insurance attorney Edward O. Comitz’s article, The 10 Biggest Legal Mistakes Physicians Make When Filing a Claim for Disability, SEAK, Inc. (2005)]

MISTAKE NO. 6:  Engaging in Inadequate Communication with Treating Physician

Physicians should not discuss their claim or that they are considering filing for disability insurance benefit with their treatment provider until after they have had several visits.  Physicians are often reluctant to support claims for benefits if they question the motivations behind the claims.  A physician who has treated, without success, the physician making the claim will likely be more willing to cooperate.  It is also important that the physician making the claim communicate his or her symptoms and limitations to the treating physician in an organized and detailed manner so that all relevant information is recorded in the medical records, which the insurer will ultimately request.  When finally speaking to the treating physician about the claim, the physician should ensure that the treating physician understands the definition of “disability” under the insurance policy, so that he or she can accurately opine as to the inability of the physicians making the claim to work.

Action Step:  Physicians should fully discuss their condition with their treating physician to ensure supportive medical records and, after several appointments, work with him or her on submitting the claim for “disability” as defined in the policy.