Our previous posts in this serious have examined what a neuropsychological evaluation is and how these exams are conducted. In this post we’ll be talking about some of the limitations associated with these types of exams.
How Reliable Are Neuropsychological Evaluations?
As we explained in previous posts, neuropsychological evaluations seek to provide information about the brain and behavior through the use of established, standardized tests that produce quantitative data. This data can then be used to confirm and back up a subject’s reports of cognitive impairment.
These evaluations can serve several purposes, such as corroborating the cognitive effects of a disability, or outlining a subject’s limitations in his or her daily life (including the inability to return to one’s own occupation). For example, an evaluation might show that a dentist with a head injury has impaired motor skills and visuospatial processing abilities that make it unsafe for the dentist to continue treating patients. In this sense, an evaluation can provide data that can lend further support to a disability claim, but wouldn’t necessarily show up on an MRI or the results from other types of medical testing.
However, while these evaluations can be useful, they also have certain limitations that are important to consider. As with Functional Capacity Evaluations (FCEs) the examination is truly just a snapshot—the data is based on your functioning on a specific day, for a limited amount of time, in a quiet and controlled testing room.
Generally, findings indicate that performance on tests of motor function, speed of cognitive processing, cognitive flexibility, complex attention, and memory are related positively to real-word success. However, some argue that these exams do not adequately take into account the fact that, in the real world, several executive functions (such as recognizing a task must be completed, starting a task, switching tasks, making needed changes, finishing a task, etc.) can occur simultaneously. Further, the administered test may not indicate whether a subject was mentally exhausted after the test, and thus may not provide any insight into whether the subject is able to sustain the same demonstrated level of executive functioning day in and day out.
While the administered tests are designed to be objective and produce results that can be extrapolated across populations, this is not always possible. While a subject’s results should be compared with both population-based norms as well as specific patient populations for strengths and weaknesses, there can be gaps in normative data for certain age, educational, and intellectual ranges. This can be especially true for minority populations. Along these same lines, an evaluator may not take into account norms specific to doctors, or a doctor’s need for higher performance on certain tests (e.g. those for sensory-perceptual functions), when assessing whether a return to work is possible.
Excessive fatigue, medications, lack of motivation (sometimes due to depression), emotional distress, severe psychiatric conditions, serious medical complications, and illicit substances can also all impact the reliability of an evaluation.
Additionally, as we’ve discussed before in the context of Independent Medical Examinations (IMEs), a neuropsychological examiner selected by an insurance company may be presented as independent, but may not truly be so. An examiner selected and paid for by an insurer may be more likely to report that a subject is “malingering,” trying to influence a test’s outcome, or not putting forth a true effort.
In our next post, we will further explain why an insurer might require a neuropsychological evaluation, and how these exams can impact a disability claim.
 Atif B. Malike, MD; Chief Editor, et al., Neuropsychological Evaluation, Medscape, http://emedicine.medscape.com/article/317596-overview, updated May 18, 2017.
 Id. (citing Decker SL, Schneider WJ, Hale JB, Estimating Rates of Impairment in Neuropsychological Test Batters: A Comparison of Quantitative Models, Arch. Clin. Neuropsychol. 2011 Dec 15 [Medline].
Atif B. Malike, MD; Chief Editor, et al., Neuropsychological Evaluation, Medscape, http://emedicine.medscape.com/article/317596-overview, updated May 18, 2017.
Neuropsychological Evaluation FAQ, University of North Carolina School of Medicine Department of Neurology, https://www.med.unc.edu/neurology/divisions/movement-disorders/npsycheval
Kathryn Wilder Schaaf, PhD, et al, Frequently Asked Questions About Neuropsychological Evaluation, Virginia Commonwealth University Department of Physical Medicine and Rehabilitation, https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=0ahUKEwir3pKk__fUAhUBEmMKHenkDzsQFggoMAA&url=http%3A%2F%2Fwww.tbinrc.com%2FWebsites%2Ftbinrcnew%2Fimages%2FNeuropsych_FAQ.pdf&usg=AFQjCNG0Mv3o17ZrNmXuDN5ITUIh4fWYtA&cad=rja
Disability insurance companies are constantly searching for new ways to expand the power and control they have over their policyholders through the use of restrictive policy provisions. In previous posts we’ve discussed how disability insurers are expanding their control over their policyholders’ medical treatment by implementing more stringent care provisions. However, care provisions are not the only avenue for disability insurers to exert a greater degree of influence in the claims process. Over the years, insurers have also expanded the scope of their authority under examination provisions.
The most basic examination provisions simply notify the policyholder that he or she may be examined by the insurer’s doctor or interviewed by a representative of the insurer, like this policy from Northwestern Mutual:
- Medical Examination. The Company may have the Insured examined by a health care practitioner.
- Personal Interview. The Company may conduct a personal interview of the Insured.
- Financial Examination. The Company may have the financial records of the Insured or the Owner examined.
Taken alone, this does not seem to onerous. However, you need to watch out for additional requirements buried at the end of the provision:
Any examination or interview will be performed:
- At the Company’s expense;
- By a health care practitioner, interviewer or financial examiner of the Company’s choice; and
- As often as is reasonably necessary in connection with a claim.
The final sentence of this provision leaves the open the possibility of multiple interviews throughout the claim, and may be overlooked by a claimant who does not carefully review his or her policy.
Other provisions, like this medical examination provision from a Standard Insurance Company individual disability insurance policy, expressly condition the payment of benefits on your cooperation with the exam:
MEDICAL EXAM – We can have Physicians or vocational specialists examine You, at Our expense, as often as reasonably necessary while You claim to be Disabled. Any such examination will be conducted by one or more Physicians or vocational specialists We choose. We may defer or suspend payment of benefits if you fail to attend an examination or fail to cooperate with the person conducting the examination. Benefits may be resumed, provided that the required examination occurs within a reasonable time and benefits are otherwise payable.
In newer policies the language used by the disability insurance companies has become ever more burdensome. For instance, some modern provisions for examinations and interviews create far more specific duties for the policyholder and condition the payment of benefits on the claimant’s satisfaction of these duties. Take this Guardian policy, for example, which outlines the policyholder’s duties and obligations to comply with examinations and interviews in very specific language:
We have the right to have You examined at Our expense and as often as We may reasonably require to determine Your eligibility for benefits under the Policy as part of Proof of Loss. We reserve the right to select the examiner. The examiner will be a specialist appropriate to the assessment of Your claim.
The examinations may include but are not limited to medical examinations, functional capacity examinations, psychiatric examinations, vocational evaluations, rehabilitation evaluations, and occupational analyses. Such examinations may include any related tests that are reasonably necessary to the performance of the examination. We will pay for the examination. We may deny or suspend benefits under the Policy if You fail to attend an examination or fail to cooperate with the examiner.
You must meet with Our representative for a personal interview or review of records at such time and place, and as frequently as We reasonably require. Upon Our request, You must provide appropriate documentation.
Examination provisions containing language this specific and this restrictive significantly limit your rights. The most significant change in the evolution of the examination provision is the number of obligations upon which your benefits are conditioned. This policy language allows disability insurers to use your benefits as leverage to compel your compliance with medical exams, interviews, and a litany of other examinations.
Review your disability insurance policy, and particularly your examination provisions in the “Claims” section, to determine what your rights, duties, and obligations are under your policy. Unfortunately, if your policy requires to participate in examinations, a refusal will likely lead to a denial of benefits. However, you do not have to attend alone. No matter how restrictive the language in your disability insurance policy, you always have the right to have an attorney present for any examination or interview. If you have any questions about your duties or obligations under your policy, contact an experienced disability insurance attorney.
In this series, we’re taking a look at some of the most popular disability insurance companies for doctors. See our profiles of MassMutual and MetLife. Northwestern Mutual is another disability insurer that specifically markets its policies to physicians and dentists.
In 2014, the company insured 476,000 people through 727,000 individual disability policies. Northwestern Mutual prides itself on paying more dividends that its competitors. In order to do that, of course, it must maintain consistently high profit levels.
Company: Northwestern Mutual Life Insurance Company.
Location: Milwaukee, Wisconsin.
Associated Entities: Northwestern Long Term Care Insurance Co., Northwestern Mutual Investment Services, LLC, Northwestern Mutual Wealth Management Co., The Frank Russell Co.
Assets: $217.1 billion in 2014.
Notable Policy Features: Northwestern Mutual sells policies with an “own occupation” definition of total disability. However, these policies are often only truly “own occupation” for a limited amount of time, after which they become any occupation policies (only providing benefits if you are unable to work in any job) or “no work” own occupation policies (only providing benefits if you are unable to perform your job duties and are not working in another job).
For instance, a Northwestern Mutual policy might include the following definition:
Total Disability. Until the end of the Initial Period [defined elsewhere as 60 months of benefits], the Insured is totally disabled when is unable to perform the principal duties of his occupation. After the Initial Period [i.e., 60 months], the Insured is totally disabled when he is unable to perform the principal duties of his occupation and is not gainfully employed in any occupation.
In order to make sure a Northwestern Mutual disability insurance policy keeps the own occupation definition for as long as you hold the policy, you may need to purchase an additional benefit rider.
Read more about Northwestern Mutual’s interpretation of its own occupation policies.
Claims Management Approach: Some of the claims strategies that Northwestern Mutual is known to use include conducting in-home field interviews on top of third-party surveillance, hiring its own medical consultants to review claimants’ records and opine on whether or not they are disabled, and demanding that claimants (especially those with mental conditions) undergo “independent” medical examinations (IMEs) with providers of Northwestern Mutual’s choosing.
These profiles are based on our opinions and experience. Additional source(s): Northwestern Mutual’s 2013 Annual Report; Northwestern Mutual Fact Sheet 2014; Forbes.com.
Over the last ten years, there has been an increasing movement away from paper records and toward Electronic Medical Records (EMR). This move has been accelerated by the federal government’s mandate that doctors who treat Medicare and Medicaid patients must have adopted and implemented EMR systems as of January 1, 2014.
There are many benefits to using EMR. They can facilitate patient care between referring doctors, improve data tracking over time, increase efficiency and reduce errors. However, EMR systems have drawbacks when they are used for purposes never intended, such as to document a disability claim.
Many EMR systems allow the doctor to input his findings for every major system in the human body, such as the cardiovascular, musculoskeletal, gastrointestinal, neurological and psychiatric systems. However, if the doctor does not put in something regarding one of the symptoms, the default setting on the EMR will report the system as being “within normal limits” or that the patient has “no complaints.” The concern with this from a disability perspective occurs when a patient sees his doctor for a condition unrelated to his disability.
For example, a patient with a history of degenerative disc disease could visit his doctor for an unrelated infection or illness. Since the doctor is conducting only a limited examination for purposes of treating the presenting illness, he may not input any information related to the patient’s disabling condition. The EMR will then generate an inaccurate record stating that the patient’s musculoskeletal system and neurological system are within normal limits.
Disability insurance carriers can then use these default settings to their own advantage to raise questions about the severity of the claimed disability, justify an independent medical examination or functional capacity evaluation, or support a claim termination. For patients who are receiving disability benefits, it is therefore important to know what their medical records look like and to effectively communicate with their physicians to ensure that their conditions and symptoms are accurately recorded on each visit.
After filing a disability insurance claim, your insurance company may ask you to undergo a Functional Capacity Evaluation, or FCE. The insurer tells you where and when to show up, but you likely have little idea what to expect when you arrive. What is an FCE, what is its purpose, and how will it affect your claim?
What Is an FCE?
FCEs are formal examinations performed by occupational therapists (OTs) or physical therapists (PTs), not physicians. The purpose of the FCE, according to your insurer, is to evaluate your ability to perform the substantial and material duties of your occupation.
What Can You Expect at the FCE?
FCEs usually last between four to six hours, but depending on the tests your insurer has requested, they could be longer, taking place over two consecutive days.
This post is the last in our series on tips for undergoing disability insurance Independent Medical Examinations (“IME”). Today’s topic is a step to take after the examination is over:
Get a copy. After the exam, contact your insurer to ask for a copy of the IME report. Most IME doctors have a copy of their report to the insurer within two weeks. Your insurer may send a copy of the IME report to your own treating physician and ask for his or her comments on the exam. In that case, the company will require you to request the IME report directly from your own physician.
When you get the report, review it and compare it against your notes and/or recollection. If anything needs to be clarified, discuss it with your insurer or attorney. If you received the copy of the IME report from your own physician, talk about it with him or her. An inaccurate or misleading IME report can be dangerous to your claim, so it’s important to address any inconsistencies as best you can.
For more information on dealing with an IME, see our prior posts:
We have talked about involving an attorney in the IME process, understanding what the insurance policy requires, completing intake forms, making lists, and taking notes. Today in our series about tips for Independent Medical Examinations:
Bring a friend. Taking notes is great, but having a witness present is best. That way, you can focus on participating in the examination, and your witness can focus on observing and taking notes. Moral support is an added benefit.
A friend, spouse or partner can be a good witness, especially if he or she is a medical professional. If you have an attorney, he or she may also attend with you or send a representative from the law office.
Take note, however, that some insurance companies specifically state that witness are not allowed at IMEs. Normally, this alleged requirement is stated in the letter the insurer sends you to confirm the examination. If you have a disability insurance attorney involved, the attorney can review the letter, the policy and the law and determine whether or not a witness is allowed to attend.
In our series of suggestions for handling an Independent Medical Examination (“IME”), we have already discussed getting an attorney involved, knowing the policy requirements, and completing the intake forms. Here are today’s tips:
Make lists and bring them to the IME doctor. Don’t be afraid to bring information with you to help answer questions from the IME doctor. Some examples are a timeline of your symptoms—i.e., when they started, when they got worse, etc.—or a list of all your medications so you don’t accidentally forget one. If you have photos or videos showing certain injuries or symptom flare-ups, consider bringing those along as well.
Take notes. This will make sure that your recollection of the IME is recorded along with the doctor’s recollection. Your notetaking should start when you arrive at the IME provider’s office, as your time in the waiting room is often part of the final IME report.
For instance, IME doctors will often report something like, “The patient sat for half an hour before my exam completing the paperwork without any apparent discomfort.” If you take notes before the IME to memorialize how long you sat in the waiting room, if anyone was watching you fill out the paperwork, if you had to stand to stretch, etc., you will be able to show the insurance company whether the doctor’s statement is accurate.
If possible, take notes during the IME as well, so that you can remember exactly what testing was performed and what types of questions were asked.
When you leave the IME, take a few minutes to immediately jot down your impressions and any issues you think you need to follow up on with your insurer or attorney.
Up next in our series of tips for disability insurance policyholders being asked to undergo an Independent Medical Examination (“IME”):
Complete intake forms in advance. When you go to the IME, the doctor will most likely ask you to complete intake forms, including questionnaires outlining all of your symptoms and medical history. If you are stressed or hurried, you may forget to include something that could support your claim. But if you have the forms in advance, you can answer each question carefully and accurately without leaving anything out. Consider asking (or having your lawyer ask) if you can have the forms beforehand to save time once you arrive.
In this series, we are outlining some tips for claimants facing an Independent Medical Examination (“IME”). Yesterday, we wrote about getting an attorney involved. Today, we’ll explain another important step:
Make sure the exam is required by the policy. This is another step where it is beneficial to have an attorney involved to review your policy. Most disability insurance policies do have a provision that allows the company to have you submit to an Independent Medical Examination or Physical Examination. However, sometimes those provisions aren’t totally clear on exactly what types of examinations are allowed.
For instance, here is a typical policy provision that your insurer might cite to tell you that you have to undergo an IME:
At our expense, we can have a physician of our choice examine you as often as reasonably required while your claim is continuous.
This provision states that the examination should be conducted by a “physician.” Do you have to submit to a Functional Capacity Evaluation with a physical therapist? The provision also states the examination should be “reasonably required.” Has that qualification been met?
Here is another typical provision:
We shall have the right to have you medically examined at our expense when and as often as we may reasonably require while you claim to be disabled under this policy.
This provision says that you have the right to be “medically examined.” Does that mean you can only be examined by a medical doctor? Do you have to undergo a neuropsychological evaluation with a Ph.D.? Again, has the qualification that the examination be “reasonably required” been met?
These are the kinds of questions you may want to get answered before you agree to the exam.
In the next post, we’ll talk about the IME intake forms.
As we have discussed before, disability insurance claimants are often asked to submit to “independent” medical examinations (“IME”) with a doctor chosen by the insurance company.
IMEs are a source of anxiety for many insureds, especially because they are often a first step towards termination of a claim. Fortunately, there are some steps you can take to help ensure that you are treated fairly.
Over the next few days, we will outline some general tips on dealing with IMEs. Keep in mind that these tips are no substitute for the advice of a disability insurance lawyer who knows the specifics of your situation. Hence, today’s tip:
Get your attorney involved. If you don’t have a lawyer to help you with your claim, now is a good time to seek some advice. Oftentimes, insurance companies use IMEs to try to show that you aren’t entitled to disability benefits anymore. A lawyer can help protect your rights during the IME process by, among other things, finding out what the policy requires (and doesn’t require) and discussing those requirements with your insurer. If you aren’t sure how to find the right lawyer, consider our Questions to Ask When Choosing a Disability Insurance Attorney.
May is Disability Insurance Awareness Month — A Good Time To Ask Yourself If You Can Collect on Your Disability Insurance Policy
May is Disability Insurance Awareness Month. While the insurance industry likes to increase awareness of purchasing disability insurance, medical professionals who long ago purchased disability insurance and have been paying premiums on disability policies for many years may opt to instead raise their awareness of the obstacles they are likely to encounter should they ever need to make a claim on their disability insurance policy. The article below by disability insurance attorney Edward O. Comitz provides some food for thought.
DISABILITY INSURANCE: CAN YOU COLLECT UNDER YOUR POLICY?
By: Edward O. Comitz, Esq.
You have practiced medicine for your entire career. Your spouse and children rely on you, and you have numerous financial obligations. The stress and trauma of a disability can cause you significant problems. To protect yourself in case of total or partial disability, you have purchased disability insurance.
Unfortunately, you suffer an injury or become so ill that you cannot continue your practice, and you then file a claim with your insurance agent. Of course, you expect it to be honored. Instead, shortly thereafter, you are contacted by an insurance adjuster, not your agent. Unlike your agent, the insurance adjuster is hostile; the questions he asks imply that you are malingering. You try to be cooperative, providing the insurance adjuster with the additional information he requests, but again your claim is denied. Adding insult to injury, you learn from the adjuster that the insurance company has secretly videotaped your activities and, based on the tapes, believes that you are not disabled at all. Dumbfounded by the insurance company’s response, you ask yourself if there is anything that you can do to make the insurance company pay the benefits it promised. The answer is yes.
Typically, the type of policy that medical and dental professionals purchase is what is known as an “own occupation policy.” Such policies provide compensation following a disability that prevents the insured (the person who purchased the policy) from performing the particular duties of his or her profession. Thus, the insured may be entitled to benefits even if he or she could in fact perform work of a different nature. For example, if a surgeon purchases an “own occupation policy” and severely injures his hand, but could nevertheless perform some or all of the duties of a general practitioner, the surgeon is considered disabled under an “own occupation policy” and entitled to benefits.
Disability provisions greatly vary in the language used, and coverage is often circumscribed and restricted by qualifying words and phrases. Accordingly, each policy of insurance must be individually reviewed to determine whether a particular claim is covered. What may appear to be an “own occupation policy” could in fact be an “occupational policy” if “total disability” is defined to include the insured’s inability to perform “all” duties or “every” duty pertaining to the insured’s occupation. In such a case, the insured may not be entitled to benefits if he or she can perform comparable employment for which the person is suited by education, experience and physical condition. Continue reading “May is Disability Insurance Awareness Month — A Good Time To Ask Yourself If You Can Collect on Your Disability Insurance Policy”
On September 28, 2010, the United States Senate Finance Committee held a full committee hearing titled, “Do Private Long-Term Disability Policies Provide the Protection They Promise?” At the hearing, the Finance Committee and expert witnesses discussed the sometimes abusive practices of insurance companies when handling legitimate long-term disability claims.
Senate Finance Committee Chairman Max Baucus, D-Mont., said LTD insurers use doctors with conflicts of interest to review claims. “Many of these doctors are employed either by the insurance company or by companies that do a lot of business with the insurance company,” Baucus said. “These arrangements make it far too easy for the doctors to deny claims, terminate claims, or reject appeals.”
It’s time for long-term disability insurance companies to clean up their act and treat people fairly. They have acted with impropriety for too long. We need to evaluate the laws that we have on the books and make sure that they are true to their original purpose – to protect people from abuse, and to guarantee that they can get the insurance funds to which they are entitled. Hard-working Americans with long-term disability insurance should not have to deal with corporate abuses if they suffer an injury that keeps them out of work. They are entitled to insurance payments. They should not face roadblock after roadblock to see that money, nor should they face unfair rescissions or payment terminations.
Baucus convened the hearing in response to recent media reports of unfair claim denials and terminations that threaten the livelihoods of those beneficiaries who are unable to work. Both Baucus and the expert witnesses cited instances of long procedural delays and the use of in-house doctors to avoid making claim payments.
Ronald Leebove, a rehabilitation counselor who appeared for the American Board of Forensic Counselors, Springfield, Mo., said private group long-term disability policies fail to provide the protection insurers promise. “There are many tricks and tactics used by the insurance companies to deny claims,” Leebove said.
Baucus stated his desire to work in conjunction with the Senate Commitee on Health, Education, Labor and Pensions to move toward a solution that gives beneficiaries the fair process and justice they deserve.
Video of the hearing and transcripts of testimony are available at: http://finance.senate.gov/hearings/hearing/?id=1c1bd578-5056-a032-5237-4dd9283e52ed
The Senate Finance Committee recently met to discuss laws surrounding private disability insurance. Members of the Committee expressed concern over current federal law, which gives private disability insurers substantial flexibility to engage in questionable practices. The Committee Chairman, for example, commented about the conflict of interests that hired physicians face when an performing “independent” medical examination (IME) on claimants:
Many of these doctors are employed either by the insurance company or by companies that do a lot of business with the insurance company. These arrangements make it far too easy for the doctors to deny claims, terminate claims, or reject appeals.
Committee members were also concerned about discretionary clauses that private disability insurance companies include in their disability insurance plans. These clauses give the disability insurance company discretion to review disability benefits determinations. They also enable disability insurance companies to avoid certain challenges to disability benefits decisions.
Disability insurance companies have financial incentive to deny disability insurance claims. As the discussion from the Committee meeting demonstrates, current holes in the law may actually provide insurance companies with means to engage in unfair practices for their benefit. Before filing a disability benefits claim, consider consulting with an attorney first. It is important to know your rights and to have an experienced professional guide you through this process.
To read more about the Senate Finance Committee Meeting, click here.