Those of you who read this Blog on a regular basis know I’m not too kind to attorneys. Part of my bias stems from their abuse of me during my whistleblower days, but mostly because they accept disability cases when they have absolutely no idea what they are doing.
I don’t think I’d be wrong in saying that disability and ERISA law are specialized areas of practice, very different from personal injury law, although some attorneys seem to think they are the same thing. Despite the fact that there are few attorneys “in the know” about disability wrong-doing, claimants keep telling me horror stories about what random call attorneys are telling them.
This week I received a call from a claimant who had spoken to an attorney because he received an Authorization request from Lucens. (Yep, the same old Lucens I’ve been talking about!) The attorney said, “You better send in anything they want because I guarantee if you don’t they will deny your claim because you didn’t cooperate.” Then, the attorney added, “When they deny your claim, come back and see me.” OK, now I get it.
By the time this claimant got to me he was scared out of his wits. I just received an email from another claimant asking if she needed to get an attorney because she also received a letter from Lucents. (Of course, you don’t!)
All polices have “proof of claim provisions” and not one of them says claimants are required to provide SSDI files. For that matter, very few ERISA Plans require the submission of tax returns either, and yet attorneys will fight tooth and nail to NOT produce tax returns. So what’s the problem with field visits and production of SSDI files? Attorneys can’t be that stupid…….or, can they?
A well-known attorney in Florida tried to “nice-guy” an IME physician to decide in his client’s favor. He also withheld Florida legistlation that allowed the attendance of an attorney or video during the IME. I don’t know how this one turned out, but I suspect it wasn’t good. He also allowed Mass Mutal to take a sworn statement from his client. Oh boy.
Another well-known attorney in Boston charges $600/hr. just to manage claims, and only takes on cases for the more, let’s say, wealthy IDI clients. Is managing claims really worth $600/hr.? What happens to the poor ERISA folks with denied claims who aren’t able to convince an attorney to take their cases?
If you are an attorney who reads my Blog on a regular basis, and you know what you’re doing, relax. I’m not talking about you. I keep a short list of attorneys nationwide I have dealt with and trust, and chances are you are on that list.
The truth is, SSDI is a federal entitlement, not disability insurance. Insureds also have protections under HIPAA allowing them to declare their heath information as Protected Health information (“PHI”). Some of those rights to disclosure are given up when filing for disability insurance, but claimants are not required to produce SSDI files.
The concept of policy “cooperation” does NOT include requests that require insureds to “give up” what rights they have under Plans or policies, nor does it include “cooperation” that is not in claimants’ best interests, or perceived as negatively adverse to the claims. If there are no provisions requiring claimants to disclose SSDI files then insurers cannot deny claims in retaliation if claimants refuse. Insurers cannot enforce what is not written. They might misrepresent and misinterpret what IS written, but they can’t enforce what isn’t there.
Still, there are attorneys who literally scare the crap out of claimants by telling them they must comply with every out-of-contract request if they don’t want their claims denied. That’s not the truth, and that’s not how it works.
In my opinion, more attorneys should protect the interests of clients rather than that of the insurance companies by supporting and enforcing Plans and policy language.
Finally, in my mind it’s not ethical for attorneys to take disability or ERISA cases when they haven’t a clue how to manage them. Informing probable clients they have to cooperate with insurance companies or lose benefits is just plain wrong.
