Well, I haven’t had to write a negative article about a practicing disability attorney in a long time. I actually had high hopes that attorneys were becoming more in-tune with the disability claims process and were making much better recommendations. Unfortunately, that’s not the case.
Consider a situation where the insured is a doctor with a specialty that involves, not only surgery, but often discussing alternatives with couples. The insured files for disability and correctly includes on the forms that his Consultations represented approximately say 40% of his time. (material duty) The individual is then recommended by a friend to seek out a NY attorney to look over this forms.
The NY attorney says something like this as reported to me by the insured, “Oh no, you can’t put down that you can do your Consultations 40% of the time. The insurance Company will allege you can work part-time by just doing that, and they will never approve total disability.” The insured changes the percentage of time doing Consulting from 40% to 5% upon the attorney’s recommendation. He is assumed to also have been told that his doctor will never approve a total disability listing 40% of time spent in Consultations.
And that really pisses me off. (Sorry, but the situation actually earns the language.) Apparently, it might come as a surprise to both the insured AND the attorney that information placed on insurance forms is supposed to be THE TRUTH. In addition, I don’t care how many cases an attorney litigated, or where he’s located, he cannot surmise or “guess” what the outcome to any claim review will be. Each claim represents a unique set of circumstances and not like any other. In addition, no attorney should ever recommended giving information about a claim (occupation in this case) that is not accurate.
Attorneys who think they know what they are doing when they do not, are always subject to scrutiny. Attorneys are not gods, and often persuade clients to do things that will add to their coffers quickly.
To begin, any job task or duty performed 20% or less is NOT considered a material duty at all. The higher percentage of time a job is performed supports totally disability more, not less. Physicians consider the “whole body” disability, and are more inclined to support “total disability” than this attorney obviously thinks.
Since when, for an IDI policy, can the insurer arbitrarily decide on its own that an insured can work part-time and deny the claim? There would have to be IME evidence and buy-in of the primary physician. I’ve never even heard of this happening.
ERISA, employer Plans can contain a provision that says if a claimant is medically documented to have part-time capacity, but doesn’t work, the claim can be denied. IDI denials are more complicated than that and require higher standards of review and proof to deny.
Then, there’s the issue of this NY attorney making allegations “he knows what the insurance company is going to do.” He can make a “best guess” I suppose, but I’ve always found it is not a good idea to predict insurance decisions because you will be wrong most of the time. An attorney is no more able to “second guess” an insurance company’s decision than a river hog.
If in fact, this insured actually put 5% on his paperwork for Consultations, then both he and the attorney will have committed insurance fraud. For the record, this Consultant supports the truth, and believes THE TRUTH works. And lastly, attorneys who try to make insureds believe they know everything are losers, of course, in my opinion. This kind of thing still sticks in my crawl!
