If your disability is for chronic pain, regardless of the reason for the pain, be prepared for your claim to be challenged. It won’t matter if this is regarding a group policy, where long term disability insurance is through your employer, or a private policy, where you purchased the policy yourself. You can expect your claim to be flagged as one requiring close scrutiny.
The reason is simple: with some exceptions, chronic pain rarely shows up on an x-ray, MRI, CAT or PET scan or in laboratory results. It cannot be measured. The insurance company’s position will often be that if the underlying condition or symptoms cannot be confirmed through objective clinical testing, no matter how severe the symptoms are, the pain is primarily subjective and therefore it does not rise to the level of a disability.
This does not mean chronic pain is not disabling, but instead that a chronic pain claim requires a different kind of documentation. The issue is also not whether the claimant is experiencing pain, but how the pain affects their ability to perform the material and substantial duties of their occupation and, depending upon the policy, whether it prevents the claimant from performing the duties of another occupation.
Credibility is critical for a chronic pain claim. Ongoing treatment and diligent, detailed record keeping of the impact the pain has on the claimant’s life is more important for a chronic pain claim than for one that can be seen on an MRI or in bloodwork.
Newfield Law Group has many years of experience helping claimants fight back when chronic pain claims are questioned, denied or terminated. Our recommendation for someone seeking disability benefits for a chronic pain condition is that they consult with us before filing a claim, allowing us to leverage decades of experience with these claims.
Why Do I Need Guidance Before Filing a Chronic Pain Disability Claim?
When we are retained to represent someone before they file a claim, we are able to strategically prepare their medical support to have the necessary documentation to provide as much objective information as possible to document impairment.
This begins with a doctor’s report where the notes are not just about the level of pain but about the inability of the claimant to perform the specific tasks and duties of their occupation because of the pain. A statement that the patient is experiencing “severe pain” may be true, but it does not explain why the pain prevents the person from working in their occupation.
A stronger record connects symptoms to functional limitations. Can they sit for an extended period of time? Can they stand, walk, bend or lift? The ability to concentrate over an extended period of time, reviewing complex documents without making errors and most importantly, can they sustain concentration for a full workday, five days a week, or, as most of us do these days, 24/7?
We are also highly experienced with the types of tests and functional assessments used to measure issues created by chronic pain. The appropriate testing depends upon the medical condition, the occupation and the terms of the long term disability policy. The objective is two-fold – to document proof of the disability and ensure the medical record accurately documents the limitations caused by the pain.
For an employer-sponsored LTD claim, covered by ERISA, the claims process has specific procedural requirements. Disability claims must be handled through claims procedures and a denied claimant must receive a letter explaining the reason for the denial and how the appeals process works. However, in our decades of experience, we know the reason for the denial may be inaccurate or vague and the appeals process is complex and has strict limitations.
If the appeal is handled by an inexperienced person in this process, especially when that person is disabled enough so they can’t work, the likelihood of success is low. Once a claim has been submitted, the record developed during the claim and appeal process is critical, as it will be the only information reviewed by a federal court if litigation is necessary. Litigation in disability insurance is not easily won.
What is the Disability Insurance Company Looking for in a Chronic Pain Claim?
Medical records are just the starting point when creating a substantive claim file for a chronic pain disability. They must be supported with a wealth of information providing the insurance representative with a clear picture of both the disability and the impact it has had on a claimant’s life.
Personal statements from employers, family members, colleagues and friends can further a claim, as long as they are written to create a picture of the person before and after their disability. They need to be clearly written, convey the intensity of the pain, and provide details on specific things the pain prevents.
For instance, an employer’s statement needs to outline the responsibilities of the person’s occupation and how they stopped being able to do things like attend meetings, stay focused on complicated documents and be able to correctly analyze large amounts of information in a quick period of time.
Why an Occupational Evaluation Matters in a Chronic Pain Claim
A chronic pain claim requires a formal occupational evaluation in addition to an employer’s statement. This is an invaluable part of a claim.
Many insurance companies rely on outdated labor documents that assign incorrect abilities to jobs. An occupational evaluation for an anesthesiologist who works as an employee at a major hospital center is going to have a very different skill set than described in a document from as recent as ten years ago. The level of concentration may be similar, but knowledge of the technology used in maintaining a patient’s lung and heart functions today will be more complex. Their reporting requirements, use of information systems like EPIC and other administrative tools will be more sophisticated.
This problem is repeated in many professions. An outdated occupation description and failing to take into account the differences between jobs in different locations or for different employers can skew the required job performance necessary.
Why The Claimant’s Daily Routine Needs to be Documented
A daily symptom journal provides useful information about how chronic pain affects a claimant over time. It should include pain levels, triggers causing increased symptoms or incapacity, the duration of symptoms, the effect on daily activities and the impact on the ability to sleep.
Start by noting what an average day looks like, followed by what a bad day looks like. How often do bad days occur? Document how long you are able to sit, stand, work at a computer, using a traditional chair or standing desk, before having to stop. because of the pain.
A daily journal with details may be helpful in establishing patterns that may not be evident from office visits or doctors’ notes.
Most important: it’s natural for people to want to show they are capable. In this case, being honest about the pain and the limitations it creates is the way to go. People who live with chronic pain usually have good days and bad days. They may push themselves and then find they lose entire days or weeks to recover. The goal with a symptom journal is to create an accurate, contemporaneous record of how their condition reflects the claimant’s life.
Proof of Ongoing Regular Care and Compliance for a Chronic Pain Disability
Consistent medical care is an important part of any disability claim, but especially so for one considered a subjective condition. Claimants need to go to all doctors’ appointments, participate in therapy or any medically prescribed treatments. If medications make the claimant unable to focus or follow directions, they need to tell their doctor.
Gaps in treatment will become issues as the insurance company will question the severity of a condition if medical records show little or no ongoing appointments or treatments.
If medication needs to be discontinued, doctors changed or procedures declined, the claimant needs to document these events to maintain consistency.
Building a Strong Record Before the Claim is Filed
A chronic pain disability claim is often more difficult to document than a claim involving a condition that can be readily demonstrated through imaging or laboratory testing. That does not make the claim less legitimate. It means that the evidence must often demonstrate disability through multiple sources.
Medical records, functional assessments, occupational information, employer statements, personal observations and a consistent history of treatment can all contribute to a complete record.
The most important point is to understand the requirements of the specific disability policy before filing. The definition of disability, elimination period, limitations and exclusions, and claims and appeals procedures can differ significantly from one policy to another.
Someone considering a long term disability claim based on chronic pain should consider obtaining legal advice before submitting the claim. Once the claim is filed, the evidence and statements submitted as part of the process can become important components of the disability record.
A carefully prepared claim does not guarantee approval. But it can help ensure that the insurance company has an accurate and well-supported record of the medical condition, the claimant’s functional limitations and the actual demands of the occupation.
