Of all disability insurance denial tactics, especially egregious is when the insurance company denies a legitimate LTD claim based on false allegations of feigning disability.
Also known as malingering, insurers may claim that a medical professional is being dishonest about their disability for the purpose of collecting disability insurance payments.
Claims of feigning disability imply the doctor or dentist intentionally created false or grossly exaggerated symptoms or impairment to obtain long term disability income. These allegations might include:
- Faking inability to perform tasks
- Giving substandard effort during evaluations
- Exaggerated pain behavior
- Overstating symptoms
- Symptoms do not match up with the objective evidence (hence you must be embellishing the pain or other symptoms)
Tacked on to these allegations may be underlying “motivations” such as
- financial gain
- avoid on-the-job pressure / long hours / medical practice burnout
- the practice is in financial trouble
- access to prescription drugs
Insurers often allege malingering if their in-house medical examiner cannot find an objective basis upon which to deny your claim. Or, they may claim your symptoms don’t quite match the objective evidence — therefore you must be exaggerating the pain or faking other symptoms.
It is no surprise that long term disability claims for medical and dental professionals cost insurance companies a lot of money. It is exactly why insurers hammer away at various tactics to delay and deny these particular claims.
Prime Targets for Allegations of Feigning Disability Include:
Accusations that medical professionals fabricate disability can occur with most any physical or mental impairment.
However, doctors and dentists with disabilities often get labeled as malingerers for symptoms and conditions that are difficult to quantify. For example, conditions such as Alzheimer’s or fibromyalgia have no definitive test to produce a diagnosis. The effects of medication can also produce disabling side effects that are subjective in nature.
Many times, the disabling symptoms of such conditions include
- chronic pain
- depression and anxiety
- chronic fatigue
- cognitive disability
It has become routine for some insurers to claim that a physician can easily exaggerate these symptoms. However, as disability attorneys we know that an absence of evidence is not evidence of absence.
Example: a dentist undergoes chemotherapy for colorectal cancer. The dentist experiences on-going cognitive changes associated with the cancer-therapy, and is diagnosed by his treating physician to have chemotherapy cognitive impairment.
A significant decrease in mental sharpness has caused him great trouble in concentrating on and performing the procedural and mental duties in his dentistry practice. For this, he has filed a claim for disability insurance benefits.
The insurance company orders the dentist to undergo an Independent Medical Examination (IME). The insurer’s examining doctor performs a neuropsychological evaluation to assess the dentist’s cognitive, motor, behavioral, linguistic, and executive functioning.
The exam shows impairment in cognitive thinking and in motor and executive functioning. However, this does not prevent the insurance company from raising allegations of feigning disability. The insurer claims the dentist was exaggerating his symptoms and was not giving his best effort in taking the exam.
How Insurers Show the Physician is Feigning Disability
Conclusions of malingering are not medical diagnoses. A battery of physical tests are given to determine malingering. These tests are not based on objective medical facts, and results can be questionable at best in the wrong hands.
Functional Capacity Evaluations (FCEs) are frequently used by insurance companies as a way to measure a claimant’s functional and physical abilities, such as lifting and gripping. Yet FCEs do not accurately predict what a person can or cannot do in a day-to-day work situation.
One FCE test is the grip strength test. The claimant repetitively and rapidly squeezes a handle, alternating hands. If your grip is normal or weak, the test results produce a bell shaped curve. The theory is that you cannot consciously control how hard you grip the handle in a rapidly alternating exchange.
If the results are not bell-shaped, you may be alleged of faking your hand strength. Once the insurance company has this allegation to stand on, they can allege malingering on other tests that support your disability. They are casting widespread doubt on your credibility.
The insurance carrier may conduct a psychological test in attempt to show malingering. The insurer may also try to prove malingering by hiring private investigators to observe claimants and record their actions via video surveillance and other means.
If your insurance company believes it has possible grounds to claim malingering or feigning disability, they may also try to validate their positions via various other tactics, including:
- Independent medical examinations
- Unreasonable requests for records
They will used these and other methods to suggest the disabled physician, dentist or nurse has stopped working by choice, not because they are truly disabled.
How Our Attorneys Defeat Allegations of Feigning Disability
To counter these allegations, our law firm executes close case management of your disability claim. We can challenge and disprove the insurer’s FCE on their subjective nature so they will not stand up in court. Our firm will perform our own testing to show that physical limitations do prevent you from performing the duties of your own occupation.
Additionally, we will look for any evidence showing that the insurance company, in their efforts to claim malingering:
- Used wrong or inappropriate tests
- Selectively reported test results
- Concluded malingering even if you passed the tests
- Ignored your treating physician’s diagnosis and record of treatment
We make sure the insurer does not have opportunity to paint your case with accusations of malingering or exaggerating impairment. We help you and your treating physicians maintain and submit clear, timely medical and vocation records.
Our disability attorneys ensure there are no gaps in treatment or missed medical appointments, there is no doctor shopping, and that IMEs and vocational exams ordered by the insurer are (1) attended on time and (2) you are fully informed about what occurs in these exams and know what to expect.
We develop your case with substantial, credible supporting evidence to make a convincing presentation to the Courts. As needed, our lawyers arrange a battery of additional tests through our own (neutral) independent examinations and supporting opinions of other third party medical and vocational experts.